Enterprise and Regulatory Reform Bill Debate
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Iain Wright
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Enterprise and Regulatory Reform Bill
Iain Wright Excerpts(11 years, 6 months ago)
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Mr Deputy Speaker (Mr Nigel Evans)
I call the Minister [Interruption.] I meant the shadow Minister.
Mr Iain Wright (Hartlepool) (Lab)
If only, Mr Deputy Speaker.
This is my first opportunity to congratulate the hon. Member for West Suffolk (Matthew Hancock) on his promotion. It is a pleasure to see him at the Dispatch Box, as he has been many times in his guise as Disraeli, Churchill, or perhaps Sir Robert Peel, and it is good to see him in his current incarnation.
In his opening remarks, the Minister mentioned that the new clause seeks to deal with perception. We should not, however, be legislating on the basis of perception, and as he spoke I became increasingly concerned that this is yet another example of an insensitive, out-of-touch Government who somehow deem all regulation as inherently bad, and health and safety legislation as all-encompassing, bureaucratic and often unnecessary.
Julian Smith
I reciprocate the hon. Gentleman’s remarks. Does he agree with the Government that perception is important in health and safety legislation in almost the same way as in employment law? Does he claim that there is no issue with perception, and does he totally disagree with what the Government are trying to do?
Mr Wright
On perception, there is a feeling in the country—it is often fuelled by the media—that the so-called health and safety culture is inevitably a drag on economic growth and recovery. We must, however, set the context, and I want to make an important point to the Minister. The TUC estimates that every year at least 20,000 people die prematurely as a result of injuries, illnesses, or accidents caused by or in their place of work. That is far too many. The shocking figure from the Health and Safety Executive of 173 workers who were fatally injured at work often excludes a large number of other work-related deaths, but that figure alone means that 173 people went to work and did not come back, and that should not happen in a modern, compassionate society.
Alison Seabeck (Plymouth, Moor View) (Lab)
Does my hon. Friend agree that improvements to the health and safety regime were out there for all to see during the construction of the Olympic site? There were no deaths and few injuries, which was because the health and safety regime had been properly applied.
Mr Wright
I agree with my hon. Friend. In the great and almost universal celebration of the London Olympics this summer, we should never forget that we saw the first Olympic stadium and village in the history of the games to be built without a single fatality. That is something to be proud of and was a result of the good partnership between Government—of all political persuasions—management and trade unions, together with workers, working to ensure that nobody was injured or killed while doing such important work.
Andrew Bridgen
Not only did I serve on the Public Bill Committee for this important Bill, but I served on the Löfstedt review into health and safety reform, as did a representative from the Trades Union Congress, Sarah Veale. I assure the shadow Minister that there was absolute agreement among those on the Löfstedt review, including the TUC, that the perception of health and safety legislation—indeed, over-perception—is wrong in this country, and is holding back business and giving health and safety a bad name. The new clause goes some way in addressing that.
Mr Wright
I will go on to address the Löfstedt report in specific terms, and say where we agree with it and where we disagree, particularly with regard to the new clause, and if the hon. Gentleman will allow me, I will expand on that point. I am conscious that my hon. Friend the Member for Liverpool, Wavertree (Luciana Berger), a proud member of the Union of Construction, Allied Trades and Technicians, also wants to intervene, but I will first give way to the hon. Member for Hexham (Guy Opperman).
Guy Opperman
I am most grateful. All hon. Members will support the fact that the Olympics produced a death-free environment during the construction phase. However, changing laws on limited civil issues from strict liability to a balance of proof civil liability would not necessarily have affected or changed that. I hope that the hon. Gentleman will agree with and acknowledge that.
Mr Wright
I understand where the hon. Gentleman is coming from. In his opening remarks, however, the Minister mentioned a degree of concern about perception. Health and safety is first and foremost an important means to achieve safety for the worker, but a safe and healthy work force and workplace can also be efficient and productive. I wish to expand on that point, but I will first give way to my hon. Friend.
Luciana Berger
My hon. Friend is generous in giving way, and I echo his welcome for the fact that there were no deaths during the construction of the Olympic site. However, there were 50 deaths in this country last year on construction sites, and as he said, 173 fatal injuries, which was only two fewer deaths than the previous year, which indicates that we have a long way to go; 173 families have been affected. The Minister spoke of perception, but I am concerned about the reality for the families of those who have tragically died at work.
Mr Wright
My hon. Friend is absolutely right. It is important that the House and the country has 28 April—workers memorial day—as a focus for remembering that people should not go to work and not come back, and that families should not be disrupted by death and injury at work. We need to pull together to ensure that health and safety is considered not as peripheral and a nice thing to have, but as central to our society and a productive economy.
Mr Wright
If the hon. Gentleman will allow me, I will move on.
