Lords Sitting of 25 March 2004

Preamble
The House met at eleven of the clock: The CHAIRMAN OF COMMITTEES on the Woolsack.
Prayers—Read by the Lord Bishop of Portsmouth.

Hepatitis C
Lord Morris of Manchester: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest, not a financial one, as president of the Haemophilia Society.
The Question was as follows:
To ask Her Majesty's Government whether they will reconsider their decision to exclude the widows of patients infected with hepatitis C by contaminated National Health Service blood and blood products from help under the ex gratia Payments scheme.
The Parliamentary Under-Secretary of State, Department of Health (Lord Warner): My Lords, the Government have great sympathy for the pain and hardship suffered by the widows of those inadvertently infected with hepatitis C. However, it has always been clear that the ex gratia payments scheme known as the Skipton Fund is not designed to compensate for bereavement. As such, there are no plans to reconsider that decision.
Lord Morris of Manchester: My Lords, while again I acknowledge the breakthrough achieved by John Reid's announcement of the scheme, can my noble friend say what it will cost and from which budget or budgets? Meanwhile, how can any of us justify excluding widows? Is not theirs the cruellest loss, having seen a husband and father die what my noble friend Lord Winston describes as a,
"slow, agonising death from cirrhosis or liver cancer due entirely to contaminated NHS blood products"?
Infected with hepatitis C, they were denied life assurance, and the onset of liver disease forced many into early retirement, so impoverishing their families. Where is the natural justice in including widows in the existing ex gratia scheme for HIV infection, while excluding them from this scheme? And where is the morality in denying parity of treatment to widows in identically the same tragic position?
Lord Warner: My Lords, again I pay tribute to the work done by my noble friend and the Haemophilia Society in pursuing the issue. But the underlying principles of the scheme that has been announced is that it should be targeted to help to alleviate the suffering of people living with inadvertent—I stress, inadvertent—hepatitis C infection. The fund is not designed to compensate for refusal of cover, loss of earnings or bereavement. I understand the problems that my noble
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friend has outlined, but my understanding is that hepatitis C does not automatically preclude someone from gaining life assurance.
It is difficult to predict the cost of the scheme and the number of people who will benefit, but our best estimates are that between 6,000 and 7,000 people will benefit from the scheme. I can reassure my noble friend that the department will honour all valid claims.
Lord Addington: My Lords, does the Minister not agree that we have heard in the past a great deal of resistance to our making any payment to those infected with hepatitis C in very similar terms to the resistance we have heard about giving it to families of those who have died as a result of the infection? Under those circumstances, would it not be sensible to consider making a payment to those who are suffering financially in exactly the same way?
Lord Warner: My Lords, I am in danger of repeating myself. We have made absolutely clear the basis of the scheme: to alleviate suffering among those who are living and have suffered as a result of the infection. It is not a compensation scheme. All credit is due to my right honourable friend the Secretary of State for Health, who decided last summer to bring the scheme into operation.
Earl Howe: My Lords, when the noble Lord, Lord Morris, asked a similar Question some time ago, the Minister commented that the equivalent schemes for compensating haemophiliacs in Canada and the Irish Republic, which are much more generous than the scheme that the Government have now proposed, were based on the fact that the governments of those countries had accepted liability for the damage that took place. Can the Minister confirm the Answer that he gave before, because my information is different from his?
Lord Warner: My Lords, I am grateful to the noble Earl for giving me the opportunity to clarify the issue. My understanding of the position in Ireland, which has been corroborated by officials in the Department of Health and Children in Dublin since my last utterances on the subject in the House, is that the Irish Government set up their hepatitis C compensation scheme following evidence of negligence by the Irish Blood Transfusion Service. A judicial inquiry, the Finlay report, found that "wrongful acts were committed". It is important to stress that the blood services in the UK have not been found to be similarly at fault. Compensation is therefore being given in very different, specific circumstances in Ireland that do not apply in the UK. I do not believe that the Irish scheme creates any precedent for us.
The awards being made in Canada follow a class action brought against the Canadian Government. The compensation from the federal government is limited to those infected between 1986 and 1990. Subsequent inquiries found that wrongful practices had been employed, and criminal charges were made against organisations including the Canadian Red Cross Society. Those conditions in Ireland and Canada do not apply in the UK.
Lord Ackner: My Lords, firstly I appreciate that, whenever I hear the Government express sympathy, I irritate them by pointing to the millions of pounds a year spent on victims of violent crime for whom the Government have not the slightest responsibility, whereas in this case the Government actually injected the substance. But for the fact that negligence must be proved, they would be liable.
Secondly, will the Minister explain, not why damages for bereavement are not provided, but why no damages for loss of dependency are provided? That is a separate head of damage which, if there were liability, would have had to be accepted by the Government.
Lord Warner: My Lords, I always bow to the noble and learned Lord in his knowledge of the law, but it is not my responsibility to answer for criminal compensation schemes. I am sure that my noble friend Lady Scotland will read his comments with interest. A line must be drawn somewhere on eligibility for this scheme. As I said in answers to previous supplementary questions, there was no case of negligence by the National Blood Service. The lines have been drawn on the basis that I have explained, and there is nothing more that the Government can say on this issue.
Lord Denham: My Lords, the Minister cannot say that it is not his department that is concerned. The noble Lord answers in this House for Her Majesty's Government.
Lord Warner: My Lords, I confirm that I answer for Her Majesty's Government, but the subject of the criminal injuries compensation scheme is outside the remit of the Department of Health.
A noble Lord: My Lords—
Lord Warner: My Lords, may I finish? The subject is also wide of this Question.

Ofcom
11.14 a.m.
Baroness O'Neill of Bengarve Baroness O'Neill of Bengarve asked Her Majesty's Government:
Whether Ofcom's use of the hybrid term "citizen-consumer" fully accords with Section 3 of the Communications Act 2003 which sets out separate duties towards citizens and consumers.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord McIntosh of Haringey): My Lords, the separation of the two duties is deliberate, and the intention, as I said in the House on 16 July last year, is that,
"Ofcom must strive to further the interests of both consumers and citizens, as appropriate, and with equal vigour … We absolutely believe that the consumer interest is normally best served by competition, but in citizen interest issues, competition is not the only solution".—[Official Report, 16/7/03; col. 861.]
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I trust that Ofcom is fully aware of these points and will pay them due regard when carrying out its functions. How Ofcom expresses them in its public statements is a matter for Ofcom.
Baroness O'Neill of Bengarve: My Lords, I thank the Minister for his reply. Does he agree that although most citizens are consumers, and most consumers are citizens, duties to further the interests of citizens and consumers—which Parliament distinguished after long debate in this House—are distinct, should not be amalgamated and cannot be judged by a merged benchmark? Does he further agree that Ofcom's statement that its overall mission is:
"To further the interests of the citizen-consumer where appropriate by encouraging competition",
represents a risky amalgamation of duties that Parliament separated?
Lord McIntosh of Haringey: My Lords, the noble Baroness, Lady O'Neill, is expressing the view that was debated in the House at considerable length. The Government agreed with it then and agree with it now.
The Lord Bishop of Southwell: My Lords, do the Government think that it is in the citizens' best interests that Carlton-Granada prepares to close its Nottingham studios, given that the Communications Act 2003 is supposed to provide programmes of particular interest to people living in all parts of the region that it serves? Are the Government prepared to monitor the outcome of this proposal in relation to Ofcom regulations?
Lord McIntosh of Haringey: My Lords, that is substantially wide of the Question on the Order Paper. Much as I am tempted to give my views, I should not.
Baroness Buscombe: My Lords, is it not right that the right reverend Prelate the Bishop of Southwell has come up with a good practical example of the role that Ofcom must play as regulator? During the passage of the Communications Act 2003, it was suggested at some length that the term "citizen" reflects a long-term interest, while "consumer" invariably reflects a more short-term perspective. The importance of the future of these studios is surely something in which Ofcom should play a role, as looking after the interests of citizens.
Lord McIntosh of Haringey: My Lords, the Communications Act, as the noble Baroness. Lady Buscombe, will remember, contains provision for minimum quotas of regional production and of production designed for people in particular regions. I am sure that Ofcom has been monitoring that point when considering the issue of which studios should be open or closed. That is the context in which the opening or closing of studios must be considered.
Lord McNally: My Lords, I appreciate that the Minister is playing the ministerial straight bat on this, but does he agree that the noble Lord, Lord Currie,

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and his bright young men are extremely lucky not to be before the Bar of the House for contempt of Parliament? He knows well that these words were part of a specific deal that allowed this Bill to go through only after the special pleading of the noble Lord, Lord Currie, which removed reference to the citizen in the prime duty of Ofcom? This was a real betrayal of Parliament's intent, which an independent regulator should take on at its peril. I read from a quote from the noble Lord, Lord Puttnam, who unfortunately cannot be here today. In a letter to the noble Lord, Lord Currie, he wrote:
"This fundamental distinction can only be distorted by a continuing reference to this hybrid 'citizen-consumer'. I beg you to drop it, because by using it the only organization guilty of 'conflation' and 'artifice' is Ofcom!"
That is absolutely true. Ofcom should drop this immediately.
Lord McIntosh of Haringey: My Lords, I have explicitly and unequivocally confirmed the view of this House last summer and the Government's view on it at that time and now. I do not think that it helps to indulge in more flowery language. Our position has been made clear. Ofcom is independent, and we do not control what it says. If we do not like it, we are by corollary entitled to say so.

Police Service of Northern Ireland: Sinn Fein Claims
11.19 a.m.
Lord Brooke of Sutton Mandeville Lord Brooke of Sutton Mandeville asked Her Majesty's Government:
Whether they will place advertisements in the press in the United States refuting the claims against the Police Service of Northern Ireland by Sinn Fein.
The Lord President of the Council (Baroness Amos): No, my Lords. Ministers from the British and Irish Governments, the US Administration and Members of the SDLP have all refuted Sinn Fein's claims.
Lord Brooke of Sutton Mandeville: My Lords, I thank the noble Baroness for her Answer. Since Sinn Fein spent on this advertisement a sum that represented nearly half of what it spent on the last Assembly elections, it was clearly intended to be a significant statement. In past decades, the British Government have contested case after case in state after state in America to protect American investment in Northern Ireland jobs against the McBride principles.
I appreciate what has been said, including by Dr Reiss the President's envoy, but it is not the same thing as the British Government exposing in the United States the calumnies against the Police Service of Northern Ireland that the Sinn Fein advertisement represents. Why will the Government not put their head publicly above the parapet?
Baroness Amos: My Lords, I appreciate the concerns being raised by the noble Lord, Lord Brooke. He will be aware that there were a number of people in the United States last week, including my right honourable friend the Secretary of State for Northern Ireland, the Chief Constable of the PSNI, the chairman of the Policing Board and the Police Ombudsman. There was a very clear statement from the President of the United States who told a White House gathering:
"I want to thank Chief Constable Hugh Orde; he is implementing the policing reforms of the Good Friday Agreement; even the greatest sceptic of the Good Friday Agreement would admit that the policing reforms are working".
We made inquiries about making a statement refuting the Sinn Fein claims. That was not accepted by the New York Times, which said that that is not the way that it works. We felt very clearly that the public denouncement through the Secretary of Slate for Northern Ireland and others was enough at this point in time.
Lord Eden of Winton: My Lords, can the noble Baroness say whether there is any continuing financial support from North America for terrorism in Ireland?
Baroness Amos: My Lords, I would need more information from the noble Lord about what he had in mind when he asked me that question.
Lord Glentoran: My Lords, why is it that Her Majesty's Government are always so far behind the ball when they are dealing with terrorism that requires actions rather than rhetoric, particularly in Northern Ireland? When will they listen and hear what the noble Baroness's colleague, Harriet Harman, said on "Question Time" about appeasement? She was extremely strong. She said that appeasement must stop; there must be no appeasement. In Northern Ireland we have lived with this Government's appeasement of terrorism. When will that stop?
Baroness Amos: My Lords, I completely refute that allegation. The noble Lord knows that we have worked tirelessly. We have said very clearly that paramilitary activity must stop. Even as recently as this Tuesday, when my right honourable friend the Prime Minister was in Belfast with the Taoiseach, that was made absolutely clear.
Lord Smith of Clifton: My Lords, will the Lord President of the Council confirm that the British Embassy in Washington does its best through its information services to refute such allegations? Does she take comfort, as I do, that not merely Dr Reiss condemned the advertisement as untrue, but that the Friends of Ireland group led by Senator Edward Kennedy also refuted it? Does she agree that Sinn Fein is rapidly facing a crucial point of departure either to renounce all IRA violence and participate fully in the Policing Board or to jeopardise the devolution settlement in Northern Ireland?
Baroness Amos: My Lords, I totally agree with the noble Lord, Lord Smith, in respect of the roles played by our embassy in Washington, the Consulate General in New York and those in other parts of the United States where we make every effort to refute allegations. The noble Lord is right that others, including Senator Kennedy, have made their views on this well known. We have all said that it is important that Sinn Fein participates in the process. We need two different things. We need an end to paramilitary activity and we need a fully inclusive democratic process in Northern Ireland. That is what will deliver peace.
Baroness Park of Monmouth: My Lords, why could we not spend a little money on taking out an advertisement, as Sinn Fein did, since no one will publish our comments? An advertisement need point out only that there are still very few Catholics in the new Police Service simply because when Gerry Adams was asked how he would treat new Catholic entrants he said that they would be treated as they were before; and the first graduate was shot.
Baroness Amos: My Lords, the noble Baroness will be aware that there are different ways strategically in which we make decisions about how best to refute claims and allegations. We looked at a number of different options open to us. We felt strongly that the very public views being expressed by my right honourable friends the Secretary of State for Northern Ireland and the Prime Minister, the President of the United States and others were one way of dealing with this.
The change of the situation in Northern Ireland is complex. The noble Baroness will be aware that in terms of recruitment to the Police Service of Northern Ireland, we have seen an increase in recruitment from the Catholic community from 8 per cent to 14 per cent. Over time, that is changing slowly. These are messages that we need to get out in a variety of forms.
Lord Skelmersdale: My Lords, given that the IRA per se and not IRA/Sinn Fein and its successors is now seen by the Government to be a legal, reasonable and responsible organisation, who is getting extortion money from the vice rings and tax surcharges in Belfast?
Baroness Amos: My Lords, I do not know the answer to that question. The noble Lord will be aware that concerns have been expressed about the links between organised crime and various paramilitary organisations in Northern Ireland. I have no answer to the specific question raised by the noble Lord, but if I am able to glean any further information from the Police Service of Northern Ireland and others, of course I shall write to him.
Lord Kilclooney: My Lords, does the noble Baroness agree that the ever-increasing number of Roman Catholic members of the Police Service of Northern
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Ireland is welcomed by the large majority of people in Northern Ireland? It is the most direct answer to the Sinn Fein nonsense in the New York Times.
Baroness Amos: My Lords, the noble Lord is right. Of course, what the people of Northern Ireland want to see is a police service that reflects the community that it serves.

Africa: Prime Minister's Commission
11.27 a.m.
Lord Campbell-Savours Lord Campbell-Savours asked Her Majesty's Government:
What they hope to achieve through the Prime Minister's Commission for Africa.
Baroness Amos: My Lords, we are determined to achieve accelerated progress towards the millennium development goals in Africa. The commission will set out the facts on Africa and its assessment of past and present policy on Africa, where it has worked, where it has failed and where more could be done. On that basis, it will make policy recommendations to governments in Africa and internationally, and to other development actors.
Lord Campbell-Savours: My Lords, we all know that the Prime Minister is deeply committed to this initiative. However, we have already had the Brandt report. We have had a whole series of reports from the United Nations. We have had the work from the New Partnership for Africa's Development. A lot of work has been done already. How can we be sure that on this occasion, this partnership and these organisations will deliver and that this new initiative will make any difference?
Baroness Amos: My Lords, my noble friend is right to observe that there has been a great deal of analysis. The key issue here is what will change and what will be different. My noble friend rightly pointed out the commitment of my right honourable friend the Prime Minister to Africa and, of course, that of the Government as a whole. Things will be different. The Commission for Africa is a joint north/south collaboration, which is reflected in its membership, while the Brandt Commission was the north looking at the south. It very much keeps the political focus on Africa and we have made it clear that when we come to chair the G8 summit next year, Africa will be at the top of our agenda.
The commission seeks to take a genuine look at what more can be done, including considering the issue of economic development in Africa, which I fear has been excluded from much of the analysis.
Lord Avebury: My Lords, no one doubts the Prime Minister's commitment to Africa and we welcome the priority to be given to African issues at the forthcoming G8 summit. Can the noble Baroness say how this commission can make a specific contribution towards the solution of Africa's many internal conflicts, of which the latest is that in Darfur, where over 1 million people have been displaced? What does she think the commission will be able to do to stop multinationals and governments from colluding to hide revenues from their own people and allowing widespread embezzlement by corrupt officials and Ministers in states such as Zimbabwe and Equatorial Guinea?
Baroness Amos: My Lords, the noble Lord, Lord Avebury, is quite right. We all know that 20 per cent of the populations in African countries are living either in circumstances of direct conflict or in countries which have just come out of conflict. That is having a huge impact on economic development. One of the themes which we hope will be looked at by the commission, which holds its first meeting on 4 May, is the issue of conflict resolution and peace building. Of course, the particular lessons to be learnt from the conflicts in Sudan, the DRC and others will be investigated.
I turn to the issue of hidden revenues. The noble Lord, Lord Avebury, will know that we have pioneered the Extractive Industries Transparency Initiative. This is a voluntary initiative, but we hope that it will not stop there. The considerable wealth which a country like Angola could enjoy needs to be shared with its people rather than being siphoned off to companies and those at the top of the administration.
Lord Howell of Guildford: My Lords, I am sure that the commission is well intentioned and well meant in its aims. However, is it not worth noting, as the noble Lord, Lord Campbell-Savours, has already hinted, that there is already a UN commission on Africa, a European Union commission on Africa, a Commonwealth commission and countless other commissions and committees? If commissions and committees could solve development problems, Africa would be a rich and prosperous place. Is it not obvious that the most serious problems affecting Africa, over and above the short-term issues of starvation through food shortages caused by drought and so forth, lie in the lack of the rule of law and the lack of good governance? That is where we should concentrate our efforts. If we could do more—in a more resolute way—to bring good governance to Zimbabwe, we would be doing more for the people for Africa than these endless commissions.
Baroness Amos: My Lords, this commission is about more than being well intentioned. It concerns providing a political impetus and taking action. The themes on which we shall concentrate, which we hope will be decided at the 4 May meeting, will be the economy; human development; conflict resolution
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and peace building, which I have already mentioned; governance—mentioned by the noble Lord; natural resources, as well as culture, heritage and participation. While I agree that governance is important, we cannot look at it in isolation. Further, we have to work in a collaborative way between the north and the south if what is happening in Africa is to be reversed.
Lord Hughes of Woodside: My Lords, given that Africa's problems are serious and deep rooted, should we not welcome initiatives which look at ways of solving the matter instead of accepting this constant pessimism and downgrading of any initiatives? The negativity which greets new initiatives simply bears out the view that many people in this country and elsewhere are not really interested in Africa; they are only interested in making a fuss.
Baroness Amos: I totally agree with my noble friend. We must continue to focus on what is happening in Africa. It is a matter of grave concern that, in terms of the millennium development goals, Africa is the one continent where we seem to be going backwards rather than forwards. The Government's commitment to doing something about that should be welcomed. Indeed, it would be helpful if the Benches opposite would let us know whether the commitment that this Government have given to international development and the growing international development budget will be maintained.
Baroness Thomas of Walliswood: My Lords, while I welcome the Government's interest in Africa's problems, can the noble Baroness give a reassurance that the questions of reproductive health and the contribution that women can make to the economy of a country once they gain control over their own fertility will not be sidelined in favour of concentrating on HIV/AIDS issues, serious though those problems are?
Baroness Amos: My Lords, the noble Baroness is right to point out that we need to adopt a much more integrated approach: it is not just about reproductive health, HIV/AIDS or maternal and infant mortality, rather, it is about looking at the inter-connectedness between a range of issues and, in particular, focusing on the contribution that women can make to economic development.

Business of the House: Tuesday, 30 March and Thursday, 1 April
11.35 a.m.
Baroness Amos: My Lords, I beg to move the first Motion standing in my name on the Order Paper.
Moved, That leave be given to advance the Motions for approval of the Community Legal Services (Scope) Regulations 2004; the Courts Boards Areas Order 2004; and the Courts Boards (Appointments and Procedure) Regulations 2004 from Thursday 1 April to Tuesday 30 March.—(Baroness Amos.)
On Question, Motion agreed to.

Business of the House: Standing Order 41
Baroness Amos: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That Standing Order 41 (Arrangement of the Order Paper) be dispensed with on Thursday 1 April to allow the Motions standing in the names of the Lord Lucas and the Lord Shutt of Greetland to be taken immediately after the Public Audit (Wales) Bill [HL].—(Baroness Amos.)
On Question, Motion agreed to.

Public Audit (Wales) Bill [H.L.]
Lord Evans of Temple Guiting: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the amendments for the Report stage be marshalled and considered in the following order:

Clauses 1 to 50,

Schedule 1,

Clauses 51 to 64,

Schedule 2,

Clauses 65 and 66,

Schedule 3,

Clauses 67 to 70,

Schedule 4,

Clauses 71 to 73.—(Lord Evans of Temple Guiting.)

On Question, Motion agreed to.

National Minimum Wage Regulations 1999 (Amendment) Regulations 2004
Lord Davies of Oldham: My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the draft regulations laid before the House on 18 March be approved [13th Report from the Joint Committee].—(Lord Davies of Oldham.)
On Question, Motion agreed to.

Domestic Violence, Crime and Victims Bill [H.L.]
11.36 a.m.
Read a third time.
Clause 5 [The offence]:
Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No. 1:
Page 3, line 20, at end insert ", but in the interests of natural justice—

(a) the prosecution shall have provided particulars of grounds and circumstances in support of allegations that either alternative applies to enable D to know the substance of the case to answer at the trial charged with this unitary offence having regard to the disparity of criminal conduct under the first alternative on which D committed the act which occasioned death as compared with the diverse quality of criminal complicity under the second alternative on which such act was committed by another of which D ought to have been aware foreseen and prevented; and

(b) on conviction a verdict which identifies the relevant alternative shall be returned so that the basis of the conviction shall be known."

The noble Lord said: My Lords, in moving this amendment I thank my noble friend Lady Anelay of St Johns for her support. This amendment in no way slights the general intendment of Part 1 of the Bill. The object is to introduce safeguards which ensure the implementation of Clause 5 in accordance with the due and fair administration of justice. To this end, and in the interests of natural justice, it is proposed in this amendment to require, under paragraph (a), that the accused should know the case he has to meet at trial, while under paragraph (b), that he should know the basis on which he was convicted.
This is a qualification to Clause 5(3) which, when read in context with Clause 5(1)(d), affords three distinct bases on which conviction for the offence may ensue. Clause 5 makes this a unitary offence which may be committed only by a member of the household against another member of the household in one of three ways, referred to in Clause 5(3) as the first and second alternative, there being no obligation on the Crown to prove on which of the alternatives conviction is sought.
The three bases are as follows. On the first alternative, the accused—named "D" in this drafting—did the unlawful act which caused the death. On the two limbs of the second alternative, the first asserts that the unlawful act was done by another and that the accused was aware of the risk, could foresee the kind of act, and failed to the steps he could reasonably have been expected to take to prevent it. The second limb of the second alternative is that he ought to have been aware of the risk; that he ought to have foreseen the kind of act and failed to take steps to prevent it.
It is a fundamental requirement of natural justice that the accused is entitled to know the case he will have to meet at the trial, as opened to the jury, and to have an opportunity to repair his reputation and prepare a defence to that case. The other fundamental concept is that he is assuredly entitled to know on what basis he has been convicted. At all events, the trial judge—before summing up, at least—must know on which basis the Crown seeks conviction; and, indeed, for the purpose of sentencing, on what basis the verdict was given. There is a disparate gravity of offence between the three bases, and the maximum sentence is 14 years.
There is a further reason why one should know the basis on which the accused was convicted. This applies, in particular, to the second alternative. The failure to take the steps which a person could reasonably have been expected to take is common to both limbs of the second alternative and is an essential ingredient for conviction. One could well ask if the jury should consider whether the steps that were taken by the accused were steps that he would reasonably expect to take or be expected to have taken, or whether they should consider the "reasonable man", who is not a member of the household, who does not have the characteristics of the accused and who would be ignorant of the domestic circumstances. Is it the test that the reasonable man would have taken steps which the accused himself did not take and would not have taken?
If the first limb does not apply because the accused was not aware of the risk and did not foresee the act—and the jury are so satisfied—how can he be convicted on the second limb of having taken no steps to prevent something of which he was not aware and did not foresee? It is of interest—although it is, in a sense, water under the bridge now that—the Law Society Amendments Nos. 12 and 13, which were moved at Committee stage by my noble friend Lady Anelay of St Johns and which have not been retabled—sought to remove the second limb.
Is it not apparent that, on appeal against either conviction or against sentence—and there is ample scope for appeal on this direction on the second alternative—the Court of Appeal (Criminal Division) must know on which of the three bases the appellant was convicted? Inevitably in regard to this singular offence—"singular" in the sense that it may be committed only by a member of the household against another member of the household—on the second alternative, matters of construction arise as to whether the guilty mind is actual or the hypothetical concept of objectivity has to be established. The ultimate resolution of this may not be made by your Lordships or even by a court of first instance. Inevitably it will be afforded by the Appellate Committee of your Lordships' House. But to enable resolution at first instance and on appeal, the basis on which the conviction was made has to be known.
I hope that the amendment will commend itself. It in no way slights the general intendment of the Bill, which is acceptable to the party to which I adhere and, I gather, to all other parties. But, as a matter of justice, ought not the accused know what he has to meet and why he was convicted? Should he not have that knowledge—certainly on matters of construction on the second alternative—and the facility to appeal? I beg to move.
11.45 a.m.
Baroness Anelay of St Johns: My Lords, I have attached my name to the amendment to signal my support for my noble friend in the way in which he has sought to take one stage further forward the debates
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we had at previous stages of the Bill on this issue. I join with him, in particular, in making it clear that we support the objective of Clause 5.
Lord Thomas of Gresford: My Lords, I support the amendment. It is a perennial problem that the basis of a jury's verdict is not clear; the jury returns a verdict of guilty and the judge makes up his own mind, without any help from the jury, as to what has happened and sentences on his view. On many occasions these days, applications for a special verdict to be returned, so that the basis of the jury's verdict can be ascertained, are refused.
Let me give an illustration. I was involved in a drugs trial where the case against my client was that he was the "main man". After about an hour's retirement—and this was a case which had lasted for four months—the jury came back with the question, "Can we convict the defendant even though we do not think he is the main man?" It was a conspiracy case and the judge directed the jury, "Yes, you can". He was convicted. The judge in his sentencing said, "You are the main man" and gave him 25 years' imprisonment, which was significantly more than anyone else who had been convicted of that conspiracy. The judge had made up his own mind about the criminality of the particular defendant.
So in a case like this, where we are creating an offence which has two very clear bases—that the death was inflicted by one member of the family but the second member of the family is guilty because of a failure to prevent that death—it would be highly advisable that the judge should not be left to his own devices and that the jury should indicate, in one way or another, precisely the basis for their conclusion of guilty against a particular defendant.
It may be that I do not entirely go along with the wording of the noble Lord, Lord Campbell of Alloway, but I certainly go along with the spirit in which the amendment is brought forward. In an offence such as this, it is important that the jury, who have control of the case, should have the opportunity of expressing why they have come to the conclusion they have reached.
Lord Donaldson of Lymington: My Lords, I disagree with all three speakers. The noble Lord, Lord Campbell, suggested that there were three alternatives. Apart from the linguistic problem of that, there are not—there are only the two identified in the clause. However, my real objection is not to paragraph (a) in his amendment, but to paragraph (b). On paragraph (a), of course, it is highly desirable—so far as possible, I hope that this does occur—that the accused should know the factual basis of what is alleged against him. Perhaps I am not up to date, but I should have thought that that would be made clear by the prosecution as a matter of routine.
Where the noble Lord goes completely adrift in my estimation, however, is with paragraph (b). This is, as paragraph (a) says, a unitary offence. Furthermore, Clause 5 itself states that:
"The prosecution does not have to prove [which] alternative".

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Having done that, the noble Lord expects the jury to unpick the evidence and fit it into one box or the other. That is completely contrary to the approach of the clause.
Finally, there is an argument, although not one put forward by the noble Lord, about reasonableness. It is an interesting legal argument, but it will not be resolved, and certainly not by his amendment. Whether it can be resolved by a different amendment is different matter. We would have to consider whether it was the man on the Clapham omnibus or the member of the household whose reasonableness had to be judged. Leaving that aside, I cannot see anything wrong with the historic function of the judge as the person who fixes the sentence rather than the jury. He has heard the whole case and he is in at least as good a position as the jury to know what is the seriousness of the case in the context of many other similar cases of which the jury will be wholly ignorant.
It is quite wrong that the jury should be expected to give a verdict that unscrambles the unitary offence. The prosecution do not themselves have to opt for one or the other—or both. Also, I add a criticism of paragraph (a) of the amendment, which seems to assume that there is a necessary disparity between the first alternative, which involves being directly concerned with the death of the vulnerable child or adult, and the idea that the second alternative is necessarily much less heinous. If it is straightforward wilful murder, then yes, but if it is manslaughter, the heinousness of the two offences may well come close to each other. Certainly, I would not wish to try to split one from the other.
The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, I respectfully agree with the noble and learned Lord, Lord Donaldson of Lymington. In doing so, however, I wish to tell the noble Lords, Lord Campbell and Lord Thomas of Gresford, that I understand the concerns that they have expressed. Both in Committee and at Report, we discussed at great length why the new Clause 5 offence had been crafted in this way. The mischief that we seek to address is the very situation when it is not known which of the participants committed the offence. We crafted this offence to right a wrong that has been incapable of being addressed for some time.
I respectfully adopt the analysis of the noble and learned Lord, Lord Donaldson. Although I empathise with the sentiments expressed by both the other noble Lords, I cannot agree with them. To insist that the basis of the conviction must be known would defeat one of the main purposes of the offence. It would render prosecution and conviction impossible and would not enable us to crack the "which of you did it?" cases—the very ones involving such closed groups that we are determined to crack. Indeed, we believe that we have a duty to the victim to close this gap as far as possible.
I am sure that I need not remind noble Lords that we began by trying to create a package of measures to help us deal with the very same "which of you did it?"
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problem. We are dealing with a small group of people who must have committed manslaughter or murder, but there is insufficient evidence to confirm which one committed the act that caused the death. Sadly, in many of these cases, a young child has died and the family choose, for their own reasons, to remain silent or blame each other. That is not acceptable.
We had a very long debate about this matter on Report. I remind your Lordships that all the arguments are set out very fully in cols. 1048 onwards of the Official Report for 9 March. This amendment, although well intentioned, does nothing other than wreck new Clause 5. If this amendment were passed, Clause 5 would fall. I hear what the noble Baroness, Lady Anelay, says about accepting the need for the provision, but if one accepts the need for Clause 5 one cannot support the amendment. The amendment would be fatal to Clause 5, which would fall.
Lord Campbell of Alloway: My Lords, I thank all noble Lords who have spoken in this debate. So far as the Minister is concerned, this is not the first occasion on which it has been said that the clause was crafted—not drafted—so the amendment is not acceptable, as if the crafting involved the cutting of a fine jewel with minimal fault and was a sort of apogee of artistry. This Bill is not like that. We accept its general intent but the drafting—not the crafting—has already suffered a series of government and opposition amendments, including amendments to the Long Title.
This amendment is said to have been put forward on the Floor of the House as a wrecking amendment, but it is no such thing. It may render it a little more difficult to achieve what could well be an unjust objective. There is a presumption of innocence. Even the householders have a presumption of innocence. The Crown still has to prove its case even if it does not have to say which case it wants to prove. This is a totally one-off, novel situation.
In answer to the noble and learned Lord, Lord Donaldson of Lymington, I cannot remember winning any case in which I appeared before him. I always had to go to Lord Denning in the Court of Appeal, and lost on only one occasion. I understand his analysis, but I have never been very comfortable with it.
We remain friends of course, but we simply do not agree on legal analysis and never have done. So nothing which should emanate from the eminence of the Cross Benches on this occasion from the noble and learned Lord surprises me. However, when he stuck on the interpretation of the two alternatives, the noble and learned Lord totally missed the essential point of my argument, which was that there were three bases for conviction. That was seized on by the noble Lord, Lord Thomas of Gresford. I am grateful to him because I have not sought, and I never do, the support of anybody for this amendment. I am very heartened that he should have seen the fundamental problem for the judge, which has been totally ignored by the noble and learned Lord.

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This is not a time for further argument; it is certainly no occasion for that. However, there is no assurance that the accused shall know the case he has to meet; there is no assurance that he shall know of what he is being convicted. In my book, that is contrary to the fundamental principles of natural justice and I wish to take the opinion of the House—win, lose or draw—because I believe that that is the right way to go about it.
12.02 pm
On Question, Whether the said amendment (No. 1) shall be agreed to?
Their Lordships divided: Contents, 34; Not-Contents, 145.

Division No. 1

CONTENTS

Allenby of Megiddo, V.

Northesk, E.

Anelay of St Johns, B.

Palmer, L.

Biffen, L.

Park of Monmouth, B.

Brougham and Vaux, L.

Pilkington of Oxenford, L.

Campbell of Alloway, L.[Teller]

Plumb, L.

Carrington, L.

Powell of Bayswater, L.

Cope of Berkeley, L.

Renton, L.

Eden of Winton, L.

Saltoun of Abernethy, Ly.

Feldman, L.

Seccombe, B. [Teller]

Geddes, L.

Sharples, B.

Gilmour of Craigmillar, L.

Shaw of Northstead, L.

Hayhoe, L.

Stoddart of Swindon, L.

Hylton, L.

Thatcher, B.

Jopling, L.

Waddington, L.

Laird, L.

Wade of Chorlton, L.

Lang of Monkton, L.

Windlesham, L.

Mowbray and Stourton, L.

Wolfson, L.

NOT-CONTENTS

Acton, L.

Dixon, L.

Addington, L.

Donaldson of Lymington, L.

Ahmed, L.

Donoughue, L.

Amos, B. (Lord President of the Council)

Dubs, L.

Elder, L.

Andrews, B.

Evans of Parkside, L.

Ashton of Upholland, B.

Evans of Temple Guiting, L.

Avebury, L.

Ezra, L.

Bach, L.

Falconer of Thoroton, L. (Lord Chancellor)

Barnett, L.

Bassam of Brighton, L.

Falkland, V.

Bernstein of Craigweil, L.

Farrington of Ribbleton, B.

Billingham, B.

Faulkner of Worcester, L.

Blackstone, B.

Filkin, L.

Boothroyd, B.

Fyfe of Fairfield, L.

Boston of Faversham, L.

Gale, B.

Bradshaw, L.

Gibson of Market Rasen, B.

Bridges, L.

Golding, B.

Brookman, L.

Goldsmith, L.

Burlison, L.

Goodhart, L.

Campbell-Savours, L.

Goudie, B.

Carter, L.

Greaves, L.

Chan, L.

Greenway, L.

Christopher, L.

Grocott, L. [Teller]

Clarke of Hampstead, L.

Hamwee, B.

Clinton-Davis, L.

Harris of Richmond, B.

Corbett of Castle Vale, L.

Harrison, L.

Craig of Radley, L.

Haskel, L.

Crawley, B.

Hayman, B.

Dahrendorf, L.

Hogg of Cumbernauld, L.

Davies of Oldham, L. [Teller]

Hollis of Heigham, B.

Dean of Thornton-le-Fylde, B.

Hooson, L.

812

Howarth of Breckland, B.

Rendell of Babergh, B

Howe of Idlicote, B.

Richard, L.

Hoyle, L.

Rodgers of Quarry Bank, L.

Hughes of Woodside, L.

Rooker, L.

Hunt of Kings Heath, L.

Roper, L.

Irvine of Lairg, L.

Sainsbury of Turville, L.

Janner of Braunstone, L.

Sawyer, L.

Jay of Paddington, B.

Scotland of Asthal, B.

Jones, L.

Scott of Needham Market, B.

Jordan, L.

Sharman, L.

King of West Bromwich, L.

Sheldon, L.

Lea of Crondall, L.

Shutt of Greetland, L.

Lester of Herne Hill, L.

Simon, V.

Lipsey, L.

Smith of Clifton, L.

Listowel, E.

Smith of Gilmorehill, B.

Livsey of Talgarth, L.

Stone of Blackheath, L.

Lofthouse of Pontefract, L.

Strabolgi, L.

McIntosh of Haringey, L.

Strange, B.

MacKenzie of Culkein, L.

Symons of Vernham Dean, B.

Mackenzie of Framwellgate, L.

Temple-Morris, L.

Maclennan of Rogart, L.

Tenby, V.

McNally, L.

Thomas of Walliswood, B.

Maddock, B.

Thomson of Monifieth, L.

Maginnis of Drumglass, L.

Tomlinson, L.

Mar and Kellie, E.

Marsh, L.

Tordoff, L.

Masham of Ilton, B.

Triesman, L.

Massey of Darwen, B.

Turner of Camden, B.

Methuen, L.

Wallace of Saltaire, L.

Miller of Chilthorne Domer, B.

Walmsley, B.

Mitchell, L.

Walpole, L.

Morris of Aberavon, L.

Warner, L.

Morris of Manchester, L.

Warwick of Undercliffe, B.

Nicol, B.

Wedderburn of Charlton, L.

Northover, B.

Whitaker, B.

Oakeshott of Seagrove Bay, L.

Whitty, L.

Patel of Blackburn, L.

Wilkins, B.

Pitkeathley, B.

Williams of Crosby, B.

Ponsonby of Shulbrede, L.

Williams of Elvel, L.

Prys-Davies, L.

Williamson of Horton L.

Razzall, L.

Wilson of Tillyorn, L.

