English Devolution and Community Empowerment Bill

Lord Pannick Excerpts

Report stage
Monday 13th April 2026 Lords Chamber

[Lord Grabiner (CB)]

My Lords, if cream were added to the strawberries, I suspect it may be more attractive to the noble Lord, Lord Banner. I support Amendment 248 and I have added my name to the amendment of the noble Lord, Lord Banner.

In a nutshell, Amendment 248 has two purposes. First, it is intended to reverse the 2023 Supreme Court decision in the case of Dr Day v Shropshire Council. Secondly, it is designed to provide full protection for members of the public who are rightly concerned both to have a fair opportunity to be informed of a proposed sale of recreational land to which they have access and, if so advised, to challenge that sale. As to the first point, the decision in Day produces a very unsatisfactory result as a matter of law and, indeed, as a matter of common sense. We always hope that the law and common sense function in tandem. We have a tandem here but, unfortunately, it is facing in the wrong direction.

In the Supreme Court, Lady Rose said—I think this point has already been made by the noble Lord, Lord Jamieson—in paragraph 116 of her judgment:

“I recognise that this leaves a rather messy situation”.


The mess referred to by the learned justice is that, although the land was acquired by the purchaser in good faith and for value, and although the Local Government Act 1972 expressly confirmed that a good title passed to the purchaser, the fact that the council failed to advertise the proposed sale in local newspapers in the two weeks meant that the public right to go on the land for recreational purposes remained in place. As a result, the land cannot be developed. It is permanently blighted because the original failure to advertise, as I think the noble Lord, Lord Banner, pointed out, simply can never be put right.

At a time when the Government are rightly concerned to increase the housing stock, it will be immediately apparent that the Day decision operates as a significant inhibition on that important social policy. The noble Lord, Lord Jamieson, recognises this point but, with great respect, I cannot agree with the conclusion that he arrives at.

As has been explained by the noble Lord, Lord Banner, the form of this amendment is rather different from its predecessor, which we put forward during the passage of the Planning and Infrastructure Bill some months ago. Pausing there, I should mention that the noble Lord, Lord Lucas, expressed the view that the one we are presented with in the House this evening is a late amendment. With great respect, I do not agree. This amendment was on the table in Committee in the course of this Bill; that is not a late amendment at all. During the Planning and Infrastructure Bill, some noble Lords expressed concerns to the effect that reversing the Day decision was all well and good, but it would leave members of the public who are rightly concerned to protect their recreational space with no ability to challenge a proposed sale or have their voices heard—a perfectly reasonable complaint, if I may say so.

That brings me to my second point. The amendment takes full account of those concerns. It would provide for a robust public consultation process. It would mean that an application would have to be made for what is called a statutory trust discharge order, with strict requirements for the giving of notices and the publication of suitable local advertisements. Before making the order sought, the Secretary of State would be obliged to take account of all comments received and would have to be satisfied that the qualifying conditions are met, the qualifying conditions are precise and stringent, most importantly what are called the new publicity requirements must be complied with, and the Secretary of State must be satisfied that

“it is in the public interest for the relevant land to be freed from the trusts by virtue of the order”,

which is qualifying condition F.

Noble Lords will have noticed that the public interest is defined in the widest possible terms—again, the noble Lord, Lord Banner, has made the point. I appreciate that there are more wide-ranging concerns regarding recreational space and general well-being, which have been expressed by, for example, the Campaign to Protect Rural England and other interest groups. For those groups, we are told our amendment does not go far enough. As to that, I respectfully make two points. First, this amendment has a very precise scope. It is not concerned with the much wider political issue of parks, trusts and protections and it should not be caught up in or delayed by that distinct political debate. The second point is that, for practical purposes, this amendment would produce real improvements in the law. The advertising requirements in the 1972 Act are minimal compared with what is proposed in this amendment. If the local authority had complied with the simple requirement to advertise locally for just two weeks, Dr Day’s claim would have failed. Indeed, his claim would have been dismissed as unarguable.