There are benefits to business from an effective and proportionate health and safety regime. As I mentioned, a safe and healthy work force can be a productive and effective work force. The Institution of Occupational Safety and Health estimates that, by having an effective health and safety regime, employers could save up to £7.8 billion, individuals could save up to £5.12 billion, and the economy, each and every year, could save up to £22.2 billion. It is important that health and safety is classed not as unnecessary and bureaucratic, but as conducive to good, effective and sustainable economic growth.
It is with those figures in mind that we should consider the merits of health and safety regulations and legislation, and the long-established premise of strict liability. As we know and as the Minister said, Professor Löfstedt reported in November last year. My right hon. Friend the Member for East Ham (Stephen Timms), who speaks for the Opposition on health and safety, welcomed many aspects of Löfstedt’s review. As my right hon. Friend said, most of it was positive, sensible and evidence-based, which is not a phrase we have heard often in deliberations on the Bill, and reinforced the view that health and safety is not a burden.
Over a number of years, the Health and Safety Executive has undertaken simplification exercises, which had support from both trade unions and employers. There are 46% fewer regulations than 35 years ago, and there has been a 57% reduction in the number of forms used. There is a perception that firms, and particularly small firms, spend disproportionate time on health and safety to the detriment of business and growth, but the average business spends 20 hours and just over £350 a year on health and safety risk management and assessment, according to the Minister’s Department. Such activities therefore do not exactly take up a huge amount of businesses’ time.
Julian Smith
The shadow Minister might be about to say this, but does what he just said mean he will get on the side of the small business in Britain, as the Government are doing, and vote with them on new clause 14, or will he oppose it?
Mr Wright
The Labour party has always been on the side of small businesses, and Labour Members will continue to be so. In the 13 years of Labour government from 1997 to 2010, 1.2 million businesses were created, whereas 50 businesses each and every day are folding as a result of the current Government’s macro-economic polices and the double-dip recession. I shall therefore take no lessons from the hon. Gentleman.
Professor Löfstedt suggested that the UK needs a greater understanding of risk. We need to reject tabloid claims and the perception at the centre of the debate so far that health and safety legislation has somehow gone too far. He also recommends that education is provided to employers, workers and students on the dangers they face. However, the short section on strict liability in Professor Löfstedt’s report offers no argument or evidence for changing the current legislative arrangements, but rather an assumption that strict liability is unfair on employers. In fact, Löfstedt refers to three cases, but two were not strict liability cases, so would not be affected by the new clause. The assumption that the Government are guilty of making—they have been guilty of making many such assumptions on employment rights—is that the removal of that type of liability in some cases will boost the economy. That is economically illiterate, however, and not the solution that businesses, including small businesses, want to get us out of the double-dip recession that has been made in Downing street.
I mentioned the accusation of there being no evidence—we have heard that phrase time and again during the consideration of the Bill. There has been no consultation on the measure, which means that there could well be unintended consequences, because the Government have not sought the expertise of those who deal intimately with such issues. There has been no impact assessment on the measure, but can the Minister say why not? What are the expected costs and benefits of implementing the measure, which is supposed to liberate businesses to concentrate on economic growth? Does he have tangible, quantifiable, empirical evidence to support such claims?
Health and safety regulation has always contained a balance between different types of obligation—the majority are qualified by the phrase “reasonable practicability”, but some are strict. Although Professor Löfstedt had the insight that “reasonable practicability” has underpinned health and safety regulation, it has never been the key concept. A central point of the Opposition’s argument is that the balance has existed since the Factories Act 1937, which has been mentioned. In that three quarters of a century, the balance has been generally considered fair. Removing it risks taking us back to a 19th-century mill owner’s view of health and safety, which the Opposition could never support.
If someone is injured because of a defect in a piece of equipment provided by their employer, the law is that it is no defence for the employer to say that they had a proper system of maintenance and inspection. Most people would think that right and fair, so it is unfortunate that the Government do not. They believe it is unfair for an employer to be the subject of civil action and pay compensation when they are not at fault, but what about fairness and justice for the injured worker? They are not at fault and did not ask to be injured. The new clause would remove the right to compensation for workers in those circumstances unless they can prove fault. The Government seek to place the burden on vulnerable employees, but the employer, and not the employee, selects and provides the work equipment. Regardless of fault, it is therefore the employer and not the employee who creates the risk. That is important.
Alison Seabeck
Prior to my previous question, I should have declared an indirect interest, which is already on record.
Given the emphasis placed on business concerns by Conservative Members, does my hon. Friend agree that it is slightly surprising that the Federation of Small Businesses briefing to MPs does not mention them? Perhaps that suggests that the line he is taking is the correct one.
Mr Wright
The FSB has been incredibly important throughout the consideration of the Bill, including on the green investment bank and ensuring that the supply chain can derive benefit from the potential in the new green economy, but it did not mention such concerns. The measure is not a priority for business and its absence is not a hindrance to economic growth. The balance, which has been well established for three quarters of a century, works well and will not hinder growth or recovery.
Mr Anderson
In Committee, mention was made of anecdote, a lack of evidence and perceptions, but we have to add a new one, which the Minister led with—impressions. We now have a Government run by impressions, but they are not very good at making impressions.