Redesdale, L.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
12.12 p.m.
Lord Monson Lord Monson moved Amendment No. 2:
Page 3, line 24, leave out paragraph (b)
The noble Lord said: My Lords, when at Report stage we debated subsection (3) of Clause 4 as it then was, and subsection (4) of Clause 5 as it now is, I moved an amendment that would have slightly improved the grammar of the eccentrically worded paragraph (b), to make it at least a little more comprehensible to those who will have to interpret it in the future. However, it became evident in the course of that debate that the confusing paragraph (b) is not necessary, and that therefore by far the better course would be to delete it all together.
In the course of the Report stage debate, the Minister confirmed my tentative interpretation of the Explanatory Notes; namely, that unless the under-16s are the parents of the child, those under 16 at the time of the offence will be totally, unconditionally exempt from prosecution whatever the circumstances. In other words, even if the under-16s are physically strong enough and mentally tough enough to intervene to try to stop the crime, they will be under no legal obligation to do so and accordingly could never be prosecuted.
I suppose that it could be argued that paragraph (b) provides some sort of philosophical justification for paragraph (a), but it is not normal to pad out Acts of Parliament with philosophical explanations; otherwise the statute book would be three times as bloated as it already is. Those sorts of explanations are the job of the Minister in charge of the Bill, assuming the Bill is a government one, at Second Reading and as and when necessary at subsequent stages of the Bill, together of course with the aid of the Explanatory Notes accompanying the Bill.
Having said that, within the past three minutes, literally, I have received a letter from the Minister which seems to refute some of what I have to say. She argues that paragraph (b) is necessary, and no doubt she will come to that when she replies. She argues that despite the apparent wording of paragraph (a), there might be circumstances in which someone could be prosecuted once they are 16 for something that they did not do when they were not yet 16. That is not the way that I look at paragraph (a). However, I am not a lawyer and she is; she obviously has the upper hand here.
Anyhow, if the provision is indeed necessary to prevent an unjust prosecution then perhaps it had better stay in, although I should hope that the other place would tidy up the wording and the grammar to make it easier to understand and less confusing. However, if it is not necessary, it is surely in the public interest to remove anything that is redundant and possibly confusing. I beg to move.
12.15 p.m.
Lord Renton: My Lords, Clause 5, as I said at an earlier stage of the Bill, is unacceptably drafted. I do not like this method at all. I think that the way in which it is being used will cause confusion. Amendment No. 2 helps to simplify the drafting a little. I hope that the Government will regard it with sympathy.
Baroness Scotland of Asthal: My Lords, I am very sorry that the noble Lord, Lord Monson, has only just received my letter. I note from my copy that it was sent on 23 March. I know that it sometimes takes a little time. I am sorry that he has not had a longer opportunity to consider it.
The noble Lord has taken a particular interest in the provisions of subsection (4), which is a welcome reflection of his concern to ensure that we do not include anything in the Bill that is unnecessary or misleading. However, as I have previously explained, I am absolutely convinced that Clause 5(4)(b) is necessary. Perhaps I may set out why I believe that that is so.
The measure is important because the process of taking "reasonable steps" is not usually a single event but a course of conduct that takes place over a period of time. Clause 5(4)(a) ensures that a person is not charged with the offence if they are under 16, whereas Clause 5(4)(b) is intended as a safeguard to ensure
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that, once they have turned 16, they are not held responsible for taking reasonable steps before they were 16.
We see a need to ensure the exclusion of any part of the course of conduct that may have taken place before the defendant's 16th birthday which leaves them in a position now, at age 16, of not having taken reasonable steps. It may be that, even without this clause, a court would not have convicted a person in this situation, but we need to be certain, which is why we have introduced this important safeguard. It was decided that one should have this responsibility at 16-plus, not 16-minus. This provision simply underscores that and puts it beyond doubt.
I hope that the noble Lord will recognise that this clause is not superfluous and that it provides an important and necessary protection within the offence for those who are perhaps under 16 when the course of conduct started, but over 16 by the time the event actually occurred. Those are the reasons. However, I understand why the clarification I have just given was perhaps necessary.
Lord Monson: My Lords, I am grateful to the noble Lord, Lord Renton, for his qualified support and very grateful to the Minister. I do not think there is any fault on the part of her department. I was not in the House yesterday and her letter was hidden among a huge pile of mail that I received only 15 minutes ago. I have only just come across it in the course of going through that.
Of course the Minister knows better than I do the interpretation of Clause 4. I think it is very important to ensure that no unjust prosecution takes place. Therefore, if paragraph (b) is necessary, so be it. I should like to reiterate, though, that I hope the other place might be able to tidy up the wording. It still could be improved, as I think the noble Lord, Lord Renton, suggested. With that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 [Evidence and procedure: England and Wales]:
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 3:
Leave out Clause 6
The noble Lord said: My Lords, when a juryman takes an oath at the beginning of a trial he swears that he will faithfully try the defendant and return a true verdict according to the evidence. I emphasise two aspects of that: that he is to act in good faith; and that he is to act upon the evidence. It is the duty of the judge to determine, according to our procedures, whether there is sufficient evidence upon which a jury can safely return a verdict. The presumption of innocence means that the juryman will not agree to a verdict of guilty unless he is sure of guilt.
That has given rise to the problems, which have been addressed in Clause 5, where a death occurs within a household and it is impossible for a juryman to say beyond reasonable doubt, to be sure on the evidence, which of two or more parties killed the child or vulnerable adult. We have supported Clause 5 throughout the passage of the Bill

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although we have attempted to improve the wording, and succeeded to some extent. Even so, in Clause 5 there is a considerable difference between being the person whose act caused the victim's death and being the person who should have been aware of the circumstances in which the death occurred. Either of those two wide apart positions can result in a conviction under Clause 5.
The new offence follows the Law Commission's report. What the Law Commission did not do in its report was attempt to extend the principles behind this offence, dealing with a specific problem, to the law of murder or manslaughter. That is what Clause 6 refers to. Although Clause 6 is headed, Evidence and procedure: England and Wales, in effect it extends evidential provisions which are suitable for dealing with the new offence under Clause 5 to the position where a jury is considering not only the new offence but also on the indictment murder or manslaughter.
What is so objectionable is that Clause 6 creates a new way in which murder or manslaughter can be proved. Even if there is no case for him to answer in relation to murder or manslaughter, under Clause 6(2) a person may be convicted simply by remaining silent. That means that a juryman who conscientiously applies himself to his oath will convict a person of murder or manslaughter, not on the evidence because by the terms of the definition there is no case to answer—there is no evidence upon which a jury could safely convict of murder or manslaughter—but on a hunch, a guess. That is contrary to centuries of history of the English criminal law. For a juryman to be asked to guess between, shall we say, two people which one is guilty of murder or manslaughter simply because that person does not give evidence or has failed to reply to questions put to them by the police, and to convict a person in that way, is contrary to that juryman's oath.
I pointed out on Report that when we are dealing with a death in a household and the police are met with silence it is not the same as other cases where there is silence. Silence from a person who is being questioned by the police or facing a trial in a domestic situation may well not indicate guilt. It may indicate his love and affection towards the person he knows has committed the offence. It may emanate for all kinds of reasons which are peculiar to that household. It may emanate from the fact that he or she fears the person whom they know to have committed the offence. Love, fear, loyalty, family solidarity are all reasons from which it would be unsafe to draw the inference of a person's guilt where there is no other evidence, as Clause 6(2) states, upon which the juryman in carrying out the burden of his oath could properly come to the conclusion that that person is guilty.
Someone somewhere, possibly within the Home Office—I doubt whether it is a Minister—has thought to himself, "We have read the Law Commission's report. We have read that there is a particular way of proving the new offence. What a good idea to see whether we can catch people for murder or manslaughter anyway". We hear a lot these days about the fact that this House is challenging the Government: that this House is preventing the Government carrying out their programme. We hear that it is an insult to their integrity if we come to a different
816
conclusion. The truth of the matter is that someone had a very bad idea. Someone who did not understand the processes of the criminal law in this country sought to extend these procedures, far beyond that which the Law Commission envisaged, to murder and manslaughter. It is unacceptable that there should be a different practice and procedure for proving the most serious criminal charge in the calendar in a particular circumstance where a household is involved as opposed to any other circumstance.
From Second Reading on, we have put all these objections to the Government and listened to their response. There was some response to the original proposal but not enough. The Government's supporters and their Back-Benchers may, out of loyalty to the party, follow them through the Lobby. But this is so contrary to the spirit and principles of the English criminal law that the provision must be thrown out today. I beg to move.
Baroness Anelay of St Johns: My Lords, as the only non-lawyer in the group who put their names to the amendment, I add my wholehearted support. The noble Lord has given such a forceful argument that there is nothing from the legal point of view that I could hope to add—even had I the ability.
I strongly support what the Government seek to do in redressing the mischief put forward because of the problems in the case of R v Lane and Lane.We have had full debates on the matter. I give my full support to Clause 5 as currently drafted after our recent Division today. I hope that another place may consider it again and seek to improve it in some measure. I realise how difficult it was for the Government to draft the clause in such a way as not only to be fair but also to catch those people whom we wish to see prosecuted. As my noble friends have pointed out in the past, if one is convicted of what we might now call a Clause 5 offence, one could face a maximum penalty of 14 years.
I believe that the response in Clause 5 is proportionate to the mischief—the evil—of those offences. However, Clauses 6 and 7 go beyond what can be acceptable in dealing with the offence that has occurred. We all want to see someone prosecuted who has either perpetrated the offence of causing the death of a child, or been involved in allowing the death of a child or vulnerable adult in circumstances where no one would excuse their behaviour. We want those people to be prosecuted and convicted, and certainly, where there is evidence so to do, that can happen under Clause 5. But I fully support the view put forward by the noble Lord, Lord Thomas of Gresford, that Clauses 6 and 7 risk overturning a vital principle of our justice system.
12.30 p.m.
Baroness Whitaker: My Lords, as another non-lawyer, I take part again in the debate on this clause because I think that law is not ultimately for lawyers, any more than water is for water engineers or health is for doctors. Law is for people to enable justice—the

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proper attribution of responsibility for serious and harmful acts. Even when people love or fear, everyone has a role in that process.
It seems to me essential to have the procedural measures in Clause 6 as well as the new offence under Clause 5 for, without them, it would not be possible in the "Which of you did it?" cases to get the right conviction. Where a child or vulnerable adult has been murdered or killed by some other unlawful act, the only conviction that would be right is murder or manslaughter. The new offence in Clause 5 on its own would prevent those responsible for those deaths escaping all justice, but it and the sentence that goes with it do not fully reflect the serious nature of the crime that has been committed. There is almost nothing more serious than killing a child.
Where at least one of a closed group of suspects must be responsible we ought, I submit, to do everything that we can while remaining fair—which, again to a non-lawyer, the proposals are—to bring that person to justice. It seems to me that we would be failing in our duties as legislators if we did not.
Lord Carlisle of Bucklow: My Lords, I support as strongly as possible every word that the noble Lord, Lord Thomas of Gresford, said on the issue. We have debated the clause at considerable length in Committee, on Report and now again at Third Reading. I have done my best to read and understand the arguments put forward by the Minister, but I cannot see her answer to the statement that the clause allows a person to be convicted of murder merely on his silence. In that way, it totally reverses the burden of proof in the case, and means that it is contrary to Article 6 of the European Convention on Human Rights.
The clause states in terms that if someone is charged with a Clause 5 offence he may also be charged with murder, and that if he is so charged inference can be made from his silence to answer,
"even if there would otherwise be no case for him to answer in relation to that offence".
The first strange anomaly is that if one charges a person with murder alone, the clause does not apply. Therefore, in the normal way, one could rise at the end of the prosecution case and say that the prosecution had failed to make its case in any way. The judge would direct the jury that there was not sufficient evidence on which it could convict. If, on the other hand, one adds to the charge of murder a charge under Clause 5, one cannot make that submission, because it is said that the jury can draw such inferences as it wishes from the silence of the accused, and can convict although there is no other evidence against him.
The clause also states that, if one wants to make a submission of no case to answer, one must wait until the end of the whole evidence, both for the prosecution and for the defence. At Report, I understood the Minister to be saying—it can be found at col. 1186 of Hansard for 9 March—that the case may change. I understand her argument to be that although there is
818
at first no evidence that one person committed the murder rather than the Clause 5 offence, nevertheless, by their silence and other evidence that may be given, there may at the end of the case be a case to answer that did not exist at the halfway stage.
If that is the argument, surely all one need do in the clause is delay the time at which the submission can be made to the end of the whole of the evidence, as the clause does. There is absolutely no need whatever for anything else. I think that the Minister's argument is that at that stage a judge would be unlikely to allow a case to go to a jury merely on inference from silence, as he would wish to see other evidence. She may be saying that, if other evidence occurs in part of the defence case and the time at which the submission can be made is delayed, the judge may decide that there is evidence on which a person can be convicted, but that is not what the clause says. The clause says that whenever the submission is made, the jury can convict on an inference purely from silence.
For the reasons advanced by the noble Lord, Lord Thomas, and the noble Baroness, Lady Anelay, that seems totally contrary to the legal traditions of this country. It is unnecessary in that, if what the Minister is asking us to accept is that the case may change, that can be met, if it is right to meet it, merely by delaying the time at which the submission is made, without the provision that a jury could convict,
"even if there would … be no case … to answer in relation to that offence".
Lord Donaldson of Lymington: My Lords—
Lord Campbell of Alloway: My Lords—
Lord Donaldson of Lymington: I give way, my Lords.
Lord Campbell of Alloway: My Lords, now I have to be rather more careful in what I say, in view of our past exchanges. Perhaps all that I can say is that I put my name to the amendment having fired the first warning shot over the bows of the clause in Grand Committee. I have since been described by the noble Lord, Lord McNally, who is not in his place, as a barnacled old legal man-of-war. I shall make steam for dry dock in a moment or two.
The defensive smokescreen was wholly penetrated in Grand Committee, as explained by the noble Lord, Lord Thomas of Gresford, whom I congratulate on his speech, and by my noble friend Lord Carlisle. When the amendment was tabled, the hope was always that the final engagement would be under the joint command of both parties in opposition, with perhaps some support from the Cross Benches and a little from the Labour Back Benches. Today the salvos of the joint command have crippled the clause. Yet another shot from this locker would be not only otiose, but extremely tiresome.
Lord Donaldson of Lymington: My Lords, I am happy to say that, in relation to the amendment, I have rejoined the fold of the lawyers—I did so in earlier stages of the Bill. I am even happier to say, in the light of the remarks made

819
by the noble Lord, Lord Campbell, although I am not sure that he is right, but if this is the first occasion upon which he and I have ever agreed, that makes it a particularly important occasion. It possibly means that we are both right—although I am not so sure about that.
However, I shall turn to the merits of the amendment. Ever since I was called to the Bar, and for many years before that, it was the way in which the burden was kept on the prosecution that it had to prove a case to answer; it had to produce enough evidence so that the jury could properly convict simply on the evidence, if they were convinced by it. It is for that reason that it has always been possible at the end of the prosecution case to say to the judge, "Well, there isn't enough evidence" and the jury could not convict at that stage. That is an essential safeguard and I believe that—although it may not be wholly covered by the wording—it is wholly covered by Article 6, paragraph 2 of the European Convention, which says:
"Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law".
Of course, the let-out for the Minister would be to say, "We are altering the law". But, I do not believe that that was what was contemplated by the convention. So up to this moment, the clause would be contrary to law. A good deal of play was made earlier by the references that one sees in the clause to an ability to draw inferences, which is approved of and permitted by the Criminal Justice and Public Order Act of 1994. There is a new and sensible offence that addresses the real need of a "don't know" case, so that when the prosecution proves that the defendant or defendants failed to take such steps as were reasonably foreseeable in relation to the facts of the case, and that the act was caused by that failure, and that the accused ought to have foreseen the need for them, if the accused does not choose to say "Well, I did not foresee it and I could not have been expected to foresee it", or, "I did, in fact, try to take those actions but it did not work"—if the accused does none of those things, then of course there is a reasonable inference. It would not require the 1994 Act to produce that result. Any jury could then draw that inference.
However, we are now being asked, as noble Lords have described, to allow inferences to be drawn when, contrary to the system of justice as we have known it for a very long time, there is no evidence on which a jury could convict at the end of the prosecution case. It seems that this is trying, in an oblique way, to reverse the rule which gave rise to all the problems in the "don't know" cases, because it was in those cases that the counsel, on behalf of the accused, were standing up at the end of the prosecution case to say "There is no evidence as to which of these people committed the offence. You may well say that one or other must have done, but unless you can show who, you can't convict". No one has ever suggested that there is anything wrong with that. What they have said is that, "We cannot allow that situation to continue; we have to tackle it from a different angle". That is what Clause 5 does, and does very efficiently.
820
However, Clause 6—and Clause 7, in due course—is intended to reverse the problem, to get rid of the problem which existed, and which Clause 5 is meant to tackle; not by getting rid of the problem, but by riding around it in a perfectly straightforward way that is in accordance with all of the traditions of justice that have been known in this country for a very long time. Clause 6 is extraordinary. I think I can understand its genesis—someone thought that they were on to a good thing and could make the situation even better—but protests have been made on all sides of the House, not entirely from lawyers, although it is natural to hear more from lawyers as they have been brought up in that tradition of fairness, in accordance with the law. It is not an abstract concept, but has been honed by many years of experience. Faced with the protests, I am surprised that the Minister has resisted.
I shall make one more comment. In the course of the Bill, on many occasions there have been very well earned tributes paid to the noble Baroness for her expertise as a lawyer, her expertise in presenting cases and her willingness to enter into discussions with people. All of that is admirable, but the bottom line is the same line as has to be looked at in court. Counsel arrive in court and it is their job to make a case, even if they do not believe in it. I would never ask counsel in court whether he believed in his case and I do not ask the Minister whether she believes in her case here, but it would be a great mistake if it was admiration for the noble Baroness that led us to think that she was doing other than acting as an advocate in supporting the clause.
12.45 p.m.
Baroness Scotland of Asthal: My Lords, with silver-tongued flattery the noble and learned Lord wished, perhaps, to distract me, but he must know from the past that that would be difficult, even with his lures.
I know that the noble Lord, Lord Campbell of Alloway, says that I have the full battalions ranged against me on this clause. May I remind him that it is a long-held British tradition that when right is on our side and the balance appears to be against us, we still persevere? I am afraid that I have to tell the House that I intend to persevere on this occasion, but to reassure noble Lords that I am in agreement with those who say, as has the noble Lord, Lord Thomas of Gresford, that the juryman's oath should not be suborned and I would like to reassure noble Lords that in this clause we are not thinking to suborn that oath; neither are we trying to convict, or cause to be convicted, people on evidence which is a hunch or a guess. Neither are we asking anyone to guess, nor are we seeking to suggest, that some improper construction should be put on silence, which may derive from love, fear, loyalty or family solidarity—as has been suggested.
I take full responsibility if I have not been sufficiently clear, both in Committee and at Report, but I had hoped that the way in which we believe this clause hangs together with Clause 5 had been understood. The noble Lord, Lord Carlisle of Bucklow, addressed the issue of the postponement, because that is, in effect, what this clause and Clause 7

821
seek to do—the postponement of an argument of "no case to answer" from the close of the prosecution case to the end of the evidence. That is what this clause does. However, in the light of the debate that we have had, it is only right that I should explain, perhaps a little more clearly this time, why the combination of the agreement of the noble and learned Lord, Lord Donaldson, and the noble Lord, Lord Campbell of Alloway, on this one occasion proves that, with regret, they are both wrong.
We need to remind ourselves of the way in which the Law Commission was very clear in the way in which it summed up the problem. Your Lordships will remember that, in the form of two questions, it said at Command No. 282:
"(1) Must it be the case that a fair legal system is helpless to convict a parent who has murdered his or her own infant child, where it is clear that one, or other, or both parents has killed, or is complicit in the killing of the child, merely by the device of each parent refusing to respond to questions about the child's death?
"(2) More particularly, must it be the case that recommendations for reforming the rules of procedure and evidence which seek effectively to resolve, or respond to, this conundrum are doomed to failure either because they will be ineffectual in that they do not address the problem of the silent defendant, or will inevitably and unduly impact on the fundamental requirement of a fair trial by bringing the consequences of such silence to bear upon the question of guilt?"
Those two questions were correctly framed.
I should like to reassure the noble Baroness, Lady Anelay, that we do not believe that Clauses 6 and 7 go beyond that which is acceptable or risk our vital position on justice. We believe that it is absolutely incumbent on us to close the legal loophole that exists in these "Which of you did it?" cases. Where a child has been killed by a private individual, constituting a breach of his or her rights under Articles 2 and 3 of the European Convention on Human Rights, the Law Commission suggests that the Government have a duty to ensure that such deaths can be properly investigated and the perpetrators identified and punished appropriately.
That was echoed by the Joint Committee on Human Rights. We take seriously its view that the rights under Article 2 of the victim and his or her close relations may be violated if it is "systematically impossible to carry out an inquiry into the death which will establish the cause of death and allow the guilty party to be punished". I was interested that both on Report and at Third Reading none of those who spoke to these amendments dealt with the proper analysis of the provisions undertaken by the Joint Committee on Human Rights.
I accept that the new offence will provide for at least something to be done in future, whereas those who have caused these terrible deaths have until now been able to walk away scot-free. But we need to face the fact that a conviction only for the new offence is a second-best result. It does not provide for an effective means of securing a conviction that represents the gravamen of the crime that has been committed. The sentence that can be imposed for the new offence, severe though it is, is significantly lower than that
822
which Parliament has decided should apply in cases of murder or could apply in cases of manslaughter. Someone who has committed murder or manslaughter should be convicted as such and should be made liable to face the penalties that go with it, provided that the process we adopt is fair.
In order to do that, we need the new offence but also the procedural measures that we are proposing. The new offence will ensure that a case will come before the courts and be put to the jury. However, without the procedural measures, which would allow evidence to emerge during the course of the trial, even if the evidence that would support a higher charge emerged and the jury was able to determine beyond any reasonable doubt who killed that child or vulnerable adult, the higher charge may no longer be available. As a matter of justice to the dead victim and to his or her family, we need to be able to try the suspected killer for murder or manslaughter and sentence him or her appropriately. If we do not have Clause 6, we shall not be able to do that and we shall be left with a lesser charge and a lesser sentence. The Government do not feel that that is acceptable or justifiable by any standards.
The rules and procedures of our courts exist to protect the innocent from wrongful conviction; and may that always be the case. However, they also exist to reveal the truth and to convict the guilty. At present, in the cases about which we are talking, the rules and procedures work wholly in favour of the defendants. But they are not defendants entirely without responsibility. None of them is an innocent bystander who simply became erroneously caught up in the police investigation. Those on trial on charges under the new offence that we are debating today are a closed group of suspects, all of whom, the prosecution will show, were in some way responsible for the child's or vulnerable adult's death, and at least one among their number must actually have caused that death.
We must not ride roughshod over our legal traditions in attempting to get at the truth and secure convictions. For all of us, that is unpalatable and something that we would not tolerate. However, the tradition of our common law prides itself on its flexibility in satisfying the requirements of justice.
In failing to provide an effective mechanism for bringing to justice those who have killed in these circumstances, our current law does a grave disservice to the victims and families in such cases—families such as that of John Anthony Smith, whose aunt graciously wrote to me this week with her support for what we are trying to do today. What happened in that family was truly terrible, and I want to pay tribute to the courage shown by Linda Terry in her campaign for justice in such cases. The experience of that family is by no means unique, and that is a great tragedy indeed. We are talking about people who are responsible for sometimes committing grave offences against children, often their own, or against other vulnerable members of the household. We find it totally unacceptable that, through the simple expedient of determinedly remaining silent, it

823
should be possible to render the system powerless where, for obvious reasons, the victim is unavailable to give evidence, even when it is known that one or more of a very limited number of suspects must have committed the offence.
Our proposals do not offend the common law, and I reject the contention that they do. Furthermore, we believe that they are fully compatible with the right to a fair trial under Article 6 of the ECHR. In its 4th report this Session (House of Lords Paper 34), the Joint Committee on Human Rights has supported that view. Noble Lords have on many occasions praised the Joint Committee for its vigour, its attachment to fairness, its rigour in considering each and every clause fearlessly, and its ability to tell the Government exactly what it thinks about the provisions that we have tabled; and that Committee has given this proposal a clean bill of health.
1 p.m.
Lord Campbell of Alloway: My Lords, I declare an interest as a member of that committee. Its remit is to examine only whether a provision is contrary to the convention. We are not concerned whether it is contrary to the convention; we are concerned with whether it is contrary to our concept of criminal law. The two are totally different concepts, unless there is a collision and a conflict.
Baroness Scotland of Asthal: My Lords, I hope that I have made it clear that I am arguing strongly that it is not contrary to our common law or to the ECHR. That is an embodiment of the principles relating to fairness and probity and the standard which we have commonly used to test whether the procedures are fair. Fairness is very much part of this debate. Therefore, we say that our proposals do not offend the common law and neither do they offend against the ECHR.
In relation to the drawing of adverse influences, we are proposing only one—only one—significant change from the current regime under Section 35 of the Criminal Justice and Public Order Act 1994. That is, following the recommendation of the Law Commission, to remove what is called the "highly technical and artificial" approach in the Cowan judgment to the question of what is a situation which clearly calls for an explanation from the defendant. In these cases, under our scheme, it will not be necessary for the jury, before being able to draw an inference, to have first to find that the defendant could be found guilty on consideration of the evidence alone.
The Law Commission set out its reasons for coming to the conclusion that a technical approach to the principle which underlies Cowan is flawed. We debated the issue previously, but your Lordships will find it at paragraphs 6.90 to 6.95 of its report. We entirely agree with its arguments. After deep reflection—and we have given the matter deep reflection—I can assure noble Lords, in particular the noble Baroness, Lady Anelay of St Johns, that this is not a concerning breach of long-held principles in respect of inferences
824
from silence. She was anxious about that matter in our previous debate. Furthermore, the clause is not broader or more improper than is acceptable.
I agree with my noble friend Lady Whitaker. These are cases which cry out for an appropriate response. It is simply not the case that a person may be convicted of murder or manslaughter solely on the basis of his or her silence. That simply is not correct and it is not our intention. The law as currently drafted in the Bill would not allow it. Under our scheme, a conviction that rested wholly or mainly on the basis of silence would be proscribed by virtue of Section 38(3) of the 1994 Act, in the same way as that section currently proscribes adverse inferences that may be drawn on that basis. This Bill does not change that position one jot.
Under this clause, the principle that an inference may be drawn only where it is proper to do so remains intact. It also leaves intact that approach to what is proper which requires the evidence to be such that it calls for an explanation from the defendant. Although under our scheme the point in the trial at which the question of whether a case to answer exists or not is determined later than ordinarily is the case, it remains the case that, before an adverse inference from silence can be drawn, the evidence will still have to be such as to establish, first, that the victim was unlawfully killed; and, secondly, that the defendant is within the closed group of people, at least one of whom must have committed the offence.
In addition, there must also be established against the defendant a case to answer in respect of the new offence under Clause 5—that he or she caused the death or was in a position wherein he or she ought to have taken reasonable steps to protect the victim from the risk of the harm that ultimately caused it. These three things together constitute circumstances which, as the Law Commission has argued, it may, in appropriate cases, be proper to characterise, in a non-technical sense, as "calling for an explanation" or even as "establishing a case to answer".
But yet involvement in the new offence will on its own still not be sufficient to be found a conviction for murder or manslaughter. For a safe conviction on that charge, the court or jury must be convinced beyond reasonable doubt that the ingredients for the offence of murder or manslaughter are present and that they can be applied in respect of the defendant. For this to happen, either the jury must have heard some evidence—either from the prosecution or during the defence cases—that the defendant did commit, or may have committed, the act that caused the death, or they must be in a position in relation to all the evidence properly to conclude that the defendant is maintaining what the Law Commission called an "eloquent silence" and be able to draw such inferences from that as are proper.
If neither of these is the case, the judge would be duty bound not to put the charge of murder or manslaughter to the jury. Delaying the point at which the decision on a submission of no case to answer is determined allows the possibility that the trial itself

825
will create the circumstances such that the case may be left to the jury to decide by allowing more evidence to emerge. We do not believe that that is improper.
Lord Lester of Herne Hill: My Lords, I am grateful to the noble Baroness for giving way. I intervene only as a member of the Joint Select Committee on Human Rights and not in any party sense. On behalf of the committee, I confirm that, as the Minister said, after questioning the Minister we unanimously concluded that this legislation would not conflict with articles of the convention. It is right that I should put that on the record.
Baroness Scotland of Asthal: My Lords, I am grateful. So, we believe that what we are doing is proportionate, fair and will not improperly lead to improper convictions and unjustly find those who are innocent guilty of this offence. It enables the judge and the jury to exercise their proper function and, as was said in opening by the noble Lord, Lord Thomas of Gresford, each juryman, and/or woman, will be able to discharge his duty of faithfully trying the defendant according to the evidence. Only if he is sure that one or other of the defendants is guilty of murder will he or she be so convicted. We believe that that is the right and proper position.
The spectre of a person being discharged at half time and there then being evidence that came from the defence identifying which of them was responsible for the killing, and then being impotent to find that person so by the jury and/or by the judge in sentencing, is not a conclusion with which anyone in this House would be happy. I therefore invite your Lordships, notwithstanding the strength of feeling, to consider the issue again and not to divide the House. If there is a Division on the matter, I regret to say that on this occasion I would anxiously urge everyone to go into the "Not Content" Lobby.
Lord Thomas of Gresford: My Lords, as the noble and learned Lord, Lord Donaldson, warned us, there was admirable advocacy from the Minister in relation to her point of view. However, it cannot be justice for a person to be convicted of murder if there is no case to answer against that person simply because he or she is silent out of loyalty, love, intimidation, fear, family responsibility or any other emotion which may require his or her silence. That cannot be justice.
We agree that there has been a problem. We agree that the Government have properly addressed it in Clause 5 with the new offence. What we do not agree is that you can go beyond that and ask a jury to guess which of two or three people killed the child. When you boil it down, what the Minister said is that the only evidence that must be produced is that the child—if it was a child—was unlawfully killed and that the defendant comes within a closed group of the family. That is all. That is the case to answer.
826
Beyond that, it is guesswork. Although the noble Baroness says, "Well, the jury cannot convict unless it is sure", this is a highly emotive area. Those of us who have been involved in cases of this sort, as I have, where the question arises of which of two people—father or mother—killed the child, know that it cannot be left to a jury to decide, supposing that there are cutthroat defences between two defendants. The jury cannot be left to say, "Well, I like him, but I do not like her", or, "She is the sort of person who would do it, not him". It becomes guesswork by the very terms of the clause, even though there is no case to answer.
We cannot base justice—whether to the victim or to the family, as the noble Baroness said—on hunches or guesswork of that sort. The clause is entirely unacceptable, as is Clause 7, and I beg to test the opinion of the House.
1.11 p.m.
On Question, Whether the said amendment (No. 3) shall be agreed to?
Their Lordships divided: Contents, 128; Not-Contents, 110.

Division No. 2

CONTENTS

Addington, L.

Harris of Richmond, B.

Anelay of St Johns, B.

Hayhoe, L.

Astor of Hever, L.

Higgins, L.

Avebury, L.

Hodgson of Astley Abbotts, L.

Beaumont of Whitley, L.

Hooson, L.

Biffen, L.

Howe of Aberavon, L.

Blatch, B.

Howe of Idlicote, B.

Bowness, L.

Hurd of Westwell, L.

Bradshaw, L.

Jenkin of Roding, L.

Bridgeman, V.

Jopling, L.

Brigstocke, B.

Kimball, L.

Brooke of Sutton Mandeville, L.

Laird, L.

Brougham and Vaux, L.

Lang of Monkton, L.

Buscombe, B.

Lawson of Blaby, L.

Byford, B.

Linklater of Butterstone, B.

Caithness, E.

Listowel, E.

Campbell of Alloway, L.

Liverpool, E.

Carlisle of Bucklow, L.

Livsey of Talgarth, L.

Carnegy of Lour, B.

Lucas, L.

Carrington, L.

Luke, L.

Chorley, L.

Lyell, L.

Clement-Jones, L.

McColl of Dulwich, L.

Cope of Berkeley, L.

MacLaurin of Knebworth, L.

Craigavon, V.

McNally, L.

Crickhowell, L.

Maddock, B.

Denham, L.

Mar and Kellie, E.

Dholakia, L.

Marsh, L.

Donaldson of Lymington, L.

Masham of Ilton, B.

Dundee, E.

Methuen, L.

Eden of Winton, L.

Miller of Chilthorne Domer, B.

Elles, B.

Miller of Hendon, B.

Ezra, L.

Molyneaux of Killead, L.

Feldman, L.

Monro of Langholm, L.

Ferrers, E.

Montrose, D.

Gardner of Parkes, B.

Mowbray and Stourton, L.

Geddes, L.

Moynihan, L.

Glentoran, L.

Newby, L.

Goodhart, L.

Newton of Braintree, L.

Greaves, L.

Northbrook, L.

Hamwee, B.

Northesk, E.

Hanham, B.

Northover, B.

Hanningfield, L.

Onslow, E.

827

Park of Monmouth, B.

Simon of Glaisdale, L.

Peel, E.

Skelmersdale, L.

Peyton of Yeovil, L.

Smith of Clifton, L.

Phillips of Sudbury, L.

Stern, B.

Pilkington of Oxenford, L.

Stoddart of Swindon, L.

Plumb, L.

Strathclyde, L.

Plummer of St. Marylebone, L.

Swinfen, L.

Rawlings, B.

Taverne, L.

Reay, L.

Thatcher, B.

Redesdale, L.

Thomas of Gresford, L.

Renton, L.

Thomas of Walliswood, B.

Rodgers of Quarry Bank, L.

Thomson of Monifieth, L.

Roper, L. [Teller]

Tordoff, L.

Rotherwick, L.

Ullswater, V.

Sanderson of Bowden, L.

Waddington, L.

Seccombe, B.

Wallace of Saltaire, L.

Selsdon, L.

Walmsley, B.

Sharman, L.

Walpole, L.

Sharp of Guildford, B.

Wilcox, B.

Sharples, B.

Williams of Crosby, B.

Shaw of Northstead, L.

Windlesham, L.

Shutt of Greetland, L. [Teller]

Wolfson, L.

NOT-CONTENTS

Acton, L.

Haskel, L.

Ahmed, L.

Hayman, B.

Amos, B. (Lord President of the Council)

Hogg of Cumbernauld, L.

Hollis of Heigham, B.

Andrews, B.

Howarth of Breckland, B.

Archer of Sandwell, L.

Hoyle, L.

Ashley of Stoke, L.

Hughes of Woodside, L.

Ashton of Upholland, B.

Hunt of Kings Heath, L.

Bach, L.

Irvine of Lairg, L.

Barnett, L.

Janner of Braunstone, L.

Bassam of Brighton, L.

Jay of Paddington, B.

Berkeley, L.

Jones, L.

Bernstein of Craigweil, L.

Jordan, L.

Billingham, B.

Judd, L.

Boothroyd, B.

Kilclooney, L.

Boston of Faversham, L.

King of West Bromwich, L.

Bragg, L.

Lea of Crondall, L.

Brookman, L.

Lipsey, L.

Burlison, L.

Lofthouse of Pontefract, L.

Campbell-Savours, L.

MacKenzie of Culkein, L.

Carter, L.

Mackenzie of Framwellgate, L.

Christopher. L.

Massey of Darwen, B.

Clarke of Hampstead, L.

Merlyn-Rees, L.

Clinton-Davis, L.

Morris of Aberavon, L.

Cohen of Pimlico, B.

Morris of Manchester, L.

Colville of Culross, V.

Nicol, B.

Condon, L.

Ouseley, L.

Corbett of Castle Vale, L.

Patel of Blackburn, L.

Crawley, B.

Pitkeathley, B.

Davies of Oldham, L. [Teller]

Ponsonby of Shulbrede, L.

Dean of Thornton-le-Fylde, B.

Prys-Davies, L.

Dixon, L.

Randall of St. Budeaux, L.

Donoughue, L.

Rendell of Babergh, B.

Dubs, L.

Rogers of Riverside, L.

Elder, L.

Rooker, L.

Evans of Parkside, L.

Sainsbury of Turville, L.

Evans of Temple Guiting, L.

Sandwich, E.

Falconer of Thoroton, L.(Lord Chancellor)

Sawyer, L.

Scotland of Asthal, B.

Farrington of Ribbleton, B.

Sewel, L.

Faulkner of Worcester, L.

Sheldon, L.

Filkin, L.

Simon, V.

Fitt, L.

Stone of Blackheath, L.

Fyfe of Fairfield, L.

Strabolgi, L.

Gale, B.

Symons of Vernham Dean, B.

Gibson of Market Rasen, B.

Temple-Morris, L.

Goldsmith, L.

Tenby, V.

Gordon of Strathblane, L.

Tomlinson, L.

Goudie, B.

Triesman, L.

Grocott, L.[Teller]

Turnberg, L.

Harrison, L.

Turner of Camden, B.

828

Warner, L.

Whitty, L.

Warwick of Undercliffe, B.

Wilkins, B.

Weatherill, L.

Williams of Elvel, L.

Wedderbum of Charlton, L.

Williamson of Horton, L.

Whitaker, B.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly
1.22 p.m.
Clause 7 [Evidence and procedure: Northern Ireland]
Lord Thomas of Gresford Lord Thomas of Gresford moved Amemdment No. 4:
Leave out Clause 7
On Question, amendment agreed to.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved amendment No. 5:
After Clause 10, insert the following new clause—
"Common assault etc as alternative verdict
In section 6 of the Criminal Law Act 1967 (c. 58) (trial of offences), after subsection (3) (alternative verdicts on trial on indictment) insert—

"(3A) For the purposes of subsection (3) above an offence falls within the jurisdiction of the court of trial if it is an offence to which section 40 of the Criminal Justice Act 1988 applies (power to join in indictment count for common assault etc), even if a count charging the offence is not included in the indictment.

(3B) A person convicted of an offence by virtue of subsection (3A) may only be dealt with for it in a manner in which a magistrates' court could have dealt with him.""

The noble Baroness said: My Lords, I hope that this amendment will find favour with your Lordships, notwithstanding the fact that its genesis comes from the Benches opposite.
The amendment goes slightly wider in relation to common assault than that which came before the House on the previous occasion. My noble and learned friend the Attorney-General indicated on Report that we were favourably disposed towards the amendment tabled by the noble Baroness, Lady Anelay, and we undertook to return to it at Third Reading.
Your Lordships will notice that our new clause is somewhat different from the amendment tabled in the name of the noble Baroness. The reason for this is that there is no reason in logic to distinguish between common assault and the other summary offences which, by virtue of Section 40 of the 1988 Act, are capable of being added to an indictment in the Crown Court.
We therefore concluded that the best solution would be a general provision that enables an alternative verdict to be returned under Section 6(3) of the Criminal Law Act 1967 in respect of all the summary offences listed in Section 40(3). This amendment requires a consequential amendment to the Long Title. On this occasion I believe that the noble Baroness will not object to any such amendment.
Whether there will be any practical value in the extension of Section 6(3) beyond common assault is not clear; there is a chance that cases might arise where it will be beneficial. But we are confident that this

829
amendment will do what the amendment tabled by the noble Baroness, Lady Anelay, would have done for assault cases, which is its main purpose.
The amendment to Schedule 7 limits the power of the Crown Court in dealing with one of these summary offences where an alternative verdict has been returned, in the same way as it is limited where the offence has been added as a count in the indictment. I beg to move.
Baroness Anelay of St Johns: My Lords, the old saying about not looking a gift horse in the mouth comes immediately to mind. I am enormously grateful to the Minister for putting forward this new clause which has within it the kernel of the offer that I made to the Government on previous occasions.
I would like to put on record one or two reasons why I am puzzled about the government amendment, although I have no intention of opposing it in any way. I brought forward my amendment in the first instance on the basis of some remarks that were passed in the course of the Court of Appeal case by Lord Justice Rose. I would not wish him—or others in the Court of Appeal—to think that I had misunderstood what he was proposing as a solution to an existing problem.
My amendment was an attempt to provide for the position where the jury are not sure that the offence charged on the indictment has been proved, but are sure that an alternative offence, which is expressly or impliedly included in the unproved allegation, has been proved. At the moment on a charge of ABH, the jury cannot convict of common assault as an alternative, unless there is a specific count on the indictment. I am grateful that the Government have accepted that this should be remedied.
The Government want to extend my original amendment. The Minister said that there is no reason in logic to differentiate between that and the other offences which are the subject of this clause. The new offences to be added in are those of assaulting a prison custody officer, assaulting a secure training centre custody officer, taking and driving away, driving while disqualified and low-value criminal damage under £5,000.
All of these offences were made summary by the Criminal Justice Act 1988. Notwithstanding that, Section 40 enabled them to be added as a specific count on an indictment if they were factually linked with an indictable offence which was charged on the indictment. On conviction the penalty can be one available only on summary conviction. The section was intended to avoid the need for a separate trial in the magistrates' courts after a Crown Court trial of the indicted charge.
It will be apparent that some of the offences listed in Section 40 are unlikely to be alternative to an indictable offence charged on an indictment. That is what puzzles me. In those circumstances they would not be expressly or impliedly included in the unproved allegation. In order for there to be a conviction, such offences would have to be included in a specific count.
830
As an ex-magistrate, the obvious example to me is the charge of driving while disqualified; it does not seem to be an alternative to any other offence. I find a difficulty in the fact that the "blue pencil test" cannot be applied. I explained that term in detail in Grand Committee on 2 February, as reported in Hansard at col. GC 233, and I shall not test the patience of noble Lords by referring to the details of that at Third Reading. The lawyers among us will understand it; I have learned what it means.
To return to the text of the Government's amendment, it is surely unnecessary to make separate provision for taking and driving away and low-value criminal damage. TDA can be an alternative only to theft of a motor vehicle or aggravated vehicle taking. Under Section 12(4) of the Theft Act 1968, TDA is an alternative to theft. The penalty is that available on summary conviction.
I could speak further on the other offences of criminal damage, but I think I have made my point. I do not object to the Government's clause. I am a little puzzled because the new offences added do not appear to follow the blue pencil test criteria. It seems that the Government have complicated matters; I hope that is not the case. I hope that no mischief has been created because I know that neither of us has that intent in mind. Otherwise I am glad to see this gift horse canter on to the statute book.
1.30 p.m.
Baroness Scotland of Asthal: My Lords, I assure the noble Baroness that we looked at the matter very carefully and, for a number of technical reasons, we thought that it made sense. I have certainly listened to the noble Baroness's comments. I know that numbers are fairly light on all our Benches. I assure the noble Baroness that it was done in what was felt to be the most appropriate and convenient way, in a tidy and proper manner. I shall write to her with the detail so that other noble Lords do not have to go to sleep while I explain how it works.
On Question, amendment agreed to.
Clause 11 [Restraining orders: England and Wales]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 6:
Page 7, line 10, at end insert—
"( ) After subsection (6) of that section insert—
"(7) A court dealing with a person for an offence under this section may vary or discharge the order in question by a further order.""
The noble Baroness said: My Lords, these amendments respond to an amendment also tabled by the noble Baroness, Lady Anelay, the noble Viscount, Lord Bridgeman, and the noble Lord, Lord Campbell of Alloway, on Report on 9 March. The amendment would have given any court, when sentencing or otherwise dealing with a defendant for breach of a restraining order, the power to revoke the original order and to replace it with a new order. In response, my noble and learned friend Lord Goldsmith said that we would consider the issue further and return to the House.
Amendment No. 6 would amend Section 5 of the Protection from Harassment Act 1997 to achieve essentially the same result as intended by the amendment tabled on Report but with slightly different wording to fit with the structure of the 1997 Act. It would allow a court, when dealing with a person for the offence of breach of a restraining order, to vary or discharge the order in question by making a further order. The amendment will help to ensure that a restraining order continues to reflect the risk of harassment by the defendant towards the victim and will allow the court to change or to end the original restraining order as necessary. We hope that it will also help victims of harassment when a restraining order has been breached, in that it will reduce the need for them to apply to the court that made the original order for the order to be varied or for further protection—that is the current position under the Protection from Harassment Act 1997.
Amendment No. 8 would achieve the same result for Northern Ireland by amending Article 7 of the Protection from Harassment (Northern Ireland) Order 1997. I beg to move.
Baroness Anelay of St Johns: My Lords, unlike on the previous amendment, I am not at all puzzled; I am just grateful. I support the amendments.
On Question, amendment agreed to.
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendments No. 7:
Page 7, line 20, leave out "(6)" and insert "(7)"
On Question, amendment agreed to.
Clause 12 [Restraining orders: Northern Ireland]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendments Nos. 8 and 9:
Page 7, line 42, at end insert—
"( ) After paragraph (6) of that Article insert—
"(7) A court dealing with a person for an offence under this Article may vary or discharge the order in question by a further order.""
Page 8, line 10, leave out "(6)" and insert "(7)"
On Question, amendments agreed to.
Clause 13 [Application by prosecution for certain counts to be tried without a jury]:
Lord Thomas of Gresford Lord Thomas of Gresford moved Amendment No. 10:
Page 9, line 11, after "person" insert—
"( ) evidence in respect of each count is admissible at the trial of the sample count,"
The noble Lord said: My Lords, Clause 13 introduces an entirely new concept to criminal law procedure: counts can be tried without a jury although they are those that can be tried on indictment only. The circumstance in which that can be done is when the judge determines that a particular group of counts are samples of other counts. The judge must be satisfied of three conditions: first, that a trial by jury involving all the counts would be impracticable; secondly, that each count or group of counts to be tried is a sample of counts; and, thirdly, that it is in the interests of justice.
The Government could have left it at that but they decided to define the sample count in subsection (9) of Clause 13. My purpose is simply to clarify that it is indeed a sample count by the way in which we normally recognise a count to be a sample: that evidence in respect of each count is admissible at the trial of the second count.
When I raised the matter in Grand Committee the Minister was inclined to say yes but did not go that far. I do not know why I could not persuade her to say yes. On Report, the matter was dealt with more sternly by the noble and learned Lord the Attorney-General, who said that it would not be helpful to use the concept of admissibility as a condition for sample counts to be tried without a jury. The reason, he said, was that the judge would have to make a pre-assessment, in relation to the counts and the subsidiary counts, that that condition would be met. I do not seek to make it a condition; I have already referred to the three conditions. I seek to assist the Government in defining with clarity a sample count. As I have said, we have always understood it to be a count on which the evidence is admissible.
It is a simple matter. It puts the question of what is a sample count within certain well known, well defined boundaries and limits. When we are dealing with an entirely new and almost experimental procedure of trial, without a jury, of indictable-only offences, it is a sensible provision. I beg to move.
Baroness Anelay of St Johns: My Lords, I rise briefly, but the brevity of my comments should not lead one to underestimate the strength of my support for the amendment. It clarifies appropriately the definition of "sample count". In Committee and on Report, I demonstrated our general support for the changes that the Government seek to make. Although it might appear to others that we seek to weaken the role of the jury, we agree with the Government that we are not doing so. But some parts of the clause need to be strengthened in making the necessary changes. This amendment achieves just such an objective.
Baroness Scotland of Asthal: My Lords, of course I understand that the noble Lord, Lord Thomas of Gresford, wishes to assist the Government in defining clearly a sample count, and I hear the warm support given by the noble Baroness, Lady Anelay. However, I cannot usefully add much to what my noble and learned friend Lord Goldsmith, the Attorney-General, said on Report.
Evidence admissible in respect of sample counts is likely to be admissible in respect of the subsidiary counts because they will be extremely similar. It is important that the prosecution should be able to rely on evidence adduced in that part of the trial that was heard by a jury. However, it would not be appropriate to use admissibility, as this amendment does, as a criterion for whether counts were similar enough for one to be a sample of another. The question as to what can be regarded as a sample count is best left to judicial discretion.