Your Lordships will of course appreciate that the noble Lord, Lord Lucas, has put forward something like 50 amendments to our Amendment 248. To be fair to him, a very large number of them have been withdrawn, for which we are grateful. I have studied his suggested amendments with some care, but I am not persuaded that any of them would in any way improve or clarify our Amendment 248.

[Lord Pannick (CB)]

My Lords, I agree with the powerful speeches made by the noble Lord, Lord Banner, and my noble friend Lord Grabiner. I just want to emphasise two points on Amendment 248, to which I have added my name. The first point I want to emphasise is that the law already provides that, if the local authority complies with the statutory requirements and properly advertises the sale, then the purchaser takes free from the trust—that is Section 123 of the Local Government Act 1972. There is no question of the trust being sacrosanct in law. The only question to which this amendment is directed is what should happen if there has been a failure by the local authority properly to advertise the trust.

The second point I want to emphasise is that, if the local authority fails properly to advertise the sale, any interested person is perfectly entitled to bring a judicial review to challenge the sale within a short time period—normally three months but reduced to six weeks in the planning context. The vice of the present law, as stated by the Supreme Court, is that the purchaser in good faith remains bound by the trust, even though it is not responsible for the failure of the local authority to advertise and even though no legal challenge has been brought within the applicable time limits. The whole purpose of time limits in public law is to ensure that, after the expiry of the time limits, people can go about their business and can develop land in their interests and of course in the public interest. That is the context.

The noble Lord, Lord Banner, if I heard him correctly, said that in the interests of politeness he would not comment on the amendments to his Amendment 248. I am less polite than my friend the noble Lord, Lord Banner—

[Baroness Jones of Moulsecoomb (GP)]

We know that.

[Lord Pannick (CB)]

I am grateful to the noble Baroness, Lady Jones, for confirming that she knows that already. I will comment, I hope politely, on Amendment 248D in the names of the noble Baroness, Lady Scott of Bybrook, and the noble Lord, Lord Jamieson, to which the noble Lord, Lord Jamieson spoke. They wish to insert a precondition to the application of these new provisions for statutory trust discharge orders. The precondition is that the Secretary of State must first undertake a review of the availability of open spaces in this country, publish a report, lay the report before both Houses of Parliament—no doubt there would then be a debate—and then have regard to the outcome of the review.

This will cause very substantial delay in the application of the new statutory trust discharge orders, and it will cause substantial delay—years of delay—despite us all agreeing, I think, that these new orders are needed urgently. Indeed, the noble Lord, Lord Jamieson, expressly accepted that these new provisions are urgently needed. If he accepts that they are urgently needed, it makes no sense at all to delay their application for many years.

In any event, I suggest to noble Lords that to await such a review would be especially inappropriate because the review would be general. Amendment 248D in the name of the noble Lord, Lord Jamieson, would require a review of the availability of open spaces in the United Kingdom. By contrast, proposed new Section 128D(10), from the noble Lord, Lord Banner, specifies that the qualifying condition F is whether,

“it is in the public interest for the relevant land”—

I emphasise “relevant land”—

“to be freed from the trusts by virtue of the order”.

I suggest to the noble Baroness, Lady Scott, and the noble Lord, Lord Jamieson, that it makes no sense for a general review to hold up decisions on specific land which raise entirely distinct issues.

Indeed, that amendment from the noble Lord, Lord Jamieson, and the noble Baroness, Lady Scott, is also unnecessary. If there are concerns about the availability of open spaces in the locality of the relevant land, the Secretary of State would be perfectly entitled to take that into account in deciding, under proposed new Section 218D(10) and (11), whether it is in the public interest for the relevant land to be freed from the trusts.

Like my noble friend Lord Grabiner, I am pleased that the noble Lord, Lord Lucas, has withdrawn, by my counting—it is perhaps an approximation—39 of the amendments he proposed to Amendment 248. The noble Lord suggests that this is all being rushed, and the noble Lord, Lord Grabiner, addressed that point. I add that we have been over this ground since last September; there is nothing new about this. Many of us spoke on amendments to the Planning and Infrastructure Bill earlier this Session, in support of or in opposition to an earlier amendment from the noble Lord, Lord Banner, which had a similar objective. The Minister, the noble Baroness, Lady Taylor of Stevenage, said on 15 September last year—and again today—referring to the amendment from the noble Lord, Lord Banner:

“The Government agree with the intent behind this amendment”.—[Official Report, 15/9/25; col. 1985.]