Mr Wright
The Minister is the Mike Yarwood of the House of Commons. It is nice to see a good, relevant, pertinent and timely reference to popular culture, from my own point of view.
The new clause will do nothing to enhance recovery and enterprise, and might have the unintended consequence of making the health and safety environment less safe and therefore less productive and efficient. I ask the Minister to think again, because this does nothing to aid the recovery that the country so badly needs.
Mr Anderson
The Minister started with his experience in the world of health and safety. My experience is based not only on my life as someone who worked for 20 years in the coal mining industry and then as a care worker but before that on the experience of my father, who worked the coal mines in the 1930s, when, in this country, one coal miner was killed every six hours on average. Think about that. One thousand men a year did not go home, in part because health and safety was a laughing matter and put to one side, because production was all. My father was twice buried alive—thankfully, he got out both times—and had a very close friend die in his arms, having had his head crushed between two mining coal tubs. It was not a satisfactory way to spend your life.
As a result of that history, the Government in 1947 nationalised the coal mines, set up a train of processes that included health and safety committees in the mining industry and joint consultative committees, and started planning for legislation that produced the Mines and Quarries Act 1954. That Act was actually put in place by a one-nation Tory Government, but they did it for the right reasons—to improve the conditions of people who were vital to the economic success of this country. As a result of that legislation and the improved techniques and machinery, the number of people dying in mines in the 1980s could be counted in single figures. The work force was depleted by about 70% between the 1930s and 1980s, but the number of health and safety measures fell from 1,000 to fewer than 10. For me, that history is vital to understanding how important health and safety issues are.
In 1989, I moved from the mines to become a care worker taking care of elderly people. Members might think that that is a completely different scenario, but let us think about it. The Minister gave the example of the bottle of bleach in the cupboard. It is important to know what is in cupboards to which people might well have access, particularly older people who might not have the capacity to understand what they are dealing with. That is why we introduced measures such as the Control of Substances Hazardous to Health Regulations 2002, which were about protecting people dealing with dangerous liquids.
There were issues around the lifting and handling of people who were not mobile. The impact on care businesses was huge. People accepted, however, that if they wanted to do things properly and protect not only the workers but the people they were taking care of, they needed to introduce such measures. There were other issues around medication—how to supply it, how to make it safe, how to make sure it was not given to the wrong person, how to make sure that medication records were kept up to speed—that were all part and parcel of the health and safety measures that we should all be pleased are in place.
The discussions on the Bill have been marked, certainly in Committee, by a lack of real evidence. The man tasked by the Prime Minister with reviewing employment law, Adrian Beecroft, was questioned during the evidence-taking sessions, particularly by my hon. Friend the Member for Vale of Clwyd (Chris Ruane). In response to the question about what the empirical evidence and research was based on, Adrian Beecroft said:
“I accept the accusation that my views on whether the change would improve the efficiency of people working in businesses are based on conversations with a sample of people, which is not statistically valid.”––[Official Report, Enterprise and Regulatory Reform Public Bill Committee, 21 June 2012; c. 145, Q330.]
Matthew Hancock
My hon. Friend makes the point with great power that those who are out of work pay for an uncompetitive economy. They are the people whom we need to support.
Mr Iain Wright
If this is about costs and benefits, why is there not an impact assessment for the new clause?
Matthew Hancock
The benefits are set out clearly in Löfstedt. Most importantly, because it is necessarily difficult to ascertain the amount of over-compliance, Britain’s health and safety system will benefit from being able to compete and focus its resources on avoiding substantive breaches of health and safety law rather than on technicalities and over-compliance. All parties should focus on problems such as death in the workplace due to negligence. The hon. Member for Paisley and North Renewfreshire—[Laughter.] North Renewfershire—
Jo Swinson
New clause 15 amends the definition of “estate agency work”, which determines the application of the Estate Agents Act 1979. This fulfils our commitment to introduce a measure on this issue following our recent targeted consultation, which was developed as part of the disruptive business models/challenger businesses theme of the red tape challenge.
New clause 15 extends a current exemption to that definition of estate agency work. Intermediaries, such as internet portals for private sales, will be out of the scope of the Estate Agents Act if they merely enable private sellers to advertise their properties and provide a means for sellers and buyers to contact and communicate with one another. Such intermediary businesses will therefore not be obliged to comply with requirements that are relevant to full service estate agency businesses, such as the disclosure of any self-interest in a property transaction and membership of a redress scheme for residential estate agents. These private sales businesses are not actively involved in property transactions, but offer a lower-cost alternative of enabling individuals to market their own property and buy and sell privately.
Those intermediary businesses will be able to provide a means for the seller and prospective buyer to contact one another, for example online; to provide a branded for sale board to the seller to assist this process; and to pass on to a prospective buyer solely the information provided by the seller in their advertisement, by whatever channel of communication. If, however, the intermediary offers any personal advice to a seller or a buyer, or other ancillary services, such as preparing property particulars or photographs or an energy performance certificate, the intermediary will be in the scope of the Estate Agents Act and bound by its obligations. The Estate Agents Act will therefore continue to apply to businesses that are involved in or have scope to influence property transactions.