833
There is also the practical problem that it may not be clear at the time of the preparatory hearing whether evidence in respect of a count is admissible in respect of another count. We believe that in cases of this type, where a judge is considering whether a count is a sample of another, the judge can be relied upon to know what a sample count is. In essence, that is why we have not adopted the commission's proposal for cross-admissibility.
I hope that what I have said is helpful. I am sorry if my noble and learned friend was harder than I was in Committee, but as in all things I defer to his firmness.
Lord Thomas of Gresford: My Lords, with the institution of a new procedure such as this, it is important that there be bounds to it. If it is simply left to the judge's discretion, that discretion may be taken in a way beyond that which Parliament envisages and it may be supported in the Court of Appeal. Therefore, it seems right that this definition should be clearly before the judge when he makes his pre-assessment. If, at that stage, he cannot say whether the evidence is admissible between counts—whether there is crossadmissibility—the procedure should not be adopted; it is as simple as that. I feel strongly enough about the matter as to test the opinion of the House.
1.39 p.m.
On Question, Whether the said amendment (No. 10) shall be agreed to?
Their Lordships divided: Contents, 117; Not-Contents, 107.

Division No. 3

CONTENTS

Addington, L.

Dundee, E.

Allenby of Megiddo, V.

Eden of Winton, L.

Anelay of St Johns, B.

Elles, B.

Astor, V.

Ezra, L.

Astor of Hever, L.

Feldman, L.

Avebury, L.

Ferrers, E.

Beaumont of Whitley, L.

Gardner of Parkes, B.

Biffen, L.

Geddes, L.

Blaker, L.

Glentoran, L.

Blatch, B.

Goodhart, L.

Bowness, L.

Greaves, L.

Bradshaw, L.

Greengross, B.

Bridgeman, V.

Hamwee, B.

Brigstocke, B.

Hanham, B.

Brooke of Sutton Mandeville, L.

Harris of Richmond, B. [Teller]

Brougham and Vaux, L.

Hayhoe, L.

Byford, B.

Hodgson of Astley Abbotts, L.

Caithness, E.

Hooson, L.

Campbell of Alloway, L.

Howe of Aberavon, L.

Carlisle of Bucklow, L.

Jenkin of Roding, L.

Carnegy of Lour, B.

Jopling, L.

Clement-Jones, L.

Kimball, L.

Cobbold, L.

King of Bridgwater, L.

Colwyn, L.

Laird, L.

Cope of Berkeley, L.

Lang of Monkton, L.

Craigavon, V.

Lawson of Blaby, L.

Crickhowell, L.

Lester of Herne Hill, L.

Denham, L.

Linklater of Butterstone, B.

Dholakia, L.

Liverpool, E.

Donaldson of Lymington, L.

Livsey of Talgarth, L.

834

Lyell, L.

Rodgers of Quarry Bank, L.

McColl of Dulwich, L.

Roper, L.

MacLaurin of Knebworth, L.

Rotherwick, L.

McNally, L.

Sanderson of Bowden, L.

Maddock, B.

Seccombe, B.[Teller]

Mar and Kellie, E.

Selsdon, L.

Methuen, L.

Sharman, L.

Miller of Chilthorne Domer, B.

Sharp of Guildford, B.

Miller of Hendon, B.

Shaw of Northstead, L.

Molyneaux of Killead, L.

Shutt of Greetland, L.

Montagu of Beaulieu, L.

Skelmersdale, L.

Montrose, D.

Skidelsky, L.

Mowbray and Stourton, L.

Smith of Clifton, L.

Stern, B.

Newby, L.

Stoddart of Swindon, L.

Northbrook, L.

Strathclyde, L.

Northesk, E.

Swinfen, L.

Northover, B.

Taverne, L.

Park of Monmouth, B.

Tenby, V.

Peel, E.

Thomas of Gresford, L.

Perry of Southwark, B.

Thomas of Walliswood, B.

Phillips of Sudbury, L.

Tordoff, L.

Pilkington of Oxenford, L.

Ullswater, V.

Plumb, L.

Wallace of Saltaire, L.

Plummer of St. Marylebone, L.

Walmsley, B.

Rawlings, B.

Wilcox, B.

Reay, L.

Williams of Crosby, B.

Redesdale, L.

Williamson of Horton, L.

Renton, L.

Windlesham, L.

NOT-CONTENTS

Acton, L.

Gale, B.

Ahmed, L.

Gibson of Market Rasen, B.

Amos, B. (Lord President of the Council

Goldsmith, L.

Gordon of Strathblane, L.

Andrews, B.

Goudie, B.

Archer of Sandwell, L.

Grenfell, L.

Ashley of Stoke, L.

Grocott, L. [Teller]

Ashton of Upholland, B.

Harrison, L.

Bach, L.

Haskel, L.

Barnett, L.

Hayman, B.

Bassam of Brighton, L.

Hogg of Cumbernauld, L.

Berkeley, L.

Hollis of Heigham, B.

Bernstein of Craigweil, L.

Howarth of Breckland, B.

Bledisloe, V.

Hoyle, L.

Boothroyd, B.

Hughes of Woodside, L.

Boston of Faversham, L.

Hunt of Kings Heath, L.

Bragg, L

Irvine of Lairg, L.

Brightman, L.

Janner of Braunstone, L.

Brookman, L.

Jay of Paddington, B.

Burlison, L.

Jordan, L.

Campbell-Savours, L.

Judd, L.

Carter, L.

King of West Bromwich, L.

Chan, L.

Lea of Crondall, L.

Christopher, L.

Lipsey, L

Clarke of Hampstead, L.

Lofthouse of Pontefract, L.

Cohen of Pimlico, B.

Macdonald of Tradeston, L.

Corbett of Castle Vale, L.

MacKenzie of Culkein, L.

Crawley, B.

Mackenzie of Framwellgate, L.

David, B.

Marsh, L.

Davies of Oldham, L. [Teller]>

Masham of Ilton, B.

Dean of Thornton-le-Fylde, B.

Massey of Darwen, B.

Dixon, L.

Merlyn-Rees, L.

Donoughue, L.

Morris of Aberavon, L

Dubs, L.

Morris of Manchester, L.

Elder, L.

Nicol, B.

Evans of Parkside, L.

Pitkeathley, B.

Evans of Temple Guiting, L.

Ponsonby of Shulbrede, L.

Falconer of Thoroton, L. (Lord Chancellor)

Randall of St. Budeaux, L.

Rendell of Babergh, B.

Farrington of Ribbleton, B.

Rogers of Riverside, L.

Faulkner of Worcester, L.

Rooker, L.

Filkin, L.

Sainsbury of Turville, L.

Fitt, L.

Sawyer, L.

Fyfe of Fairfield, L.

Scotland of Asthal, B.

835

Sewel, L.

Turner of Camden, B.

Sheldon, L.

Warner, L.

Simon, V.

Warwick of Undercliffe, B.

Stone of Blackheath, L.

Weatherill, L.

Strabolgi, L.

Wedderburn of Charlton L.

Symons of Vernham Dean, B.

Whitaker, B.

Tanlaw, L.

Temple-Morris, L.

Whitty, L.

Tomlinson, L.

Wilkins, B.

Triesman, L.

Williams of Elvel, L.

Turnberg, L.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
1.50 p.m.
Clause 18 [Unfitness to plead: procedure]:
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 11:
Leave out Clause 18.
The noble Baroness said: My Lords, in speaking to Amendment No. 11, I shall speak also to Amendments Nos. 12 and 13, which are consequential. These clauses were inserted by the Government at Report stage. They remove from the jury the decision as to whether the defendant is fit to be tried, and give that decision to the judge alone. I made it clear at Report that I was somewhat sceptical about the Government's proposal. I said that I would carefully consider the arguments put forward and return to the matter at Third Reading if I was not convinced that the removal of this decision from the jury was necessary and appropriate.
I listened carefully to the Minister's reasons for removing that decision from the jury. I looked at the Auld report, which had been prayed in aid by the Government as the reason for the proposal. Of course, I accept that this is one of many recommendations made by Lord Justice Auld. The Government have not accepted all of his proposals and I agree with them on that. This is one more proposal that should, for the moment, be allowed to lie quietly unadopted.
Since 1997, the Government have been working assiduously to remove lay people from the judicial system. I call to mind lay members of the Social Security Appeal Tribunal and now the proposed unified Asylum and Immigration Tribunal, let alone the original proposals in the Criminal Justice Act and its Mode of Trial predecessors.
The layman has a vital role to play in our judicial system, which should not be reduced unless there is a strong reason to do so. We have accepted that there are occasions when that role should be reduced. We accepted that in the clauses that have transferred to judge alone the trial of sample counts.
In the matter of unfitness to plead it is right that the decision should remain with the jury. It is a matter of public interest and a jury has the competence to make the decision appropriately. The result of a decision that someone is unfit to plead can be draconian. It can be a hospital order without restriction as to time. At this stage, I believe that the decision should remain in the hands of the jury. I beg to move.
Lord Thomas of Gresford: My Lords, we support the amendment. As the noble Baroness, Lady Anelay, said,
836
it is very important that the public should have confidence in the system. In these cases, the position is that they are usually determined on the basis of medical reports, which very often are agreed but sometimes are conflicting, in which case evidence is called. The tribunal that determines whether the unfitness to plead is made out should be the jury. As the noble Baroness, Lady Anelay, said, the consequences of such a decision can be that a person can be locked up under a hospital order without any restriction as to time and is thereby deprived of his freedom.
Baroness Scotland of Asthal: My Lords, I am disappointed that the noble Baroness and noble Lord take that view. I am particularly disappointed that the noble Baroness should suggest that this clause seeks to remove lay people from the system. The clause has the effect of transferring responsibility to the judge to make the decision. However, noble Lords will note that the lay judgment remains in being because the jury still has a very powerful role.
Amendment No. 18 would remove a clause inserted during Report stage that would "streamline" the court process for vulnerable defendants who may be unfit to stand trial. The clause challenged makes changes to the Criminal Procedure (Insanity) Act 1964. The changes provide that the decision on whether a defendant is fit to plead to a charge should be taken by the judge and not by a jury.
I notice that the noble Baroness spoke only to the issue of jury trial and not to Clauses 19 and 20. The change is important to the efficiency of the court hearing where fitness is an issue. It is wasteful of court time and resources to have to convene two juries; that is, one jury to determine the issue of whether the defendant is fit to stand trial and, if not, another jury to determine whether he did the act or made the omission as charged.
It is not in the interest of vulnerable defendants to have to undergo a lengthy process involving two separate juries with the first having to hear evidence from at least two medical practitioners. The provision does not detract from the defendant's right to be tried by a jury. In the event that the defendant is found unfit to plead, a jury must still consider the facts of the case and acquit if not satisfied that the defendant did the act as charged. A finding that he did the act cannot lead to a conviction or punitive disposal.
I respectfully suggest that a jury is unlikely to be as well qualified as a judge to interpret the complex evidence of a professional nature. Moreover, under the new regime, if the defendant subsequently wishes to challenge a finding as to whether he is unfit to plead, he will have a judge's reasons for the conclusion under the new clause. That will help him to decide whether there is any basis for a successful appeal. Under the 1964 Act provision, which this amendment would restore, the jury has to give no reasons for its finding.
As the noble Baroness, Lady Anelay, has seen and read, the provision is a recommendation made by Lord Justice Auld. We do not think that it should stay on the shelf gathering dust. It has merit. It has been subject to

837
consultation in the published consultation document accompanying the mental health Bill where it attracted support. It is too important to the courts and to vulnerable defendants to be delayed further. At best, it must be subject to considerable further delay if removed from the Bill.
Amendment No. 12 seeks to remove Clause 19, which was inserted at Report stage. I have grouped Clauses 19 and 20 with Clause 18. I do not know whether the noble Baroness is content with Clauses 19 and 20 and simply discontent with Clause 18. If I can assume that that is her position, I shall not deal with the other two clauses.
The time has come to deal with this issue. We do not think that it will be unjust. It is proper. As I said at Report, and I reiterate today, there are some real benefits. There would be a reasoned decision that is capable, in the interests of' the defendant, of being challenged. He would still get the benefit of a jury to make the determination of fact, which is proper.
I know that the history of this House should have taught me otherwise, but I had hoped that this might have been a clause on which we would all gleefully agree. I have to express my disappointment.
Baroness Anelay of St Johns: My Lords, I am always sad to disappoint the Minister; naturally, nothing could be further from my objective.
However, I also do not want to disappoint those who seek to maintain a fair judicial system. I know that the Minister's objective is to ensure that there is a fair judicial system, but where we part company is on the question of whether a satisfactory case has yet been made as regards Clause 18. I should add that I am not addressing Clauses 19 and 20; my fire is directed towards Clause 18.
The Minister says that this will "streamline" the process for vulnerable people. There is also an argument that streamlining processes may prove to be a disadvantage in some circumstances. I hear what the noble Baroness says about the fact that a judge will be able to give reasons whereas a jury would not, but one could cite other circumstances where a jury trial might be thought inappropriate because reasons are not given. While I know that that is not what the Minister intends to imply, one has to consider the whole of the judicial system when seeking to assault one part of it.
As she did at the previous stage, the noble Baroness said that the jury might not be best placed properly to be able to deal with the evidence that might be adduced from medical reports. However, the great strength of a jury is that it is able to bring to its adjudication an understanding of what is right and wrong, and whether what it has been told is the truth. Members of juries are able to come to their decisions in such cases.
The noble Baroness also referred to the fact that this provision might have been included in the mental health Bill. As soon as we had sight of the first amendments tabled by the Government on this proposal, I took every opportunity to contact organisations that one would expect to have a direct interest in it. I know that the Minister has observed in
838
the past that silence is consent, but I am not persuaded of that. I like to be sure that when serious changes are made, people are content. Despite my best efforts, I have still not heard whether people are content with the proposals. Since, despite repeated efforts, I have not directly received that response—it would have to come to me as the mover of the amendment—I am not in a position to agree that this particular clause should be put on the face of the Bill. As it stands today, therefore, I am not able to say whether Clause 18 should be included in the Bill.
If the House agrees that Clause 18 should not be added to the Bill and it is further discussed in another place, it may well be that further evidence comes to light. But I have to say that the scepticism I expressed when we considered this on Report has since hardened. Therefore, I seek to test the opinion of the House.
Baroness Scotland of Asthal: My Lords, I wish to rise before the noble Baroness resumes her place. On this occasion it is not a question of silence. I hope that I made it clear that the consultation document accompanying the draft mental health Bill contained these provisions. I understand that, within that consultation, they attracted support. This is not a question of silence; the consultation document indicated that there was positive support for these provisions.
Baroness Anelay of St Johns: My Lords, I shall not trespass too much on the rules at Third Reading, but I should say that I looked at that consultation document. A fleeting, passing reference was made to this proposal. As it was so fleeting and passing, I sought assiduously to find out what the major organisations—I named them on the previous occasion—felt about it. However, at this point I do not have the evidence to hand to allow me properly to accept that this proposal should go forward. I wish to test the opinion of the House on whether to leave out Clause 18.
2.2 p.m.
On Question, Whether the said amendment (No. 11) shall be agreed to?
*Their Lordships divided: Contents, 115; Not-Contents, 103.

Division No. 4

CONTENTS

Addington, L.

Campbell of Alloway, L.

Allenby of Megiddo, V.

Carlisle of Bucklow, L.

Anelay of St Johns, B.

Carnegy of Lour, B.

Astor of Hever, L.

Carrington, L.

Avebury, L.

Clement-Jones, L.

Beaumont of Whitley, L.

Cobbold, L.

Belstead, L.

Colwyn, L.

Blatch, B.

Cope of Berkeley, L.

Bowness, L.

Crickhowell, L.

Bradshaw, L.

Denham, L.

Bridgeman, V.

Dholakia, L.

Brooke of Sutton Mandeville, L.

Dundee, E.

Brougham and Vaux, L.

Eden of Winton, L.

Byford, B.

Elles, B.

Caithness, E.

Ezra, L.

839

Falkland, V.

Northesk, E.

Feldman, L.

Northover, B.

Ferrers, E.

Oakeshott of Seagrove Bay, L.

Gardner of Parkes, B.

O'Cathain, B.

Geddes, L.

Park of Monmouth, B.

Glentoran, L.

Peel, E.

Goodhart, L.

Perry of Southwark, B.

Greaves, L.

Phillips of Sudbury, L.

Greenway, L.

Pilkington of Oxenford, L.

Hamwee, B.

Plumb, L.

Hanningfield, L.

Plummer of St. Marylebone, L

Harris of Richmond, B. [Teller]

Rawlings, B.

Hayhoe, L.

Reay, L.

Hodgson of Astley Abbotts, L.

Hooson, L.

Redesdale, L

Howe of Aberavon, L.

Renton, L.

Hunt of Wirral, L.

Rodgers of Quarry Bank, L.

Jacobs, L.

Roper, L.

Jellicoe, E.

Rotherwick, L.

Jenkin of Roding, L.

Saltoun of Abernethy, Ly.

Jopling, L

Sanderson of Bowden, L.

Kimball, L.

Seccombe, B.[Teller]

King of Bridgwater, L.

Sharman, L.

Laird, L.

Sharp of Guildford, B.

Lang of Monkton, L

Shaw of Northstead, L.

Lang of Monkton, L.

Shutt of Greetland, L.

Lawson of Blaby, L.

Skelmersdale, L.

Lester of Herne Hill, L.

Smith of Clifton, L.

Linklater of Butterstone, B.

Stern, B.

Liverpool, E.

Stoddart of Swindon, L.

Livsey of Talgarth, L.

Swinfen, L.

McColl of Dulwich, L.

Taverne, L.

MacLaurin of Knebworth, L.

Thomas of Gresford, L.

McNally, L.

Thomas of Walliswood, B.

Maddock, B.

Thomson of Monifieth, L.

Mar and Kellie, E.

Tope, L.

Methuen, L.

Tordoff, L.

Miller of Chilthorne Domer, B.

Ullswater, V.

Miller of Hendon, B.

Wade of Chorlton, L.

Montrose, D.

Wallace of Saltaire, L.

Mowbray and Stourton, L.

Walmsley, B.

Newby, L.

Wilcox, B,

Northbrook, L.

Williams of Crosby, B.

NOT-CONTENTS

Acton, L.

Dixon, L.

Ahmed, L.

Dubs, L.

Amos, B. (Lord President of the Council)

Elder, L.

Evans of Parkside, L.

Andrews, B.

Evans of Temple Guiting, L.

Archer of Sandwell, L.

Falconer of Thoroton, L. (Lord Chancellor)

Ashley of Stoke, L.

Ashton of Upholland, B.

Farrington of Ribbleton, B.

Bach, L.

Faulkner of Worcester, L.

Barnett, L.

Filkin, L.

Bassam of Brighton, L.

Fitt, L.

Berkeley, L.

Fyfe of Fairfield, L.

Bernstein of Craigweil, L.

Gale, B.

Blackstone, B.

Gibson of Market Rasen, B.

Bledisloe, V.

Goldsmith, L.

Boothroyd, B.

Gordon of Strathblane, L.

Bragg, L.

Goudie, B.

Brookman, L.

Grocott, L. [Teller]

Burlison, L.

Harris of Haringey, L.

Campbell-Savours, L.

Harrison, L.

Carter, L.

Haskel, L.

Christopher, L.

Hayman, B.

Clarke of Hampstead, L.

Hogg of Cumbernauld, L.

Clinton-Davis, L.

Hollis of Heigham, B.

Cohen of Pimlico, B.

Howarth of Breckland, B.

Corbett of Castle Vale, L.

Howells of St. Davids, B.

Crawley, B.

Hoyle, L.

David, B.

Hughes of Woodside, L.

Davies of Oldham, L. [Teller]

Hunt of Kings Heath, L.

Dean of Thornton-le-Fylde, B.

Irvine of Lairg, L.

840

Jannerof Braunstone, L.

Sawyer, L.

Jay of Paddington, B.

Scotland of Asthal, B.

Jordan, L.

Sewel, L.

Judd, L.

Sheldon, L.

King of West Bromwich, L.

Simon, V.

Lea of Crondall, L.

Stallard, L.

Lipsey, L.

Stone of Blackheath, L

Lofthouse of Pontefract, L.

Strabolgi, L.

Macdonald of Tradeston, L.

Symons of Vernham Dean, B.

MacKenzie of Culkein, L.

Temple-Morris, L.

Mackenzie of Framwellgate, L.

Tomlinson, L.

Massey of Darwen, B.

Triesman, L.

Merlyn-Rees, L.

Turnberg, L.

Mitchell, L.

Turner of Camden, B.

Morris of Manchester, L.

Warner, L.

Nicol, B.

Warwick of Undercliffe, B.

Pitkeathley, B.

Wedderburn of Charlton, L.

Ponsonby of Shulbrede, L.

Whitaker, B.

Randall of St. Budeaux, L.

Whitty, L.

Rendell of Babergh, B.

Wilkins, B.

Rogers of Riverside, L.

Williams of Elvel, L.

Rooker, L.

Williamson of Horton, L.

Sainsbury of Turville, L.

Woolmer of Leeds, L.

*[See co1.866]
Resolved in the affirmative, and amendment agreed to accordingly.
2.12 p.m.
Clause 19 [Powers of court on finding of insanity or unfitness to plead etc]:
[Amendment No. 12 not moved.]
Clause 20 [Appeal against order made on finding of insanity or unfitness to plead etc]:
[Amendment No. 13 not moved.]
Viscount Bridgeman Viscount Bridgeman moved Amendment No. 14:
After Clause 25, insert the following new clause—
"AMENDMENTS TO THE YOUTH JUSTICE AND CRIMINAL EVIDENCE ACT 1999 TO EXTEND THE CATEGORY OF WITNESSES ELIGIBLE FOR ASSISTANCE ON GROUNDS OF FEAR OR DISTRESS ABOUT TESTIFYING
(1) Section 17 of the Youth Justice and Criminal Evidence Act 1999 (c. 23) (witnesses eligible for assistance on grounds of fear or distress about testifying) is amended as follows.
(2) After subsection (4) insert—

"(4A) Where the complainant in respect of proceedings relating to any form of molestation, including violence, involving the complainant, a cohabitant, a relevant child or associated persons, is a witness in such proceedings, the witness is eligible for assistance in relation to those proceedings by virtue of this subsection unless the witness has informed the court of the witness's wish not to be so eligible by virtue of this subsection.

(4B) For the purposes of this subsection, "cohabitant", "relevant child" and "associated persons" mean a person as defined by section 62 of the Family Law Act 1996 (c. 27) (meaning of "cohabitants", "relevant child" and "associated person") as amended by sections 2 and 3 of this Act.""

The noble Viscount said: My Lords, Amendment No. 14 stands in my name and in the names of my noble friend Lady Anelay, the noble Lord, Lord McNally, and the noble Baroness, Lady Walmsley. May I first thank the Minister for agreeing to meet Victim Support. as we suggested, after the Report stage?
This is the same amendment as the one we moved on Report, when I gave notice to the Minister that we would not divide the House at that stage. The point at issue remains—that is, the concept that one size does not fit all, as the Minister put it so succinctly at earlier stages of the Bill. As an example, the Minister painted the scenario of a complainant who, in effect, wants maximum publicity by saying,
"'I am going to stand up for myself, and I am not going to allow you to see that you have obliged me to take special measures to hide from you"'.—[Official Report, 15/3/04; col. 32.]
The Minister quite rightly said that some cases go one way and some go the other.
But, in my amendment, the proposed new subsection (4A) expressly provides for the witness to opt out of the right to special measures,
"unless the witness has informed the court of the witness's wish not to be so eligible by virtue of this subsection".
This exactly follows the wording of Section 17(4) of the existing Act, which relates to sexual offences. So the victims will be able to opt out of the special measures provided for under our amendment.
The Minister reminded us on Report that as the Bill now stands the victims have the right to special measures under Sections 16 and 17 of the Youth Justice and Criminal Evidence Act, but the difference between us remains. The statutes at present give the protection at the discretion of the court; our amendment gives it as an absolute right. At the risk of repeating what I said on Report, we think this is of fundamental psychological importance to the witness. If the provision draws in some trivial cases which are not in themselves deserving of special measures, so be it. The opt-out provision to which I have referred is there.
I hope that the Minister will, at this late stage of the Bill's passage through your Lordships' House, be able to agree what we on these Benches regard as a fundamentally important modification of the Bill. I beg to move.
Baroness Walmsley: My Lords, in rising to support the amendment I would like very much to reiterate the words of the noble Viscount, Lord Bridgeman, in regard to the opt out provided in the proposed new clause, which counters the arguments made by the Minister at Report stage.
The noble Baroness also argued that Sections 16 and 17 of the Youth Justice and Criminal Evidence Act 1999 already enable victims of domestic violence to have access to special measures where a court decides that it is appropriate. That is the sticking point and the reason that we are being so tenacious in again bringing forward the amendment. We feel that it is always appropriate at least to offer these measures to victims of domestic violence. As we have heard, the victim may reject the measures for his or her own reasons; he or she would have a right to do that.
We are concerned that there may be situations where the court may not allow special measures when it would be appropriate to do so. The nature of the
842
power relationship is not always reflected by the seriousness of the particular assault that brought the parties to court on the day. That means that the court may not feel that the assault is serious enough to require the special measures to be made available to the victim. But the court cannot see into the mind of the victim; it cannot know how demoralised is the victim of the assault.
We want vigorous, good-quality evidence, given with the kind of conviction that will convince the court. A woman who is cowering in fear of her assailant will not be in a position to give that good-quality evidence—and on that good-quality evidence depends the justice that will result from the hearing on the day.
It is for that reason that we vigorously support the amendment. We hope that it will find favour with the Minister. We all want exactly the same thing; that is, that genuine perpetrators are brought to book and that women are given the courage to come forward and complain about domestic violence.
Baroness Scotland of Asthal: My Lords, I absolutely agree with the last statement of the noble Baroness, Lady Walmsley. We all agree about that. There has never been a murmur of dissent among any of us in terms of our aspirations in regard to what we wish to make available to victims.
The noble Viscount, Lord Bridgeman, referred to the comments that I made on Report. I am grateful to him for that. It is right that we should look at each case on its merits. We agreed during the Report stage that where there is clear evidence of the victim being too frightened or distressed to give evidence, special measures are available; and that Section 17 of the Youth Justice and Criminal Evidence Act 1999 already enables victims of domestic violence to have access to special measures where the court decides it is appropriate. So we think the amendment is unnecessary. However, I understand the difference in emphasis that the noble Lord and the noble Baroness, Lady Walmsley, seek to make.
As the noble Viscount, Lord Bridgeman, said, Section 17 states that the court must take into account, among other things, such factors as the domestic circumstances of the witness, any behaviour towards the witness on the part of the accused and the nature and alleged circumstances of the offence. The noble Lord said at Report that he was aware of magistrates who were unwilling to give special measures because they had been applied for only on the day of the trial, and representatives from Victim Support, who met my officials this week, were concerned that the courts were not always willing to allow victims of domestic violence access to special measures. The organisation did not say on how many occasions that happened, but even one occasion is one too many.
Of course, leaving an application for special measures until the day of the trial cannot be good practice. The way that we set these things up now is that there should be good preparation for these hearings and such applications should be made at an early stage. It would indicate, perhaps unfairly, a lack

843
of preparation of the case, and would take up valuable court time. Applications should be made at the pretrial hearing because, if nothing else, that would provide a greater degree of certainty to the victim about how they will give their evidence at the trial.
We should all accept that these measures are still relatively new, and access in the magistrates' courts has so far been limited to child witnesses. It is important that we do not act hastily but instead wait for the findings of the independent evaluation of special measures which will report in the summer, which is quite soon. We would aim to address any teething problems through training and guidance, rather than automatically consider the legislative route. The Government do not believe that legislation is the cure to all ills. Some people say that legislation can be the opposite. I will be meeting Victim Support shortly to discuss the Bill as a whole and I hope we can reach a common understanding about how it will support vulnerable and intimidated witnesses, victims in general and domestic violence victims in particular.
As I said in the debate last time, I expect courts to be sensitive to the needs of victims of domestic violence and grant special measures when appropriate. I also hope that the rules of court that we are putting in place make it clear that proper applications should be made to prepare for these cases so that when the vulnerable person comes to give evidence they know that they will be properly accommodated during the proceedings, and will be best able to describe what happened to them.
For those reasons, I hope that noble Lords will understand that I cannot accept the amendment and that they will not press this matter today. I hope that they will accept the assurance that we will do all that we can to ensure that these issues are accommodated in a proper way.
Viscount Bridgeman: My Lords, I am grateful to the noble Baroness, Lady Walmsley, for supporting this amendment and to the Minister for the limited assurances that she has given us. Only this morning I received further brief from Victim Support that paints an unsatisfactory picture of the working of the special measures in the courts, probably largely through ignorance. I have not had time to digest it all, but I will read two comments from its members. The first says:
"Victims are often terrified at the thought of seeing their abuser. It would be helpful if they knew that they would be protected from view by screens".
The second is:
"I believe that a number of clients who refuse to give evidence would be willing to go ahead with cases if they have a screen or video link. Many get here and then refuse to give evidence. It is important that the witness knows"—
I repeat knows—
"what to expect before they arrive".
We will take up this point in another place during the passage of the Bill there, so I shall not divide the House today. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 31 ["Victims"and "witnesses'']:
Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 15:
Page 18, line 23, at end insert—
"(c) the offence was one of trafficking people into the United Kingdom for exploitation."
The noble Baroness said: My Lords, this is a probing amendment. I am very grateful to the noble Lord, Lord Hylton, for adding his support to the amendment. It would make it clear on the face of the Bill that the clauses relating to the functions of the Commissioner for Victims and Witnesses should apply as much to the victims of illegal trafficking as to anyone else in this country. I tabled the amendment to ask the Government to clarify the position of those people who are trafficked illegally into the UK for either sexual or non-sexual exploitation.
We have welcomed the measures both in the Sexual Offences Act and in the current Asylum and Immigration (Treatment of Claimants, etc.) Bill with regard to closing down any opportunity for such illegal trafficking. However, will the Commissioner for Victims and Witnesses be under an explicit duty to promote the interests of these victims? During Second Reading of the asylum Bill last week, I pointed out that the victims Bill before us today makes no specific reference to support for victims of trafficking. I am trying to ensure that they are included within its protection. I beg to move.
Lord Hylton: My Lords, I was happy to agree to add my name to the amendment. We ought not to be in any doubt at all that people who have been trafficked into this country are definitely victims. They have normally suffered from fraud, deceit, coercion and so forth, and they do not arrive here with their full consent. They may have been transported by various means over hundreds or thousands of miles before they arrived here. I hope that the Government will look with some sympathy on this amendment. I have drafted an amendment to the recently published asylum Bill that is intended to secure proper treatment and protection of victims of trafficking once they are here.
Baroness Scotland of Asthal: My Lords, I thank the noble Baroness, Lady Anelay, and the noble Lord, Lord Hylton, for indicating that this is a probing amendment which seeks to add to Clause 31 (3) so that the needs of the victims of human trafficking are brought within the remit of the Commissioner for Victims and Witnesses.
Given the already substantial scope of the commissioner to consider the needs of various victims, I will resist this amendment on the basis that it is already part of his powers to make recommendations to the Government about this group of victims. But I welcome this opportunity to associate myself with the comments made by both the noble Baroness, Lady Anelay, and the noble Lord, Lord Hylton, and to inform the House of the steps that we have already taken to offer support to such a vulnerable and exploited group of victims. I assure the noble Lord, Lord Hylton, that we do indeed see this category of people as victims.

845
Since 2002, the Home Office has been working in partnership with the voluntary sector to put in place provision for those who have been trafficked for the purposes of sexual exploitation. In March 2003, we launched a pilot project to provide safe accommodation and access to health and other support services for female victims who have been trafficked into prostitution. The victims were given the opportunity to make informed choices about whether, and to what extent, they were able actively to assist the authorities. An additional aim of the pilot, therefore, was to enable UK enforcement authorities to gather information on and take action against the traffickers. It became apparent towards the end of the initial six-month pilot period that further time was required to ensure that robust evaluation evidence on its impact could be gathered.
The pilot period was therefore extended for a further three months to December 2003. The formal pilot phase has now concluded but feedback from key stakeholders such as the police, local healthcare professionals, the immigration service and non-government organisations has been very positive.
Early evaluation findings also support the continuation of the project and, pending full evaluation and to ensure continuity of service provision for this extremely vulnerable group of victims, we will maintain the project at its current level. We are continuing to monitor the numbers of and outcomes for victims entering the scheme. This information will also feed into the evidence base for future service developments. We expect the final evaluation report on the pilot phase to be available during the summer of 2004. We will use the period up to April 2005 to consider in detail the evaluation evidence and to take decisions as to the type and extent of support needed in the future.
At the same time, we are currently looking at the issue of provision for victims of people-trafficking for the purposes of labour exploitation—another issue in which I know noble Lords have been interested. We want to gauge the scale of the problem and to see what scope there might be for identifying and providing support also to victims of this form of exploitation. The needs of victims of all types of trafficking are likely to be firmly within the vision of the new Commissioner. The Bill as currently drafted allows him or her to make recommendations to Government on what other or further action we need to take.
I therefore very much welcome this opportunity to outline what we have achieved so far. I am very grateful for the support that the House has given in the past and for the implicit support given by the noble Baroness, Lady Anelay, and the noble Lord, Lord Hylton, to these efforts. I hope that the noble Baroness and the noble Lord will not be surprised to hear that I will nonetheless be resisting their amendment. However, I hope that they will fully understand why the amendment is not necessary.
2.30 p.m.
Baroness Anelay of St Johns: My Lords, I am indeed grateful to the Minister and I accept her argument. I
846
am pleased to hear that her opening remarks were firmly that such a concern for the victims of trafficking would be part of the Commissioner's powers. It would be good to have that on the record.
I was also very grateful to her for putting on the record in a fair amount of detail the work that has been carried out with regard to trafficking and those who are subject to sexual exploitation. We certainly await with interest the further evaluation of that pilot as it is maintained. We would also welcome any work that could be done to look at those who are exploited for non-sexual reasons.
I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 7 [Minor and consequential amendments]:
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 16:
Page 42, line 10, at end insert—
"Criminal Justice Act 1988 (c. 33)
In section 41 of the Criminal Justice Act 1988 (power of Crown Court to deal with summary offence where person committed for either way offence), after subsection (4) insert—
"(4A) The committal of a person under this section in respect of an offence to which section 40 above applies shall not prevent him being found guilty of that offence under section 6(3) of the Criminal Law Act 1967 (alternative verdicts on trial on indictment); but where he is convicted under that provision of such an offence, the functions of the Crown Court under this section in relation to the offence shall cease.""
On Question, amendment agreed to.
In the Title
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 17:
Line 4, after "offence:" insert "to make provision about alternative verdicts;"
On Question, amendment agreed to.
An amendment (privilege) made.
Baroness Scotland of Asthal: My Lords, I beg to move that this Bill do now pass.
Moved, That the Bill do now pass.—(Baroness Scotland of Asthal.)
On Question, Bill passed, and sent to the Commons.

European Parliamentary and Local Elections (Pilots) Bill
2.33 p.m.
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin): My Lords, I beg to move that the Commons reason be now considered.
Moved accordingly, and, on Question, Motion agreed to.
COMMONS REASON FOR DISAGREEING TO A CERTAIN LORDS AMENDMENT
[The page and line references are to HL Bill 14 as first printed for the Lords.]
LORDS AMENDMENT
1 Leave out Clause 1 and insert the following new clause—
"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 Line 15, at end insert—

"(c) Yorkshire and the Humber;

(d) North West."

The Lords disagree to Commons Amendment No. 1A to Lords Amendment No. 1, for the following reason—
1B Because it is appropriate to make provision for no more than two pilot regions, as recommended by the Electoral Commission.
The Commons do not insist on their Amendment No. 1A to which the Lords have disagreed, but propose the following amendment to the Bill in lieu of that amendment—
1C Leave out lines 16 to 18 and insert—

'(c) Yorkshire and the Humber;

(d) North West.

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

(a) the ballot paper, and

(b) the completed declaration of identity form.

( ) The declaration of identity form is a form which is delivered along with the ballot paper and which is completed by being signed—

(a) by the person to whom the ballot paper is addressed, and

(b) by a witness to that signing whose name and address are clearly marked on the form.'

The Lords agree with the Commons in their Amendment No. 1C in lieu of Commons Amendment No. 1A, but propose the following amendment thereto—
1D Line 3, at end insert—
"but, in the case of either region specified in paragraph (c) or (d) above, a pilot may only lake place if it is specifically recommended by the Electoral Commission in a report which is laid before both Houses of Parliament after the coming into force of this Act."
The Commons disagree to Lords Amendment No. 1D to Commons Amendment No. 1C, for the following reason—
Because it is not necessary to seek further advice from the Electoral Commission.
Lord Filkin: My Lords, I beg to move that the House do not insist on its Amendment No. 1D to Commons Amendment No. 1C, to which the Commons have disagreed for their reason numbered 1E.
We are in an unusual situation. This is the fourth time that this issue is being considered by this House, and I hope that it will be the last.
With regard to Amendment No. 1D, it is clearly not appropriate to delegate decision-making on this issue to the Electoral Commission. In response to the Deputy Prime Minister's request for clarification, the Electoral Commission has made its position clear. It said:
"We very much recognise that the choice of pilot regions for all-postal voting is for Government and Parliament to decide. The Commission's role is advisory and it is not for us to say yes or no to pilots in particular areas. However, it is imperative that a decision is not further delayed".
The Electoral Commission has therefore given a clear view that it is this House and another place that should make these decisions: it is not for us to hide behind it.
We are therefore back where we were when we last debated this—which, I suggest to the House, essentially turns around two questions: which regions and how many regions? However, I think that the position has moved on somewhat. It is now clearer that the Electoral Commission has accepted the Government's position that Yorkshire and Humberside is suitable for a pilot in the combined elections in June. The debate, therefore, is about the north-west.
As I sought to set out in our previous discussion on this matter, after the Commission had indicated that the north-west was potentially suitable for a pilot in the combined elections in June, the Commission also made it clear that it was open to the Government to have further discussions with the relevant authorities, to see if the concerns that they had identified about the complexity in the north-west could be met. As I have indicated, the Government have done just that, as is their responsibility, and the regional returning officer and the returning officers in those authorities have made a clear statement to the Government that they believe that they can carry out all-postal ballots in the June European and local elections, and do so soundly, securely and safely. The Government's view, therefore, is that there is no good reason not to have the north-west included as a pilot region.

849
We see that there are four regions suitable for carrying out pilots of all-postal ballots, and it is important to deepen our understanding of piloting. If we needed any reminder of why this is important—I promise the House that I will not repeat the argumentation that I made, and already hear sighs of relief in the Chamber—I would draw the attention of the House to the publication by the Electoral Commission this week of its Audit of Political Engagement.
This is not a party political issue but one which binds us all in concern, given the appallingly low level of public engagement with politics and voting in our society. I will say no more on that for now. It is perhaps an issue for reflection and discussion, to which we should return at another time in this House on a non-partisan basis, because we do share these concerns.
I mention it only in order to emphasise that it is for no trivial reason that we are exploring and learning as much as we can about whether it is safe, sound and beneficial to change our voting system to all-postal balloting. We are doing so because it is important to address this issue of increasing turnout and political participation in our society.
I suggest to the House, therefore, that there is clearly an emerging consensus from the Government and the Electoral Commission—if I have read the thrust of the amendment by the Liberal Democrats correctly—that Yorkshire and Humberside now look safe and sound for an all-postal ballot. The issue is whether we are talking about three regions or four regions in relation to these ballots in June.
Why four? If anything, there is a shade of difference between, on the one hand, the Government and the Commons who share a view and, on the other, the Electoral Commission. If I understand the Electoral Commission's position clearly—and I think I do, because it has been straightforward both in correspondence and in discussion—it believes, first, that we can learn most of what we need to know about piloting from three regions, and therefore one does not need to go to four to do so. Secondly, it has an anxiety about moving through a process of incremental drift from pilots, to what it thought might effectively be all-out postal balloting, without having put in place some of the security arrangements that we discussed in our earlier consideration of the Bill.
These issues are judged ultimately by Parliament and the public rather than by the Electoral Commission. As I have said before, I have respect for Sam Younger and the Electoral Commission. However, this is an issue of judgment, not a black and white issue. The judgment turns on whether we will learn anything more from piloting the arrangements in four regions. From my perspective, and that of the Government and the Commons, it is self-evident that we would learn more by doing that. As we have discussed in previous debates on the Bill, the north west is different. It has specific issues that are interesting and important and potentially challenging. Learning from piloting in that context will be beneficial for us all in making measured judgments
850
about when we should move to all-postal balloting for local elections. So we will learn more if the north west is included in this process.
The second reason the Government are clear that on balance it is sensible to pilot in four regions is a different one. I do not think that the commission and the Government are at all at odds on it. Both the commission and the Government agree that it is desirable that we carry out all-postal balloting in the three regions, which of course include the north west, that will have regional referenda in October. That is clearly the Electoral Commission's position. It has supported the Government's statement of intent.
Therefore, from my previous comments and what is clear in the recent correspondence from the Electoral Commission, there is no issue about the north east, Yorkshire and Humberside, which will have regional referenda. The debate is whether it is sensible to expect the north west—where many of the local authorities will have carried out their previous local authority elections on an all-postal ballot basis—to move in the June elections to traditional arrangements and then to revert back, in October, to all-postal ballots. The Electoral Commission is entitled to its view. The Government are entitled to their view as well. We think that we will learn more from piloting in four regions rather than three. We do not want the slightly bizarre position in which, if this House sustains its view, some local authorities in the north west will move from postal ballots for local elections to traditional ballots for the elections in June, and then move back to postal ballots in October.
I ask the House whether that seems sensible. Does that seem an issue of fundamental principle on which this House would want to take a constitutional stand in the face of the will of the House of Commons? That is the final issue that we have to look at.
This House, of which I am privileged to be a Member, has a duty and a right to scrutinise legislation. I have a respect for the way in which it goes about that. I think that the House, while not doing that perfectly, does it well. However, we know that the constitutional settlement is that this House scrutinises legislation and gives its view and its advice to another place. It is the duty of the other place to consider that view and advice and then to make its decision. The conventions of our place are that, ultimately, after this House has been assured—sometimes, if necessary, by a process including more than one testing—that the other place has come to a considered assessment, in the round, of the reasons for its view and that it has considered this House's opinion, the Commons have their way and we grant them their way.
That is not for a trivial or petty reason. While this House has great merits, it is not elected. The constitutional settlement in this society is that, after this House has done its job and drawn the attention of the other place to areas of concern, ultimately it bends to the will of the other place. The Commons have expressed their view on this issue three times after they have considered our opinions. I do not think that it is right or proper for us to resist their will any more. We

851
have done our job. They have considered our views. They have come to an opinion—not once, not twice, but thrice.
I will say no more on that, but I will remind the House of the view of the Wakeham report. While the report did not find fulfilment in every respect, it did largely capture the view, on a cross-party basis, on the constitutional settlement of this place. The report said:
"It is right that the House of Commons should be the principal political forum and have the final say in respect of all major public policy issues, including those expressed in the form of proposed legislation".
It continued:
"More generally, the second chamber should be cautious about challenging the clearly expressed views of the House of Commons on any public policy issue".
This House has given its view and advice three times, and the Commons have now clearly expressed their wish in this respect. The Commons must have their way, not simply because that is our settlement, but because the argument that divides this House and the other place turns essentially on a judgment on one region—on whether we will learn more or less by its inclusion, and whether this is a drift towards roll-out. I have clearly said that it is not a drift towards roll-out. We do not intend to move in that direction without proper processes and safeguards.
The Commons must have its way. I beg to move.
Moved, That the House do not insist on its Amendment No. 1D to Commons Amendment No. 1C, to which the Commons have disagreed for their reason numbered 1E.—(Lord Filkin.)—
2.45 p.m.
Lord Rennard Lord Rennard rose to move, as an amendment to the Motion that this House do not insist on its Amendment No. 1D to Commons Amendment No. 1C to which the Commons have disagreed for their reason numbered 1E, at end insert "but do make the following Amendment to Commons Amendment No. 1C in lieu of Lords Amendment No. 1D"—
1F Clause 1, Line 3, leave out—
"(d) North West."
The noble Lord said: My Lords, this amendment is a new proposal not previously considered in the other place, to allow for three postal pilots to take place, in the hope that it is a way in which to resolve this matter. I will argue that this is a compromise—splitting the difference between the view of one House and one political party that there should be four pilots, and the view of our House and all other parties that there should be two. We in this House, and everyone but the Labour Party, have sustained a view that the independent Electoral Commission's opinion on the scale and places for piloting should be pivotal in our considerations. This is not a technical issue on which there could be a variety of opinions worth debating. It is, I think, a very principled one—that no one party should choose different voting mechanisms for different places according to its own interest, based in this case on fears that the electorate will not turn out to support it.
Perhaps a different way of resolving the matter of testing postal pilots might have been to allow each of the parties to nominate one region for polling. That would have been rather more democratic than the Government's proposal that there should be all-postal voting in the northern half of England—where the Labour party wants it most, where Labour support is most concentrated, and where most Labour councillors are fearful of re-election—and none in the south, where Labour support is at its weakest.
The majority of Members in another place say that it is up to them to decide on methods of voting as they represent the party that received most votes at the previous election—albeit just over four in 10 of those voting, representing only about one in four of those entitled to vote. An opinion poll today suggests that only about four in 10 people know who their Member of Parliament is and only about three in 10 say that MPs are doing a good job. Reading yesterday's debate, one can see why.
One reason that they should not decide this issue alone, without consensus and in opposition to the Electoral Commission, is that they have a vested interest in the decision. That is why the issue regarding where the line should be drawn between electoral experimentation and simply rolling out a different voting system should be left not to one party to decide to its own advantage but to an independent body charged with helping to avoid the kind of dispute between the parties that we now have.
Parliament—which to some people means only one House—should decide, it is argued, on the fundamental issue of whether or not to do away with ballot boxes and have all postal voting. But we cannot have the Government picking and choosing which regions should have which voting mechanism according to their own electoral advantage. The Government say that they are not effectively changing the voting system; they are experimenting with it only through pilots. However, the question of what is a limited number of experiments and what is simply rolling out a different way of voting is an issue on which most parties and the independent Electoral Commission cannot agree with the Labour Government.
The Government asked Parliament to agree to postpone the local and London elections until 10 June so that they coincided with the European elections. At that stage, they did not want all postal pilots; or, if they did, they were not at that stage being honest about it. That would have been a major factor in considering whether or not to agree to the rare measure of postponing local elections. That matter was agreed on these Benches but on the basis of a false prospectus about how those elections were to be conducted.
The Government then surprised everyone by asking for there to be three all-postal pilots although at this stage they accepted the role of the Electoral Commission in deciding which three might be suitable. When the commission said that only two regions were in a position for them positively to recommend the idea, the Government maintained that they wanted three pilots. The Electoral Commission now says that

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three pilots, including Yorkshire and the Humber, can be carried out according to the agreed criteria of balancing logistical problems, fears of fraud and acceptance of the principle. It states in a letter yesterday that its objections to the idea of all-postal pilots in the north-west remain today just as they were last December.
This amendment offers the Government what they say they have wanted throughout most of a lengthy process of consideration of the issue. I believe that it would be churlish of them to reject it. I beg to move.
Moved, as an amendment to the Motion that this House do not insist on its Amendment No. 1D to Commons Amendment No. 1C to which the Commons have disagreed for their reason numbered 1E, at end insert "but do make Amendment No. 1F to Commons Amendment No. 1C in lieu of Lords Amendment No. 1D".—(Lord Rennard.)
Lord Campbell-Savours: My Lords, I wish to intervene and perhaps lay on the record for students of proceedings on these matters what the position is in relation to votes in the House of Commons. What is clear to me is that in the past month a decision has been taken among groups of Opposition Peers to exert considerably more pressure on the Floor of the House by calling votes at inconvenient times and insisting on voting on issues which are clearly in contradiction to the position taken by Members of the elected House. In so far as I believe that the inevitable course we are on is one of crisis in the relationship between the two Houses, I should like to set down for students of these issues where we are on this Bill.
Lord Tordoff: My Lords, perhaps I may—
Lord Campbell-Savours: My Lords, I shall give way in a few moments. Perhaps at this stage I could refer to an Early Day Motion tabled in the House of Commons two and a half weeks ago which refers to similar attempts to sabotage government legislation on the Criminal Justice Bill. Students of these issues may wish to know that it is EDM 847 in the Official Report of the House of Commons. It deals with Clauses 41 and 42 of the Criminal Justice Bill. The Motion concludes that it,
"condemns unreservedly those Peers who pay lip service to the primacy of this House;"—
that is the Commons—
"believes the issue to be considered in this case is not the merit of the clauses"——
on that occasion it was dealing with jury trial—
"on which honourable Members are entitled to have differing views but the abuse of the constitutional relationship between Lords and Commons and questions the commitment to democracy of unelected Opposition Peers who reject the primacy of the elected House".
On this occasion there have been four votes—
Lord Tordoff: My Lords, the noble Lord referred to the fact that somehow the timetable was being dictated by the Opposition in your Lordships' House. That is
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clearly not true. The timetable of this House is in the hands of the Government, certainly with the support of the other parties. The idea that somehow the timetabling that brings issues into this House at times that are unacceptable to Members of the Government is clearly wrong.
Lord Campbell-Savours: My Lords, the timetabling of the debate today inevitably must be in the hands of the Opposition whose decisions on these issues have led to this debate.
Lord Tordoff: My Lords, the timetabling of this debate today is not in the hands of the Opposition. The fact that this matter has come back from the Commons at this time today is not a matter for the opposition parties. It is a matter for the Government. If the noble Lord does not accept that, he should talk to his Front Bench about it.
Lord Campbell-Savours: My Lords, the noble Lord should talk to his own Front Bench in the House of Commons. Those Members will tell him that the Government have won in another place on four separate occasions. I am arguing that if this repeated defeating of the Government on this important issue had not taken place, we should not be sitting here today. Therefore, the responsibility for the debate taking place today falls precisely to those who have placed the Government in this position.
Let me set out the figures so that students of these matters will know. The Government's position in the Commons was carried on 16 December with a vote of 357 to 135. It was then taken for a second time in the Commons on 8 March. The Government's position was upheld by a vote of 269 to 166. It was then taken on a third occasion in the House of Commons and was carried by a vote of 312 to 115. It was then taken yesterday in the House of Commons and was carried by 308 to 185. The noble Baroness may look frustrated by the use of these figures but the reality is that these are elected Members of Parliament expressing their view in the Division Lobbies of the House of Commons.
The noble Baroness and noble Lords opposite might like to know what they are saying about these matters in the House of Commons. Mr Winnick said:
"Is it not an outright impertinence for those in the unelected Chamber to try to set down voting procedures when the House of Commons has made its decisions? Should we not tell them so now?".—[Official Report, Commons, 24/3/04: col. 956.]
Mr Lindsay Hoyle said:
"It has quite rightly been stated that the matter before us is for the House to decide, because we are the elected House, we represent the people and we represent the electorate out there. Therefore, does my hon. Friend agree that this decision should be taken here, not by an unelected House".—[Official Report, Commons, 24/3/04; col. 956.]
Mr Leslie, the Minister, replied:
"My hon Friend hits the nail on the head. An important constitutional principle is at stake. The House of Commons has made its views known on a number of occasions, yet the second Chamber has been acting not in a revising capacity, but perhaps in a blocking capacity".—[Official Report, Commons, 24/3/04; col. 956.]

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The reality is that we are blocking. We have blocked with votes of 169 to 110, 174 to 130, 135 to 106, and no doubt the intention of Members of this House is once again to block the measure today, or basically the principle of the four pilots. All I say to the House is that we cannot go on like that. At some stage, someone has to consider what primacy means. It seems a pointless exercise if people argue in this Chamber that they believe in primacy—I have heard it repeatedly, certainly over the past six to nine months—and set out deliberately to defeat the Government, having voted on three separate occasions and the fourth occasion is coming up today. My case stands on the fact that we are now taking on the other House in a way that it finds unacceptable.
Furthermore, what we are doing will have major implications for the relationship between the Houses. There is deep frustration in the House of Commons about what is going on in the House of Lords. When I came down here, I was advised that it was not a particularly political place—that people set out to revise legislation, argued passionately, and had extremely good debating arrangements. I have heard some of the finest debates in all my 23 years in the Palace of Westminster in the House of Lords. But the reality is that we are moving on from revisory debates into the area of blocking the Government on issues that are of vital importance. On this occasion, on the basis of the amendment, we are blocking on the question of whether people in the north-west of England should have the right to vote in the elections by way of post—I mean, whether there should be a postal vote.
3 p.m.
Lord Greaves: My Lords, the noble Lord has not taken part in our debates until today, so it is entirely understandable that he might not have a complete grasp on what we are talking about. The amendment is not about whether people have a right to vote by post, but the reverse—whether postal voting is compulsory, with people not having the right to go to a polling station.
Lord Campbell-Savours: My Lords, I qualified what I said. If the noble Lord reads Hansard, he will see that I made a change and mentioned the right to an election by postal vote, which means that everyone would vote with a postal vote.
I have sat through previous proceedings on the Bill and heard the noble Lord's contributions, which have been very interesting. He obviously feels quite strongly that there is a problem of fraud in his part of the country; he referred to it on a number of occasions. The Electoral Commission set out in its report another explanation of why it has taken the view that it has, although it makes reference to fraud in parts of that report. I have difficulty understanding why people in Cumbria should be punished for the actions of a small minority of people somewhere else in the north-west of England. That is really what is happening. The case that the noble Lord has always put has essentially been about fraud. He has probably been the motivating
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force behind much of the debate for the exclusion of the north-west of England. I presume that he gave evidence to the Electoral Commission. Do I presume correctly that he protested to it about problems going on in his part of the country?
Lord Greaves: My Lords, if the noble Lord is inviting an intervention, I cannot resist. I did as he said in the past, when the fraud took place. My concerns are not about one small part of the north-west, but about a very large part of it.
Lord Campbell-Savours: My Lords, all I suggest is that the noble Lord's statements of evidence to the commission will certainly have influenced it in the judgment that it made, despite the fact that the report in December states that that is not necessarily the case. Should other people in the north-west of England be punished? If there is a problem in small localities in the country, sort out those localities. Do not let everyone suffer because of a problem in a small number of localities. That is at the heart of my objections today, in terms of the recommendation before the House.
I am sorry to speak to the House in such a way this afternoon, but I believe that there is a developing crisis in the relationship between the two Houses. It stems from the fact that we are moving from a revisory role into something much more sinister, and we are going to pay the price for it.
Baroness Hanham: My Lords, I have not been in this House very long but, in the time that I have and the time that I have spent on the Front Bench, I have not heard such a threatening speech from a Labour Member, nor one that was probably so misjudged.
We have spent a long time on the Bill. I remind the House that the Bill is about promoting all-postal piloting in two or three European areas. It is designed precisely to extend all-postal piloting to European elections. It is not about denying people votes or an all-postal vote, but asking whether all-postal balloting in a less limited pilot than has yet been tried—they have been in local elections—is sustainable on a larger basis.
The Government have had the benefit of the advice of their own commission. The Opposition did not set up the Electoral Commission—the Government did. They had a long report from it, part of which said that it thought that it would be suitable for two European electoral regions to be part of the electoral pilot, and that four others might be able to take part. For each of those, however, there was a problem. That is the situation. We have discussed the processes and the anxieties that we have all had about all-postal balloting. We discussed the really practical issues; the noble Lord may have sat in on those debates but certainly did not take part in Committee, on Report or at Third Reading.
We now have a situation in which we have to decide whether Parliament agrees with the Government that there should be four regions. Initially the Government never asked for four regions. They initially asked the Electoral Commission to promote three regions and then, quite suddenly, announced that there would be

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four. I chided the Minister in our previous debate because he suddenly let the cat out of the bag on why there should be four regions. We had a small contretemps on whether he had said something or not. However, it has been confirmed today that, of those four regions, three would be those involved in referendums for the regional assemblies in October. We now have a bigger canvas than we had before. We are talking about not simply European pilots, but the referendums in October.
I do not really want to get stuck on constitutional issues, but my understanding when I came to this place—I was extremely proud of it—was that I was a Member of Parliament. I believe that this House has a right to ask our Parliament to consider further matters as and when it believes, in the majority, that that is correct. We have now reached a stage where the amendment would enable the Government not only to have their Bill, but to have three electoral regions. That was where they first started. The argument has not really been about three; we discussed two and have now moved to see that there could be three.
Let us think on the matter a bit further. When we discussed it last week, we said that the Government should seek the views of the Electoral Commission about a third pilot area, and that those views should be brought forward after it had consulted all those whom it had previously consulted in the electoral regions—it could go and talk to both the Yorkshire and Humber and north-west regions.
I do not know whether noble Lords opposite have seen the letter from the chairman, who now accepts that the electoral administrators in Yorkshire and Humberside are more positive about the process. The Deputy Prime Minister's letter to the commission, which generated that response, was apparently written on 22 March—although we have not seen a copy of it. The chairman of the Electoral Commission's response was on 23 March. That was not long enough for him to have consulted more widely than the electoral officers, if that, and certainly not to have looked again at the previous consultations.
Lord Hoyle: But, My Lords, the noble Baroness keeps referring to electoral returning officers in the north west.
A noble Lord: Yorkshire and Humberside.
Lord Hoyle: My Lords, Yorkshire and Humberside. Instead of that I understand that the noble Baroness said that they were more definite about such matters in Yorkshire and Humberside compared with the north west.
Noble Lords: No!
Lord Hoyle: My Lords, if the noble Baroness did not say that, I withdraw.
Baroness Hanham: My Lords, when last we debated this issue we suggested that the commission's views
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would be helpful, but that there should be no question of the chairman being "duffed up"—my words—by the Deputy Prime Minister in order to form those views.
An additional interesting facet in the interchange between the Deputy Prime Minister and the commission is a Written Answer given today in the other place to my honourable friend Philip Hammond. It says that at a meeting between the Deputy Prime Minister and the commission both parties agreed that all four of the regions announced by the Deputy Prime Minister were capable of running a successful pilot. In the light of what we know, and in the light of what has been said by the chairman of the commission in his most recent letter, dated 23 March, we know that that is, if not disingenuous, certainly not quite as accurate as has been put forward in this reply.
I must accept that the commission, despite the fact that I do not believe that it has had time to undertake further consultation, has given its view that Yorkshire and Humberside would be capable of conducting a pilot. But the Government ought to recognise that in that letter the chairman, who has been very robust and consistent about the matter, has stood firm on his original decision that the north west was not a suitable area for an all-postal vote and said that there were no merits in piloting in four regions. I have the letter with me and if noble Lords wish to see it they may do so.
The Government will recall that if all four regions were involved, it would mean, on the commission's assessment, that over a third of the electorate would be taking part in a pilot. That is a situation that is clearly untenable—my words not theirs. The Government should now give up their absurd determination to proceed to four regions. Today they will have the opportunity to take forward the proposals in three regions because, however reluctant I am, we will support the Liberal Democrats in their amendment. There is, and should be, no connection between the European pilots and the referendum in October. What is important is that there is a limited pilot of a scale of a region, so that any lessons that need to be learned about all-postal voting on a slightly larger canvass can be learned.
The pilots do not need to be in the same regions as the referendums, but they do need to be held and assessed before there is any question of them being translated forward. While we all rant on about the constitution, it would be fair to remind the House that what we are doing in the pilots is disconnecting the voter from the ballot box and, by and large, disconnecting the voters from the candidates. This is not a matter to be taken lightly. It is an extremely serious decision for the House and Parliament to be making. I have given the reasons why we will support the Liberal Democrat amendment, but I reject any suggestion that my party has in any way been behaving improperly in trying to ensure that the pilots take place in a rational way, as supported by the Government's own advisers.
Lord Davies of Coity: My Lords, like the noble Baroness opposite, I have not been in the House all that long. I know that I am a Member of Parliament, but, perhaps differently from her, I accept that I am a

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Member of Parliament with very limited powers. My noble friend Lord Campbell-Savours made a case. It may have been a touch abrasive for noble Lords opposite, but I think he was saying that this House has to recognise its constitutional responsibilities. I am not going to talk about the substantive element of the amendment. I shall talk about the fact that we, not only in word, but in deed, must recognise and acknowledge the supremacy of an elected House, and that we have a stewardship which is answerable to the people.
The Government have taken their decision and at some stage this House must recognise that the political decision has been taken. It has been taken not by the Electoral Commission but by the Government. It is not a conscience issue; it is not a moral issue; it is a political issue. This House does scrutinise and revise but we must reach a stage when we acknowledge in deed the supremacy of the elected Government.
Earl Russell: My Lords, will the noble Lord read the Acts of 1911 and 1949—one from our party and one from his? He is saying a good deal more than is said by those Acts.
Lord Davies of Coity: My Lords, I am certainly not given to reading the historical circumstances which have just been described by the noble Earl, Lord Russell, but I am concerned with practical politics and with the British people being represented by elected Members of Parliament.
If we want a future and if we want to be able to advise the government of the day—not only a Labour government but perhaps a Conservative government again one day—we have to recognise our limitations. As far as I am concerned, we should now support the Government's wish—because they are the elected body.
Baroness Park of Monmouth: My Lords, I had always understood that as well as being a revising Chamber, we have a duty to cause the Commons to stop and think again. I had understood that that was an accepted procedure at least twice. The third time we have to accept the inevitable, but before that, we have not only a right but a duty to delay and to cause them to think again.
3.15 p.m.
Lord Filkin: My Lords, perhaps I may say a few words in response to the points raised in this debate. I will seek to keep them succinct, because I am not optimistic that I will necessarily turn the debate on what I say.
I acknowledge that the noble Lord, Lord Rennard, opened his speech by signalling that this was an attempt to move towards the position of the Government and the Commons. What I shall now say does not detract from that in any way. I am slightly confused about the stance of the opposition party on this issue, because the honourable Member for Somerton and Frome, David Heath, yesterday made clear in the other place that if we had been moving to
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universal postal ballots at this point he would perhaps have supported that. I refer to col. 966 of the Commons Official Report. He set out why he took that view. That was a bold statement but it is considerably at variance with the nicety of debate that we are having here about whether four is too many, but three is enough. In another place, the Liberal Democrat Front Bench was clearly saying that a universal postal ballot in these elections would be worth having a go. Be that as it may.
The noble Lord, Lord Rennard, also said—this is not the first occasion on which it has been mentioned—that potentially these issues may be rooted in evil party political hopes and fears. All I would say on that is that I have asked officials for what evidence there is that postal balloting will affect one party to the advantage of another, and they have failed to provide me with any. There is much party political rhetoric and excitement among political activists on this point, but there is not much evidence to support it either way.
There is one further point that I should bring to the attention of the House, because it matters to all of us. It is clear that the delay consequent on the Commons and the Lords not being able to agree damages the process and the prospects of these elections. In a worrying way, it damages them whether or not they are carried out by postal ballots or by the conventional electoral mechanisms. I would not make such a statement without having evidence for it, because that would risk alarming the House. I have such evidence from officials who have had discussions with returning officers. These matters are never black and white. One never moves from a position in which everything is line to the following day when suddenly everything is disastrous. It is simply that the risk rises as the delay continues.
I was absolutely clear when I said that I share the expression of respect for the revising and scrutinising function of the House. I believe that the House is absolutely right, even when it is against the Government, to mark the issues that concern it and to bring them to the attention of the Commons. But we have done that three times on this issue, and three times the Commons have said, "We disagree. This is our view". Therefore, that is why, without making more of it than one should, we should reflect on this issue at this stage over and above the merits of the issue. As your Lordships will know from what I have said on several occasions, for the reasons that we have set out, I believe that there are sounds merits in terms of moving to four.
With regard to the Deputy Prime Minister's letter to Sam Younger, it is available for inspection in the Library of the House.
The issues with regard to the north west have always been essentially about whether elections could be carried out effectively. The view of the Government and of the regional returning officers is that elections can be carried out there successfully.
Finally, if I understood her correctly, the noble Baroness, Lady Hanham, spoke about disconnecting the elector from the ballot paper and from the ballot

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box. We are experimenting with moving on from the traditional way of voting. We seek to do so for a good reason, which would benefit all parties and democracy. I will repeat the figures. If, as I believe we should, we pilot all-postal ballots in the four regions in the June European and local elections, 2 million more people will vote in those elections. We should take note of that, because I believe that that is earnestly desired by anyone who holds democracy in this country to be important. For all those reasons, therefore, I urge the House to support the position of the Commons on this issue.
Lord Rennard: My Lords, we could and perhaps should have had a wholly different debate about the conduct of the European elections, perhaps with an all-postal ballot system being tried across the entire country in the European elections. However, the Government's proposal was to have the local elections postponed from May until June to coincide with those elections. Because in those local elections a handful of votes in a handful of wards may be determined by different voting mechanisms, it is inappropriate to suggest that we should have such widespread all-postal voting this time round. That view is entirely consistent with what I and my friend in the other place, Mr David Heath, have argued; namely, that we could perhaps have had all-postal voting for the whole of Europe. However, we cannot have the Government, for their own interests in those important European and local elections, picking and choosing which regions should have all-postal voting.
If I may paraphrase the Minister's arguments throughout the debate—I am sure that he will correct me if I am wrong—he has told us repeatedly that although the Electoral Commission in its report dated 8 December originally recognised that only two regions were suitable for all-postal balloting, it was open to the Government to hold further discussions to discover whether or not the barriers suggested by the Electoral Commission could be overcome. If that is the case, I would refer noble Lords to the letter from the Electoral Commission dated 23 March 2004, in which it is said:
"We note that the electoral administrators in Yorkshire and the Humber, the next in ranking, are now more positive about running pilots than when we discussed them at the end of last year. The considerations as set out in our December report regarding the North West have not changed".
The Government's case has been based on whether the considerations taken by the Electoral Commission in December could change. The independent Electoral Commission now says that, in its view, those considerations, based on fears of fraud, lack of acceptance and logical difficulties, have not changed. I therefore believe that it would not be right for the Government to try to proceed with all-postal pilots in the north west.
Throughout these debates, and today, the Minister has repeatedly used the phrase, "The Minister, the Government and the other place", as though three
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separate bodies were arguing for this measure. In fact, only one body is arguing for it, that being the Labour Party—
Lord Hoyle: My Lords, I thank the noble Lord for giving way. What he says about the commission's view is quite correct. However, the electoral returning officers, with the exception of two who were guided by their authorities, decided in October that they were in favour of postal balloting in the north west, and they fully expected the Electoral Commission to endorse that.
Lord Rennard: My Lords, the independent Electoral Commission's report of 8 December reported that there was widespread opposition among returning officers in many parts of the north west to the idea of all-postal balloting, and the independent commission said that it did not want that. The Government then said, "Things have changed and now they do want it". Yesterday we had the categoric word of the chairman of the independent Electoral Commission that nothing had changed since the publication of its report on 8 December. It seems to me that one party is arguing for this proposal and that every other party and this House and the independent commission are in favour of the other side of the argument. When there is an issue of dispute between the parties and the two Houses, it seems to me logical to allow the view of the independent Electoral Commission to prevail. Its very clear view is that perhaps to—
Lord Filkin: My Lords, on that point, the Electoral Commissioner himself—and I respect him for the clarity with which he expressed the constitutional position—was explicitly clear that the decision as to which regions should be piloted was not for him. Although he would give his opinion, it was for Parliament to decide.
Noble Lords: Hear, hear!
Lord Rennard: My Lords, the vote must indeed be taken by Parliament, but it seems that Parliament cannot decide and that the parties cannot agree between themselves. When between the two Houses Parliament cannot decide, when the parties cannot agree on the basis of consensus, and when not a single Member of Parliament of another party, other than the Labour Party in another place, has supported this proposal—
Lord Davies of Coity: My Lords, I thank the noble Lord for giving way. When he says that Parliament cannot agree, he seems to be saying that the House of Lords has the same level of supremacy as the House of Commons. I remind noble Lords opposite that Lloyd George once did something to ensure that the Government had supremacy in the Lords.
Lord Rennard: My Lords, there must be few occasions on which an unelected Chamber may challenge an elected one, but things to do with

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electoral mechanisms must be those sorts of things; for example, if a government with a majority in the other place decided that we should not have an election within live years of the last one but that we should wait six, seven or eight years.
When governments decide to use their majority in another place on electoral issues, perhaps we should think more carefully about whether one party with a majority in one place should change our electoral rules or whether we should do what we said we would do four years ago. When we established the Electoral Commission, we established a body to avoid such arguments between the parties. That is what I think we should now be doing.
Earl Russell: My Lords, it might help my noble friend if I pointed out to noble Lords opposite that Parliament took the decision to put off a general election in June 1940. I have read the debate on it in this House, and the House agreed that as it could stop it at any moment it liked, it did not therefore need to.
Lord Rennard: My Lords, I thank my noble friend for that intervention and, as ever, helpful historical lesson.
In conclusion, the issue of whether there should be three postal pilots has not yet been put to the other place. I believe that it should be put as a fair and honourable compromise. On that basis, I would like to test the opinion of the House.
3.30 p.m.
On Question, Whether the said amendment (No. 1F) shall be agreed to?
Their Lordships divided: Contents, 159; Not-Contents, 122.

Division No. 5

CONTENTS

Addington, L.

Carnegy of Lour, B.

Alderdice, L.

Carrington, L.

Allenby of Megiddo, V.

Chalfont, L.

Alton of Liverpool, L.

Clement-Jones, L.

Ampthill, L.

Colville of Culross, V.

Anelay of St Johns, B.

Colwyn, L.

Astor, V.

Cope of Berkeley, L.

Astor of Hever, L.

Crickhowell, L.

Avebury, L.

Deedes, L.

Barker, B.

Denham, L.

Beaumont of Whitley, L.

Dholakia, L.

Biffen, L.

Dixon-Smith, L.

Blatch, B.

Dundee, E.

Bradshaw, L.

Eden of Winton, L.

Bridgeman, V.

Elles, B.

Bridges, L.

Elton, L.

Brigstocke, B.

Ezra, L.

Brittan of Spennithorne, L.

Falkland, V.

Brooke of Sutton Mandeville, L.

Ferrers, E.

Brougham and Vaux, L.

Fraser of Carmyllie, L.

Burnham, L.

Geddes, L.

Buscombe, B.

Gilmour of Craigmillar, L.

Byford, B.

Glentoran, L.

Caithness, E.

Goodhart, L.

Campbell of Alloway, L.

Greaves, L.

Carlisle of Bucklow, L.

Hamwee, B.

864

Hanham, B.

Northesk, E.

Hanningfield, L.

Northover, B.

Harris of Richmond, B.

Oakeshott of Seagrove Bay, L.

Hayhoe, L.

O'Cathain, B.

Higgins, L.

Onslow, E.

Hodgson of Astley Abbotts, L.

Park of Monmouth, B.

Holme of Cheltenham, L.

Peel, E.

Howarth of Breckland, B.

Perry of Southwark, B.

Howe, E.

Phillips of Sudbury, L.

Howe of Aberavon, L.

Pilkington of Oxenford, L.

Howe of Idlicote, B.

Platt of Writtle, B.

Howell of Guildford, L.

Plumb, L.

Hunt of Wirral, L.

Plummer of St. Marylebone, L.

Hurd of Westwell, L.

Quinton, L.

Jacobs, L.

Rawlings, B.

Jellicoe, E.

Razzall, L.

Jenkin of Roding, L.

Reay, L.

Jopling, L.

Redesdale, L.

Kimball, L.

Rennard, L.

King of Bridgwater, L.

Renton, L.

Kingsland, L.

Rodgers of Quarry Bank, L.

Kirkham, L.

Roper, L. [Teller]

Laing of Dunphail, L.

Rotherwick, L.

Laird, L.

Russell, E.

Lamont of Lerwick, L.

Sandberg, L.

Lester of Herne Hill, L.

Sanderson of Bowden, L.

Linklater of Butterstone, B.

Scott of Needham Market, B.

Liverpool, E.

Seccombe, B.

Livsey of Talgarth, L.

Selsdon, L.

Lucas, L.

Sharman, L.

Luke, L.

Sharp of Guildford, B.

McColl of Dulwich, L.

Shaw of Northstead. L.

Maclennan of Rogart, L.

Shrewsbury, E.

McNally, L.

Shutt of Greetland, L. [Teller]

Maddock, B.

Skelmersdale, L.

Slim, V.

Maginnis of Drumglass, L.

Smith of Clifton, L.

Mancroft, L.

Soulsby of Swaffham Prior, L.

Mar and Kellie, E.

Stewartby, L.

Marlesford, L.

Stoddart of Swindon, L.

Mayhew of Twysden, L.

Strathclyde, L.

Methuen, L.

Swinfen, L.

Miller of Chilthorne Domer, B.

Taverne, L.

Miller of Hendon, B.

Tebbit, L.

Molyneaux of Killead, L.

Thomas of Gresford, L.

Monson, L.

Thomas of Gwydir, L.

Montagu of Beaulieu, L.

Thomas of Walliswood, B.

Montrose, D.

Thomson of Monifieth, L.

Mowbray and Stourton. L.

Tope, L.

Murton of Lindisfarne, L.

Wallace of Saltaire, L.

Naseby, L.

Walmsley, B.

Newby, L.

Wigoder, L.

Newton of Braintree, L.

Wilcox, B.

Northbrook, L

Williams of Crosby, B.

NOT-CONTENTS

Acton, L.

Burlison, L.

Ahmed, L.

Campbell-Savours, L.

Alli, L.

Carter, L.

Amos, B. (Lord President of the Council)

Chorley, L.

Christopher, L.

Andrews, B.

Clarke of Hampstead, L.

Archer of Sandwell, L.

Clinton-Davis, L.

Ashley of Stoke, L.

Cobbold, L.

Ashton of Upholland, B.

Cohen of Pimlico, B.

Bach, L.

Corbett of Castle Vale, L.

Barnett, L.

Craig of Radley, L.

Bassam of Brighton, L.

Crawley, B.

Berkeley, L.

Davies of Coity, L.

Bernstein of Craigweil, L.

Davies of Oldham, L [Teller]

Blackstone, B.

Dealing, L.

Bledisloe, V.

Desai, L.

Bragg, L.

Dixon, L.

Bramall, L.

Donoughue, L.

Brookman, L.

Dubs, L.

865

Elder, L.

Mackenzie of Framwellgate, L.

Evans of Parkside, L.

Massey of Darwen, B.

Evans of Temple Guiting, L.

Merlyn-Rees, L.

Falconer of Thoroton, L. (Lord Chancellor)

Mitchell, L.

Morris of Aberavon, L.

Falkender, B.

Morris of Manchester, L.

Farrington of Ribbleton, B.

Pitkeathley, B.

Faulkner of Worcester, L.

Plant of Highfield, L.

Filkin, L.

Ponsonby of Shulbrede, L.

Fitt, L.

Rendell of Babergh, B.

Fyfe of Fairfield, L.

Richard, L.

Gale, B.

Richardson of Calow, B.

Gibson of Market Rasen, B.

Goldsmith, L.

Rogers of Riverside, L.

Gordon of Strathblane, L.

Roll of Ipsden, L.

Goudie, B.

Rooker, L.

Greengross, B.

Sainsbury of Turville, L.

Grenfell, L.

Sawyer, L.

Grocott, L. [Teller]

Scotland of Asthal, B.

Hannay of Chiswick, L.

Sewel, L.

Harris of Haringey, L.

Sheldon, L.

Harrison, L.

Simon, V.

Haskel, L.

Stone of Blackheath, L.

Hayman, B.

Strabolgi, L.

Hogg of Cumbernauld, L.

Sutherland of Houndwood, L.

Hollis of Heigham, B.

Symons of Vernham Dean, B.

Howells of St. Davids, B.

Tanlaw, L.

Howie of Troon, L.

Temple-Morris, L.

Hoyle, L.

Tenby, V.

Hughes of Woodside, L.

Tomlinson, L.

Hunt of Kings Heath, L.

Triesman, L.

Hylton, L.

Irvine of Lairg, L.

Turnberg, L.

Janner of Braunstone, L.

Turner of Camden, B.

Jay of Paddington, B.

Walpole, L.

Jordan, L.

Warner, L.

Judd, L.

Warwick of Undercliffe, B.

Layard, L.

Weatherill, L.

Lea of Crondall, L.

Wedderbum of Charlton, L.

Lipsey, L.

Whitaker, B.

Lofthouse of Pontefract, L.

Wilkins, B.

Macdonald of Tradeston, L.

Williams of Elvel, L.

McIntosh of Haringey, L.

Williamson of Horton, L.

MacKenzie of Culkein, L.

Woolmer of Leeds, L.

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

Planning and Compulsory Purchase Bill
3.42 p.m.
Read a third time.
Clause 2 [Regional Spatial Strategy]:
Baroness Maddock Baroness Maddock moved Amendment No. 1:
Page 1, line 11, at end insert—
"( ) The RSS will set the spatial framework for the strategies of the regional development agency in its region."
The noble Baroness said: My Lords, I beg to move Amendment No. 1. I feel like I am playing ping-pong with my noble friend Baroness Hamwee, because I dealt with this in Committee, she dealt with it on Report, and we are back to it here on Third Reading. I hope that the Government will be persuaded to move today at our third time of asking.
This is a very simple amendment. It would ensure that the regional spatial strategy sets the overarching spatial framework for all other regional strategies
866
within a region. I emphasise the word "spatial". If the regional spatial strategy is to be a truly spatial framework, it should, by definition, integrate all regional level strategies and set the framework within which those strategies can operate.
The Bill fails to do this. It would perpetuate an unhelpful tension between the narrow pursuit of economic growth by the regional development agencies—which often do not regard environmental consequences—and the wider spatial planning objectives such as urban renewal.
On Report, the Minister indicated that the Government were very supportive of the amendment. There was some discussion about whether we were setting a hierarchy. I do not think that we are. Not all strategies are spatial strategies, but we need a spatial strategy at the head. I would not interpret it in that way.
As we have heard many times during the debates on the Bill, the Government might agree with us but they do not think that it is the right place to put it, or they do not want to include it in the Bill. That is what the Government said last time.
I repeat, draft planning policy statement 11, which deals with regional planning, is not clear on this point. It needs to be made clear on the face of the Bill. If we are serious about people working together and the strategies feeding into each other at regional level, this is vitally important. I beg to move.
The Deputy Speaker (Baroness Thomas of Walliswood): My Lords, with the permission of the House, before I continue the process, I have to notify the House of a mistake in the figures announced for those voting Not-Content in Division No. 4. The correct figure is 104, not 103, but that of course does not affect the result.
The Minister of State, Office of the Deputy Prime Minister (Lord Rooker): My Lords, as the noble Baroness says, we have been round this course not once, but twice. I have no objection to doing it a third time, but I do not think we need to spend much time on it because there is not a great division between us.
We have covered this ground before, and on the basis of what I have said previously, I am clear that the amendment does not seek to create a hierarchy of regional strategies with the regional spatial strategy at the top. I agree that the regional spatial strategy should set the spatial framework for other regional strategies in the region, including the regional economic strategy. Draft planning policy statement 11 says that.
The document also makes it clear that this is an iterative relationship, with the regional spatial strategy reviews needing to take account of these other strategies. This is not an easy model to prescribe in legislation. The issue is whether amending the Bill is necessary and would help achieve what we are agreed

867
is the policy aim. I genuinely do not think that we need any additional provisions in the Bill to secure this, as it is already an intrinsic part of the system.
Baroness Maddock: My Lords, I thank the Minister for that clear and precise answer. There is obviously a difference of opinion between the Minister and ourselves—and a number of people outside the House. I hope that what the Minister says is right, and that this works out as we would all like it to.
I am conscious of the time—and the time that we have spent on this matter—and I hope that the Minister's statements will back up what is in planning policy statement 11 when it is eventually finalised. For the present, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 5 [Assistance from certain local authorities]:
Baroness Hamwee Baroness Hamwee moved Amendment No. 2:
Page 2, line 39, at end insert—
"( ) The RPB shall publish its response to advice given in accordance with subsection (2), and in the case of advice from an authority relating to the preparation of a draft revision of the RSS which it does not accept, the RPB shall discuss the matter with the authority before a examination in public of the draft revision of the RSS is held."
The noble Baroness said: My Lords, I moved a similar, though not identical, amendment at Report, building on the government amendment that we had at that stage, setting out a role for the counties and unitary authorities in their dealings with the regional planning body.
At that time I proposed that the regional planning body should not proceed for a period of four months if it did not accept the advice given by any of those authorities. That period of four months was for the regional planning body and the authority to discuss the matter.
I have not been so prescriptive in this amendment. We propose simply that the two entities should discuss the matter before any examination in public. I did not regard the four months that I proposed before as being likely to lead to a delay on such a disastrous scale as has been suggested.
The noble Lord, Lord Bassam, said that the previous amendment was overly prescriptive. As it is late I shall not trade arguments about who has been the more prescriptive in their proposals over the past two or three months. He said that our proposal was onerous, unwieldy and bureaucratic and was concerned that I sought a requirement to publish and to respond in detail to all the responses and advice from the counties and unitary bodies.
I did not think then, and, now that I have thought further about the matter, I do not think now, that my amendment suggests an item-by-item listing or such an approach for each authority. It proposes that the regional planning body should be clear and say in terms on a given issue, "Some authorities thought this, but because of (set out the reason) we have decided thus". In other words, it would be a mechanism to aid the transparency of the whole process. Of course no one would expect that every authority in a region
868
would take exactly the same view on any given matter. But the regional planning body's submission of its spatial strategy, assessment and reasoning to the Secretary of State is out of the public eye. A requirement for the regional planning body to articulate why it is doing something would be a helpful prompt that would avoid what one might call sloppy thinking and would focus everyone's mind.
I wish to pre-empt the suggestion that the Minister has made previously that, knowing that the material would go to the Secretary of State, I am again showing distrust of his right honourable friend: I reiterate the point that nobody knows whose right honourable friend will hold that position in the future. I have thought seriously about the Government's points and have sought to build on them. I hope that my amendment will be regarded as reasonable. I beg to move.
Lord Rooker: My Lords, on the noble Baroness's previous point, I promise not to say that. However, on later groups of amendments, she will see that we are amending the Bill so that the Secretary of State and everybody else must give reasons for virtually everything that they decide to do. I understand why the amendment is made but we do not think that it is necessary. It implies a much less open and collaborative approach to preparing a draft revision of the regional spatial strategy than is actually the case, and which would be supported by regulations and guidance.
Regional planning bodies in county councils and other authorities with strategic planning expertise will not only deal with each other through formal requests and responses, they share many of the same members. There will be ongoing informal discussion and opportunities to discuss advice given and what the regional planning body will do with it.
The final version of planning policy guidance 11 on regional planning will make clear that each regional planning body should be proactive about making information available in line with the Freedom of Information Act. The regional planning body is under an overriding duty to act reasonably in considering advice that it receives from county councils and other authorities with strategic planning expertise. Ultimately, if it fails to take proper account of that advice, it could find itself subject to legal challenge. But in practice the regional planning body and other authorities will discuss their differences. They will not take them through the courts every day of the week. That is the common-sense approach, which, the noble Baroness will know, will be the overwhelming thrust. We do not feel that we need to legislate for that.
Baroness Hamwee: My Lords, let me be the first to congratulate the Government on taking up the point to which the Minister has just referred. I am very glad that they have written in the requirement to give reasons. We shall come to that shortly.
For the record, I am unclear how our proposal could mean a less open regime. I hear what the Minister says about guidance; it is becoming like a record that is

869
stuck. He says that guidance is not the same as primary legislation, not even secondary legislation; it might be changed. But guidance that we have not even seen in draft—I think that I am right in saying that, but the point would apply in any case—is not the same commitment as we had hoped to see in a Bill that is very detailed in parts.
I hear what the Minister says. We shall probably want to get on with business. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 [RSS: revision]
Baroness Hamwee Baroness Hamwee moved Amendment No. 3:
Page 3, line 35, at end insert—
"( ) In preparing a draft revision the RPB shall consult persons who appear to the RPB to have an interest in matters relating to the development and use of land within the region."
The noble Baroness said: My Lords, I beg to move Amendment No. 3, which is grouped with government Amendments Nos. 4 and 7. The amendment relates to consultation by the regional planning body on the spatial strategy. Before I saw the government amendments, I made a note that, although the Minister had always accepted that consultation was important, he relied on regulations to deal with those matters. When we discussed the matter previously, I felt that, if local authorities are bound by the legislation as regards consultation, the regional bodies should also be bound. Otherwise, it might be suggested that what the region does in that regard is less important.
I welcome the Government's amendments. I am sure that the Minister will have noticed that we had given up on the statement of community involvement, so I am particularly pleased to see its inclusion. The cynical among the Members of this House might say that our short amendment was more effective because the statement that is the subject of the government amendment might be inadequate. In other words, the regional planning body is to prepare a statement and stick by it; we say that it should actually consult, so we have spelt out some of the content of the statement. I would not be so cynical. I beg to move, but I foresee that I shall have to withdraw the amendment.
Lord Hanningfield: My Lords, my name was attached to the amendment. I welcome the Government's decision to include in the Bill a requirement for regional planning bodies to prepare, publish, revise and comply with the standard of community involvement with regard to the revision of the regional spatial strategy. The requirement is all the more important because the recent publication of the Barker report, which seems to advocate that the whole planning system should be driven by the requirements of the housing market, illustrates all too clearly just how important it is that people have a voice in planning decisions that affect their communities.
We have argued for a statement of community involvement from the beginning, so it is heartening that the Government have listened and, ultimately,
870
improved the Bill. Statements of community involvement will be a difficult but necessary challenge for regional planning bodies to meet.
Lord Bassam of Brighton: My Lords, government Amendments Nos. 4 and 7 follow on from commitments that we gave on Report to bring forward amendments on the issue. I am grateful that the noble Baroness, Lady Hamwee, acknowledges that we have gone further, at least in one respect, than she had earnestly anticipated. I am glad that that is the case. We gave that commitment; it has always been our intention that regional planning bodies would involve people in the process and that they would consult widely. We intended to put that into regulations. Our amendment includes that requirement in the Bill.
Consultation and involvement are covered in draft regulations and draft PPS 11. The new duty does not change that; it merely brings thinking to the forefront and includes it in the legislation.
It is perhaps worth giving a clue to our thinking on this. At this stage, we think that we should require the regional planning body to prepare a document setting out how it has complied with its statement, building on what the regulations already require. We intend also in the final version of PPS11 to make clear that the regional planning body should seek views on a draft of its statement and take them into account before deciding on its final version.
I am grateful for the acknowledgement, and I am grateful for the noble Baroness saying that she welcomes this and intends to withdraw her amendment. I would like to think that ours fits the bill.
4 p.m.
Baroness Hamwee: My Lords, I do not know whether that is a lower case or upper case "b". With all the graciousness that I can muster, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Rooker Lord Rooker moved Amendment No. 4
After Clause 6, insert the following new clause—
"RSS: COMMUNITY INVOLVEMENT
(1) For the purposes of the exercise of its functions under section 6, the RPB must prepare and publish a statement of its policies as to the involvement of persons who appear to the RPB to have an interest in the exercise of those functions.
(2) The RPB must keep the policies under review and from time to time must—

(a) revise the statement;

(b) publish the revised statement.