The Government have found uncertainty and a range of views among stakeholders as to the application of the Estate Agents Act to intermediary businesses, particularly online. This is unhelpful to consumers who might wish to use an intermediary, and unhelpful to businesses, whether intermediaries or more traditional estate agents, or those interested in entering the market. Stakeholders are also concerned that consumers should be protected where they rely on a service provider in relation to a transaction as valuable and important as a house sale or purchase. Clearly, for most people it is the highest value and most important purchase they will make. The Estate Agents Act will continue to apply to businesses providing personal advice about a potential sale or other ancillary services.
For those reasons, this is a limited deregulation. It addresses the perceived uncertainty as to the scope of the Estate Agents Act and it brings benefits to consumers and to the industry, but, crucially, it does not unduly reduce consumer protection in relation to services that involve the service provider in the property transaction.
Mr Iain Wright
I thank the Minister for her helpful comments and I have also read her written ministerial statement to the House on this matter from 13 September. As she rightly says, Government new clause 15 updates and extends an exemption to the definition of estate agency work, as set out in the Estate Agents Act 1979. The legislation pre-dated the rise of the internet, and as the Minister rightly said, the world of buying and selling a house has been revolutionised by the internet. Buyers and sellers are now more likely to looking at the likes of Rightmove, Zoopla or PrimeLocation online than to be using a traditional high street estate agent, at least in the early stages of the process.
From the Minister’s comments I understand that some private sales internet portals may be exempt from the Estate Agents Act while others may be within its scope, depending on whether they provide advertising space or allow prospective buyers and sellers to match up via an online messaging board.
The Minister mentioned the Government’s report “Removing Red Tape for Challenger Businesses”. I was struck by a particular comment that is relevant to this part of the Bill. It states:
“Stripped-down business models, offering competitive prices to home buyers and sellers in exchange for limited, online services are caught by current legislation which applies a broad definition to ‘estate agency work’. Once legally categorised in this way, these innovative businesses are tied to regulation which can be disproportionate to the range of services they offer, and which may be inhibiting the growth of this alternative method of house buying and selling.”
The Opposition do not necessarily disagree with the Government’s approach to this, and we would certainly welcome innovation and improved competition to support, first and foremost, the consumer in what is, as the Minister rightly said, probably the biggest and most significant purchase or sale in his or her life, but we do have a number of questions that I hope the Minister will be able to address.
Discussions about amending the Estate Agents Act 1979 go as far back as February 2010, when the Office of Fair Trading reported on its study into home buying and selling. I fully appreciate that the study strongly stated that innovation could have an impact on the cost of buying and selling a home and that the current legislation might be hindering the emergence of new business models, but it also stated that overall satisfaction with estate agents had improved in recent years and that, where there were problems in the process, consumers on the whole did not tend to think that the estate agent was at fault. The OFT found the existing legislation to be both comprehensive and wide-ranging and that further regulation was unnecessary.
I appreciate—I say this before the Minister intervenes—that the amendment is deregulatory in nature, but the OFT report concluded that the focus should be on improving the enforcement of current rules to guard against serious breaches. That being the case, and notwithstanding my earlier, hopefully supportive, comments welcoming the introduction of a greater degree of innovation in the industry, will she go back to first principles and outline the specific benefits that the new clause will produce? What forecast has she made regarding how and in what numbers she anticipates new entrants will come into the market? What estimates has she made regarding cost savings to consumers? Has she been able to quantify the savings to business that such a deregulatory approach would produce?
For a Bill that purports to be all about enterprise, the theme of our deliberations during its passage through the House has been a spectacular lack of evidence to support its provisions, so it would be useful if she could provide some quantifiable and empirical evidence. What consideration has the Minister given to consumer protection in the light of the new clause? Is there a risk that people will not have access to the suitable, robust and—one would hope—impartial advice that could be provided by an estate agent? Has she thought about the potential risks to vulnerable people, particularly the elderly, some of whom might be susceptible to scare tactics and unscrupulous behaviour? What is in place to ensure that those people do not see a reduction in their consumer protection as a result of the new clause?
The Minister might also be aware of concerns raised by the National Association of Estate Agents about a potential breach of the UK’s anti-money laundering regulations as a result of the new clause. Estate agents are covered under the third money laundering directive, which I understand has been implemented in the UK through the Money Laundering Regulations 2007. The Minister referred to those regulations in her written ministerial statement last month, stating that the Terrorism Act 2000 and the Proceeds of Crime Act 2002 incorporate the definition from the Estate Agents Act 1979 in applying particular standards to regulated sectors, which include estate agents. Can she therefore confirm that the new clause will deal with the risk of money laundering? Can she—for my purposes, rather than anybody else’s—clarify that those estate agents who will be taken out of the scope of the 1979 Act because they provide a slimmed down business model will still be seen as a regulated sector for the purposes of money laundering regulations? I hope that she can answer these questions comprehensively, but the Opposition can certainly support one of the things she proposes with regard to injecting a greater degree of innovation into the market and embracing new business models. I look forward to hearing what she has to say.