(3) The RPB must comply with the statement or revised statement (as the case may be) in the exercise of its functions under section 6.
(4) The documents mentioned in section 6(5)(b) and (c) include the statement and revised statement."
On Question, amendment agreed to.
Clause 9 [RSS: further procedure]
Lord Bassarn of Brighton Lord Bassarn of Brighton moved Amendment No. 5:
Page 5, line 14, after "publish" insert "—
(a)"
The noble Lord said: My Lords, I can be extremely brief here, because again this is an issue on which we had extensive discussions at an earlier stage. This group of amendments creates a number of additional express duties to give reasons that will rest with the Secretary of State or the National Assembly for Wales. These commitments have now been matched.
I could go through each amendment, but I do not think that there is much point in doing that because they are almost standard in their effect. They simply place requirements on the Secretary of State to give reasons. I beg to move.
On Question, amendment agreed to.
Lord Rooker Lord Rooker moved Amendment No. 6:
Page 5, line 15, at end insert ", and
his reasons for making the changes.".
On Question, amendment agreed to.
Clause 11 [Regulations]
Lord Rooker Lord Rooker moved Amendment No. 7:
Page 6, line 12, at end insert—
"( ) the procedure to be followed by the RPB in connection with its functions under section (RSS: Community involvement);"
On Question, amendment agreed to.
Clause 12 [Supplementary]:
Lord Bridges Lord Bridges moved Amendment No. 8:
Page 6, line 35, at end insert—
"( ) In all ordinary circumstances, planning authorities shall pay heed to the existing statutes which confer protection on landscapes in the National Parks, in this case section 62 of the Environment Act 1995 (c. 25) (duty of certain bodies and persons to have regard to the purposes for which National Parks are designated) and in the case of areas of outstanding natural beauty, section 86 of the Countryside and Rights of Way Act 2000 (c. 37) (establishment of conservation boards)."
The noble Lord said: My Lords, I raised this issue at earlier stages, and it concerns the relationship between this Bill and existing legislation regarding the status of areas of outstanding natural beauty and national parks. It still concerns me that the powers entrusted to the new regional planning bodies clash with the status and protection conferred on the national parks and the AONBs in laws still on the statute book. I quoted the statutes concerned in the earlier debate on 24 February at column 173 of the Official Report, and I do not need to cite them again.
The noble Lord, Lord Rooker, kindly wrote to me on 6 March explaining his view that it was a question of finding a balance between environmental, social and economic considerations. I regret to say that I find this formula seriously misleading. You cannot balance contrary principles; in this case economic development
872
and nature protection. This seems to have been recognised by Mr Alun Michael, whose official Defra press release attributes to him these words:
"Conservation is not enough…We cannot say that we have achieved sustainability unless the parks are viable, economically and socially as well as environmentally".
This is in direct conflict with the words in the statute in the Environment Act 1995 which clearly states:
"If it appears that there is a conflict between these purposes, the authority shall give greater weight to the purpose of conserving and enhancing the natural beauty … of the areas comprised in the national park".
This is the heart of my case. Ministers are seeking to alter the provisions of earlier legislation not directly by amendment to the statute, but by public statement and administrative means. Another example may be found in the text of the new draft guidance of PPS7 circulated for consultation last September. Paragraph 25 states:
"The Government does not believe that local countryside designations are necessary. Planning authorities should remove any existing designations and instead adopt criteria-based policies in development plans".
It is not clear to me whether this is intended to apply to existing national designations such as those of the national parks and AONBs, or to local classifications only, such as special landscape areas. Even if the latter only is intended, and the circular is ambiguously drafted—I trust not with deliberate intent—the local designations are extremely important in some cases and allow the planning authorities some degree of control over the more rapacious developers.
As regards Mr Michael's speech, which causes me grave anxiety, I remind the House of another matter that I raised at an earlier stage in the debate, namely the references in the Bill to the wishes of the Secretary of State, "however expressed". I suggested then that these words might have undesirable and unforeseen consequences and could lead to policy making in speeches or public remarks made on the hoof or off the cuff, what I called at the time "legislation by mouth". Ministers indignantly denied this possibility, saying that the phrase "however expressed" frequently occurred in statutes, although they did not quote me an example. It appears to me that legislation by mouth is exactly what Mr Michael has been doing.
The conclusion is clear. If the Government want to alter the priority given by existing law to environmental considerations, they should proceed legally, by seeking to alter the current statutes. We could then debate the merits of their proposals in the usual way. Meanwhile, we can protect the natural environment by inserting into this Bill the words suggested in the amendment. It is deliberately phrased in moderate terms, speaking of all ordinary circumstances, which leaves scope for some debate and discussion about particularly difficult cases that may arise.
I hope that the Minister will feel able to agree to the amendment. It should not cause him any serious anxiety. He can, if he wishes, undertake to suggest an improvement to the Bill when it returns to another place. If he is unable to help me, I expect to find it necessary to seek the opinion of the House. I beg to move.
Lord Chorley: My Lords, I was glad to add my name to my noble friend's amendment, especially as I was unable to be present on the earlier occasion to which he referred. The central point is that throughout this Bill national parks are treated as just another authority. They are not just another authority. I tried to emphasise that at Second Reading.
National parks are national and have their own legislation; notably, the 1949 Act and the 1995 Act. My noble friend quoted at Report stage and again today from Section 62 of the 1995 Act, in particular subsection (2). I shall not go over that again.
Time and again governments—I say governments because this has happened over the years—and other agencies make statements which suggest that they are barely aware of, or would like to ignore, Section 62. The 2002 Defra review of national parks in England felt constrained to make the same point; namely, that Section 62 needed to be more widely publicised and that there should be more effective monitoring to ensure compliance with the statute.
My noble friend chided Mr Alun Michael. Equally, he could have chided the Planning Minister over PPS7—the draft paper on sustainable development in rural areas. On the whole, that is a good document, but it completely ignores Section 62, especially subsection (2). I shall go no further into that issue because my noble friend did so in some detail.
This is a planning Bill. I suggest that it is necessary to remind planners and others of Section 62. It is important to ensure that national park purposes are properly integrated into the land use planning system. This is not a criticism of just this Government. I could go on at some length about some of the dubious planning decisions made over the years, particularly before the 1995 Act.
I shall confine myself to one anecdote that is historical but relevant today. In the late 1940s, shortly after the passing of the 1947 planning Act, the National Trust consulted Mr Hugh Dalton. It wondered whether it needed to acquire any more land since landscapes were now capable of being protected by statute. Mr Dalton—well known as a great outdoor man and a Chancellor of the Exchequer—is alleged to have replied in the immortal words:
"Put not your trust in Princes and still less in Ministers of the Crown. Go for acquisition and inalienability".
Luckily, the National Trust followed those wise words.
That is why we need this amendment. That is why my noble friend has wisely included AONBs. If we forget about national parks, we are even more likely to forget about those Cinderellas of landscape, notwithstanding that by statute they are deemed to be of equal landscape quality to national parks.
I therefore hope that the Minister will agree to this modest amendment. In doing so, perhaps he will also commit the Government to fleshing out or buttressing
874
it by providing guidance in the proposed PPS11 on regional planning bodies and PPS12 on strategic and local planning authorities. I support the amendment.
Baroness Hamwee: My Lords, I hope that what I shall say will not be taken as unsympathetic to noble Lords who have spoken. Their concerns are very much to the point. We shall come to a debate on sustainability. To take those words a little further, recognise the importance of AONBs and national parks as part of our country that we need to sustain. Certainly, on these Benches, we recognise that.
However, I have some difficulty with the amendment. As regards legislation, above all, Ministers of the Crown should comply with it, as should planning authorities. But saying that again does not make the original legislation any stronger. Indeed, it may weaken it. The amendment starts with the words, "In all ordinary circumstances". The two sections that are referred to do not have that sort of exception within them, which seems to beg some questions. I would prefer to rely on, if you like, the parent legislation. If that legislation is not good enough, it ought to be changed rather than adopting a "let's say it louder, let's say it again" approach.
I hope that the Minister can reassure noble Lords on the points that have been raised because they are of concern.
Lord Marlesford: My Lords, I rise to speak in support of the amendment moved by the noble Lord, Lord Bridges, because it covers perhaps one of the most important aspects of the whole of the conservation of England, enshrined as part of it is in the 1949 Act, one of the great achievements of the post-war Labour government. The noble Lord, Lord Chorley, was so right to quote Hugh Dalton. I do not feel confident, although not so much in the case of the present Government. We all read the piece in the Times by Simon Jenkins, which I thought was rather unfair about the noble Lord, Lord Rooker. On amendment after amendment he has shown that, on the whole, his heart is in the right place.
However, the article was certainly not unfair about what the Government are trying to do. I think that the time has come to reinforce the earlier legislation. Unless the Minister can use words that would enable Hansard to be used in place of legislation in a court hearing, I shall certainly support the noble Lord, Lord Bridges, if he chooses to seek the opinion of the House.
This is a very important issue. The National Trust has had to continue to acquire land such as, for example, coastal land in Cornwall. Had it not been acquired, we would not have the coastline we have today. Anything which threatens or appears to threaten the integrity of the most designated areas—national parks and AONBs—such as the speeches by the Minister quoted by the noble Lord, Lord Bridges, must set alarm bells ringing loudly in those of us who see it as part of our wish in life to protect our countryside, which is under great pressure.
Lord Hanningfield: My Lords, I rise to express our support for the thrust of this amendment. We hope that the Minister will be able to give some assurances to the noble Lord, Lord Bridges, in his response.
4.15 p.m.
Lord Rooker: My Lords, I certainly hope that I can do so. The noble Lord, Lord Marlesford, just referred to what I thought was a quite ignorant and mischievous piece in the Times yesterday, notwithstanding that I took personal offence at the description of myself as the,
"ermined friend of the construction industry".
The article was written in ignorance by someone who has never read the updated communities plan; has not read any of the debates; has not read our further annual report and has not paid even scant attention to anything either I or my right honourable friend have said about protecting the countryside, higher densities and other matters. Therefore the article is based on ignorance and is not worthy of a response.
This amendment is worthy of a response and I hope that I shall be able to satisfy all noble Lords who have spoken. The underlying thrust of the amendment is to ensure that the statutory protection already in place is not undermined by anything in this Bill. I hope that I will be able to show that it is not.
I shall set out briefly the existing legislation and add a few remarks. Section 62 of the Environment Act 1995 requires relevant authorities, when exercising their functions, to have regard to the purposes of national parks as defined in Section 61. These are, first,
"of conserving and enhancing the natural beauty, wildlife and cultural heritage of the areas",
and, secondly,
"of promoting opportunities for the understanding and enjoyment of the special qualities of those areas by the public".
I declare an interest here because with my stick, boots and wet weather gear I use those areas, in particular the Lake District.
If it appears that there is a conflict between those two purposes, Section 62 requires relevant authorities to attach greater weight to the conservation and enhancement of,
"the natural beauty, wildlife and cultural heritage".
Section 85 of the Countryside and Rights of Way Act 2000 requires relevant authorities when exercising their functions to,
"have regard to the purpose of conserving and enhancing the natural beauty of the area of outstanding natural beauty".
Section 87 makes it clear that an area of outstanding natural beauty conservation board must attach greater weight to,
"the purpose of conserving and enhancing the natural beauty of the area of outstanding natural beauty",
if it appears that there is a conflict between this and,
"the purpose of increasing the understanding and enjoyment by the public of the … area".
That is the law. We would argue that nothing in the Bill, or anything that has been said, would change that.
I was surprised by the reference to my right honourable friend Alun Michael. I can assure the noble Lord that if Alun had said anything, he would certainly send a letter to follow it up. He is a great letter
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writer. I do not accept the criticism that this is legislation by mouth. The fact is, nothing that is said or written by a Minister would change those parts of the statute—the law—that I have just mentioned. I can also assure the House that the regional planning bodies will have regard to the statutory purposes of national parks and areas of outstanding natural beauty in preparing draft revisions of their regional spatial strategies. Local planning authorities arc specifically given this duty in the Acts referred to in the original speeches. As I have made clear to the noble Lord previously, the Government attach great weight to the preservation of the landscape in national parks and areas of outstanding natural beauty. The draft of new planning policy statement 7 on sustainable development in rural areas make this clear.
I should add that officials of the Office of the Deputy Prime Minister have had positive discussions with national park representatives about their role under the new planning arrangements. Indeed, we will strengthen the references to national parks in the final version of planning policy statement 11. We are also exploring with the Department for Environment, Food and Rural Affairs whether there is scope for producing a joint best practice guidance note on the involvement of national park authorities in regional spatial strategy reviews and revisions.
I wish to make progress and so, in case I am asked why we do not extend the good practice to areas of outstanding natural beauty, I should indicate that we shall consider the issue. But the national parks are local planning authorities in their own right and therefore, for that reason, they are particularly critical to the delivery of the regional spatial strategies.
I hope that I have said enough to convince the House that we are serious in our intent not to undermine the existing statutory framework governing the national parks and areas of outstanding natural beauty. I would not be a party to it.
Lord Bridges: My Lords, I am extremely grateful to the noble Lord, Lord Rooker, for his helpful tone and remarks. I do not entirely follow the logic of what he said but it is encouraging to know that he supports the existing legislation. However, it seems to me that, in setting up this completely new framework of planning, it would be desirable to have some cross-reference to the earlier statutes. That is all I am seeking to do. I do not seek to alter anything; merely to have that in the text which will be so important for the future.
I, of course, do not agree with the unkind remarks made in the Times newspaper about the Minister. I am sorry to hear about that.
The Minister made some friendly remarks about his colleague, the Minister, Mr Alun Michael. I sent to Mr Michael a copy of the letter I sent to the noble Lord, Lord Rooker, a week or so ago, hoping that this whole intervention in the debate would be unnecessary. But Mr Michael certainly has not replied to me.

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One should perhaps look at this issue in a slightly broader context. There are wider interests than the precise wording of government circulars or even ministerial speeches. I refer to the interest of the British public in the protection of environmentally precious places, including beautiful landscape. It matters a great deal to public opinion, in my judgment.
I do not often get on to a high horse when addressing your Lordships, but I regret that I find it necessary to do so on this occasion. If the Government think that they will attract public support by encouraging economic development in national parks—which is what Mr Michael is proposing, in his own words—they are facing a grave political shock. I believe that the opposition—indeed hostility—they will provoke will surprise them.
Let us not forget that the conservation of these beautiful places began with some of our great 19th century cultural innovators, people such as William Morris and Ruskin, to name only two.
There are places which are important to us as individuals. The best expression I know of this in literature is contained in the poem by Gerard Manley Hopkins entitled Binsey Poplars, in which he describes with sorrow the destruction of his favourite trees. Let me quote some lines which refer to the destruction of nature. Hopkins wrote:

"Where we, even where we mean

To mend her we end her,

When we hew or delve:

After-corners cannot guess the beauty been"

.
That is the kernel of the case. I fully share Hopkins's sentiments.
Let me give a brief illustration from my own life. I have had a particular affection since childhood for North Yorkshire, which I visited regularly as a boy and which sustained me in moments of difficulty. On my mantelpiece at home there are two photographs. The first is a picture of me and our eldest son on the summit of Pen-y-Ghent in the 1960s. We had just returned from a difficult and unsatisfactory assignment in Latin America, where circumstances had not worked in our favour. On returning home after two and a half years of unhappy and unrewarding toil, I knew that I needed a few days in North Yorkshire to recover my balance. It worked. The photograph records that moment. The second picture next to it, taken 20 years later in exactly the same place, shows the same son, this time accompanied by his eldest child on the summit of Pen-y-Ghent. I am sure that many of our citizens have similar bonds with particular beautiful places that enjoy the protection of the law at present. We should not connive at their development for the sake of currently fashionable causes.
I am grateful to the Minister for what he said in a reassuring speech, but one of his colleagues is speaking in a very different way. As we are setting up an entirely new arrangement for regional planning, it would help to insert these words into the Bill. I therefore wish to seek the opinion of the House.
4.25 p.m.
On Question, Whether the said amendment (No. 8) shall be agreed to?
Their Lordships divided: Contents, 50; Not-Contents, 100.

Division No. 6

CONTENTS

Alton of Liverpool, L.

Hodgson of Astley Abbotts, L.

Bridges, L. [Teller]

Howe of Idlicote, B.

Brittan of Spennithorne, L.

Hunt of Wirral, L.

Brougham and Vaux, L.

Kingsland, L.

Byford, B.

Kirkham, L.

Caithness, E.

Lamont of Lerwick, L.

Campbell of Alloway, L.

Listowel, E.

Carnegy of Lour, B.

Marlesford, L.

Chorley, L.[Teller]

Molyneaux of Killead, L.

Clement-Jones, L.

Murton of Lindisfarne, L.

Cobbold, L.

Naseby, L.

Craig of Radley, L.

O'Neill of Bengarve, B.

Crickhowell, L.

Patten, L.

Dearing, L.

Pilkington of Oxenford, L.

Deedes, L.

Platt of Writtle, B.

Denham, L.

Rees, L.

Eccles of Moulton, B.

Renton, L.

Eden of Winton, L.

Sanderson of Bowden, L.

Elles, B.

Sandwich, E.

Elton, L.

Shaw of Northstead, L.

Fookes, B.

Slim, V.

Geddes, L.

Soulsby of Swaffham Prior, L.

Glentoran, L.

Swinfen, L.

Hanham, B.

Tebbit, L.

Hanningfield. L.

Tenby, V.

NOT-CONTENTS

Acton, L.

Falconer of Thoroton, L. (Lord Chancellor)

Ahmed, L.

Alli, L.

Farrington of Ribbleton, B.

Amos, B. (Lord President of the Council)

Faulkner of Worcester, L.

Filkin, L.

Andrews, B.

Finlay of Llandaff, B.

Archer of Sand well, L.

Fitt, L.

Ashley of Stoke, L.

Fyfe of Fairfield, L.

Ashton of Upholland, B.

Gale, B.

Bach, L.

Gibson of Market Rasen, B.

Bassam of Brighton, L.

Golding, B.

Berkeley, L.

Goldsmith, L.

Bernstein of Craigweil, L.

Grenfell, L.

Bhatia, L.

Grocott, L. [Teller]

Blackstone, B.

Harrison, L.

Haskel, L.

Bragg, L.

Hayman, B.

Brooke of Alverthorpe, L.

Hogg of Cumbernauld, L.

Brookman, L.

Hollis of Heigham, B.

Burlison, L.

Howells of St. Davids, B.

Campbell-Savours, L.

Howie of Troon, L.

Carter, L.

Hoyle, L.

Christopher, L.

Hughes of Woodside, L.

Clarke of Hampstead, L.

Hunt of Kings Heath, L.

Clinton-Davis, L.

Irvine of Lairg, L.

Corbett of Castle Vale, L.

Janner of Braunstone, L.

Crawley, B.

Layard, L.

Davies of Coity, L.

Lea of Crondall, L.

Davies of Oldham, L. [Teller]

Lipsey, L.

Desai, L.

Lucas, L.

Dixon, L.

McIntosh of Haringey, L.

Donoughue, L.

MacKenzie of Culkein, L.

Dubs, L.

Mackenzie of Framwellgate, L.

Elder, L.

Massey of Darwen, B.

Evans of Parkside, L.

Merlyn-Rees, L.

Evans of Temple Guiting, L.

Mishcon, L.

879

Mitchell, L.

Stone of Blackheath, L.

Morris of Aberavon, L.

Strabolgi, L.

Parekh, L.

Symons of Vernham Dean, B.

Pitkeathley, B.

Temple-Morris, L.

Plant of Highfield, L.

Tomlinson, L.

Rea, L.

Triesman, L.

Rendell of Babergh, B.

Turnberg, L.

Richard, L.

Turner of Camden, B.

Rogers of Riverside, L.

Rooker, L.

Walpole, L.

Sainsbury of Turville, L.

Warner, L.

Sawyer, L.

Warwick of Undercliffe, B.

Scotland of Asthal, B.

Whitaker, B.

Sewel, L.

Wilkins, B.

Sheldon, L.

Williams of Elvel, L.

Simon, V.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
4.36 p.m.
Lord Rooker Lord Rooker moved Amendment No. 9:
Page 6, line 40, at end insert—
"( ) Subsection (4) does not apply for the purposes of section 6(3)(a)."
The noble Lord said: My Lords, this is a small technical amendment. Its purpose is to ensure that in preparing the draft regional spatial strategy revisions a regional planning body has regard to relevant national policy issued by any Secretary of State. Examples of such policy include the air quality strategy for England, Scotland, Wales and Northern Ireland; the waste strategy; and the UK sustainable development strategy on modern ports—a UK policy. I beg to move.
On Question, amendment agreed to.
Clause 13 [Survey of urea]:
Lord Lucas Lord Lucas moved Amendment No. 10:
Page 7, line 15, at end insert—
"( ) the type and extent of demand for housing and commercial property;"
The noble Lord said: My Lords, I am not going to earn myself any brownie points with Mr Jenkins or the CPRE for moving this amendment. This is very much in response to the Barker review, which I view with enormous positivism. I think that it is a great step forward in our view of development and property. At last we are looking at giving a voice to the have-nots as well as to the haves. For far too long the whole planning system has leant in the direction of protecting the interests of those who already own or have interests in property while paying far too little attention to those who wish to have interests in property, by which I mean mostly those who would like houses of the kind they wish to live in.
This is not the time or the place—I hope that we will have a time and place—for an extensive conversation on the Barker review. I should very much look forward to a debate on that. One of the things that she calls for on several occasions in her report is a better evidence base. What she most wants evidence on is evidence of demand—what kind of houses people want, where they want them, what the trend of house prices and
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other indicators has been—so that planning authorities can take decisions with a proper view of what it is their public are expecting them to provide.
I know that this amendment is not necessary—the Government can achieve this under current provisions of the Bill—but I very much hope that I can get from the Minister an assurance that, in response to the Barker review, steps will be taken to gather the evidence that she wants to see. I beg to move.
Lord Marlesford: My Lords, I really cannot allow my noble friend's total distortion of the purpose of the planning system to stand unchallenged. The planning system is intended to allow everyone to enjoy a countryside that is unspoiled. It is about the public good and about public access, and that dates right back to the 1920s. For my noble friend to say something like that is in accord neither with the founding fathers who gave us the means of protecting our countryside as it is today, nor, I would suggest, in the spirit of the Tory party to which I belong.
Lord Rooker: My Lords, at the risk of falling foul of the noble Lord, Lord Marlesford, notwithstanding what Kate Barker said in her report about producing more homes, if we deliver on the growth areas of the south-east in the sustainable communities plan it will alter the amount of land used for urbanisation in this country by a little above 1 per cent, from about 12 to 13 per cent. That is the scale. We do not have to go to the barricades to defend the countryside. We have to be mindful and watchful, as the previous debate demonstrated. That is crucial and fundamental.
The Government are grateful for Kate Barker's analysis. I can give the commitment to the noble Lord, Lord Lucas, that we are considering it in a sympathetic way. There is no doubt that we want to be guided by the evidence. We are taking forward these issues in the way I have deployed during debate. I do not wish to curtail the debate. I am more than happy to come to the House to debate in a general way, without being tied to amendments and nuances of words, what underlies the sustainable communities plan published in February of last year and the two updated plans. The House has not had the opportunity to do so.
Housing supply and demand are firmly on the Government's agenda. On the four growth areas, we have designated half the growth over the next 15 years or so. It can then be managed so that it is not urban sprawl or despoliation of the countryside and we can ensure that the best use is made of the brownfield sites and buildings spread across the country, although unevenly. For historic reasons, there are more in some regions than others.
Some of the measures referred to by Kate Barker in her useful report last week form part of the Bill. I refer to the speeding up of the process. While the planning delivery grant is not part of the Bill, it is part of the operation seeking to put more resources into planning to improve its quality and other factors. We shall consult on how planning policy on housing should be revised to include guidance on the application of market information and signals into the system and a

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presumption in favour of granting planning permissions which conform to local plans. In the future, those will be the development plan documents. We shall consult with stakeholders. The Government are not rushing forward without consulting and operating the proper processes.
We take on board the reason why the noble Lord tabled the amendment. In answer to the noble Lord, Lord Marlesford, I hope that I have indicated that the countryside is not under threat in the way that some extremists using extravagant language would have people believe. Of course, I do not refer to the noble Lord. Notwithstanding that, I am more than happy to come to the House on a general debate on the issue because that would be helpful for the wider public debate.
Lord Lucas: My Lords, I hope that such a debate can be arranged. It should be enjoyable for the Minister. With a broad smile on his face, he can sit back and watch the noble Lord, Lord Marlesford, and I harass each other. I do not think my noble friend and I are that far apart. We share a great appreciation of the great joys of the countryside. I wish that a small part of the debate could be devoted to the cause of the 95 per cent of the people who do not live in the countryside and who do not want to live in little rabbit hutches which are increasing in price and decreasing in size at the rate they have been over the past 20 years.
I am encouraged by what my noble friend says and to know that the CPRE will be voluble in its defence of the countryside. The countryside will need such allies if we are going to make progress on the Barker review. I am also delighted by what the Minister said, and I hope that the matter will be in front of us soon. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
4.45 p.m.
Clause 18 [Statement of community involvement]:
Baroness Hamwee Baroness Hamwee moved Amendment No. 11:
Page 10, line 20, at end insert "and use of land"
The noble Baroness said: My Lords, on Report, I thanked the Minister for his letter to me explaining the difference between "development", "use" and "development and use". Development requires planning permission. As he explained, references to development alone refer to development control matters. I shall take this opportunity to correct what Hansard referred to as "development and control"; I am not surprised that those who do not live with such terms find difficulty with them. However, that may have added to the confusion, which I hope that we are on the way to sorting out. References to "development and use" extend to the continuing use of land without necessarily any change in that use.
Clause 18 deals with the statement of community involvement. That statement should recognise that, among the community, there may well be interests in the use of land within the authority's area without development. To pre-empt the Minister, who has
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made clear his view of the nimby brigade—I wonder if that is one acronym that we can keep in—we can be concerned about use without development for altruistic reasons, and not only for selfish reasons. In any event, even if the motives are those which some of us might deplore, that does not mean to say that people who hold them should not be consulted.
The Minister said that he would triple-check the position. As we are now at Third Reading, it might be the moment to say what the outcome of that triple-check is. I beg to move.
Lord Bassam of Brighton: My Lords, when the matter was debated on Report, my noble friend Lord Rooker indeed said that he would triple-check. Everyone knows that he is extremely diligent, and he did exactly that. My speaking note confirms that he would have reported to the House, were I not doing so, that the current wording was fully inclusive. Clause 18(2) mentions those who,
"have an interest in matters relating to development".
So far as we are concerned, that would inevitably include those whose interest was in the preservation of the use of land.
The phrase "matters relating to development" is broad and captures not only those interested in promoting development, but those interested in preventing it. Both are covered—the provision is all-inclusive and does the job. The Bill as it stands ensures that people whose interest is in there being no development will fall very much within the ambit of a local authority's statement of community involvement; after all, they are part of the same community. I understand the noble Baroness's insistence on the point but, with that explanation, I hope that she will feel able to withdraw her very well intended amendment.
Baroness Hamwee: My Lords, I will not insist on it. I understand that explanation. A few years ago, there was a fashion in teenage lingo for saying, "I think so—not". The issue is really about development—not. It is helpful to have the explanation on record, and I am grateful to the Government for that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 20 [Independent examination]:
Lord Rooker Lord Rooker moved Amendment No. 12:
Page 21, line 26, leave out "a view to" and insert "the objective of"
On Question, amendment agreed to.
Clause 21 [Intervention by Secretary of State]:
Lord Rooker Lord Rooker moved Amendments Nos. 13 to 15:
Page 12, line 10, after "unsatisfactory" insert "—
(a)"
Page 12, line 12, at end insert—
"(b) if he gives such a direction he must state his reasons for doing so."
Page 12, line 37, at end insert "and the reasons of the person making the recommendations"
On Question, amendments agreed to.
Clause 24 [Conformity with regional strategy]:
[Amendment No. 16 not moved.]
Clause 27 [Secretary of State's default power]:
Lord Rooker Lord Rooker moved Amendments Nos. 17 and 18:
Page 15, line 15, after "recommendations" insert "and reasons"
Page 15, line 19, at end insert—
"( ) The Secretary of State must give reasons for anything he does in pursuance of subsection (4)."
On Question, amendments agreed to.
Clause 38 [Development plan]:
Baroness Wilkins Baroness Wilkins moved Amendment No. 19:
Page 21, line 16, at end insert—
"( ) Planning authorities may set targets in their development plans in respect of the proportion of new housing to be constructed to Lifetime Homes standards and wheelchair access standards respectively."
The noble Baroness said: My Lords, Amendment No. 19 is supported, as are all the disability access amendments, by the Disability Rights Commission, RADAR, RNIB, the Town and Country Planning Association, Habinteg Housing Association, the JMU Access Partnership, the New Economics Foundation and John Grooms.
I raised the need for concerted action on lifetime homes and wheelchair-accessible homes at Report. My noble friend the Minister then promised a Government announcement on the subject before Third Reading and he was true to his word. I congratulate him on the decision to bring forward a review of the building regulations with a view to strengthening accessibility requirements through adoption of the Lifetime Homes standards which provide a standard for the design of new homes to ensure that they are accessible and adaptable as the needs of the occupants change. That would be a considerable improvement on the current building regulations, especially regarding issues such as parking, lighting, access around new homes and future adaptability. All new social housing is now developed to this standard in Wales and Northern Ireland. There will be huge benefits to disabled people, to older people and to every family as their needs change. There will also be huge savings to the taxpayer.
I also warmly welcome the commitment to consider how best to meet the need for more wheelchair accessible homes where there is now a real crisis. I understand that the new standards are unlikely to be in place for two years—I hope that the proposed timetable can be speeded up, because disabled people have waited a long time already.
The purpose of my amendment, however, is to invite the Government to acknowledge that the Lifetime Homes standards and wheelchair access standards cannot be successfully achieved at the detailed design stage unless the issue is raised and the principles and overall design concept agreed at the earliest possible stage in the planning process. In any case we need to plan to meet the current shortfall of 300,000 wheelchair accessible homes and to meet the needs of our ageing, diverse population for homes that can be
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easily adapted. I urge my noble friend to give a clear statement that the Government understand that this is a planning issue.
Can he give me an assurance that planning authorities will be encouraged in revised planning policy statements to follow the example of the GLA by setting appropriate targets for lifetime homes and wheelchair-accessible homes? I beg to move.
Baroness Maddock: My Lords, I rise briefly to support the noble Baroness, Lady Wilkins. She has explained precisely why we need the amendment. If we are serious about sustainability and good design, the amendment fits into that. At a meeting this week I was somewhat surprised by someone, who I thought should know better, who thought that good design was simply about what things looked like. It is not. The amendment is part of good design and I hope that the Minister will be helpful. I fully support the noble Baroness.
Lord Rooker: My Lords, I hope that I can say something helpful, because we are very sympathetic to what is behind the amendment. However, I cannot be helpful in the sense that I can accept it.
The amendment is discretionary, not mandatory. Local authorities already have a discretion to introduce planning policies within the national policy framework, provided that they can be justified and relate to the use and development of land, because that is how the system works. The amendment states what can already happen. Therefore, we believe that we do not need to amend the Bill.
On the other hand, I am very grateful for what the noble Baroness said about the announcement by my honourable friend in the other place, Phil Hope, on 10 March. I understand that groups such as the Disability Rights Commission have welcomed the announcement in respect of the building regulations. My honourable friend made clear our commitment to ensuring that the building regulations encourage accessibility and design features that make the home sufficiently flexible to meet the changing needs of a family. In other words, as the noble Baroness, Lady Maddock, said, it is not just about looking nice but also about practicalities. Of course, we shall consult on possible amendments in due course.
It is envisaged that new standards could be in place in two years. I have to say—I do not want to mislead people—that that is very speedy. My experience of changing building regulations is not good. It takes a while. On the other hand, the noble Baroness is quite right that people have waited long enough for new standards. We in this country fall miles behind the standard of housing that was built and designed for people with disabilities in Sweden in the mid-1980s, and I suspect that we shall not achieve anything like that standard that I saw almost 20 years ago. We have much to overcome, partly because we do not replace our stock at anything like the rate of our continental partners.

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They replace their stock at a rate of about 1 per cent per year; we replace ours at a rate of about 0.1 per cent per year, although there have been opportunities for us to do so.
With regard to the London plan, the Government Office is in dialogue with the Mayor about the implementation of the Mayor's policy. Some points need to be cleared up. The Government Office has drawn the Mayor's attention to the draft planning policy statement 1, the review of the building regulations, which I have already mentioned, and has pointed out that the Mayor's policy would need to be reviewed and revised in the light of the new building standards.
In principle, local plan policies can include provisions for a proportion of accessible homes, provided that they are justified by need. However, any specific standards for accessibility should not cut across the building regulations. Local authorities already have an enormous amount of discretion. If the will is there, it is very easy for them to identify the need, which then conforms with the overall policies. The fact that we have given it a push, by a review of the regulations as well, is no excuse for them not to do anything in the intervening period where there is an identified need.
I regret that I cannot be more positive on this. However, I can assure the House that I shall be much more positive on the amendments to be tabled by the noble Baroness later today.
Baroness Wilkins: My Lords, I thank the Minister for his encouragement and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 39 [Sustainable development]:
Lord Rooker Lord Rooker moved Amendment No. 20:
Page 21, line 26, leave out "a view to" and insert "the objective of"
The noble Lord said: My Lords, I undertook to look further at the issue of the application particularly of Clause 39(2).
At Report, the noble Baroness, Lady Hamwee, said:
"I would like to think that every objective is automatically achieved but I do not believe that that is the case in life … I make sustainable development the objective with the hope, though not necessarily the confidence, that by doing so it will always be achieved".—[Official Report, 1/3/04; col. 482.]
As I have previously explained, the original drafting of the clause, with a view to contributing to the achievement of sustainable development, sought to avoid placing too great a weight on regional planning bodies and local authorities by recognising that the plan-making system cannot alone be held responsible for sustainable development. It is one of a number of factors or actions that bear on sustainable development.
I hope that the noble Baroness will agree that this amendment is a sensible compromise. Contributing to the achievement of sustainable development is a clear objective for regional planning bodies and local authorities in their regional spatial strategies and local developments, but it does not open up every planning policy to challenge. That is crucial. I remember saying that as long ago as Second Reading.
We have always looked at and been careful about the kind of amendments we could table. We wanted to be positive—no one will claim that we have the perfect wording in the Bill—but I said that opening up the issue was fraught with danger. I hope that the Government's amendment will be accepted. It is almost in lieu of Amendment No. 21. I beg to move.
5 p.m.
Baroness Hamwee: My Lords, my Amendment No. 21 is grouped with the government amendment. I did a dangerous thing last night by looking up the definition of "objective" in the Shorter Oxford English Dictionary. It was dangerous because I was diverted and spent a lot of time on more interesting questions. It was defined in part as,
"Expressing, designating, or referring to the object of an action … Sought or aimed at".
In other words, I do not believe that the wording of my amendment tabled at the previous stage or now puts sole responsibility on a person or body exercising the relevant function. However, it does provide that the objective of that person or body in creating the regional spatial strategy or local development documents, and the objective of the strategy as a document itself, is to achieve sustainable development. There are no ifs or buts about that.
I have been discourteous because I should have started by thanking the Minister for moving down the road with the compromise he described. It is welcome. Will we now have in place the provision that the planning system must not endorse unsustainable development—or at any rate the regional spatial strategy and the local development documents? This is more than just semantics. If I had thought quickly enough, I would have asked the question before I made my other point in order to give time for thought. I am asking the Minister to confirm that the plans—the spatial strategy and the local development documents—must not directly or indirectly endorse unsustainable development.
Lord Rooker: My Lords, off the top of my head, given the weight we have put on this matter, that the clause is in the Bill and that the new strapline of the Office of the Deputy Prime Minister is "creating sustainable communities"—and at no cost to the taxpayer because we invented it ourselves—it is taken extremely seriously. Therefore, I would concur and expect that planning authorities and regional spatial strategies will not go around endorsing unsustainable developments.
On Question, amendment agreed to.
[Amendment No. 21 not moved.]
Lord Rogers of Riverside Lord Rogers of Riverside moved Amendment No. 22:
Page 21, line 27, at end insert "through high quality design"
The noble Lord said: My Lords, in moving Amendment No. 22 and speaking to Amendment No. 23, I rise to add my wholehearted support for the Government in seeking to strengthen the sustainability duties on planners in Clause 39. Throughout the passage of the Bill, the Minister has listened to

887
arguments put forward by myself and other noble Lords that design policy and sustainable development must go hand in hand. Whenever he has had the opportunity, he has made the point himself, but the spirit of the law is quite clear. Planners must consider design as part of their objective of contributing towards achieving sustainable development. We have been assured that planning policy statement I will be sufficiently robust in terms of design. That is excellent news.
But what about the letter of the law? Throughout your Lordships' consideration of the Bill, I have called for the word "design" to be included alongside the duty contained in Clause 39. Other noble Lords from all sides of the House have added their support, including the noble Lord, Lord Lucas, my noble friends Lady Blackstone and Lord Alli, and the noble Baroness, Lady Maddock. I am grateful for their support.
The Government have listened to our arguments carefully. They have concluded that a strengthened Clause 39—taken together with a robust planning policy statement 1—is sufficient to ensure that design is taken fully in to account in planning decisions. Later government amendments, which I shall be delighted to support, place design at the heart of the planning application process.
If we are to have sustainable development—if we are to have the urban renaissance—we must ensure quality design. High quality design is the means to that end. Either amendment would make that absolutely clear on the face of the Bill. It would send out a message loud and clear to planning authorities and developers alike.
I know that my noble friend the Minister understands this perfectly well, and I expect him to be reassuring in his response. I expect him to say that if we include design, then should we not include access and a whole range of other issues? I would argue that "high quality design" by definition means inclusive design, and therefore includes such important issues.
I urge the Government to consider the amendments. I am relaxed about which one they should accept, although on balance Amendment No. 22 is clearer, as it makes explicit the causal link between quality design and sustainable development. I beg to move.
Baroness Maddock: My Lords, I rise to support the amendment which has my name attached to it.
The point that I wish to emphasise is that, if we are serious about sustainability, then good design is part of that. Good design is functional, and therefore fulfils its purpose. Good design uses environmentally friendly materials. All this leads to homes, buildings and other infrastructures which stand the test of time and are much more sustainable in the widest sense. That is why I support the noble Lords, Lord Rogers
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and Lord Lucas, in their attempt to attach this to the Bill. I look forward to hearing what the Minister has to say.
Lord Lucas: My Lords, my name is attached to this amendment too. I suspect that I support the second amendment more than the first, but I wait to hear what the Minister says.
Design is a crucial part of making something out of sustainable development which the rest of us can appreciate. Getting a thing right in terms of our enjoyment and use of an urban space, in particular, is very much a matter of good design.
Design is not curlicues on doorknobs, it is the way the whole space works, the way in which people interact with it, the way that the new bit of the city interacts with the old. It is putting effort into getting things right for the long term, rather than hoping that they will work out for themselves. It is doing what we did not do in Docklands, though that has worked out well in the end. It could have come better and faster if we had put a bit of effort into planning and designing the area properly. It still might be a better place to live than it is now.
This is an important part of producing sustainability. As the noble Lord, Lord Rogers, has said, the Minister has gone a long way in bringing design into the Bill. This last bit is necessary.
Lord Cobbold: My Lords, my views on sustainable development have been expressed in earlier stages of the Bill, so I shall not go into them.
I support this group of amendments. I particularly support Amendment No. 23, which, as the noble Lord, Lord Lucas, has said, combines the important concept of good quality design in this strange concept of sustainable development.
Lord Rooker: My Lords, if it were up to me, I would certainly prefer Amendment No. 23 to Amendment No. 22. In some ways, it is not up to me; it is almost not up to the Government. Earlier I gave the commitment that, one way or another, I would talk to the planning Minister and the Deputy Prime Minister about the need to include the word "design" in the Bill, but our problem has always been to find a suitable location for it. In some ways, that is the real difficulty. In instructing parliamentary counsel, we have taxed to the limit efforts to find the right place to insert the word without causing untoward problems. That has been our difficulty.
I have said throughout that the clause on sustainable development was extremely difficult. The previous amendment is about as far as we dare go in touching that clause. As the House knows, I will move a government amendment to include the word "design" on the face of the Bill. Having said that, I would be more than happy, if it were up to me, to include Amendment No. 23. I have been unable to do that. I have tried but failed in that sense simply because I have had to accept the advice that we muck around more with Clause 39 at our peril later. I do not want to

889
have on the statute book something that looked okay as a quick fix; I would much rather have the amendment that the Government will bring forward to Clause 43. It gets the thrust of what we want but does not cause problems later. That is the advice that I have received.
We fully agree that, without proper attention to design, we will not deliver sustainable development. We remain of the view that the case for referring specifically to design in this clause gives us such difficulty that we cannot accept it. We want to ensure that both design and access are established as fundamental planning issues. The key is a strong planning policy statement 1, which makes clear that good design and consideration of access issues are crucial to the delivery of sustainable development. They are not separate from it; yet they recognise the importance of sound design and access policies in local development frameworks.
To further underpin that, we will require in the secondary legislation that is to be made under Part 2 of the Bill that local authorities must include design and access within their portfolio of local development documents. That reinforces the strong statements on both areas already made in the consultation draft of planning policy statement 1. We will also work with the Royal Institute of British Architects and the Commission for Architecture & the Built Environment, on the coverage of design issues in planning policy statement 1, and with the Disability Rights Commission and the Disabled Persons Transport Advisory Committee, on the coverage of access issues. We consider that the policy is already clear and strong, but we are more than willing to consider ways of further improving it.
I know from looking at the document that it mentions design and access throughout in a number of different contexts. We may need to consider whether what we mean in each different context is clear enough for policymakers, but we are more than ready to listen. That approach will mean that design and access issues are properly considered in the plan-making process and will encourage local planning authorities to take them seriously. This House is sending to planning authorities a powerful message, with this short debate and the later one on the amendments concerned, that Parliament is taking the issue extremely seriously and we expect to see it put into practice.
Lord Rogers of Riverside: My Lords, I thank my noble friend the Minister for his response. I can understand the Government's reluctance to reopen Clause 39. It is very delicately worded and has been the subject of much discussion in your Lordships' House. However, we may be missing an important opportunity to make the vital connection between sustainable development and design quality absolutely clear on the face of the Bill. Today we may have given less confidential local planning authorities an important tool in order to reject applications on design grounds.
890
I can see, however, that the Government can offer no further ground. I do not want to go against my Government. With a little reluctance, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Lucas Lord Lucas moved Amendment No. 23:
Page 21, line 27, at end insert "with an emphasis on high quality design"
The noble Lord said: My Lords, the Minister's heart is in the right place, but not yet his pen. I would like to give him another opportunity to have a go at writing this into the Bill. I beg to move.
5.15 p.m.
On Question, Whether the said amendment (No. 23) shall be agreed to?
Their Lordships divided: Contents, 43; Not-Contents, 87.

Division No. 7

CONTENTS

Addington, L.

Lucas, L. [Teller]

Alderdice, L.

McNally, L.

Alton of Liverpool, L.

Maddock, B. [Teller]

Barker, B.

Northover, B.

Beaumont of Whitley, L.

Park of Monmouth, B.

Biffen, L.

Phillips of Sudbury, L.

Bradshaw, L.

Quinton, L.

Chorley, L.

Redesdale, L.

Cobbold, L.

Rodgers of Quarry Bank, L.

Roper, L.

Dholakia, L.

Sandberg, L.

Falkland, V.

Selsdon, L.

Finlay of Llandaff, B.

Sharp of Guildford, B.

Fowler, L.

Shutt of Greetland, L.

Greaves, L.

Smith of Clifton, L.

Hamwee, B.

Thomas of Gresford, L.

Harris of Richmond, B.

Thomas of Walliswood, B.

Holme of Cheltenham, L.

Tope, L.

Howe of Idlicote, B.

Tugendhat, L.

Laird, L.

Walmsley, B.

Lester of Herne Hill, L.

Weatherill, L.

Linklater of Butterstone, B.

Williams of Crosby, B.

NOT-CONTENTS

Acton, L.

Currie of Marylebone, L.

Ahmed, L.

Davies of Oldham, L. [Teller]

Amos, B. (Lord President of the Council)

Desai, L.

Dixon, L.

Andrews, B.

Donoughue, L.

Archer of Sandwell, L.

Dubs, L.

Ashley of Stoke, L.

Elder, L.

Ashton of Upholland, B.

Evans of Parkside, L.

Bach, L.

Evans of Temple Guiting, L.

Bassam of Brighton, L.

Falconer of Thoroton, L. (Lord Chancellor)

Berkeley, L.

Bernstein of Craigweil, L.

Farrington of Ribbleton, B.

Bragg, L.

Faulkner of Worcester, L.

Brooke of Alverthorpe, L.

Filkin, L.

Brookman, L.

Fyfe of Fairfield, L.

Campbell-Savours, L.

Gale, B.

Carter, L.

Gibson of Market Rasen, B.

Christopher, L.

Golding, B.

Clarke of Hampstead, L.

Goldsmith, L.

Clinton-Davis, L.

Grenfell, L.

Corbett of Castle Vale, L.

Grocott, L. [Teller]

Crawley, B.

Harris of Haringey, L.

891

Harrison, L.

Rea, L.

Haskel, L.

Rendell of Babergh, B.

Hayman, B.

Richard, L.

Hogg of Cumbernauld, L.

Rooker, L.

Hollis of Heigham, B.

Sainsbury of Turville, L.

Howells of St. Davids, B.

Sawyer, L.

Hoyle, L.

Scotland of Asthal, B.

Hughes of Woodside, L.

Sewel, L.

Hunt of Chesterton, L.

Sheldon, L.

Hunt of Kings Heath, L.

Simon, V.

Irvine of Lairg, L.

Slim, V.

Janner of Braunstone, L.

Stoddart of Swindon, L.

Judd, L.

Stone of Blackheath, L.

Layard, L.

Symons of Vernham Dean, B.

Lea of Crondall, L.

Lipsey, L.

Temple-Morris, L.

McIntosh of Haringey, L.

Tomlinson, L.

MacKenzie of Culkein, L.

Triesman, L.

Mackenzie of Framwellgate, L.

Turner of Camden, B.

Massey of Darwen, B.

Warner, L.

Mishcon, L.

Wilkins, B.

Mitchell, L.

Williams of Elvel, L.

Pitkeathley, B.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
5.25 p.m.
Clause 40 [Local development orders]:
Lord Rooker Lord Rooker moved Amendments Nos. 24 to 27:
Page 23, line 5, after "unsatisfactory" insert "—
(a)"
Page 23, line 7, at end insert—
"(b) if it gives such a direction it must state its reasons for doing so.".
Page 23, line 13, after "authority" insert "—
(a)"
Page 23, line 14, at end insert—
"(b) must, if it revokes a local development order, state its reasons for doing so."
On Question, amendments agreed to.
Clause 42 [Statement of development principles]:
Baroness Hamwee Baroness Hamwee moved Amendment No. 28:
Page 25, line 16, at end insert—
"( ) whether sufficient information has been provided by the applicant to enable a decision to be made;"
The noble Baroness said: My Lords, Amendment No. 28 seeks to amend Clause 42, which provides for a new section after Section 61 D of the Town and Country Planning Act 1990. It is grouped with the amendment tabled by the noble Baroness, Lady Hanham, which seeks to remove the clause altogether.
The clause concerns statements of development principle which, in our eyes, go hand in hand with how the Government intend to deal with outline planning permission. I am glad to see that the Government are not now proposing to use this Bill to give themselves the option of repealing outline planning permissions. However, we remain concerned that this part, along with other elements in the Bill, despite the time that the Bill has taken to chunter through its parliamentary progress, has still not been adequately developed—I intend no pun in that.
I turn to my amendment. The Minister has said that, as a matter of common sense, when a local planning authority is asked by a prospective developer to supply a statement of development principles it would, if it did not have enough information, ask for it. But that is not the end of the story because, as the clause is drafted, the local planning authority "must issue a statement". In our view, the local planning authority must be able to say, "We are not saying 'yes' or 'no' because you have not told us enough". Further, the local planning authority must be able to say, "Give us the information so that we can deal sensibly with the matter".
The authority may not want to say "no" to a development on the site. All noble Lords can envisage the problems that that could give rise to in the complex and technical world of town and country planning. It must be able to require the information.
The Minister said on Report that the Government were still considering the matter. He stated:
"Some work remains to be done on the nature of the information that would need to be provided with applications for outline planning permission. The Government still need to be satisfied that the information will meet our objectives".—[Official Report, 1/3/04; col. 513.]
He ends by saying that he hopes to "comment further soon". The Minister went on to tell the House that discussions with "interested parties" were continuing. I hope that the Minister can tell us what progress has been made and who are the interested parties involved.
We support making outline permissions more useful, more precise, more able to achieve certainty for everyone, without allowing the outline permission to be morphed or distorted into something that was not originally anticipated by the planning authority. So, all power to the Government's elbow, let them get on with that and produce a solution—but not this solution; not statements of development principles and alternatives.
We are concerned about the workload this will cause for local planning authorities; we know the strains under which planning departments work. And for what? Not to produce anything that a developer can take to a bank and say, "Please will you finance this?" It is not a fundable permission; it is only a statement. If the Government had changed the "must" issue a statement to "may" issue a statement, I would have had more sympathy in considering whether the idea is a useful one.
It is clear from the Barker review that we shall have to come back very soon to many of the issues surrounding planning and the achievement of sustainable developments and sustainable communities. As the Government now concede that they are not going to use the Bill as an opportunity, to be exercised at some time in the future, to repeal outline planning consents and take them off the agenda, they will have to return to Parliament to deal with that matter. Both issues should be brought back together.
My short amendment seeks to make this a more workable provision. However, I would prefer to see the back of the idea, for the time being at any rate, until we have a proper and complete package together. I beg to move.
5.30 p.m.
Lord Hanningfield: My Lords, I wish to speak to my Amendment No. 29, which is grouped with Amendment No. 28.
Amendment No. 29 seeks to remove Clause 42 from the Bill and thus the Government's provisions for statements of development principles. I wish to add to the comments of the noble Baroness, Lady Hamwee, with which I agree. Clearly the amendment would represent a significant change to the Bill. Nevertheless, we feel that it is crucial, for the fundamental reason that it will make the legislation better.
I should like to say a little about our previous debates before I outline our opposition 'to statements of development principles because it may help explain why we now seek to remove Clause 42. On previous occasions, in Committee and on Report, when we tabled amendments concerning statements of development principles I expected there to be some debate and discussion. More importantly, I thought that the Government would take those opportunities to elucidate the reasoning behind statements of development principles. I did not expect necessarily a compelling justification, but certainly I expected more in the way of how statements of development principles were envisaged as improving the planning system.
I am disappointed that the Government did not really engage with the basic questions of how and why statements of development principles would add value to the planning system. To some extent, that may have been due to the way in which my previous amendments addressed the specific problems we saw in the detail of Clause 42. However, one usually expects clarity and justification to flow from the general discussion that follows. This did not happen. That means that we are left to choose between getting rid of statements of development principles altogether, or leaving them as they are.
Let me explain why I think we must remove Clause 42. As I said at Report, statements of development principles are an exercise in ivory-tower thinking. For the planners on the ground and organisations such as CPRE there is no evidence that statements of development principles will help meet the Government's objectives for the planning system. There is very little support for them, partly because there is precious little information available that justifies their introduction.
On top of all the structural changes that will flow from this Bill, we have an anomalous new process which developers and planners alike do not understand and do not support. Anyone can apply for a statement of planning principles, although no one has any idea how many applications there will be. There is considerable scope for them to be exploited as spoiling tactics for legitimate development, which I am sure the Government do not want to happen. There is even more scope for them to clog up the system, as the noble Baroness, Lady Hamwee, said by overburdening planning departments' work loads, because statements of development principles will effectively subsidise the applicant's preparatory work with no discernible benefit for the local planning authority or the public.
894
These negative features are compounded by the fact that the Government have not decided a way forward on the retention of outline planning permission, as the noble Baroness, Lady Hamwee, said. We think that the statements of development principles cannot be considered in isolation from the future of outline planning permission. We have the Statement by the planning Minister, Keith Hill, on 15 December, 2003 which helps a little, but I do not think that primary legislation on statements of development principles is appropriate when so much related work remains outstanding.
As I said before, the Government should have listened earlier to those who actually use and manage the outline planning provision process in order to improve the level of information and community involvement in that process. Outline planning permission is key to securing funding for development. Statements of development principles, when they seem so unworkable, cannot replace outline planning permission. If they have to run in parallel, why add more bureaucracy to the system? It certainly will not help speed up the planning process.
If we introduce statements of development principles, we will shift the burden of planning applications from the applicant to the local authority at a time of severe staffing problems and in times of great operational and structural change. It seems that they can be issued on the basis of very little information to anyone who wants them. As I said before, they could be used to hold up development against the wishes of the Government. The Government can help improve the pre-application process of the planning system, but they should start by dropping statements of development principles. Planners, developers and other interested organisations do not support their introduction, and they have the potential to be an expensive and confusing failure. They are no way forward. I beg to move.
Lord Lucas: My Lords, I entirely support what my noble friend said. I ask one additional question: if the Bill goes through as it is, although the Government said that they want to keep outline planning permission, will the Bill give them the ability to abolish it at any time by secondary legislation?
Lord Marlesford: My Lords, I strongly support this amendment. If the clause remains the whole planning system will be much woollier. Any planning application should be much more specific than is allowed for in this provision. It is quite wrong to allow people to require the local authority to do the work and fill in the gaps. Frankly, if the local authority is swamped with planning applications on which it has a lot of work to do it will be much less able to devote the proper care and attention to specific planning applications.
Lord Rooker: My Lords, there have been some changes in this part of the Bill. The Government have already announced that they have decided to retain outline planning permission. Subject to other moves and discussions, it may be that one would not go to the wall over this matter. In keeping outline planning permission, we consider that statements of development principles could

895
provide a valuable addition to the tools available in the planning process. They would enable anyone to obtain an early indication from a local planning authority whether a proposed development would be accepted in principle. They will also identify the kind of issues a developer would need to consider before submitting an application. The developer would then have a clearer idea whether to think about making the planning application. The statement of development principles is not a planning application: hence the need not to provide the kind of detail needed for a planning application. That is why we do not consider that these other details should be mandatory, where the local authority can pile in for a list of other information it wants from a developer. The idea of this statement is that it would be flexible enough for simple and complex questions to be asked, to get an answer back, and to decide whether to proceed with the application. There would be a fee system anyway, so it would not be a question of a gumming-up of the system. We said that we would consult on the issue later this year, if this issue remains in the Bill at the end of the day when it becomes an Act.
If the amendment to leave out the clause is carried, then outline planning would be kept anyway. We are not going to proceed down the route of abolishing outline planning permission. I hope that the general thrust of the question by the noble Lord, Lord Lucas, is answered, because we are keeping outline planning and therefore the status quo is maintained.
Weaponry is the wrong word. This is another tool that the planning authorities may wish to use, but they may not wish to use it. In due course, it is not something over which we would go to the stake.
Lord Marlesford: My Lords, before the noble Lord sits down, am I not right in saying that the provision for informal consultation on a planning proposal already exists, and has existed for a long time? Does that not do the job?
Lord Rooker: My Lords, indeed that may beg the question why, now that we are keeping outline planning permission, anyone would want to use this tool. It may be that local authorities say, "Outline planning is maintained. We can already undergo early discussions". That would probably be behind closed doors, of course. The statement of development principles must be a much more open and transparent issue, about giving detailed, principled answers about a piece of land.
Baroness Hamwee: My Lords, I would describe the Minister's description of his own clause in the words of W.S. Gilbert, as "modified rapture". I was being consulted by my Chief Whip, but my noble friend told me that he said that we would consult on all of this if this provision remains in the Bill.
The Minister said that local authorities could "pile in for a list of information" but, as we have discovered on many other subjects, they would have to be reasonable in doing so. I do not think, therefore, that the point is one which goes very far.
896
The Government have now decided not to go ahead with repealing outline permissions. I must say that those two amendments towards the end of today's list are the first time in many years when my name heads the amendment and that of the Minister is tacked on afterwards: not even parliamentary counsel could find fault with "leave out line so-and-so". Now that they are not going ahead at this point in that way, it must be right to put the whole lot into a pot and to consider it all together.
The Minister has convinced me that I should beg leave to withdraw my amendment, in order that the clause can be removed from the Bill. I hope that the noble Lord will be moving that in a moment, so I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hanningfield Lord Hanningfield moved Amendment No. 29:
Leave out Clause 42.
The noble Lord said: My Lords, I was very grateful for the Minister's reply. He has given me the very reason why we should take the view of the House on removing the entire clause. I think that everyone has said that the provision should be considered later when we consider the future of outline planning permissions. I beg to move.
5.45 p.m.
On Question, Whether the said amendment (No. 29) shall be agreed to?
Their Lordships divided: Contents, 107; Not-Contents, 87.

Division No.8

CONTENTS

Addington, L.

Dholakia, L.

Alderdice, L.

Dixon-Smith, L.

Anelay of St Johns, B.

Dundee, E.

Astor of Hever, L.

Eccles of Moulton, B.

Attlee, E.

Eden of Winton, L.

Avebury, L.

Elles, B.

Baker of Dorking, L.

Elton, L.

Barker, B.

Beaumont of Whitley, L.

Falkland, V.

Belstead, L.

Finlay of Llandaff, B.

Biffen, L.

Fookes, B.

Blatch, B.

Fowler, L.

Bradshaw, L.

Geddes, L.

Bridgeman, V.

Glentoran, L.

Brittan of Spennithorne, L.

Hamwee, B.

Brooke of Sutton Mandeville, L.

Hanham, B.

Burnham, L.

Hanningfield, L.

Byford, B.

Harris of Richmond, B.

Caithness, E.

Higgins, L.

Campbell of Alloway, L.

Hodgson of Astley Abbotts, L.

Carlisle of Bucklow, L.

Carnegy of Lour, B.

Howe, E.

Chorley, L.

Hunt of Wirral, L.

Clement-Jones, L.

Jenkin of Roding, L.

Cobbold, L.

Jopling, L.

Colwyn, L.

King of Bridgwater, L.

Cope of Berkeley, L. [Teller]

Kingsland, L.

Craigavon, V.

Lester of Herne Hill, L.

Cumberlege, B.

Liverpool, E.

Deedes, L.

Lucas, L.

Denham, L.

Luke, L.

897

Lyell, L.

St John of Fawsley, L.

McColl of Dulwich, L.

Sanderson of Bowden, L.

Maddock, B.

Seccombe, B. [Teller]

Mancroft, L.

Selsdon, L.

Marlesford, L.

Sharp of Guildford, B.

Miller of Hendon, B.

Shaw of Northstead, L.

Mowbray and Stourton, L.

Shrewsbury, E.

Newton of Braintree, L.

Shutt of Greetland, L.

Northbrook, L.

Skelmersdale, L.

Smith of Clifton, L.

Northesk, E.

Stewartby, L.

Northover, B.

Stoddart of Swindon, L.

O'Cathain, B.

Swinfen, L.

Park of Monmouth, B.

Taylor of Warwick, L.

Peel, E.

Tebbit, L.

Phillips of Sudbury, L.

Thomas of Gresford, L.

Rawllings, B.

Thomas of Walliswood, B.

Reay, L.

Tope, L.

Redesdale, L.

Tugendhat, L.

Rees, L.

Walmsley, B.

Renton, L.

Weatherill, L.

Rodgers of Quarry Bank, L.

Wilcox, B.

Roper, L.

Williams of Crosby, B.

Rotherwick, L.

Windlesham, L.

NOT-CONTENTS

Acton, L.

Haskel, L.

Alton of Liverpool, L.

Hayman, B.

Amos, B. (Lord President of the Council)

Hogg of Cumbernauld, L.

Hollis of Heigham, B.

Andrews, B.

Howells of St. Davids, B.

Archer of Sandwell, L.

Hughes of Woodside, L.

Ash ton of Upholland, B.

Hunt of Chesterton, L.

Bach, L.

Hunt of Kings Heath, L.

Bassam of Brighton, L.

Irvine of Lairg, L.

Berkeley, L.

Janner of Braunstone, L.

Bernstein of Craigwell, L.

Judd, L.

Blackstone, B.

Layard, L.

Bragg, L.

Lea of Crondall, L.

Brooke of Alverthorpe, L.

Lipsey, L.

Brookman, L.

McIntosh of Haringey, L.

Campbell-Savours, L.

MacKenzie of Culkein, L.

Carter, L.

Mackenzie of Framwellgate, L.

Chandos, V.

Massey of Darwen, B.

Christopher, L.

Mitchell, L.

Clarke of Hampstead, L.

Pitkeathley, B.

Clinton-Davis, L.

Rea, L.

Corbett of Castle Vale, L.

Rendell of Babergh, B.

Crawley, B.

Rogers of Riverside, L.

Davies of Coity, L.

Rooker, L.

Davies of Oldham, L. [Teller]

Desai, L.

Sainsbury of Turville, L.

Donoughue, L.

Sawyer, L.

Dubs, L.

Scotland of Asthal, B.

Elder, L.

Sewel, L.

Evans of Parkside, L.

Sheldon, L.

Evans of Temple Guiting, L.

Simon, V.

Falconer of Thoroton, L. (Lord Chancellor)

Slim, V.

Stone of Blackheath, L.

Farrington of Ribbleton, B.

Symons of Vernham Dean, B.

Faulkner of Worcester, L.

Temple-Morris, L.

Filkin, L.

Thornton, B.

Fyfe of Fairfield, L.

Tomlinson, L.

Gale, B.

Triesman, L.

Gibson of Market Rasen, B.

Turner of Camden, B.

Golding, B.

Warner, L.

Goldsmith, L.

Whitaker, B.

Grenfell, L.

Whitty, L.

Grocott, L. [Teller]

Wilkins, B.

Harris of Haringey, L.

Williams of Elvel, L.

Harrison, L.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
5.56 p.m.
Clause 43 [Applications for planning permission and certain consents]:
Lord Rooker Lord Rooker moved Amendment No. 30:
Page 26, line 29, at end insert—
"(5) A development order must require that an application for planning permission of such description as is specified in the order must be accompanied by such of the following as is so specified—

(a) a statement about the design principles and concepts that have been applied to the development;

(b) a statement about how issues relating to access to the development have been dealt with.

(6) The form and content of a statement mentioned in subsection (5) is such as is required by the development order."
The noble Lord said: My Lords, this is not a concession but, having just pocketed one concession well in advance of when it may have been offered, I am mortified—it was not supposed to be that way.
In moving the amendment, and speaking also to government amendments Nos. 31 and 32, I will not repeat what I said earlier. However, the thrust of the amendments is to require applications for planning permission for development to be accompanied by a design statement, an access statement or both. The contents of the statements and the types of development to which they apply would be prescribed by regulations or in a development order.
Previous discussions, at this stage and earlier, have highlighted the importance of providing the right framework to promote design and access, including the ability to stand up to developers where necessary. Along with Clause 39 and planning policy statement 1, that means ensuring proper attention to design and access at all stages of the planning process. If the development does not address those issues, I do not see how it can be regarded as truly sustainable. I beg to move.
Lord Rogers of Riverside: My Lords, I add my wholehearted support to the Government for Amendment No. 30. Noble Lords will remember that I first raised the subject of design statements at Second Reading on 6 January. I am grateful to the noble Lord, Lord Lucas, my noble friend Lady Blackstone, and the noble Baroness, Lady Maddock, for their support for amendments in our names calling for applications for planning permission to be accompanied by design statements. I am also grateful to the Royal Institute of British Architects for supporting me and others in our efforts.
Perhaps most of all, I am grateful to the Minister and his colleagues. The Government have listened and responded well. One need only read the debates that we had on design in Committee and on Report to see how well they understand the key argument: that without

899
ensuring design quality there is no urban renaissance. In Committee, my noble friend Lord Rooker said:
"If we deliver poor design, we know that we will not deliver sustainable development".—[Official Report, 22/1/04; col. 1253.]
He also undertook to take the Bill back to his department and insist that design be included in it. He has kept to his word and the Bill—which until today did not feature the word "design" at all—is now all the stronger for it.
In speaking to Amendment No. 34, which is in my name and those of other noble Lords, I seek only clarification from the Minister that "planning permission" in Clause 43 embraces outline planning permission. I am aware of the Written Statement made in the other place by the Minister for Housing and Planning, Keith Hill, on 23 March. The Minister announced that applications for outline planning permission will have to be accompanied by design statements. Will Clause 43 have that effect or do the Government envisage another legislative route?
The Government's amendment places design at the heart of the planning process and that is where it should be. I am delighted and I urge noble Lords to support the amendment.
6 p.m.
Baroness Maddock: My Lords, I thank the Minister for bringing forward the amendment at this stage. There has been cross-party support for it all around the House. We have discussed in some detail what we mean by "design". I have two questions for the Minster.
In his letter to us explaining what the amendment does, he said that,
"The amendments require that in appropriate circumstances. "
Will the Minister clarify what he thinks those circumstances are? I would hate to think that we were talking about only a few large projects.
He also told us that,
"The detail of the information, and the circumstances in which it should be provided would still be for secondary legislation and guidance, on which we will consult further".
Will the Minister explain that a little more and give us some extra detail about how that might happen? Having said that, I welcome the amendment and hope that the Minister can clarify those points.
Lord Lucas: My Lords, the Minister has achieved a great deal with the amendments in the group and I am extremely grateful to him.
Baroness Blackstone: My Lords, I wish to add my thanks to my noble friend the Minister and endorse what my noble friend Lord Rogers of Riverside said. We are enormously grateful to the Minister. As a result of his intervention, there will be many more better designed buildings all over the country, and he will have a place in heaven.
Lord Cobbold: My Lords, I, too, echo the words of the noble Baroness on the matter of design. I wish to ask the Minister a question in respect of Amendment No. 32, which relates to listed building consent and
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which is, presumably, consent to alter an existing building. What implication will that have as a statement after issues relating to access to a listed building have been dealt with?
Lord Rooker: My Lords, I am grateful for what has been said, but it is the Minister for planning and the Deputy Prime Minister who have agreed to this, but I have pointed out the strength of feeling in your Lordships' House, on all sides. Then I had to point out why there are four sides in your Lordships' House, of course.
I regret that I am not in a position to answer the detailed questions. As I have said earlier, there has to be consultation. I do not take the phrase "in appropriate circumstances" as a get-out or anything like that. I assure the noble Baroness, Lady Maddock, that it is not put there to undermine the thrust of what we are saying. There may be other circumstances, although I cannot imagine what they might be. The issue of "in appropriate circumstances" is for consultation and secondary legislation, but my notes say it refers to the difference between a domestic application and other applications. In other words, "domestic" might be work that someone wishes to carry out to their home, but that would be slightly different in relation to a new development.
Regarding her question on consultation—there is ongoing consultation on, for example, the standard form provisions in preparation for the powers of Clause 43. The Office of the Deputy Prime Minister has commissioned consultants to consider the design and content of the standard form for planning permission, listed building and conservation area consent applications, statement of development principle applications—which might now be a waste of time—tree preservation order applications, advertisement consent applications, applications for lawful development certificates; and the consultants have been asked to produce guidance to help applicants complete the forms.
Emerging work from the review suggests that rather than having separate forms for each type of application it would be more efficient to have a basic form for general details, with additional sheets covering different regimes—much like the design of a tax form, it says here.
Noble Lords: Oh!
Lord Rooker: My Lords, no, I have to say that the design of the Inland Revenue tax forms is fantastic, compared to what it has been. It is incredibly user-friendly, one does not need an accountant to fill it in and, with separate sheets, it works extremely well. The consultants' reports that are nearing completion should be available on the ODPM website by the end of March. Before prescribing any form, we vv ill consult on the standard form and its associated guidance. I am informed that we should be in a position to undertake the consultation by the summer, which to me is June, July and August.
On Question, amendment agreed to.
Lord Rooker Lord Rooker moved Amendments Nos. 31 and 32:
Page 27, line 19, at end insert—
"(b) the form or content of any document or other matter which accompanies the application."
Page 27, line 30, at end insert—
"( ) In section 10 of that Act after subsection (3) there are inserted the following subsections—
"(4) The regulations must require that an application for listed building consent of such description as is prescribed must be accompanied by such of the following as is prescribed—

(a) a statement about the design principles and concepts that have been applied to the works;

(b) a statement about how issues relating to access to the building have been dealt with.

(5) The form and content of a statement mentioned in subsection (4) is such as is prescribed.""
On Question, amendments agreed to.
Baroness Hamwee Baroness Hamwee moved Amendment No. 33:
After Clause 43, insert the following new clause—
"DUTY TO HAVE DUE REGARD TO NEED FOR ACCESSIBLE BUILDINGS
(1) In dealing with an application to which this section applies, the local planning authority, or as the case may be, the Secretary of State must have due regard to the need to ensure reasonable access and ease of use for people, regardless of disability, age or gender is provided in the context of the works in question.
(2) This section applies to—

(a) an application under section 62 or 73 of the principal Act for planning permission;

(b) an application under section 92 of the principal Act for the approval of reserved matters;

(c) an application for the approval of details required under a condition of a grant of planning permission (including a permission granted by a development order);

(d) an application under section 10 of the listed buildings Act 1990; and

(e) an application under section 2 of the Ancient Monuments and Archaeological Areas Act 1979 (c. 46).

(3) For the purposes of subsection (1), the local planning authority or the Secretary of State must have regard to national policies and advice contained in guidelines issued by the appropriate authority.
(4) The appropriate authority is—

(a) the Secretary of State in relation to England;

(b) the National Assembly for Wales in relation to Wales."

The noble Baroness said: My Lords, in moving Amendment No. 33, I shall speak also to government Amendments Nos. 94 and 97.
The purpose of this amendment is to place a new duty on planning authorities to have due regard to the need to ensure that reasonable provision is made so that buildings and their approaches are accessible to and usable by people, regardless of disability, age or gender, when considering planning applications. Amendments Nos. 30 and 32, to which your Lordships have just agreed, are perhaps more pertinent to developments that are the subject of particular applications.
It is widely accepted that the current system is failing. I very much welcome the repeal of Section 76, which is the subject of the two government amendments in this group. However, having warmly welcomed the amendments that the Government have
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agreed, I look forward to whatever news the Minister has for the noble Baroness, Lady Wilkins, about the Disability Rights Commission and the other organisations that she mentioned. Nevertheless, I felt that it was still worth discovering whether your Lordships would agree to this additional amendment.
The Minister did not comment on the matter when it was before the House at the last stage. However, as I understand it, in mainstreaming inclusive design and access, the Government would prefer to rely on planning policy statements, saying that those would be material considerations in planning decisions. If the development plan fails to set clear policies on access, the planning authorities will need to look at the relevant planning policy statement.
The Disability Rights Commission—I am grateful for its briefing, with which I agree—and others say that that is not good enough, for the following reasons. First, access for disabled people is already a material consideration but experience shows that the system is not delivering. I remember that at Second Reading the noble Baroness, Lady Wilkins, gave a number of examples of ways in which the system is failing, relating some personal stories of how individuals had come up against the system and quite literally banged their heads against problems.
Secondly, the guidance does not end the enormous variances in the ways in which different local planning authorities address access to the built environment.
Thirdly, of course, the courts are the ultimate arbiters of what is a material consideration, and they do not always quite go along with government guidance. We know as regards Section 106 agreements that the courts have to some extent rewritten the rules. In any event, the courts attach more importance to statutory duties than to guidance, and so they should.
Finally, unless and until there are clear duties in planning law on inclusive environment—it is probably human nature but it is part of our role to try to change the culture—too many planning officers and inspectors will continue to overlook access issues in determining planning applications. I beg to move.
Lord Rooker: My Lords, I have a considerable degree of sympathy with what the noble Baroness said. It applies to other parts of the Bill and to what is currently happening. The Bill will change the culture and the process. One could argue that her example relates to the idea that the Bill is designed to change the present system. We recognise that it has failed properly to address access and inclusion. There is no doubt about that—the present system has failed and we plead guilty.
We want a new system and the provision is intended to ensure that local authorities promote an inclusive environment and fully consider the needs of those with disabilities throughout the planning system. That means that issues such as level access are considered at the earliest possible stage. Access is considered by developers before we reach the application process. Therefore, Amendment No. 33 is unnecessary because the new system makes access just as important as other

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planning considerations. Furthermore—and I know that this is a little niggly—we are advised that legally speaking the amendment would not add anything. If the need to ensure reasonable access and the ease of use is a material consideration in relation to a particular application, the Secretary of State would have to have regard to it regardless of the amendment. The new planning system which is part of the Bill will produce more effective and focused results and clearer consideration of access issues throughout the process.
That is not a criticism of the amendment far from it. It is merely a question of the amendments and the debates catching up with what is now in the body of the Bill.
Baroness Hamwee: My Lords, I know not necessarily when I am beaten but when I have to withdraw. I beg leave to do so.
Amendment, by leave, withdrawn.
[Amendment No. 34 not moved.]
Clause 44 [Power to decline to determine applications]:
Lord Rooker Lord Rooker moved Amendment No. 35:
Page 28, line 10, leave out "a" and insert "more than one"
The noble Lord said: My Lords, in moving Amendment No. 35, I shall speak also to Amendments Nos. 36 to 38. We propose in Clause 44 to inhibit the use of repeat applications to wear down the opposition to controversial developments. Clause 44 provides for an amended Section 70A in the principal Act. The substituted Section 70A enables a local planning authority to refuse to determine a planning application where any of the conditions set out in subsections (2) to (4) of that section are satisfied and the authority considers that there has been no significant change in the relevant considerations in the period of two years since a previous application was determined. The applicant cannot engage the right of appeal under Section 78 of the principal Act because that section does not allow an appeal in these circumstances.
If the applicant wishes to challenge the decision of the authority, he or she must do so by way of judicial review. The conditions set out in subsection (4) provide that where in a two-year period preceding the receipt of a planning application the authority has refused a similar application and there has been no appeal to the Secretary of State against refusal, the authority may refuse to determine the current application.
The Government have received representations from house builders who want a right of appeal against the planning authority declining to determine a repeat application. They consider that without this, it would be unfair to developers who genuinely attempt to resolve issues that are of concern to the local authority. We have been persuaded of the merit of this proposal.
We consider that there should be a right of appeal on grounds of non-determination, but that it should be limited to a second application only. That is the general thrust of these amendments. I beg to move.
On Question, amendment agreed to.
Lord Rooker Lord Rooker moved Amendments Nos. 36 to 38:
Page 28, line 12, leave out "that refusal" and insert "any such refusal"
Page 29, line 32, leave out "a" and insert "more than one"
Page 29, line 34, leave out "that refusal" and insert "any such refusal"
On Question, amendments agreed to.
Clause 45: [Major infrastructure projects]:
Lord Hanningfield Lord Hanningfield moved Amendment No. 39:
Page 31, line 14, at end insert—
"( ) Any planning application that the Secretary of State declares is of national or regional importance, as designated through subsection (1), must be subject to an economic impact report.
( ) Any planning application for a major infrastructure project based on a site-specific proposal in a national policy statement White Paper shall be considered by an inspector who shall be able to question the need for a specific development."
The noble Lord said: My Lords, we now come to this extremely important amendment to the Government's proposals for major infrastructure projects. We did not discuss the amendment in great detail on Report because of the lateness of the hour. However, we had a useful exchange of views, which has been supplemented by a letter from the noble Lord, Lord Rooker, reiterating the points that he made in this House on 1 March. I thank him for that letter.
The amendment is intended to ensure that major infrastructure projects are subject to an economic impact report and to exclude site-specific proposals from White Paper national policy statements, to prevent them from reducing the scope of a public inquiry. The two provisions in the amendment are crucial to enhancing the democratic element of the Government's proposals in this part. I shall speak to each in turn.
The first paragraph of the amendment would require the Secretary of State to conduct an economic impact report on any planning matter that he deems to fall within this part of the Bill. Major infrastructure projects that may cause great damage to the environment are usually promoted on the basis that they will deliver economic regeneration benefits. Thus, a robust appraisal of whether demonstrable economic benefits will accrue must take place.
The noble Lord, Lord Rooker, may say that the first paragraph of the amendment is unnecessary because the Government expect the promoter of a development of a type such that the Secretary of State is likely to declare a major infrastructure project to engage with all parties concerned at as an early stage as possible. Apparently, that would be well in advance of the stage at which the amendment proposes an economic impact assessment. However, as important as is the sequence concerning when an economic impact report is produced, it is more important that there is a guaranteed mechanism in the Bill by which the economic logic and justification for any development is subject to rigorous scrutiny. Statutory economic impact reports would comprehensively probe new infrastructure proposals for their genuine economic implications—both positive and negative. They would provide a firm, realistic basis for discussion of a project's likely economic consequences.
I agree with the noble Lord, Lord Rooker, that the arguments about the economic impact should be in the public domain at an early stage. However, perhaps if the Secretary of State made it clear earlier in the process whether the proposed development was a major infrastructure project, a statutory economic impact report would then be in the right part of the sequence to maintain the scrutiny required to ensure that the economic assumptions of the development were fully tested.
Local people affected by major proposals will not wait until an inquiry to make their voices heard. They want to confront the issues head on. By the time that the inquiry comes round—perhaps one or two years later—positions will have hardened and there will be little chance of persuading people of the merits of a particular development. That is all right if we are not too concerned about taking the local community with us, but I believe that that is wrong. We should make every effort to ensure that local people fully understand the rationale behind such planning proposals.
For those people in favour of a development, getting strong economic arguments into the public domain as early as possible should be welcome. I should have thought that the Government would seek to reshape local debate in that way. Robust economic documents and their potential to win over critics will be crucial for the processes of planning major infrastructure projects in future—Stansted Airport, bridges across the Thames and so on. Only impartial statutory economic impact reports can guarantee people's trust in the system.
The second paragraph of the amendment is equally important. It would enable an inspector to examine the justification for site-specific proposals in a White Paper. Planning by White Paper is simply unacceptable. Of course, we support the use of White Papers to provide a framework for guiding the planning of major infrastructure. However, bypassing the checks and balances in the planning system by making site-specific recommendations is another matter entirely. As I said on Report, that is what has happened at Stansted.
The noble Lord, Lord Rooker, has said that a national policy White Paper should help reduce the argument at planning inquiries about the need for specific development of a site. Although a White Paper does not authorise or preclude any development, it sets out clear national policies that are designed to speed up the process of major infrastructure projects.
The Minister is walking an impossible tightrope, while trying to leave the theoretical possibility of an inquiry. At an inquiry, the need for a site-specific development could be subject to challenge. The logic of that argument is clearly that the White Paper would pre-empt such questions from being asked.
Major infrastructure projects rarely enjoy all-round support, but they must have public legitimacy. A White Paper consultation does not adhere to the same checks and balances as a planning application. Even if a White Paper has gone through the Houses of
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Parliament, the planning system has not been nationalised yet. I mention that because the Minister mentioned the weight that should be attached to White Papers.
White Papers are very important, and I strongly believe that they should not undermine the democratic and local conventions of the planning system in this country. It is essential that democratic safeguards in the planning system, which help protect the environment and enhance the quality of life of local communities, are not bypassed. This is an important amendment. I beg to move.
Baroness Hamwee: My Lords, I was struck by what the noble Lord, Lord Hanningfield, said at the last stage. He has more or less repeated that.
On 1 March he talked about people not wanting to,
"wait until an inquiry to make their voices heard".
I was particularly struck by his suggestion that:
"By the time the inquiry takes place, positions will have hardened".—[Official Report, 1/3/04; col. 535.]
The Campaign to Protect Rural England has been a vigorous supporter of this amendment. That organisation might be thought to be less concerned with economic impact assessments than with pinning down every last detail of environmental appraisal. The fact that it is not—and I do not think there is anybody in the Chamber whom I will provoke too much by stating this view—is probably a major achievement of the EU.
At the last stage the Minister spoke at length on this amendment, but he did not say why he opposed it. He suggested that it was unnecessary—he says that in his letter.
On the second limb, the EU environmental impact assessment directive requires consideration of the alternatives to many major projects. The Minister said that the inspectors should not have to spend inquiry time on an alternative. That either means that the amendment is otiose, or it is necessary because of the confusion. But neither way is it wrong. We support the amendment.
Lord Bassam of Brighton: My Lords, as the noble Lord, Lord Hanningfield, has said, this is an issue that has been debated many times, and at least twice in your Lordships' House. Although the debate was not as full as the noble Lord would have liked, we recognise that it was an important debate.
The noble Baroness, Lady Hamwee, has anticipated some of the arguments that we intend to deploy this evening. At an earlier stage, we said that we thought that the amendment was unnecessary because a promoter of the type of development which the Secretary of State is likely to declare a major infrastructure project—either of national or regional importance—would engage with all parties concerned as early as possible. Intelligent developers will do that, whatever the nature of the development, particularly if they want to be successful.

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We would expect some form of economic impact assessment or report to have been completed in preparation for the application, in much the same way that we would expect an environmental impact assessment or statement to have been prepared. This should be—would be—well in advance of the stage at which the amendment envisages it happening. Any major developer will look at those issues right at the outset, to understand the opportunities and options—and the likelihood of the application's success. We would expect the promoter of a development of the type that we are discussing to engage at an early stage with all concerned. That would mean that, by the time an application for planning permission was made to the local planning authority, the community would have already been actively engaged in the processes.
It puzzles us slightly why the noble Lord, Lord Hanningfield, feels that only an economic impact report should be a statutory requirement for a major infrastructure project inquiry. What about all the other important impacts, such as those on transport, highways, amenity value and loss, and social, environmental and cultural factors? All those seem highly relevant, so why just focus on the narrow concern of economic impact?
On the second subsection of the amendment, I shall repeat what was said both in Committee and on Report. Clearly, where there is a national policy statement, or White Paper, it will help to reduce argument at a planning inquiry about the need for a specific development of a particular type at a particular site. Where need is established by a national policy statement, the inspector should not have to spend lots of inquiry time considering whether a need for the development exists. He should instead consider whether the need identified is outweighed by other factors. That does not rule out the possibility that the inspector will spend some time looking at need, but it will be in the context of what is said about need in the national policy statement. I do not think that we can say more than that. The Government do not want to require through primary legislation that an inspector considers need. There may be circumstances where there is agreement on the issue of need and when inquiry time could be more usefully spent considering other issues specific to the proposed development.
I recognise the importance of the amendment and understand why the noble Lord, Lord Hanningfield, tabled it, particularly given his experienced background and knowledge of major development proposals in and around Essex. However, it is too narrowly concerned and too narrowly crafted. In the circumstances, we do not wish to see the amendment pushed forward. We do not think that it adds anything further to the legislation, so I hope that the noble Lord will withdraw it.
Lord Hanningfield: My Lords, I thank the Minister for that response. We have debated the matter but not as fully as one would have liked, and it has normally been at a late hour. I thank the noble Lord, Lord Bassam, for his comments today. Major infrastructure developments are normally put forward for economic benefit and need—I do not like to return to Stansted,
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but it is in the context of economic benefits and need. That is why we are suggesting an economic impact assessment first, rather than all the other impact assessments. I agree that they must take place, but they should come as part of the inquiry and the debate on the whole issue. That is why it is important that the inquiry should have the opportunity to discuss all the issues relating to a major project.
I agree totally that inquiries should not last three or five years, for example, and that we should speed up the processes. But there must be the opportunity at an inquiry to question the need and the positioning of a runway or a bridge, for example. Later we will have bridges along the Thames, which will involve another big debate. I am not saying that those projects should not happen; governments have a right to put in White Papers that they should happen. But there must be local debate and a proper inquiry to ascertain the positioning, potential need and the reasoning behind projects.
I do not think that the Government have fully allayed people's fears that there will be enough freedom and democratic input to those major national decisions, which affect so many people's lives and affect our country for ever. Therefore, I feel that I need to test the opinion of the House.
6.29 p.m.
On Question, Whether the said amendment (No. 39) shall be agreed to?
Their Lordships divided: Contents, 91; Not-Contents, 80.