Jo Swinson
I welcome the hon. Gentleman’s general support for the new clause. He is right to point out that the world has changed since the current legislation on estate agents came into force and that the internet has been absolutely revolutionary in that regard. He mentioned a number of popular and well-known property websites. I just caution him not to conclude that those household names would necessarily be caught by this limited deregulation. That is not the intention of the new clause at all. To put it into perspective, there are currently about 14,000 traditional estate agent offices in the UK—virtually all of them also have an internet presence—but there are fewer than 30 private sales portals in the UK, all of which are small and medium-sized enterprises, so that is quite an undeveloped part of our market. As for how many property sales go through estate agents, in 2000 the figure was 87%, with only 11% sold privately. That compares with other markets where it is rather less than that; for example, in the United States about 20% of sales are undertaken privately.
Mr Iain Wright
The Minister will recall that I mentioned concerns about money laundering. Will she say a few words about that?
Jo Swinson
The companies covered by this deregulation would not be involved in the transaction of money, because if they were they would remain caught by the Estate Agents Act. We therefore do not need to worry about this in relation to making it easier to undertake money laundering. Of course the Government maintain their provisions to try to make sure that they enforce the existing rules against money laundering in an appropriate fashion.
I hope that in the absence of any other questions from Members we will be able to proceed with a fair degree of consensus on this useful, though limited, deregulatory measure.
Question put and agreed to.
New clause 15 accordingly read a Second time, and added to the Bill.
New Clause 9
Listed buildings in England: agreements and orders granting listed building consent
‘(1) The Planning (Listed Buildings and Conservation Areas) Act 1990 is amended as follows.
(2) In Chapter 2 of Part 1, after section 26 insert—
“Buildings in England: heritage partnership agreements
26A Heritage partnership agreements
‘(1) A relevant local planning authority may make an agreement under this section (a “heritage partnership agreement”) with any owner of a listed building, or a part of such a building, situated in England.
(2) Any of the following may also be a party to a heritage partnership agreement in addition to an owner and the relevant local planning authority—
(a) any other relevant local planning authority;
(b) the Secretary of State;
(c) the Commission;
(d) any person who has an interest in the listed building;
(e) any occupier of the listed building;
(f) any person involved in the management of the listed building;
(g) any other person who appears to the relevant local planning authority appropriate as having special knowledge of, or interest in, the listed building, or in buildings of architectural or historic interest more generally.
(3) A heritage partnership agreement may contain provision—
(a) granting listed building consent under section 8(1) in respect of specified works for the alteration or extension of the listed building to which the agreement relates, and
(b) specifying any conditions to which the consent is subject.
(4) The conditions to which listed building consent may be subject under subsection (3)(b) in respect of specified works are those that could be attached to listed building consent in respect of the works if consent were to be granted under section 16.
(5) If a heritage partnership agreement contains provision under subsection (3), nothing in sections 10 to 26 and 28 applies in relation to listed building consent for the specified works, subject to any regulations under section 26B(2)(f).
(6) A heritage partnership agreement may also—
(a) specify or describe works that would or would not, in the view of the parties to the agreement, affect the character of the listed building as a building of special architectural or historic interest;
(b) make provision about the maintenance and preservation of the listed building;
(c) make provision about the carrying out of specified work, or the doing of any specified thing, in relation to the listed building;
(d) provide for public access to the listed building and the provision to the public of associated facilities, information or services;
(e) restrict access to, or use of, the listed building;
(f) prohibit the doing of any specified thing in relation to the listed building;
(g) provide for a relevant public authority to make payments of specified amounts and on specified terms—
(i) for, or towards, the costs of any works provided for under the agreement; or
(ii) in consideration of any restriction, prohibition or obligation accepted by any other party to the agreement.
(7) For the purposes of subsection (6)(g), each of the following, if a party to the agreement, is a relevant public authority—
(a) the Secretary of State;
(b) the Commission;
(c) a relevant local planning authority.
(8) In this section “specified” means specified or described in the heritage partnership agreement.
(9) In this section and section 26B—
“owner”, in relation to a listed building or a part of such a building, means a person who is for the time being —
(a) the estate owner in respect of the fee simple in the building or part; or
(b) entitled to a tenancy of the building or part granted or extended for a term of years certain of which not less than seven years remain unexpired;
“relevant local planning authority”, in relation to a listed building, means a local planning authority in whose area the building or any part of the building is situated.
26B Heritage partnership agreements: supplemental
‘(1) A heritage partnership agreement—
(a) must be in writing;
(b) must make provision for the parties to review its terms at intervals specified in the agreement;
(c) must make provision for its termination and variation;
(d) may relate to more than one listed building or part, provided that in each case a relevant local planning authority and an owner are parties to the agreement; and
(e) may contain incidental and consequential provisions.