Division No. 9

CONTENTS

Addington, L.

Glentoran, L.

Alderdice, L.

Greaves, L.

Anelay of St Johns, B.

Hamwee, B.

Astor of Hever, L.

Hanham, B.

Attlee, E.

Hanningfield, L.

Avebury, L.

Harris of Richmond, B.

Barker, B.

Higgins, L.

Beaumont of Whitley, L.

Hodgson of Astley Abbotts, L.

Biffen, L.

Howe, E.

Blatch, B.

Hunt of Wirral, L.

Bradshaw, L.

Jenkin of Roding, L.

Bridgeman, V.

Jopling, L.

Brittan of Spennithorne, L.

Kingsland, L.

Burnham, L.

Lester of Herne Hill, L.

Byford, B.

Liverpool, E.

Caithness, E.

Lucas, L.

Carlisle of Bucklow, L.

Luke, L.

Colwyn, L.

Lyell, L.

Cope of Berkeley, L. [Teller]

McColl of Dulwich, L

Craigavon, V.

Maddock, B.

Deedes, L.

Mancroft, L.

Denham, L.

Marlesford, L.

Dixon-Smith, L.

Miller of Hendon, B.

Eccles of Moulton, B.

Monson, L.

Eden of Winton, L.

Mowbray and Stourton, L.

Elton, L.

Newby, L.

Falkland, V.

Newton of Braintree L.

Finlay of Llandaff, B.

Northbrook, L.

Fookes, B.

Northesk, E.

Fowler, L.

O'Cathain, B.

Geddes, L.

Park of Monmouth, B.

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Peel, E.

Seccombe, B. [Teller]

Phillips of Sudbury, L.

Selsdon, L.

Pilkington of Oxenford, L.

Shaw of Northstead, L.

Rawlings, B.

Shrewsbury, E.

Razzall, L.

Shutt of Greetland, L.

Reay, L.

Skelmersdale, L.

Redesdale, L.

Smith of Clifton, L.

Stewartby, L.

Rees, L.

Swinfen, L.

Rennard, L.

Taylor of Warwick, L.

Renton, L.

Thomas of Walliswood, B.

Roper, L.

Tope, L.

Rotherwick, L.

Tugendhat, L.

St. John of Bletso, L.

Wilcox, B.

Sanderson of Bowden, L.

Williams of Crosby, B.

NOT-CONTENTS

Acton, L.

Hayman, B.

Ahmed, L.

Hogg of Cumbernauld, L.

Alton of Liverpool, L.

Hollis of Heigham, B.

Amos, B. (Lord Privy Seal)

Howells of St. Davids, B.

Andrews, B.

Hughes of Woodside, L.

Archer of Sandwell, L.

Hunt of Chesterton, L.

Ashton of Upholland, B.

Hunt of Kings Heath, L.

Bach, L.

Irvine of Lairg, L.

Bassam of Brighton, L.

Janner of Braunstone, L.

Bernstein of Craigweil, L.

Judd, L.

Blackstone, B.

Lea of Crondall, L.

Bragg, L.

Lipsey, L.

Brooke of Alverthorpe, L.

McIntosh of Haringey, L.

Brookman, L.

MacKenzie of Culkein, L.

Campbell-Savours, L.

Mackenzie of Framwellgate, L.

Carter, L.

Massey of Darwen, B.

Christopher, L.

Mitchell, L.

Clarke of Hampstead, L.

Pitkeathley, B.

Clinton-Davis, L.

Rendell of Babergh, B.

Corbett of Castle Vale, L.

Robertson of Port Ellen, L.

Crawley, B.

Rogers of Riverside, L.

Davies of Coity, L.

Rooker, L.

Davies of Oldham, L. [Teller]

Desai, L.

Sainsbury of Turville, L.

Donoughue, L.

Sawyer, L.

Dubs, L.

Scotland of Asthal, B.

Elder, L.

Sewel, L.

Erroll, E.

Simon, V.

Evans of Parkside, L.

Stone of Blackheath, L.

Evans of Temple Guiting, L.

Symons of Vernham Dean, B.

Falconer of Thoroton, L. (Lord Chancellor)

Temple-Morris, L.

Thornton, B.

Farrington of Ribbleton, B.

Tomlinson, L.

Faulkner of Worcester, L.

Triesman, L.

Filkin, L.

Turner of Camden, B.

Gale, B.

Warner, L.

Gibson of Market Rasen, B.

Whitaker, B.

Golding, B.

Whitty, L.

Goldsmith, L.

Wilkins, B.

Grocott, L. [Teller]

Williams of Elvel, L.

Harris of Haringey, L.

Woolmer of Leeds, L.

Resolved in the affirmative, and amendment agreed to accordingly.
6.40 p.m.
Clause 46 [Planning contribution]:
Lord Lucas Lord Lucas moved Amendment No. 40:
Page 33, line 9, at end insert ", or
( ) by agreement or otherwise"
The noble Lord said: My Lords, in moving Amendment No. 40 I shall speak also to Amendment No. 41. I shall be extremely brief and I hope that the Minister will be able to give me the comforts I am
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looking for. The purpose behind these amendments is to ensure that after all the changes to and arguments over this Bill, it will still be possible for developers to make unilateral undertakings and for someone with an interest in land to enter into a planning obligation. I am not clear that this will be possible given the way the Bill is now set out. I have written to the Minister at length and I now look forward to his response. I beg to move.
Baroness Hanham: My Lords, I wish to speak to the five further amendments in the group, Amendments Nos. 42, 44, 45, 96 and 99. They all concern Section 106 and the proposed planning contributions to be made in the form of a tariff.
On Report the Minister gave a firm indication that Section 106 of the Town and Country Planning Act would not be repealed, rather it would be included in regulations. Of course the Bill does repeal it in Schedule 6. We discussed at length the question whether, if it was repealed in this Bill, it could then be resurrected in regulations at a later stage. In speaking to Amendment No. 96, I want to put on the record that I think this is a very strange way of proceeding. Although the Minister is shaking his head, it is odd to repeal a section and then bring it back in regulations which may or may not come before Parliament again. However, we accept that Section 106 is going to continue in some form.
I turn to the tariff system. Again, on the last occasion that we discussed this, it had been decided, as the result of an intervention by the noble Lord, Lord Best, that tariffs needed to be looked at because of the impact they might have on affordable housing. I understood that a ministerial task force was being set up to look at the whole question of tariffs and decide how best to put them together. Again, this is a very strange way of proceeding at such a late stage of a Bill that has been meandering through Parliament for almost a year and a half. When the Bill was first introduced the tariffs were not included in it. They appeared at the end of the Bill's consideration in the other place.
I understand that the task force has been set up. It is due to report by September 2004. However, it has not had an auspicious start. An initial scoping meeting was held and a provisional date of 23 March was agreed for its first meeting. That did not take place and no subsequent date has been set. That does not set a good precedent for the importance that the Government attach to the task force. Perhaps the Minister can tell us why the meeting did not take place and whether it is envisaged that the six-month programme, which will not be completed until September, is still on target.
There is an added complication to the question of tariffs. We have touched on the Kate Barker housing review many times today. It states that the tariffs are "second best". What Kate Barker wants is a proper planning development tax, which of course is not what is provided in this Bill.

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In the letter sent by the noble Lord to the noble Baroness, Lady Maddock, earlier this week, he stated:
"The Government has a clear view of the broad shape of the tariff system, but has no details".
That really sums it up.
The only part about which I am dubious is whether the "broad vision" is correct because, despite the matter being discussed on many occasions in the House, we still have no idea what the tariff will involve. The only saving grace is that the Government have made no case for hanging a sword over Section 106, which appears to be widely accepted by developers, and that section will be maintained.
We need a little more explanation of what is going on in regard to planning contributions. What are the proposals for ensuring that Parliament will have an opportunity to consider how the tariff system, if it comes into being, will operate? I understand that Section 106 is due to be reviewed as part of the work of the task force. We will need to consider the implications of that.
This is a serious matter and I hope that the Minister will be able to give satisfactory answers.
Baroness Maddock: My Lords, I support very much what the noble Baroness, Lady Hanham, has said. Indeed, I am grateful to the Minister for sending me a detailed letter about primary and secondary legislation in the area of Section 106 agreements and tariffs.
We have made it quite clear that we would prefer to see an improved Section 106 system, not another new tariff system. As other noble Lords have said, the Barker review was published this week and contains, perhaps, a third method of dealing with the issue. Perhaps the Minister will explain today how this all fits together.
Like the noble Baroness, Lady Hanham, and others, we are concerned that at the previous stage we were given reassurances about the consultation on this matter. In particular, the noble Lord, Lord Best, raised issues in regard to affordable housing. Since then, the National Housing Federation and the British Property Federation have written to me and have expressed great concern, as the noble Baroness, Lady Hanham, said, about the progress of the consultations that were supposed to take place.
In the letter, the Government query our wish to retain Section 106 and state that other people have been very critical of it. That is true, but we want to keep a reformed version of it. Even some of the people who are critical of it want to see it reformed. We were given a summary of the consultation on the tariff system but there was not a single number in it quantifying any of the decisions. As I said at the time, if anyone undertaking a GCSE project had handed a summary like that in, they would not have been allowed to get away with it. But we are supposed to use it as a basis for moving forward on this important issue.
The Barker review will make a difference. I hope that the Minister will explain how the Government intend to deal with it. Again, I know that the British Property Federation is concerned about this and that it feels that if the Government press ahead with their
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current proposals we will end up with another change in a couple of years' time. I hope the Minister will be able to answer that point.
We have discussed this matter at some length—and I think the Minister knows where we all stand on it—but, because of the lack of clarification and the fact that all the detail will be in secondary legislation, it will be extremely difficult for this House to scrutinise the legislation properly and have a proper input. The Minister often refers to consultation and so on. If I had an office with three or five people researching for me, I could perhaps respond in detail to all the consultations. I cannot do that, but if matters are in primary legislation I have an opportunity to debate them on the Floor of the House.
This is a very serious matter. I am disappointed in the way it has been dealt with and I hope that the Minister will explain how it will be taken forward. Perhaps he will say how the Government intend to ensure that it works and that someone approves of it. Having seen all the planning proposals coming out of the Kate Barker review, I think I now understand why so much of what we have been discussing has to be in secondary legislation. It is so that the Government can bring in whatever they want from what has been said. That is not the right way to carry forward such an important issue. I look forward to hearing what the Minister has to say.
Lord Rooker: My Lords, I will first deal with the bones of the amendment and then say something about Barker. I can say to the noble Lord, Lord Lucas, that the Government sympathise with the intent of Amendments Nos. 40 and 41, but believe that they are unnecessary. The amendments appear to be aimed at ensuring that planning contributions can be made by unilateral undertakings. Unilateral undertakings are most often made when a local planning authority refuses a planning application and the applicant then appeals to the Secretary of State. The applicant can offer a planning obligation at that stage, even if he has not been able to agree the terms of an obligation with the local planning authority.
The Secretary of State is able to take the unilateral undertaking into account when deciding whether to grant planning permission on appeal if he is satisfied that the undertaking is sufficient to make the application acceptable in planning terms. I give a clear assurance to the House that under the new system, the Government fully intend that developers will be able to make contributions by unilateral undertakings. Clause 46(2)(b) contains sufficient power to enable the Secretary of State to do that. I hope that that is sufficient response for the noble Lord.
On Section 106, I know that it is late and I do not want to wind anybody up, but I have to say that there is an unreasonable degree of impatience about the tariffs. It is not a function of Parliament to write all the details. That is not our role. I am not teaching my aunt to suck eggs, but I am asking for patience. There will be ample opportunity for this House and the other place to fully scrutinise the proposals that the Government bring forward, which will, after all, involve money. There will

913
be full opportunity and bags of time, but it should not happen now. That is all. I am asking for a little patience. It is wholly unreasonable to expect the information now in view of all the detail. This issue was originally in the White Paper, taken out of the Bill and then it returned 18 months later. I fully accept all that, but it had not been on the back burner; it had been off the agenda altogether until we had another look at Section 106 in the light of the Bill being carried over from one Session to the next.
We are abolishing Section 106 from primary legislation, but there is nothing unusual about moving blocks of legislation around. It is sometimes necessary. As I said at an earlier stage, it would be much better to have the legislation on the planning applications in the round, effectively in one document. The new optional charge will be introduced alongside the negotiated or unilateral undertaking route. It will be an optional charge. Obviously, there will be substantial consultation on that. It is no good people outside setting up aunt sallies and talking about red herrings. I apologise if the detail is not there, but that is the way of the world. It is too soon.
The advisory group was due to have its first meeting this week, but that has been postponed until April to give time to reflect on the implications of the Barker proposals. It is easy for me to say this, but I genuinely ask the House to bear with us. Although it was known what was in Barker as it came to the end of its deliberations, it was not possible to go around talking to the relevant parties to find out what was involved until it was published as part of the Budget day operation. We needed time to have a look at it. The stakeholders are quite content with the arrangements for taking on board what Barker has said and having the first meeting in April. There has been no problem and no complaint from any of the stakeholders. I mean that genuinely, because we are dealing with a practical point of view.
Baroness Hanham: My Lords, both the noble Baroness, Lady Maddock, and I have received letters from major stakeholders saying that the meeting has not taken place and that they are very concerned.
Lord Rooker: My Lords, I have given them an explanation. My note says that the stakeholders were content with the change in the arrangements. The change was because Barker was published only last week on 17 March. It is a very substantial document, not a few pages of A4. It is a major document, notwithstanding the fact that there had been an earlier interim report.
We want people to use Barker and to get the best out of it, so that we can get as much of a consensus as possible. I am not aware of people complaining about it. There is no secret, no ulterior motive or problem, other than to allow the Barker report fully to sink in with people.
I have more than a few paragraphs on Barker here, and I will not go through them all. However, there are a few points in respect of the planning obligations
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reform which are worth putting on record. It is an initial response to the Barker recommendations. That is all it is: an initial response. Please do not complain that it is not full and detailed. It is an initial response by the Government to the Barker review, because this is very substantial and cuts across many departments.
First, we have to be clear about the context of the recommendations. Barker gives broad support to the direction of the Government's reforms to planning obligations, in particular the increase in certainty, clarity and transparency, and the reduction in negotiation costs for both local authorities and developers.
The Barker report proposes a new planning gain supplement. This would be a charge levied at the point of planning permission and related in size to the increase in the land value caused by the grant of planning permission. The grant of planning permission would depend on a payment of the planning gain supplement. The aim of this supplement would be to ensure that a proportion of landowner development gains are recycled back into the community. It is the community that grants the planning permission in the first place.
The report goes on to recommend that, if the Government were to introduce this new supplement, first, planning obligation should be scaled back to the aim of direct impact mitigation, and the Office of the Deputy Prime Minister should issue guidance or new legislation to this end. It is Parliament that issues legislation, of course, but that is the thrust of it.
Secondly, planning obligation should retain its current affordable and/or social housing requirements, as set out in circular 698. Thirdly, local authorities should receive a direct share of the receipts from planning gain supplement generated in their area, which local authorities should be free to spend as they wish.
The question is, how do the Government respond to these recommendations? I have already written to all the noble Lords who have spoken in these debates on planning obligations, setting out our response, and I will take this opportunity to state the views to the House.
First, we welcome Barker's support for the direction we are taking in planning obligation reform. These issues that is, certainty, clarity and transparency—have consistently been identified in criticism of the current system, and it is right that we focus on them.
Secondly, the Chancellor of the Exchequer has proposed a national debate on the basis of the Barker report and has said that he will consider this particular proposal over the next 18 months. That is a reasonable point for the Chancellor of the Exchequer to make. He is not going to rush to judgment on this substantial issue. We do not think that the Barker conclusions or the Chancellor's proposal cause us to change our policy approach. We regard the reform of planning obligations as urgent, in view of the widespread criticism there has been of the present arrangements. On the other hand, I freely admit that, listening to the debate in this House, anyone would think that everything is hunky-dory and perfect. We did start off

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by saying that there were major problems with the way Section 106 had operated, and that remains our position.
We continue to believe that developers should have the choice of a charge or a negotiated agreement, depending on which seems to be the best and speediest option for them in the particular circumstances of their development. We want the new arrangements to be provided for at local level in the new development plans.
I am coming to the end of this. It is only an interim response. We should also note that Kate Barker says that if the Government decide not to proceed with her suggestion of a planning gain supplement, we should proceed with our present package of reforms, offering the choice of a charge or negotiation.
Were the Chancellor to decide in due course to proceed with a planning gain supplement, the provisions in the Bill would allow us to adjust our proposals to make them, if need be, complementary to the planning gain supplement.
Some might suggest that in the event of the Government accepting Barker's recommendations they might move to a framework for planning obligations using only the negotiated route. That would present a reason for deleting the clauses and the provision for an optional charge. However, that overlooks a significant point. An important advantage of reconstituting Section 106 in regulations is that it would allow us to ensure that planning contributions that are negotiated or contained in unilateral undertakings could be limited in future to direct impacts and affordable housing—that is, the Barker approach—if that is the route we decide to follow in due course. Under the present law we do not have that flexibility. Therefore, maintaining this approach and proceeding with the Bill as it is gives us the flexibility of converting Section 106 into the regulations.
7 p.m.
Baroness Hanham: My Lords, it is not for me to reply on this amendment, but I am so shocked that I think I have to say something before the noble Lord, Lord Lucas, replies. I am almost speechless. Here we are at the end of the Bill, in its dying days, and we are suddenly told that Section 106 is in the melting pot along with Kate Barker's report. The Government should withdraw all these clauses and put them into different legislation that everyone can examine. It is not as though we have not consistently been asking for details about the planning contribution. The Minister says that it is not possible to give details.
It is outrageous that legislation should go through in this hibbledy-hobbledy way. One minute we are told that the clauses are included, but the next we are told that the whole thing is effectively going to be reviewed on the back of Kate Barker. If it was not so late I would be very tempted to test the opinion of the House. I will not do that, but I do think there is a big mess here. It is very serious that this should arise at this
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late stage of the Bill, which—with the White Paper—has been in, around and through Parliament for jolly nearly two years.
Lord Lucas: My Lords, I cannot but say I agree with my noble friend. However, I am grateful for the reply to my amendments. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 41 and 42 not moved.]
Clause 47 [Planning contribution: regulations]
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 43:
Page 34, line 17, at end insert—
"( ) for a person obstructing the taking of such steps as are prescribed to be guilty of an offence punishable by a fine not exceeding level 3 on the standard scale;"
The noble Lord said: My Lords, this amendment supplements the Secretary of State's power to make regulations to provide for planning contributions. The amendment enables the Secretary of State to provide in regulations that where a person instructs a person authorised by the local planning authority to carry out steps to enforce a planning contribution, it shall be an offence punishable by a fine not exceeding level 3 on the standard scale.
As we have made clear, the Government intend to reconstitute the current Section 106 provisions in the regulations to be made under Clauses 46 and 47 which we will be publishing for consultation in due course. We therefore also intend to recreate the existing offence at Section 106(8), making it an offence to obstruct the enforcement of a planning obligation. However, for the avoidance of doubt about the power to make such a provision in the regulations, we have decided that this particular element of the current Section 106 should be explicitly provided for. For that reason we are seeking to make this amendment to Clause 47(6). I beg to move.
Baroness Maddock: My Lords, I listened with some amazement and wondered precisely what level 3 was. I discovered that, actually, it is £400. It does not seem a very large fine or likely to put off people not doing the right thing. However, I am pleased that it is the same as Section 106. And for the record, perhaps I can say that we did not say that Section 106 was perfect. We said that it should be reformed.
Lord Lucas: My Lords, I was a little disturbed by the noble Lord's use of the phrase "for the avoidance of doubt". Does he mean that it is generally accepted but not totally accepted wisdom now that you can create criminal offences by secondary legislation with no mention of them in the primary legislation, or did he actually mean that there is no doubt at all that you cannot do it?
Lord Bassam of Brighton: My Lords, I probably meant "so that it was generally understood".
On Question, Motion agreed to.
[Amendment No. 44 not moved.]
[LORD BASSAM OF BRIGHTON]
Clause 48 [Planning contribution: Wales]:
[Amendment No. 45 not moved.
Lord Rooker Lord Rooker moved Amendment No. 46:
Before Clause 49, insert the following new clause—
"DEVELOPMENT TO INCLUDE CERTAIN INTERNAL OPERATIONS
(1) In the principal Act in section 55 (meaning of development) after subsection (2) there are inserted the following subsections—

"(2A) The Secretary of State may in a development order specify any circumstances or description of circumstances in which subsection (2) does not apply to operations mentioned in paragraph (a) of that subsection which have the effect of increasing the gross floor space of the building by such amount or percentage amount as is so specified.

(2B) The development order may make different provision for different purposes."

(2) This subsection applies if—

(a) section 55(2) of the principal Act is disapplied in respect of any operations by virtue of a development order under section 55(2A) of that Act,

(b) at the date the development order comes into force a certificate under section 192 of the principal Act (certificate of lawfulness of proposed use or development) is in force in respect of the operations, and

(c) before that date no such operations have been begun.

(3) If subsection (2) applies the certificate under section 192 of the principal Act is of no effect.
(4) A development order made for the purposes of section 55(2A) of the principal Act does not affect any operations begun before it is made."
The noble Lord said: My Lords, on the last two occasions that we have discussed the issue—perhaps I may call it the mezzanine issue I promised the House that I would come back with a proposal when we had fully considered how to deal with proposals for additional floor space in buildings. I hope that the Government's new clause meets that commitment and will satisfy the concerns of the noble Baroness who initiated the debate and has pressed for change.
The new clause would have the effect of bringing within planning control the creation of additional floor space within existing buildings. At present Section 55(2)(a) of the Town and Country Planning Act excludes from the definition of development,
"the carrying out for maintenance, improvement or other alteration of any building of works which … do not materially affect the external appearance of the building".
This means that additional floors can be built within a building, even very large ones, without needing planning consent. But, unless this potential growth in floor space is brought within planning control, there is a risk that our wider retail planning policies could be undermined.
The new clause provides for Section 55 to be amended so as to enable the Secretary of State by a development order to bring specified proposals for the provision of extra floor space in existing buildings within the definition of "development". In future, a planning application will be required for those proposals to create additional floor space above the limit to be specified in the order.
We envisage that the development order will specify the type of floor space to which it applies and the scale of additional floor space which will require permission. It could, for example, specify that additional retail floor space above a certain threshold would be defined as "development". Our aim is to bring forward draft secondary legislation as soon as possible. Naturally, as a listening Government, we will consult widely before finalising the order. I hope that the provision meets with the satisfaction of the House. It is not an instant knee-jerk reaction but a considered view on what is identified as a serious problem. I beg to move.
Baroness Maddock: My Lords, I thank the Minister. It was not a knee-jerk reaction. He probably had to fight hard for it within his department. I and others are grateful for his efforts. My amendment, Amendment No. 48, which is grouped with the amendment, would put the matter on the face of the Bill. The Minister is providing for it through secondary legislation. I recognise that that is probably the best we shall get but I am pleased and thank the Minister.
Perhaps I may quote from a briefing I received from the CBI. It states:
"It should be accepted that mezzanine accommodation is a particularly effective way of meeting the need for further floorspace, within the context of sustainable development".
Part of the problem is that what we mean by sustainable development is not understood. When I met with Asda, this was part of my argument. If one seeks to control expansion in particular in out-of-town shopping, while seeking a sustainable traffic policy, with town centres as part of the sustainable package, such an argument drives a coach and horses through the proposal. I thought it an extremely poor argument. I do not agree. It is sad that many businesses do not understand what we mean by sustainable development. They would gain for their customers if they did understand its meaning.
Having said that I am sure that the provisions are the best that we can get and that I am grateful for them, I am a little concerned that there are changes in proposed planning policy statement 6 from planning policy guideline 6. I have concerns that it appears to favour big stores. There is a problem with privileged individual applicants' business muddles being taken into account, and that acts a little against what we are trying to do on the mezzanine floors. Also, the Government have withdrawn the need to apply the sequential approach to extensions.
Although I welcome the provisions, I hope that the Minister will look carefully at planning policy statement 6 and make sure that it does not undermine what he has obviously worked very hard to get into the Bill. Lots of people outside the House will also welcome the Minister's hard work.
Lord Lucas: My Lords, I add my voice to the welcome for the clause. Some careful drafting of the secondary legislation will be needed to make the provisions work fairly and simply for the vast majority of shopkeepers. What concerns me about my reading

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of the Bill is that there seems to be some long period in which the noble Lord's favourite retailers will be calling in the builders to get something started, so that they do not come under the ambit of the clause. Am I reading it right, or will that start when the Bill receives Royal Assent?
Lord Rooker: My Lords, as I said, the change in the law proposed would be in secondary legislation, so we would have to consult on that. It would not come in now. obviously, because the details would have to be made in the regulations about how one measures the floor area. Some planning permissions have been given on the basis of floor area; that is the basis on which they were given, and one cannot go along putting in other floors. However, some have not. We have done enough checking on the matter, to make sure that there is a need. However, it is true that the provisions cannot be brought in overnight. We accept that; there is not much that we can do about it.
People talk about certain key retailers, but one also has to remember the existing policy. Our approach of putting town centres first remains the case; town centres first is the order of the day. PPG6 and PPS6, as it will be, do not change that. We have not gone soft on that at all. The sustainability of the town centres is crucial. One has to take that on board. There is another case, which is that some major players have made their investment decisions on the basis of PPG6—they have stuck to town-centre developments and have not gone out of town. We do not hear the CBI or others championing those. No one champions the individual shops in a town centre, because they are not a collective group; they are all diffused and small.
If one supports out-of-town development without looking at sustainability, one is attacking town-centre development, the very thing that we want to make vibrant, mixed and cohesive so that we do not have such pressure on the countryside and the green fields nearer the town centres. It works both ways; people are silent on one side and proactive on the other. To that extent, it is a one-sided approach from the large representatives of business and employers.
The town-centre approach stays first. Draft planning policy statement 6 is a draft—it is not the end. Quite clearly, we have received comments both for and against the changes, and they will be considered very carefully before we finalise the statement. I assure the House that the Deputy Prime Minister is absolutely adamant that we get sustainability and development in town centres as a first priority. That is existing policy; there is no change on that.
On the other hand, we need to look at some aspects of the drafting. We want to ensure that policy can cope better with some of the inevitable tensions, so that we are being fair. But we want to be fair to town centres and to those retailers and developers who have stood by sustainable town centres and have made multimillion pound investments on the basis of that policy remaining. The CBI will not be opening the door to work with them, because they are not asking for a change. I suspect that the CBI will be looking at the subs of its representatives, who are speaking just for
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one section of developers. We have here a sensible change. It is practical; it cannot be brought in overnight, but it sends a clear signal that we are not happy about exploitation of existing loopholes.
On Question, amendment agreed to.
7.15 p.m.
Baroness Hanham Baroness Hanham moved Amendment No. 47:
After Clause 51, insert the following new clause—
"PREVENTION OF ACTIVITIES REQUIRED TO CEASE BY ENFORCEMENT NOTICES AND STOP NOTICES
(1) In section 184(6) of the principal Act (stop notices: supplementary provisions) for "section 187" there is substituted "sections 186A and 187".
(2) After section 186 (compensation for loss due to stop notice) there is inserted the following section—
"186A ENFORCEMENT OF STOP NOTICE
(1) Where any activities required by a stop notice to cease have not ceased before the notice takes effect, the local planning authority may—

(a) enter the land and remove any moveable objects which appear to them to be used for the activities, and

(b) recover from the person who is then the owner or occupier of the land any expenses reasonably incurred by them in doing so.

(2) Where a stop notice has been served or a site notice displayed in respect of any breach of planning control—

(a) any expenses incurred by the owner or occupier or any land for the purpose of complying with the notice, and

(b) any sums paid by the owner or occupier of any land under subsection (1) in respect of expenses incurred by the local planning authority in removing objects,
shall be deemed to be incurred or paid for the use and at the request of the person by whom the breach of planning control was committed.

(3) Regulations made under this Act may provide that—

(a) section 276 of the Public Health Act 1936 (power of local authorities to sell materials removed in executing works under that Act subject to accounting for the proceeds of sale) and

(b) section 294 of that Act (limit on liability of persons holding premises as agents or trustees in respect of the expenses recoverable under that Act),
shall apply, subject to such adaptations and modifications as may be specified in the regulations, in relation to any activities required by a stop notice to cease.

(4) Regulations under subsection (3) applying section 289 of the Public Health Act 1936 may include adaptations and modifications for the purpose of giving the owner of land to which a stop notice relates the right, as against all other persons interested in the land, to comply with the requirements of the stop notice.
(5) Regulations under subsection (3) may also provide for the charging on the land of any expenses recoverable by a local planning authority under subsection (1).
(6) Any person who wilfully obstructs a person acting in the exercise of powers under subsection (1) shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the standard scale.""
The noble Baroness said: I shall return briefly to a long amendment that I introduced last time, following which I had a discussion with the Minister, and I thank him for that courtesy, because it was helpful in clarifying my mind as to whether we should continue with the amendment.
Its purpose is to try to ensure that an illegal or unlawful planning process can be stopped, with the powers that are available once an enforcement notice has been issued, in the same way as for a stop notice. Part of the discussion last time related to whether the effect of my amendment could also to the temporary stop notice. Once a stop notice has been issued, as the Minister rightly said to me when we met, it becomes a fact and that stop notice means that people immediately become in breach of the law.
However much the Minister waxes lyrical about the matter, people do not always stop the breach, however much we would like to think so. The Minister asked me to give some examples. In fact, I will refer to Hansard, where the Minister himself gave me some good examples to justify the need for the temporary stop notice. They are exactly the same sort of examples that I would have given. I shall read from Hansard:
"These might include the inappropriate change of use of someone's backyard to a car paint-spraying business or the construction of an extension without planning permission".—[Official Report, 16/3/04; col. 201.]
I talked about the use of a barn for musical entertainment that was causing a nuisance. There are many good examples where a temporary stop notice is effective, where an enforcement notice could well follow, but where the process of the enforcement notice takes a great deal of time. As part of the enforcement notice, one could go on to the land and take possession of whatever is causing the problem, or take down the building. However, one cannot do that on either a temporary, or a full scale, stop notice. The trouble is that if one cannot do that and one cannot use Section 178, which allows the enforcement action, then the problem will carry on potentially for months—during the enforcement action and the appeal—before anything much can be done.
The temporary stop notice would be ideal if we also were able to introduce the provisions proposed in the amendment, because it would mean that the temporary stop notice of 28 days would allow the use of section 178 provisions immediately. One would probably end the enforcement problem within a very short time, instead of the months that can now follow.
That is the burden of my long amendment, which has been shortened substantially to the matters I have just mentioned and I hope that, as a result, the Minister will feel able to take the amendment on hoard, so that we have the means to prevent people who have been committing an offence from carrying on with that offence. I beg to move.
Lord Bassam of Brighton: My Lords, I am grateful to the noble Baroness, Lady Hanham, for her amendment. Although I was not a party to her discussions with my noble friend Lord Rooker, I understand the kinds of cases to which she referred. I can joyously remember, as a local authority leader, having to deal with such matters, having to ensure that residents were leaned on to prevent nuisances continuing and having endlessly to chase officers to do
922
the best that they could in difficult circumstances in which they did not have adequate powers. I therefore understand the frustrations.
We have previously rehearsed the arguments relating to this matter. We believe that the powers sought by the amendment are unnecessary. Local planning authorities already have the enforcement notice, which requires activities to stop and remedial action to be taken, including entering and restoring the land. They also have the stop notice, which stops development, but 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.
Local planning authorities will soon have the temporary stop notice to which the noble Baroness referred. That will stop development at once, so that there will be no need to enter land to remove equipment. It is an offence not to comply with a stop notice and will be an offence not to comply with a temporary stop notice. We therefore believe that we have achieved a solution to the problem.
We can argue endlessly about this matter. I believe that we have to give it a go, use what we have put in and ensure that it works well. I hope that will mean that some of the nuisances to which the noble Baroness referred by back-referencing Hansard will be dealt with much more swiftly in the future.
Baroness Hanham: My Lords, will the Minister accept from me that the provisions of the temporary stop notice are exactly the same as those of the stop notice? I do not know what the penalties are for breaching those provisions—I have not looked at them—but the penalties exist. If someone carries on and refuses to stop the breach, then nothing more can be done until the enforcement exercise takes place. I know that injunctions can be taken out. So far as I am aware, the temporary stop notice has no powers different from those of the stop notice. If someone chooses to commit a criminal act in breach of a temporary stop notice, our amendment seeks to give power to have that breach stopped and the equipment dismantled and removed.
Lord Bassam of Brighton: My Lords, I do not believe that the noble Baroness has yet understood exactly how the temporary stop notice process will work. I understand that it will provide the immediate remedy that the noble Baroness seeks and that there will be no need to make enforcements in the way in which she envisages. I believe that it will work in the way that she deems it necessary. That is why we think that her amendment is not required in the circumstances.
Obviously, the noble Baroness is not satisfied. There may be cause for some debate, not on this Bill but in the future. I believe that the Bill provides the remedy that is being sought. I had hoped that my explanations and those of my noble friend Lord Rooker would have satisfied the noble Baroness. We think that the present proposal deals with the problem.
Baroness Hanham: My Lords, I can only say that I do not believe that it will. It seems to me—I have

923
discussed this with the Minister—that the terms of the temporary stop notice are not much different from those of the stop notice, in which case it will not have the effect of permitting entry on to land and the taking away of equipment. If I am incorrect about that, I shall be very glad to hear it, because that would also put at ease the minds of those in the other place who also wanted to see this amendment tabled.
I do not believe that I can take the matter further and I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 48 not moved.]
Clause 52 [Temporary stop notice]:
Lord Avebury Lord Avebury moved Amendment No. 49:
Page 38, line 11, at end insert—
"(aa) the use of any caravan for residential purposes;"
The noble Lord said: My Lords, I had understood that a temporary stop notice was fundamentally different from the stop notices in the original Act, by reason of the fact that under this provision one does not need an enforcement to accompany the temporary stop notice.
The delays to which the noble Baroness referred arise from the fact that if someone appeals against the enforcement proceedings, the stop notice is suspended until those proceedings are disposed of. That is how people managed to delay use of the stop notice under the parent Act.
I want to turn to a different point; that is, the discussion on Report when the Minister said that the regulations which were to be made on temporary stop notices would protect Gypsies and caravan dwellers presumably in the same way as they already protect people who live in houses. A temporary stop notice cannot prohibit the use of a building as a dwelling house. If I have correctly understood the Minister's undertaking, it would not prohibit the use of a caravan for residential purposes on the land that it occupied at the time of any notice. That notice could prohibit ancillary works such as the provision of additional hard standing, amenity blocks and so on, but if the owners of the caravan had to be compelled to move off the land, either enforcement proceedings would have to be taken or the powers of the Criminal Justice and Public Order Act would have to be used.
The temporary stop notice is not intended—and I hope that the Minister will confirm this—as an additional weapon in the armoury available to local authorities for dealing with unauthorised encampments by Gypsies or other Travellers who have nowhere they can lawfully go. Those people are homeless by virtue of Section 126 of the Housing Act 1996. It is already the duty of local authorities under Section 3(1)(b) of the Homelessness Act 2002 to develop a strategy for,
"securing that sufficient accommodation is and will be available for people in their district who are or may become homeless".
Perhaps the Minister is aware that hardly any of the 157 local authorities with unauthorised encampments in their area have complied with that requirement or allocated land in their development plans for the
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provision of the additional site that is so obviously needed. It would have been perverse to reward them by conferring extra powers on them to shuffle off the responsibility for dealing with unauthorised encampments on to neighbouring authorities., where the process would then continue.
Rather than leaving this to be dealt with in regulations, I would like to see it on the face of the Bill where the process would continue. This morning, I spoke to members of the Commission for Racial Equality who told me that they were still awaiting their lawyers' opinion, but they clearly feel that there are doubts about the lawfulness of this provision and, equally, about the provision in the parent Act.
Their doubts have been reinforced by the Joint Select Committee on Human Rights, whose comments were published the day before our discussion on Report. I missed it at the time, but we have a duty now to consider the advice it gave. I draw your Lordships' attention to the committee's conclusion:
"As at present advised, we have serious doubts as to the compatibility of the provisions"—
that is to say the temporary stop notice—
"with the Convention right to peaceful enjoyment of possessions under Article 1 of Protocol 1 to the ECHR, and with the Convention right to be free of discrimination in relation to the right to possessions under Article 14 of the ECHR taken together with Article 1".
The temporary stop notices were introduced to the Bill on Report—without vast notice either to the JCHR or to your Lordships, or any explanation or how the Government arrived at their conclusion regarding the compatibility of the provisions with the convention rights, as the JCHR pointed out. At that stage, the Minister simply asserted that advice had been given, without disclosing the reasons why those conclusions had been reached.
The Government should now address the argument to the contrary set out in detail on three pages of the report to which I referred. If the Government are now saying that to bring the legislation into conformity with the convention, it is necessary to exclude the possibility of a stop notice being used against a person living in a caravan—although it may, as I have explained, be applied to other, connected developments of the land that have taken place without permission—why should that not be plainly stated in the Bill, as is the exclusion of a dwelling house?
Parliament has the responsibility of ensuring that the Bill complies with the convention. The right way to do that is to make the wording as nearly identical in the two cases as possible, showing that we intend that there should be equality of treatment between Gypsies and everyone else. It follows that if the Government now undertake that the regulations will achieve equality between Gypsies and others regarding the application of stop notices to their respective residences, they are obliged to read that principle of equality back into the parent Act and the stop notices that are already available to local authorities under it.
In a letter that the Minister kindly wrote to me the day before yesterday, he said that it is not intended that the regulations will apply back into the parent Act because,
"Local authorities already have advice on the use of stop notices in PPG 18, Circular 10/97 and the Good Practice Guide".
He continued by stating that he was not aware of stop notices causing any problems for Gypsy and Traveller groups, and that the Government had ascertained that in 2002, only three stop notices of a total of 180 had been used against caravans.
It so happens that only yesterday, the Court of Appeal heard a case—Chichester Borough Council v First Secretary of State and Doe, Eames and Yates, in which the local authority had issued a stop notice but had not yet prosecuted because there had been an appeal against the enforcement proceedings and the stop notice was suspended pending the hearing. When Lord Justice Auld granted the appeal, the stop notice automatically lapsed. In the three cases that he mentioned, the Minister may not have taken into consideration the use of stop notices in conjunction with enforcement proceedings where the stop notice was not ultimately proceeded with because the enforcement proceedings were unsuccessful.
In another case, Lewes District Council issued a stop notice against a Gypsy, Mr Silas Lee, but has not yet prosecuted him. I draw your Lordships' attention to the fact that Lewes is an authority in which the chair of the planning committee set fire to a mock-up Gypsy caravan with model people inside it in the recent notorious Thirle bonfire incident. I suspect that if the council takes Mr Lee to court, it may face Human Rights Act arguments. It is better that we resolve that here and now.
I also remind your Lordships that another reason why the matter needs to be resolved by Parliament is that, in the case of Wrexham County Borough Council v Berry in the House of Lords, it was found that Mr Berry, having relinquished his nomadic habit of life by reason of serious ill-health, had thereupon ceased to be a Gypsy and was not entitled to the considerations mentioned by the inspector as sufficient to override national and statutory development policies. Local authorities may well have been waiting for the Berry judgment before deciding how to proceed in other cases in which a Gypsy occupies land that belongs to him but for which he has not been granted planning permission. So in future there may be more cases of stop notices being issued, if local authorities are encouraged down that route by the Bill.
We need to see what the Government are going to do about the provision of Gypsy sites generally when they have considered the results of their recent seminars. I congratulate them on holding those seminars, which were an extremely useful exercise, and their promise that they will announce their findings on the Niner report in April or, at the latest, May.
It would be wrong to precede the measures to be announced to solve the problem of Traveller accommodation with yet another tightening of the
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screw against the unauthorised encampments that are the very result of the Government's failure to address the problem earlier. I beg to move.
Lord Rooker: My Lords, I am grateful to the noble Lord for bringing back this amendment. I shall respond to him initially, and then make a couple of comments on the points that he raised about the letter and the report from the Joint Committee.
As the noble Lord said, Amendment No. 49 seeks to place on the face of the Bill a provision that would prevent local planning authorities from using temporary stop notices against those who reside in caravans. I recognise that the noble Lord is trying to achieve equal treatment for a minority who choose to have caravans as their homes. I have repeatedly said in this House—and I said this when I was at the Home Office—it is not illegal to have a nomadic life, and those people should not therefore be penalised and discriminated against.
In introducing the temporary stop notice amendment last week, we have already recognised that Gypsies and Travellers who choose to lead an alternative lifestyle should be protected in a similar way to those who choose to live in bricks and mortar.
The distinction is made between buildings and caravans because of the nature of the development. The effect of caravans moving onto land and being lived in will be greater than an existing building already situated on land being used for residential purposes. This is because there is an opportunity with buildings for local planning authorities to take enforcement action at any stage when the building is being built, before it is occupied as a residence; whereas, with caravans, this initial opportunity for enforcement will not be available.
The Government's approach of restricting the use of temporary stop notices by local planning authorities with conditions to be set out in regulations is more effective and sensible. The noble Lord has spoken before on the need to consult with affected groups and this is what we intend to do.
The regulations will also provide us with the flexibility to change the provisions for caravans as further details of the policy on Gypsy and Traveller accommodation develops, and as local authorities make greater site provision in their area. I can assure the House that the temporary stop notice provisions will not commence until the regulations to protect Gypsies and Travellers are in place.
The noble Lord's second amendment seeks to reintroduce the 1990 Act's provision that would prevent a stop notice being used when those residing in caravans were on a site and were in breach of planning controls.
We do not believe that the amendment is necessary. A stop notice as set out in the 1990 Act can be used against caravans; however, the service of the stop notice—as the noble Lord said in his initial remarks—is parasitic upon the service of an enforcement notice. Further, there is a liability to pay compensation in certain circumstances for loss flowing from the service