(2) The Secretary of State may by regulations make provision—
(a) about any consultation that must take place before heritage partnership agreements are made or varied;
(b) about the publicity that must be given to heritage partnership agreements before or after they are made or varied;
(c) specifying terms that must be included in heritage partnership agreements;
(d) enabling the Secretary of State or any other person specified in the regulations to terminate by order a heritage partnership agreement or any provision of such an agreement;
(e) about the provision that may be included in an order made under regulations under paragraph (d), including provision enabling such orders to contain supplementary, incidental, transitory, transitional or saving provision;
(f) applying or reproducing, with or without modifications, any provision of sections 10 to 26 and 28 for the purposes of heritage partnership agreements;
(g) modifying any other provision of this Act as it applies in relation to heritage partnership agreements.
(3) Regulations made under subsection (2)(a) may, in particular, include provision as to—
(a) the circumstances in which consultation must take place;
(b) the types of listed building in respect of which consultation must take place;
(c) who must carry out the consultation;
(d) who must be consulted (including provision enabling the Commission to direct who is to be consulted in particular cases); and
(e) how the consultation must be carried out.
(4) Listed building consent granted by a heritage partnership agreement (except so far as the agreement or regulations under subsection (2) otherwise provide) enures for the benefit of the building and of all persons for the time being interested in it.
(5) Subject to subsection (4), a heritage partnership agreement cannot impose any obligation or liability, or confer any right, on a person who is not party to the agreement.
(6) Section 84 of the Law of Property Act 1925 (power to discharge or modify restrictive covenant) does not apply to a heritage partnership agreement.”
(3) After section 26B insert—
“Buildings in England: orders granting listed building consent
26C Listed building consent orders
‘(1) The Secretary of State may by order (a “listed building consent order”) grant listed building consent under section 8(1) in respect of works of any description for the alteration or extension of listed buildings of any description in England.
(2) The consent may be granted subject to conditions specified in the order.
(3) Without prejudice to the generality of subsection (2), the conditions that may be specified include any conditions subject to which listed building consent may be granted under section 16.
(4) A listed building consent order may (without prejudice to section 17(2)) give the local planning authority power to require details of works to be approved by them, and may grant consent subject to conditions with respect to—
(a) the making of an application to the authority for a determination as to whether such approval is required, and
(b) the outcome of such an application or the way it is dealt with.
(5) A listed building consent order may enable the Secretary of State or the local planning authority to direct that consent granted by the order does not apply—
(a) to a listed building specified in the direction;
(b) to listed buildings of a description specified in the direction;
(c) to listed buildings in an area specified in the direction.
(6) An order may in particular make provision about the making, coming into force, variation and revocation of such a direction, including provision conferring powers on the Secretary of State in relation to directions by a local planning authority.
(7) Nothing in sections 10 to 26 applies in relation to listed building consent granted by a listed building consent order; but that does not affect the application of sections 20, 21 and 22 in relation to an application for approval required by a condition to which consent is subject.
26D Local listed building consent orders
‘(1) A local planning authority for any area in England may by order (a “local listed building consent order”) grant listed building consent under section 8(1) in respect of works of any description for the alteration or extension of listed buildings.
(2) Regulations under this Act may provide that subsection (1) does not apply to listed buildings of any description or in any area.
(3) The consent granted by a local listed building consent order may relate—
(a) to all listed buildings in the area of the authority or any part of that area;
(b) to listed buildings of any description in that area or any part of that area.
(4) The consent may be granted subject to conditions specified in the order.
(5) Without prejudice to the generality of subsection (4), the conditions that may be specified include any subject to which listed building consent may be granted under section 16.
(6) A local listed building consent order may enable the local planning authority to direct that the consent granted by the order in respect of works of any description does not apply—
(a) to a listed building specified in the direction;
(b) to listed buildings of a description specified in the direction;
(c) to listed buildings in an area specified in the direction.
(7) An order may in particular make provision about the making, coming into force, variation and revocation of such a direction, including provision conferring powers on the Secretary of State.
(8) Nothing in sections 10 to 26 applies in relation to listed building consent granted by a local listed building consent order; but that does not affect the application of sections 20, 21 and 22 in relation to an application for approval required by a condition to which consent is subject.
(9) Schedule 2A makes provision in connection with local listed building consent orders.
26E Powers of Secretary of State in relation to local orders
‘(1) At any time before a local listed building consent order is adopted by a local planning authority the Secretary of State may direct that the order (or any part of it) is not to be adopted without the Secretary of State’s approval.
(2) If the Secretary of State gives a direction under subsection (1)—
(a) the authority must not take any step in connection with the adoption of the order until they have submitted the order or the part to the Secretary of State and the Secretary of State has decided whether to approve it;
(b) the order has no effect unless it (or the part) has been approved by the Secretary of State.
(3) In considering an order or part submitted under subsection (2)(a) the Secretary of State may take account of any matter the Secretary of State thinks relevant.