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of the stop notice. Those circumstances are where the enforcement notice does not take effect, because it is quashed, varied or withdrawn, or the stop notice itself is withdrawn.
My honourable friend Yvette Cooper has written a long letter to Sarah Spencer, the Deputy Chair of the Commission for Racial Equality on policy issues. I think that it has been copied, and if not it can be made available. I hope that it will satisfy the issues raised in the letter that we had from the CRE on 15 March.
The Joint Committee on Human Rights provided a detailed report setting out its concerns, and we take this extremely seriously. I provided a response in a detailed letter, which I shall come to in a moment.
My response has been available to the noble Lords opposite. I hope it has been received; the chances are that it has not been. That is unfortunate. It could have been put on the internal notice board but it was not. I regret that it has not been received. I would have delivered it in person had I known that was going to happen.
That brings me to an error in the letter. My response is very detailed. It is a four or five page letter, and it is difficult to set out here. We explained that, although the temporary stop notices interfere with a person's use of their land, this is necessarily the case with planning enforcement matters. We believe that the power is proportionate and reasonable. We would expect the planning authorities to use this power in a reasonable and responsible manner—indeed, they are not allowed to use it in any other manner. The commitment that the power would not take effect until the regulations are in place is important. I shall not go over the details because we debated temporary stop notices when they were introduced. I have always said that, if a local planning authority used its power unreasonably or incorrectly, its decision would be subject to judicial review.
After three instructions from me, the whizzes who drafted the letter have still produced an error. I was out all day yesterday, visiting pathfinders in the north, so I gave instructions from the train. It is a minor point but it annoys because it worries me about the rest of the letter. On three separate occasions I gave instructions that the word "House" in the penultimate sentence of the final paragraph should be changed to "committee". It is a small point. The fact that the five-page letter was put together by a committee is no excuse. I was writing to the chair of the Joint Committee on Human Rights to apologise because it had not been fully informed of the amendment. The sentence reads:
"It was certainly not my intention not to inform the House of the amendment".
Given that one must bring amendments to the House anyway to get them through, clearly the word "committee" should have been used. I told the whizzes three times that there was a mistake, including
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yesterday, and just two minutes ago I saw the final letter that was sent out. I am pretty annoyed about it, to say the least.
Lord Avebury: My Lords, my noble friend received the letter, although I did not. The sentence that he mentions has been corrected; it says "committee".
Lord Rooker: My Lords, then I withdraw everything that I have just said. I asked for a copy of the letter that I had sent to noble Lords; that is the one that I was given. I am not blaming anybody, but I was given the wrong letter. As a result, I am not coming armed with all the letters that I have written. On that basis. I think that I have given a brilliant reply to the amendment.
Lord Avebury: My Lords, I did not receive the letter and have only just been handed it by my noble friend, but I can see that the Minister's reply to the Joint Committee is six pages long. It would be impossible for me to make any sensible comments about the contents. We are in some difficulty here. The Joint Committee complained that it was given inadequate time to look at the provisions introduced at the very last minute on Report. It exerted itself to produce a thorough report the day before we met, and the Minister's reply to the committee was sent on 24 March and has just been handed to one or two noble Lords now.
The same applies to the letter to Sarah Spencer. I have not seen a copy of that letter, so it would be useless for me to comment on the adequacy or otherwise of the response to the Commission for Racial Equality. All that I can say is that, whatever Sarah Spencer has said to the ODPM, it was not the commission's final word because it told me this morning that it still awaited legal advice on the lawfulness of the proposals.
Perhaps I could sweeten my complaints by saying that I am grateful to the noble Lord for the further assurance that he gave today that the regulations would not come into effect until adequate provision was made to ensure that persons living in caravans, whether Gypsies or others, are not displaced from the homes that they occupy, which, to them, are just as important as the homes already dealt with under the Bill. I would have much preferred it if we could have had proper time to consider all the matters.
I have no alternative at this late stage but to withdraw the amendment, but I hope that when the regulations finally appear, they will be fully informed by the further comments that I expect that the Commission for Racial Equality will make. The Traveller Law Reform Group has also expressed great concern not only about the effect of stop notices under this Bill, but at the possibility of increased use of stop notices under the parent Act. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
7.45 p.m.
Lord Rooker Lord Rooker moved Amendment No. 50:
Page 39, line 15, leave out from "certificate" to end of line 16 and insert "in respect of the activity is issued under section 191 or granted under that section by virtue of section 195"
The noble Lord said: My Lords, this is in response to points made during the Report stage of the Bill. The amendment seeks to amend the new provisions for the temporary stop notice compensation by allowing compensation to be paid in cases where lawful development certificates have been issued not only by the local planning authority, but by the Secretary of State. I beg to move.
On Question, amendment agreed to.
[Amendment No. 51 not moved.]
Clause 53 [Fees and charges]:
Lord Lucas Lord Lucas moved Amendment No. 52:
Page 40, line 16, after "exceed" insert "by more than a specified percentage"
The noble Lord said: My Lords, this is rather ungrateful of me, since at the last stage the noble Lord, Lord Rooker, was very kind in producing something that went nine tenths of the way to what I want, and here I am trying to get some more. As I have said before in this House, all the developers that I have spoken to say that planning fees are far too low, they would much rather that they were much higher, and they got a really good service out of local authorities.
To my mind, for that to happen, a local authority has to be sure, in these straitened days, that the planning service will not lose money for it. One of the earliest things that I learnt about consumer law is that if you specify 500 grams on a tin of beans, you have to put 505 grams in, to make sure that you never make a mistake. If we set the law that a local authority can never make a profit on its planning division, the only way that it can do that is by always making a loss. That seems to be the wrong way round. I would like there to be a small margin, just 5 to 10 per cent, something like that, so that the local authority can be sure that this will not be a loss-making division, and that it will recoup the money it spends on planning, and the money that it spends on giving a good service. I beg to move.
Lord Bassam of Brighton: My Lords, I am almost beginning to wish that I had my previous reincarnation as a politician. Having listened to the noble Lord, Lord Lucas, on this, I would be rubbing my hands with glee if that were the case. I have a deal of sympathy with what he is saying. I suspect that local authorities will find ways to achieve his objective.
Our view is that there is no necessity to prescribe further the powers of authorities in the manner in which the noble Lord, Lord Lucas, has suggested. We are committed to the policy that fees charged should not be in excess of the functions provided. The longstanding policy of this Administration, and the previous Administration, has been to set fees at a cost recovery level to ensure against local taxation. While this means that authorities may make a loss in one year, prescribed function is taken on a year-on-year
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basis. I suspect that year-on-year the local authority will be able to raise fees in such a way as to ensure that they do not make a loss and that they more than cover, or at least cover, their costs.
The provision that we have outlined in Clause 53 is in line with Section 93 of the Local Government Act 2003, which we all enjoyed debating at length last Session. What the noble Lord is after is achievable, probably not in a single year of accounting, but over time. The full detail of the fee system will be subject to consultation with stakeholders, and that should be completed this summer. No doubt some of the issues raised by the noble Lord during debates on fees will surface then. My notes say that your Lordships will therefore have further opportunity to debate any scheme of fees and charges that we propose. I therefore hope that the noble Lord is satisfied with that and feels able to withdraw his amendment.
Lord Lucas: No, my Lords. He is not satisfied but he is resigned to it. It is extraordinary. On looking at previous debates that we have had over the past few months in this House, we have been conscious of how close to the limit council tax has been. We have talked about different ways of raising money for local authorities. Here is a group of people who want to contribute money to local authorities to enable them to have more money to spend, but they are being denied the chance to give it to them.
At the same time, in the next week or two, we shall debate the Traffic Management Bill, which proposes an additional tax for local authorities to allow them to make a profit out of those who want to provide services to the rest of us so that they will get all their road mending done at the expense of the gas, electricity and telephone companies.
We are doing it. We need to do it. We know we need to do it. We are doing it in other aspects. But here, where we have a willing group of taxpayers—people who want to be taxed—we will not let them pay. That seems extraordinary. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 58 [Effect of correction]
Lord Rooker Lord Rooker moved Amendment No. 53:
Page 42, line 36, leave out from "in" to end of line and insert—

"(a) paragraph (a) of section 59(4) below, or

(b) paragraph (b) of that section, if it is a decision mentioned in section 177 of the principal Act (grant or modification of planning permission on appeal against enforcement notice)."

The noble Lord said: My Lords, Amendments Nos. 53 and 54 are purely technical amendments which rectify an oversight in drafting. They correct the position so that Clause 58 will apply also to decisions issued under Section 289 of the Town and Country Planning Act 1990. I beg to move.
On Question, amendment agreed to.
Lord Rooker Lord Rooker moved Amendment No. 54:
Page 42, line 36, at end insert—
"( ) Section 289 of the principal Act (appeals to the High Court relating to enforcement notices and notices under section 207 of that Act) applies to the correction notice as if it were a decision of the Secretary of State mentioned in—

(a) subsection (1) of that section, if the decision document in respect of which the correction notice is given records a decision mentioned in paragraph (b) of section 59(4) below (not being a decision mentioned in section 177 of the principal Act), or

(b) subsection (2) of that section, if the decision document in respect of which the correction notice is given records a decision mentioned in paragraph (c) of section 59(4) below."

On Question, amendment agreed to.
Clause 65 [Intervention by Assembly]:
Lord Rooker Lord Rooker moved Amendments Nos. 55 to 57:
Page 47, line 19, after "unsatisfactory" insert "—
(a)"
Page 47, line 21, at end insert—
"(b) if it gives such a direction it must state its reasons for doing so."
Page 47, line 42, at end insert "and the reasons of the person making the recommendations"
On Question, amendments agreed to.
Clause 71 [Assembly's default power]:
Lord Rooker Lord Rooker moved Amendment No. 58:
Page 49, line 20, at end insert—
"( ) The Assembly must give reasons for anything it does in pursuance of subsection (4)."
On Question, amendment agreed to.
Clause 80 [Special provision relating to national security]:
Lord Rooker Lord Rooker moved Amendment No. 59:
Page 54, line 34, leave out first "person" and insert "representative"
The noble Lord said: My Lords, Amendment No. 59 is the first of a group of 27 amendments on the topic of national security. I could stop there and say that therefore I cannot say any more, which is not really on. The first 25 amendments, which apply to Clauses 80, 81 and 91, make further provisions for special advocates. I shall speak mainly to Amendment No. 63, which has got most of the meat in it. A lot of them are consequential and minor technical amendments.
Although Amendment No. 63 is very long, the substance can be found in the first new subsection, which introduces new Section 321 A into the principal 1990 Act. Noble Lords will recall from Report stage that we introduced new provisions to enable the Secretary of State to direct the "responsible person" to pay the fees of the special advocate. Those provisions were added to Section 321 of the principal Act. The new problem that we have identified is that Section 321 applies only when there is an inquiry, so the provisions added at Report stage would also apply only when an inquiry takes place.
They do not cover the situation when an inquiry is in prospect, the special advocate is appointed and does some work, but the inquiry is then cancelled. Without Amendment No. 63, the Secretary of State would have no power to direct the "responsible person" to pay the
932
fees. Indeed, there would be no "responsible person". Therefore, we need to say that when no inquiry is held, the payment provisions will nevertheless apply.
One element that may not be clear from reading is new Section 321(4), which states that this section does not affect Section 322A. Section 322A of the principal Act makes supplementary provision for costs orders at planning inquiries so that costs can be awarded when an inquiry has been arranged but does not take place. We therefore want to make it quite clear that the provisions for paying special advocates' fees when an inquiry does not take place are separate from the normal provisions for costs in these circumstances, which apply when one of the parties has been at fault.
The second and third new subsections in Amendment No. 63 amend the respective schedules to the listed buildings Act and the hazardous substances Act in identical fashion. They combine the material already in the Bill with new material equivalent to new Section 321A of the principal Act in a new paragraph for ease of reference.
There is one other change, in that the special advocate is now to be called the "appointed representative" instead of the "appointed person". Noble Lords might like to refer to new paragraph 6A(4) for an example. The reason for this is that the term "appointed person" is already used in the schedules to mean the planning inspector who conducts an inquiry. I am sure the House will agree that having the same expression meaning two different things in the same schedule would be somewhat unwise. This accounts for Amendments Nos. 59 to 62 which change the references to the "appointed person" in Section 321 to "appointed representative" for consistency. The following amendments are consequential and make minor technical changes. I beg to move.
On Question, amendment agreed to.
Lord Rooker Lord Rooker moved Amendments Nos. 60 to 63:
Page 55, line 2, leave out "person" and insert "representative"
Page 55, line 3, leave out first "person" and insert "representative"
Page 55, line 7, leave out first "person" and insert "representative"
Page 55, line 11, leave out subsections (2) and (3) and insert—
"( ) After section 321 of the principal Act (planning inquiries to be held in public subject to certain exceptions) there is inserted the following section
"321A APPOINTED REPRESENTATIVE: NO INQUIRY
(1) This section applies if—

(a) a person is appointed under subsection (5) or (6) of section 321, but

(b) no inquiry is held as mentioned in subsection (1) of that section.

(2) Subsections (9) to (12) of section 321 apply in respect of the fees and expenses of the person appointed as if the inquiry had been held.
(3) For the purposes of subsection (2) the responsible person is the person to whom the Secretary of State thinks he would have given a direction under section 321(9) if an inquiry had been held.
(4) This section does not affect section 322A."

933
( ) In Schedule 3 to the listed buildings Act (determination of certain appeals by person appointed by the Secretary of State) after paragraph 6 there is inserted the following paragraph—
"6A (1) If the Secretary of State is considering giving a direction under paragraph 6(6) the Attorney General may appoint a person to represent the interests of any person who will be prevented from hearing or inspecting any evidence at a local inquiry if the direction is given
(2) If before the Secretary of State gives a direction under paragraph 6(6) no person is appointed under sub-paragraph (1), the Attorney General may at any time appoint a person as mentioned in sub-paragraph (1) for the purposes of the inquiry.
(3) The Lord Chancellor may by rules make provision—

(a) as to the procedure to be followed by the Secretary of State before he gives a direction under paragraph 6(6) in a case where a person has been appointed under subparagraph (1);

(b) as to the functions of a person appointed under subparagraph (1) or (2).

(4) If a person is appointed under sub-paragraph (1) or (2) (the appointed representative) the Secretary of State may direct any person who he thinks is interested in the inquiry in relation to a matter mentioned in paragraph 6(7) (the responsible person) to pay the fees and expenses of the appointed representative.
(5) If the appointed representative 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.
(6) The Secretary of State must cause the amount agreed between the appointed representative and the responsible person or determined by him to be certified.
(7) An amount so certified is recoverable from the responsible person as a civil debt.
(8) Rules made under sub-paragraph (3) must be contained in a statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
(9) Sub-paragraph (10) applies if—

(a) a person is appointed under sub-paragraph (1) or (2), but

(b) no inquiry is held as mentioned in paragraph 6(1).

(10) Sub-paragraphs (4) to (7) above apply in respect of the fees and expenses of the person appointed as if the inquiry had been held.
(11) For the purposes of sub-paragraph (10) the responsible person is the person to whom the Secretary of State thinks he would have given a direction under sub-paragraph (4) if an inquiry had been held.
(12) Sub-paragraphs (9) to (11) do not affect paragraph 6(8)."
( ) In the Schedule to the hazardous substances Act (determination of certain appeals by person appointed by the Secretary of State) after paragraph 6 there is inserted the following paragraph—
"6A (1) If the Secretary of State is considering giving a direction under paragraph 6(6) the Attorney General may appoint a person to represent the interests of any person who will be prevented from hearing or inspecting any evidence at a local inquiry if the direction is given.
(2) If before the Secretary of State gives a direction under paragraph 6(6) no person is appointed under sub-paragraph (1 ), the Attorney General may at any time appoint a person as mentioned in sub-paragraph (1) for the purposes of the inquiry.
(3) The Lord Chancellor may by rules make provision—

(a) as to the procedure to be followed by the Secretary of State before he gives a direction under paragraph 6(6) in a case where a person has been appointed under subparagraph (1);

(b) as to the functions of a person appointed under subparagraph (1) or (2).

934
(4) If a person is appointed under sub-paragraph (1) or (2) (the appointed representative) the Secretary of State may direct any person who he thinks is interested in the inquiry in relation to a matter mentioned in paragraph 6(7) (the responsible person) to pay the fees and expenses of the appointed representative.
(5) If the appointed representative 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.
(6) The Secretary of State must cause the amount agreed between the appointed representative and the responsible person or determined by him to be certified.
(7) An amount so certified is recoverable from the responsible person as a civil debt.
(8) Rules made under sub-paragraph (3) must be contained in a statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.
(9) Sub-paragraph (10) applies if—

(a) a person is appointed under sub-paragraph (1) or (2), but

(b) no inquiry is held as mentioned in paragraph 6(1).

(10) Sub-paragraphs (4) to (7) above apply in respect of the fees and expenses of the person appointed as if the inquiry had been held.
(11) For the purposes of sub-paragraph (10) the responsible person is the person to whom the Secretary of State thinks he would have given a direction under sub-paragraph (4) if an inquiry had been held.
(12) Sub-paragraphs (9) to (11) do not affect paragraph 6(8)."
On Question, amendments agreed to.
Clause 81 [Special provision relating to national security: Wales]
Lord Rooker Lord Rooker moved Amendments Nos. 64 to 71:
Page 56, line 35, leave out from "section" to "there" in line 36 and insert "321A of the principal Act (inserted by section 80 above)"
Page 56, line 40, leave out "reference in section 321(5)" and insert "references in section 321(5) and (6)"
Page 57, line 16, leave out "reference in paragraph 6(7A)" and insert "references in paragraph 6A(1) and (2)"
Page 57, line 20, leave out "6(7C)" and insert "6A(3)"
Page 57, line 23, leave out "6(7C)" and insert "6A(3)"
Page 57, line 36, leave out "reference in paragraph 6(7A)" and insert "references in paragraph 6A(1) and (2)"
Page 57, line 40, leave out "6(7C)" and insert "6A(3)"
Page 57, line 43, leave out "6(7C)" and insert "6A(3)"
On Question, amendments agreed to.
Clause 91 [Special provision for certain circumstances where disclosure of information as to national security may occur: Scotland]
Lord Rooker Lord Rooker moved Amendments Nos. 72 to 75:
Page 65, line 27, leave out "to any inquiry held" and insert "in relation to the holding of inquiries"
Page 66, line 10, leave out "a local" and insert "any such"
Page 66, line 22, leave out "appointed person" and insert "representative"
Page 66, line 37, after "inquiry" insert ", or prospective inquiry,"
On Question, amendments agreed to.
Lord Rooker Lord Rooker moved Amendment No. 76:
Page 66, line 40, leave out "appointed person" and insert "representative"
The noble Lord said: My Lords, I have a problem in that I think that these amendments are covered by what I said when speaking to the first group.
The Chairman of Committees (Lord Brabazon of Tara): My Lords, on my list these amendments are grouped separately. Nevertheless, we will take them en bloc.
On Question, amendment agreed to.
Lord Rooker Lord Rooker moved Amendments Nos. 77 to 83:
Page 66, line 41, leave out "appointed person" and insert "representative"
Page 67, line 1, leave out "appointed person" and insert "representative"
Page 67, line 7, at end insert—
"( ) Subsections (7) to (11) apply even if the inquiry does not take place."
Page 67, line 19, leave out "an inquiry held" and insert "the holding of an inquiry"
Page 67, line 20, leave out "an inquiry held" and insert "the holding of an inquiry"
Page 67, line 26, leave out "an inquiry held" and insert "the holding of an inquiry"
Page 67, line 27, leave out "an inquiry held" and insert "the holding of an inquiry"
On Question, amendments agreed to.
Clause 92 [Urgent Crown development: Scotland]:
Lord Rooker Lord Rooker moved Amendment No. 84:
Page 68, line 30, leave out "Subsections (7) and (8) above are" and insert "Subsection (7) above does not apply to the extent that the document or other matter is"
On Question, amendment agreed to.
Clause 93 [Urgent works relating to Crown land: Scotland]
Lord Rooker Lord Rooker moved Amendment No. 85:
Page 69, line 33, leave out "Subsections (7) and (8) above are" and insert "Subsection (7) above does not apply to the extent that the document or other matter is"
On Question, amendment agreed to.
Clause 99 [Compulsory acquisition of land for development etc]
Lord Hanningfield Lord Hanningfield moved Amendment No. 86:
Page 74, line 16, leave out "think" and insert "have reasonable grounds to believe"
The noble Lord said: My Lords, with these amendments we return to the subject of local authorities' powers of compulsory purchase. On Report I said that we welcome the provisions of Clause 99 to the extent that they clarify and widen the powers of local authorities. Clause 99 will assist local authorities to fulfil their duties under Section 2 of the Local Government Act 2000 to promote the economic, social and environmental wellbeing of their areas. However, we remain concerned that, although the Minister gave a substantial response at the previous stage, he has not engaged with the causes of unease expressed by the Country Landowners' Association and the National Farmers Union, bodies representing those sectors of the community most likely to be affected by Clause 99.
Clearly it is important that when compulsory purchase orders are made as a final resort, the Country Landowners' Association and the National Farmers Union are signed up to the legitimacy of this process. Although the Minister outlined extensively the safeguards within the current system, a pragmatic solution would be to adopt these amendments as a way of reassuring the concerned parties that their substantial interests in the compulsory purchase regime are being taken into account.
These amendments would not make substantial changes to the legislation, but they usefully emphasise the delicate balance that local authorities must strike between the rights of private individuals and the public interest. As such, they reiterate the nature of compulsory purchase as an avenue of last resort, while not in any way undermining the Government's objectives. I believe that, in the long run, local authorities will want a robust system that is broadly supported by the communities affected. I beg to move.
8 p.m.
Earl Peel: My Lords, I apologise to the House for intervening at this rather late stage, but I have been following the debate on this issue with some interest. I also declare an interest as an owner of land. I have come to the conclusion that the Government's proposals under these new compulsory purchase powers are far too wide and impinge on fundamental property rights.
Having read what the Minister said in response to the same amendment on Report, I confess that I am no wiser as to why the Government feel it necessary to turn the existing legislation on its head and provide local authorities with such wide-ranging powers for compulsory purchase. What baffles me is the fact that the Government invited the Compulsory Purchase Policy Review Advisory Group to investigate the effectiveness of the existing law. To the best of my knowledge, its findings from the various case studies that it undertook were that everything was working perfectly well. Furthermore, when the advisory group invited local authorities to provide examples of where the present law had proved inadequate, there were no responses.
So I think it is perfectly reasonable to say to the Minister that it is incumbent on him, given the magnitude of the proposed changes, to give the House compelling reasons, or even examples, of why he feels that the existing system has failed so badly that he has to introduce these draconian measures simply to allow an authority to enter into the compulsory purchase process because it thinks that the land in question is likely to contribute to the promotion of the economic, social or environmental wellbeing of that area.
As the law stands, there are a number of clearly defined tests by which local authorities must abide before such rights can be compulsorily acquired. Ideally, I would like to see the status quo retained but I appreciate that the Bill will change matters sufficiently for a compromise to be necessary. I believe

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that the amendments are sufficiently robust to reintroduce a proper degree of equity into the proceedings.
In his response to my noble friend Lord Hanningfield on Report, the noble Lord, Lord Rooker, stated that a local authority, when considering acquiring lands through compulsory purchase powers, would be obliged to have regard to its planning proposals, and that these may be found in either the community strategy or the pathfinder area prospectus. The point is, as I see it, that the community strategy is no more than an aspiration and does not have the same legal status as the local development plan to which the local authority must have regard under existing law before entering into compulsory purchase negotiations. Furthermore, there is nothing in the Bill, as far as I can see, which requires the local authority to have regard to the community strategy, which rather undermines the Minister's argument.
As I said, the Minister also made reference to the pathfinder area prospectus in the context of it being a part of a local authority's planning proposals. I am not aware of such a term, so I invited someone to look it up on the website of the Office of the Deputy Prime Minister. Much to my surprise, it revealed no results at all; there was no reference to it. I then got my contact to refer to the Google website. The only reference to it was in the Minister's speech at Report. So I am none the wiser. No doubt the Minister will give an explanation for that when he replies.
The Minister—and, indeed, the Minister in another place, Barbara Roche—suggested that these new wide-ranging compulsory purchase powers granted to local authorities should not be of concern to those who might be affected as they could always challenge the local authority in the courts. The noble Lord, Lord Rooker, described judicial review as a "perfectly adequate safeguard". I regard that as being a rather cavalier attitude. A reference to courts is surely a blanket cover for bad legislation. Given that the right of the owner to challenge the decision would arise only after the decision had been made, it would inevitably result in very considerable expense. Surely it must be preferable to have a properly worded Bill that requires the local authority to consider at the outset whether it was necessary to acquire the land in the first place.
I will briefly say a few words about human rights. Two of the convention rights refer to the compulsory acquisition of someone's property Article 8 and Article 1 of the first protocol. Without going into details, both articles lay down conditions that must be satisfied if the acquisition of property is to be human rights compliant. Among them is the requirement for necessity. Clearly, Amendment No. 87 would comply with both articles.
The Minister stated that the whole purpose of Clause 98 was to clarify the existing compulsory purchase powers. I strongly suggest that the Government are deliberately extending them and that there is no justification for that. The compulsory purchase of private land should be a matter of last
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resort and anything that compromises that fundamental right represents a dangerous shift of power from the individual to the state.
I conclude by quoting the late Lord Denning, in the case of Colleen Properties Ltd v Minister of Housing and Local Government (1971). He said:
"When seeking to deprive the subject of his property and cause him to move himself, his belongings and perhaps his business to another area, the onus lies squarely on the local authority to show by clear and unambiguous evidence that the order sought for should be granted".
The local authority may think that the acquisition of private land is appropriate, but that falls a long way short of showing clear and unambiguous evidence. I hope that the House will support my noble friend's amendment.
The Earl of Liverpool: My Lords, I do not wish to detain the House at this late hour, but I would like to say that I wholeheartedly support the comprehensive remarks of my noble friend Lord Peel. I want to place on record my wholehearted support for the amendments.
Baroness Hamwee: My Lords, I am persuaded that Amendments Nos. 86 and 88 are not necessary. I anticipated the "reasonableness" point that the Minister explained to the House at the last stage. On Amendment No. 87, I asked then whether there was a problem in applying Section 226 of the current Act, which uses the term "required". We have heard that inquiries have been made about whether there is a problem with local authorities pursuing regeneration proposals and whether the CPO powers are inadequate. However, I am confused. If the current "required" is not working properly, how can the Minister ask the House to assess "necessity", which was his response to this amendment at the last stage?
I have a problem with the terminology. I assume that the Government are looking for something different from "required", but they have not explained why, and they should be able to explain their own terminology.
Lord Bassam of Brighton: My Lords, I am grateful to the noble Lord, Lord Hanningfield, for moving these amendments and to the noble Earl, Lord Peel, for coming to the House to explain his interest in these matters so clearly. I want to go very carefully over the issues that they raise.
Amendment Nos. 86 and 88 to Clause 99 seek essentially to redraft the conditions under which a local authority may compulsorily acquire land for planning purposes under Section 226(1)(a) of the Town and Country Planning Act 1990, and they substitute "have reasonable grounds" for "think". On previous occasions my noble friend has explained that the purpose of Clause 99 is to clarify and to put in simpler terms the existing planning compulsory purchase power. I suppose the noble Baroness, Lady Hamwee, has challenged us to clarify further some of our terminology.

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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 consider that thesis right and we think that the word "think" should remain. As has been said before, we cannot see what distinction the noble Lord is seeking by amending "think" to "have reasonable grounds to believe", and we remain firmly of the view that it does not express what is required.
Local authorities are subject to the overriding requirement that their decisions are justifiable as reasonable in all circumstances. In our view, it is superfluous and unnecessarily complicated to state this explicitly. Also, the point has been made that "think" has been used extensively in other parts of this Bill and is used in numerous other examples of modern legislation.
The noble Baroness, Lady Hamwee, shared some concerns about Amendment No. 87, which seeks to replace "will facilitate" by "is necessary for". We have made the point previously that, while seeking to impose a more onerous requirement on the local authority, this proposed amendment would in fact introduce less certainty by imposing a requirement to determine whether the acquisition is necessary. What is meant by "necessary"? It may be that it is trying to suggest that there has to be an absolute necessity, but having regard to what? How would that in any event be assessed?
Perhaps the noble Lord is concerned that acquiring authorities will exercise their compulsory purchase power in an unreasonable manner. We have explained that there are already perfectly adequate safeguards—an expression which the noble Lord repeated—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. For an authority to be able to demonstrate conclusively that acquisition is justified in the public interest to secure the well-being of its area, it will need to be able to show that it is in accordance with its up-to-date policy proposals, prepared in full consultation with those living and working in the area.
The noble Lord made light of the community strategy, saying that it was just an aspiration and I thought that he also made light of pathfinder area prospectuses. They are important documents; they have great value; and I think that they are now becoming increasingly understood.
Earl Peel: My Lords, perhaps the noble Lord would be kind enough to explain to me and to the House what they are. I tried to explain that there was no evidence that they existed on the website. It would be a fascinating revelation to know whether they play a genuine part in local planning procedure.
Lord Bassam of Brighton: My Lords, perhaps the noble Lord did not instruct his researcher to make as good a use of Google as he or she could have done. Had they done so, they would have discovered that these are part of the Community Plan thinking. They
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set out the basis on which funding is to be made in line with those plans, and they are important documents for that.
Perhaps there has not been time to update the authority's development plan to reflect the current proposals for which the land is required. It does not make sense to delay the acquisition of land until such time as it has happened. The main safeguard is that a compulsory purchase order is subject to confirmation by the Secretary of State. He has not only to be satisfied as to the statutory grounds for making the order: he also has a discretion as to whether or not to confirm. In this way, the Secretary of State acts as an impartial adjudicator on whether the compulsory acquisition of an owner's land is genuinely justified and in the public interest.
In exercising his discretion the Secretary of State must have regard in particular to whether the public interest in compulsorily acquiring land outweigh the interests of the owners and occupiers in retaining their land. Such owners and occupiers who object will have an opportunity to make representations at a public inquiry. Then, 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. This provides a safeguard to ensure that decisions are not taken frivolously.
It may be too much to hope that I will have persuaded noble Lords opposite that their fears—which have inspired their repeated attempts to amend Clause 99—are groundless. The Government took great care in putting the set of propositions in Clause 99 into legislation. We had rounds of consultation on the Green Paper and the White Paper. The Bill, as the noble Baroness, Lady Hanham, has said on many occasions, has been long in the making. We think that we have these clauses about right. I hope that noble Lords opposite will feel confident in not pressing their amendments.
8.15 p.m.
Baroness Hamwee: My Lords, before the Minister sits down, perhaps I can say that I speak as one who is familiar with the community strategy and with pathfinders and so on. I have no problem with that. Perhaps, with the leave of the House, I can say that I ask this question as one who might be better persuaded if the Government were clear about the difference between facilitating and the provisions they are changing. I think that facilitating is much less than the provisions of Section 226(1). I would find it much easier if we had a more straightforward debate about accepting it. What I am saying is perhaps legalistic, but it is not politically inspired.
The Minister challenged noble Lords on how necessity could be assessed. There were two or three challenges around that. How is that different from the current Section 226(1), which says that a local authority has power to acquire land that is,
"suitable for and required … to secure … development … or required for a purpose which it is necessary to achieve in the interests of the proper planning of an area"?

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The Government are being completely opaque about why the change is necessary. What the Minister said in challenging Amendment No. 87 could apply equally to Section 226(1). If there is a problem with Section 226(1), which to my mind there must be if there is going to be a problem with changing "facilitating" to "necessary"—
Lord Elton: Will the noble Baroness give way?
Baroness Hamwee: Perhaps I may just finish the sentence.
If so, I hope they will be able to explain what the problem is and why they need to change the provision.
Lord Elton: My Lords, I do not know whether the noble Baroness has finished. I just wanted to suggest that she might do so in view of the Standing Order on how we conduct business at Third Reading.
Baroness Hamwee: My Lords, I beg your Lordships' pardon. I asked the question before the Minister sat down, to try to clarify something.
Lord Bassam of Brighton: My Lords, I am reluctant at this late stage to be drawn further into a debate about this wording. The noble Baroness may have touched on a point about "facilitate", which I think she interpreted as being rather weaker than "necessary". I was almost wishing there was a further stage of the Bill so that I could come back and usefully clarify the issue; but there is not. For further elucidation and reflection, I am inclined to offer to write. I know that that is an unsatisfactory answer to the noble Baroness's point, but I think it would be wisest. I do not want to have to make this up as we go along and speculate about the wording. This is the wrong time to do that.
Lord Hanningfield: My Lords, it has been a valuable debate. It is unfortunate that it has come at a somewhat late stage of the Bill. Previous debate on this issue has always been late in the evening. There is considerable concern in sections of the community about the changes in the legislation on compulsory purchase. The noble Lord, Lord Bassam, referred to the word "think" which several noble Lords have questioned. The word appears several times in the legislation. The noble Lord has justified its use by saying that "think" does not necessarily mean what outside people might assume. There is concern in the outside world about authorities being able simply to "think" that they need land rather than having real reason compulsorily to purchase it.
As my noble friend Lord Peel said, the compulsory purchase of land is fundamental to human rights. It is important that people understand clearly their rights, and the rights of local authorities to purchase land. There is concern and confusion over Amendment No. 87. Our wording may be more satisfactory than the wording of the Government.
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I shall not repeat my noble friend's arguments. He set them out carefully and clearly. We may have to test the opinion of the House on Amendment No. 87. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Hanningfield Lord Hanningfield moved Amendment No. 87:
Page 74, line 16, leave out "will facilitate" and insert "is necessary for"
The noble Lord said: My Lords, I beg to move.
8.22 p.m.
On Question, Whether the said amendment (No. 87) shall be agreed to?
Their Lordships divided: Contents, 26; Not-Contents, 39.

Division No. 10

CONTENTS

Alderdice, L.

Howe, E.

Attlee, E.

Jenkin of Roding, L.

Byford, B.

Liverpool, E.

Carlisle of Bucklow, L.

Luke, L.

Cobbold, L.

Maddock, B.

Cope of Berkeley, L. [Teller]

Mancroft, L.

Craigavon, V.

Monson, L.

Elton, L.

Northesk, E.

Fookes, B.

Peel, E.

Hamwee, B.

Seccombe, B.

Hanham, B.

Shrewsbury, E.

Hanningfield, L. [Teller]

Thomas of Walliswood, B.

Harris of Richmond, B.

Wilcox, B.

NOT-CONTENTS

Acton, L.

Grocott, L. [Teller]

Ahmed, L.

Hayman, B.

Amos, B. (Lord President of the Council)

Hogg of Cumbernauld, L.

Howells of St. Davids, B.

Andrews, B.

Archer of Sandwell, L.

Irvine of Lairg, L.

Bach, L.

Lea of Crondall, L.

Bassam of Brighton, L.

McIntosh of Haringey, L.

Brooke of Alverthorpe, L.

Mackenzie of Framwellgate, L.

Campbell-Savours, L.

Mitchell, L.

Carter, L.

Robertson of Port Ellen, L.

Corbett of Castle Vale, L.

Rooker, L.

Crawley, B.

Sawyer, L.

Davies of Oldham, L. [Teller]

Sewel, L.

Desai, L.

Simon, V.

Dubs, L.

Elder, L.

Stone of Blackheath, L.

Evans of Parkside, L.

Triesman, L.

Farrington of Ribbleton, B.

Turner of Camden, B.

Gibson of Market Rasen, B.

Wilkins, B.

Golding, B.

Woolmer of Leeds, L.

Resolved in the negative, and amendment disagreed to accordingly.
8.30 p.m.
[Amendment No. 88 not moved.]
[Amendment No. 89 not moved.]
Clause 115 [Grants for advice and assistance]:
Baroness Wilkins Baroness Wilkins moved Amendment No. 90:
Page 100, line 15, leave out "to the public"
The noble Baroness said: My Lords, the purpose of Amendment 90 is to enable the Government to make grants available to local access groups of disabled people. I shall be brief and will not detain the House on the case for funding which I set out at length in Committee and at Report stage. I again invite my noble friend to consider reinstating government funding for local access groups, which was withdrawn in 1998. Core funding used to be provided to the Access Committee for England which successfully nurtured and supported the network of access groups.
We desperately need this national umbrella or framework to build anew in both England and Wales. The Disability Rights Commission has now completed its research into access groups in England and Wales and is ready with recommendations which I would urge Ministers to heed. With hopes of favourable news, I beg to move.
Lord Rooker: My Lords, I shall not beat about the bush—we are happy to accept the amendment. We would be interested to see the forthcoming research report from the Disability Rights Commission on the work of local access groups in England and Wales and will give serious consideration to the recommendations, in particular any underfunding of resources.
I have to say that we do not have a fund set aside for assisting local access groups. Nevertheless, we wish to hold discussions with the noble Baroness, Lady Wilkins, the Disability Rights Commission and others, to see how we may take the issue forward. In the mean time, I am happy to accept the amendment.
Baroness Wilkins: My Lords, I am extremely grateful to the Minister for the way he has listened. His decision will greatly benefit developers and local authorities alike in creating an inclusive environment for disabled people. I also add my thanks for the Government amendment to Clause 43.
On Question, amendment agreed to.
Schedule 3 [Crown application]
Baroness Hanham Baroness Hanham moved Amendment No. 91:
Page 117, line 19, at beginning insert "For"
The noble Baroness said: My Lords, I want to return briefly to the matter of Crown immunity, which I raised on the last occasion. At that stage I declared an interest, in that this amendment, if agreed, would have an effect on the Royal Borough of Kensington and Chelsea, which asked me to table it. The amendment is different from the one that I introduced on Report. It arises as a result of having read Hansard and the reply of the noble Lord, Lord Rooker, which stimulated everyone into thinking again about it.
The Minister objected to the previous amendment on the grounds that it would mean that planning permission would have to be obtained for all disposals of Crown land if the use was to continue, as he said, even in the most trivial cases. He considered that the
944
amendment would place an unnecessary and disproportionate burden on both the Crown and local planning authorities.
This amendment relates to the attachment. of a planning permission as Crown land is turned into private ownership. The purpose of this amendment is not to seek to control those uses where the impact of that use is trivial, but to control those uses where the use causes a great deal of disturbance to local residents or has other adverse impact on the local community.
As the amendment as originally proposed was not acceptable, the suggested way forward that this amendment produces is to give to local planning authorities the power to take enforcement action when there is a disposal of Crown land to a private owner. Local planning authorities would therefore be able to take enforcement action only when it is expedient to do so. The normal sanction of an award of costs for an unreasonable exercise of the power by a local planning authority will apply. The amendment also proposes that the time for taking such enforcement action, rather than the usual 10-year period, is a more limited period of five years from the date of the disposal of the land, and residential users would be excluded.
The kinds of uses that we have in mind are major fairs and tented events that take place on Crown land, where enormous lorries cause great difficulty for residents. There are many uses of fringe Crown land, which would not require planning permission as a result of being transferred to private owners where the Crown had immunity in the past.
I hope that the Minister will be able to consider this matter a little further and that I do not receive quite such a brush off as I did last time. Although the amendment affects my own borough, it also affects any local authority's Crown land that passes or is sold into private ownership. I beg to move.
Lord Rooker: My Lords, having been accused of a cursory reply on Report and a brush-off reply now, I do not feel obliged to apologise for the length of my reply at this time of the day. I had intended to use the first and last paragraph, but clearly that is not sufficient.
The noble Baroness has returned to the issue of Section 301 of the principal Act, as she indicated she might when we debated this matter on Report. We have heard that a new approach has been adopted by giving local planning authorities up to five years to serve an enforcement notice on the purchaser of Crown land if the use instituted by the Crown is continued after disposal. Although the noble Baroness's proposals have changed, we still believe that these amendments represent a disproportionate attempt to solve a problem that should not arise very often.
It appears that the requirement for planning permission arises only after the Crown has disposed of the land. Until that date, the Crown may have a notice, which is to be treated as though it were planning permission, under paragraph 3 of Schedule 4. In any event, the requirement for planning permission

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appears to bite only when the land is sold. If that is right, the Crown could not apply for planning permission in anticipation of disposal and the purchaser could not be sure that he would be able to obtain planning permission after disposal. If he failed to obtain permission, the local planning authority would be able to commence enforcement action within Five years. That would put the Crown in a worse position than it is now in, because it can now apply for planning permission in anticipation of disposal.
This procedure would cut across the transitional provisions of Part 1 of Schedule 4, which will have effect after commencement. Where a proposed change of use has been through the Circular 1884 procedure and has been found acceptable, paragraph 3 of that schedule will apply. The effect will be that the notice of the acceptability of the development will be treated as if it is planning permission, subject to any conditions stated in it. This is directly contradictory to the noble Baroness's amendment.
The noble Baroness's amendment seems to me to go even further into overkill. Its effect is that any use instigated by the Crown will be vulnerable to enforcement if the land is sold into private use. This will be so even if the local planning authority itself has agreed to the change of use through the Circular 1884 procedure without suggesting discontinuance on disposal by the Crown.
The provision is not expressly limited to recent changes of use and its effect in this respect is not clear. It may be that changes of use instituted by the Crown many centuries ago could be caught by this amendment. The effect will be that disposal programmes will be thrown into uncertainty, which is an unsatisfactory outcome for all parties.
In short, the amendment exceeds what is necessary to cure the evil at which it is aimed. If a problem exists in a particular case, the local planning authority has a remedy. It can make an order requiring the discontinuance of the offending use, and pay compensation in the normal way. The noble Baroness's amendment is therefore a disproportionate means of resolving the problem, which should be small if local planning authorities, particularly her own, approach the Crown with sensible proposals. Her local authority is a sensible authority. It can use the remedy which already exists and therefore I urge her to withdraw her amendment.
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I hope that that reply will be considered fulsome and wholesome. It is certainly not cursory or intended as a brush-off.
Baroness Hanham: My Lords, with those stirring words, I thank the Minister for his full reply. Unfortunately, it does not get me anywhere but it is all there and I take note of it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 92 and 93 not moved.]
Schedule 6 [Amendments of the planning Acts]
Lord Rooker Lord Rooker moved Amendment No. 94:
Page 130, line 11, at end insert—
"Section 76 (Duty to draw attention to certain provisions for benefit of disabled) is omitted."
On Question, amendment agreed to.
Baroness Hamwee Baroness Hamwee moved Amendment No. 95:
Page 130, line 14, leave out paragraph 5.
The noble Baroness said: My Lords, I am delighted to have this starry list of proponents of the amendment. Amendments Nos. 95 and 98 take out of the Bill the prospective repeal of outline planning permission. We have more than touched on the matter earlier today and at this hour of the night I do not believe that I need to persuade the House of their benefits. I beg to move.
On Question, amendment agreed to.
[Amendment No. 96 not moved.]
Schedule 9 [Repeals]
Lord Rooker Lord Rooker moved Amendment No. 97:
Page 150, line 22, at end insert—
"Section 76."
On Question, amendment agreed to.
Baroness Hamwee Baroness Hamwee moved Amendment No. 98:
Page 150, leave out line 23.
On Question, amendment agreed to.
[Amendment No. 99 not moved.]
Lord Bassam of Brighton: My Lords, I beg to move that this Bill do now pass.
Moved, That the Bill do now pass.—(Lord Bassam of Brighton.)
On Question, Bill passed and sent to the Commons.
House adjourned at a quarter before nine o'clock.