(4) It is immaterial whether any such matter was taken account of by the local planning authority.
(5) The Secretary of State—
(a) may approve or reject an order or part of an order submitted under subsection (2)(a);
(b) must give reasons for that decision.
(6) The Secretary of State—
(a) may at any time before a local listed building consent order is adopted by the local planning authority, direct them to modify it in accordance with the direction;
(b) must give reasons for any such direction.
(7) The local planning authority—
(a) must comply with a direction under subsection (6);
(b) must not adopt the order unless the Secretary of State gives notice of being satisfied that they have complied with the direction.
(8) The Secretary of State—
(a) may at any time by order revoke a local listed building consent order if of the opinion that it is expedient to do so;
(b) must give reasons for doing so.
(9) The Secretary of State—
(a) must not make an order under subsection (8) without consulting the local planning authority;
(b) if proposing to make such an order, must serve notice on the local planning authority.
(10) A notice under subsection (9)(b) must specify the period (which must not be less than 28 days from the date of its service) within which the authority may require an opportunity of appearing before and being heard by a person appointed by the Secretary of State for the purpose.
(11) The Secretary of State must give the authority such an opportunity if they require it within the period specified in the notice.
26F Considerations in making orders
‘(1) In considering whether to make a listed building consent order or local listed building consent order the Secretary of State or local planning authority must have special regard to the desirability of preserving—
(a) listed buildings of a description to which the order applies,
(b) their setting, or
(c) any features of special architectural or historic interest which they possess.
(2) Before making a listed building consent order the Secretary of State must consult the Commission.
26G Effect of revision or revocation of order on incomplete works
‘(1) A listed building consent order or local listed building consent order may include provision permitting the completion of works if—
(a) listed building consent is granted by the order in respect of the works, and
(b) the listed building consent is withdrawn after the works are started but before they are completed.
(2) Listed building consent granted by an order is withdrawn—
(a) if the order is revoked;
(b) if the order is varied or (in the case of a local listed building consent order) revised so that it ceases to grant listed building consent in respect of the works or materially changes any condition or limitation to which the grant of listed building consent is subject;
(c) if a direction applying to the listed building is issued under powers conferred under section 26C(5) or 26D(6).”
(4) After section 28 insert—
“28A Compensation where consent formerly granted by order is granted conditionally or refused
(1) Section 28 also has effect (subject to subsections (2) and (3)) where—
(a) listed building consent granted by a listed building consent order or a local listed building consent order is withdrawn (whether by the revocation or amendment of the order or by the issue of a direction), and
(b) on an application for listed building consent made within the prescribed period after the withdrawal, consent for works formerly authorised by the order is refused or is granted subject to conditions other than those imposed by the order.
(2) Section 28 does not have effect by virtue of subsection (1) if—
(a) the works authorised by the order were started before the withdrawal, and
(b) the order included provision in pursuance of section 26G permitting the works to be completed after the withdrawal.
(3) Section 28 does not have effect by virtue of subsection (1) if—
(a) notice of the withdrawal was published in the prescribed manner and within the prescribed period before the withdrawal, and
(b) the works authorised by the order were not started before the notice was published.
(4) Where section 28 has effect by virtue of subsection (1), references in section 28(2) and (3) to the revocation or modification of listed building consent are references to the withdrawal of the listed building consent by revocation or amendment of the order or by issue of the direction.”
(5) Schedule [Local listed building consent orders: procedure] (which inserts Schedule 2A to the Planning (Listed Buildings and Conservation Areas) Act 1990) has effect.’.—(Matthew Hancock.)
Brought up, and read the First time.
Matthew Hancock
I shall speak to new clause 9 and new schedule 1 in the first instance. Those provisions are intended to improve the effectiveness of the listed building consent regime and they follow the Penfold review of non-planning consents. They introduce a new system of national and local class consents, and received broad support during consultation. The new system is designed to reduce the number of listed building consent applications for works that have neither a harmful nor significant impact on a building’s special interest. It will be possible to grant consent automatically for certain categories of work or buildings—where the extent of the special interest is well understood—without the need to make an additional application. Thus, the new provisions will protect listed buildings. I, like many others in this House, have a special adoration for the heritage of our listed buildings in this country, not least the one in which we are standing. Our approach will also improve the operation of the regime. [Interruption.] I suppose that I should declare an interest, although it is not the one that the hon. Member for Hartlepool (Mr Wright) thinks; I work in a wonderful listed building and I want to ensure that it is protected.
The changes will also reduce burdens on applicants and free up local planning authority resources to focus on the listed building consent applications that really matter. The Secretary of State will be required to consult English Heritage before making a national order and will be able to apply conditions to consent granted by an order, as with listed building consent at the moment. Both the Secretary of State and any local planning authority will be able to direct that an order does not apply to a specified building, or to buildings of a specified type or in a specified area. The Secretary of State will have the power, at any time, to revoke a listed building consent order, having first served notice on the local planning authority and given it an opportunity to make representations.
The Secretary of State or the local planning authority must have special regard to the desirability of preserving the listed buildings to which the order applies, as well as their setting and any features of special architectural or historic merit that might be affected. We envisage that the processes leading to a class consent will involve the same level of public notice, engagement and consultation as applies to listed building consent currently. These provisions will reduce regulatory burdens without diminishing protection for important heritage sites and buildings. New clause 9 also restates, with minor technical changes in some of the consequential Government amendments, provisions on heritage partnership agreements which were already in the Bill.
New clause 10 introduces a new certificate of lawfulness of proposed works to listed buildings, which will provide certainty to owners and developers of listed buildings—this proposal also received support during consultation. Works to a listed building that do not affect its character as a building of special architectural or historic interest do not require listed building consent. However, interpretations of whether or not consent is needed can vary, and local planning authorities are often reluctant to give a view because it is ultimately a matter for the courts to determine. That means that those seeking to make changes to listed buildings are sometimes required to submit a formal application for listed building consent in order to gain certainty as to whether or not proposed works would affect the special interest. We hope that certificates of lawfulness of proposed works will provide a simple, straightforward mechanism for owners and developers of listed buildings to gain the certainty they require, while reducing the number of unnecessary consent applications. I therefore trust, not least given the widespread support we had in the consultation, that hon. Members will support these new provisions, and I commend them to the House.
Mr Iain Wright
As I mentioned during the Committee stage, we have no issue with some of the Government’s provisions for heritage planning. Indeed, when we were in government we prepared something similar, in the guise of the Heritage Protection Bill. I am on the record as saying that the merging of conservation area consent and planning permission is sensible and helps us to streamline the process so that it is efficient for the benefit of all concerned. I reiterate the point that I made in Committee that Opposition Members recognise the merits of heritage planning agreements. They have the potential to provide greater efficiency and time savings in the planning process while ensuring, as the Minister has rightly said, that our listed buildings are safeguarded for future generations.
The new clauses, however, raise a number of questions about the Government’s approach. The Department for Culture, Media and Sport document “Improving Listed Building Consent” had a consultation period of only four weeks—from 26 July to 23 August. The Heritage Alliance rightly raised significant concerns that that was insufficient and I agree with its written submission to the consultation:
“One month is an extremely short period of time in which to co-ordinate the responses of third sector and voluntary organisations, many of whom meet monthly or quarterly, and may not have an August meeting because of the holiday break. A consultation period over the summer break, which includes the Olympic Games, should be longer not shorter, because potential respondents are on holiday and/or their decision-making bodies do not meet in August.”
Will the Minister directly address that point? Why was the consultation period curtailed, especially when it involved a Department that had geared itself up for the Olympics, which were taking place at that time?
John Penrose
Perhaps I can provide some clarity, as I was the Minister involved at the time. The simple answer is that we were struggling as a team to get everything ready in time—it was a very compressed time scale—and, as the hon. Gentleman has pointed out, many of the issues had already been discussed extensively and consulted on throughout the heritage sector as a result of the previous Government’s Heritage Protection Bill. Many of the arguments had already been discussed extensively in public and informally, so we thought it was possible to do it in a short period, particularly because, if we did not do it that fast, we would not be here today getting this Bill on the statute book—subject, of course, to the will of the House.
Mr Wright
I am grateful for the hon. Gentleman’s insider knowledge of the deliberations. There could have been further legislative opportunities. The essential point is that the consultation period was short and in August, at a time when the world was focused on the Olympic games, so not everyone’s views were reflected, as would normally happen. It was contrary to the Cabinet Office’s suggestion of a 12-week consultation period. Notwithstanding the fact that we agree with much of what has been said, we could have had a more considered approach so that people felt they had had their say.
John Penrose
I should also mention that we had extensive discussions with representatives from many interested groups, such as the Heritage Alliance, and were able to reassure them in face-to-face meetings that their concerns had been understood and that their substantive worries or issues were being incorporated. At that point, I think that the Heritage Alliance was reassured, compared with its starting position in the original submission, which the hon. Gentleman has read out.
Mr Wright
Again, I am grateful to the Minister for his intervention. [Interruption.] I apologise—the hon. Gentleman is a former Minister, but it can only be a matter of time before he is made a Minister again. I am grateful for his useful perspective.
In new clause 9, proposed new section 26C(4) to the Planning (Listed Buildings and Conservation Areas) Act 1990 means that, when conditions are imposed, the listed building consent order may provide that the requirement to have prior approval for works ceases to apply if the local planning authority or the Secretary of State fails to notify the decision within a prescribed period. That seems to be a reasonable approach, with the onus on the relevant authority. However, such heritage provisions raise questions about resources and the capacity to deliver those objectives. Given the cuts and staff reductions in local authorities, the pressures on all services and the fact that local authorities are rightly having to prioritise differently, what work can the Minister do, perhaps with his counterparts at the DCMS and the DCLG to ensure that local planning authorities can prioritise this matter sufficiently?