We have all known that since last September. The Minister said that,

“this issue needs to be given wider consideration to identify a balanced solution that takes into account legal safeguards and addresses the practical challenges faced by developers”.—[Official Report, 15/9/25; cols. 1985-86.]

That has taken place. Here we are today and it is high time that we resolve this issue.

Amendment 248 sets out a fair, transparent and practical means of addressing the problem; it requires an application by the landowner, detailed advertising and consideration by the Secretary of State, who has broad discretion in whether it is in the public interest for the relevant land to be freed from the trust. That is the appropriate way forward and that is why I support the amendment in the name of the noble Lord, Lord Banner.

--- Later in debate ---

[Baroness Pinnock (LD)]

I shall start again. We have an amendment signed by three noble Lords who have, in their usual lawyerly way, made a powerful case for one side of the argument. Here I am, however, to speak up for the community in a debate on a Bill labelled in part the “community empowerment” Bill. I have two fundamental issues of concern with this amendment. The first is an issue of parliamentary process and the second a matter of principle.

As to the first—the issue of parliamentary process—one of the difficulties I have with this amendment is that it has not been, and if it is passed this evening, will never be, put before the elected Chamber of Parliament. The amendment has been introduced on Report in this House, and we are the second House to consider this Bill—

[Lord Pannick (CB)]

With great respect, I suggest to the noble Baroness that that cannot be right. If we approve this amendment today, the Bill goes back to the other place, and it is a matter for the Commons whether they agree with us or not. If they do not agree, they will say so.

[Baroness Pinnock (LD)]

They are likely not to have the power to agree to have a debate on the amendment as an entity. Considering that the Government are supporting this amendment, it is likely to be included within the Bill as a whole. The amendment as an entity will not be debated by the other place. That, it seems to me, is of huge regret, when it has very serious and extensive repercussions for public open space throughout the country. That is something that we should be very much concerned with, as we think about whether or not this amendment should be passed.

The second bit of the process that concerns me is that it is being introduced as a remedy for an issue with which all of us should be concerned—namely, that there is a problem with no obvious route to put it right, except the one that is being proposed. But it is being done not as a specific remedy for a specific case, but as a general proposal for any such issue without knowing what the implications of that will be. It is unclear. The noble Lord, Lord Banner, and others have not referenced any specific cases, apart from the well-known Wimbledon Park case and the Day v Shropshire case. Apart from those, it is not known what the consequence of this amendment will be if it is passed. What of other areas of public land held in statutory trust by local authorities for the people they represent in their local area? It is not clear; we do not know. The evidence is not there. That is the problem. That is why, I presume, the Minister made the pledge in earlier stages of the discussion on this issue to do a review. Unfortunately, we await the review, which should have come before any such wide-ranging amendment is put into law.

The second fundamental issue is that of the principle of the amendment. What we are being asked to agree to concerns what is believed to be held in statutory trust by a local authority. The word “trust” is really important at a time when the public are losing trust in how those of us who are elected—or, in the case of this House, not elected—make decisions on their behalf.

If it is set aside and held by the local authority in public trust for the benefit of local people, we need a remedy for the failure of that local bureaucracy. I agree with the noble Lord, Lord Banner, that this is what we must do. However, it is not acceptable to do that using the same—or extended—process that is being proposed by the amendment, which is to have four weeks of notice in a public newspaper, a local newspaper, the circulation of which is plummeting. If we are to do this effectively, we have to have a different way of notifying local people that somebody wants to breach that trust and have the land for development, so that they can have a voice in opposing or supporting that change in the land that has been held in trust for generations.

In the example of Wimbledon Park, which we ought to reference, it is said the freehold was purchased in 1993 by the All England Club, with an express condition, I am told, that the area would not be developed and the freehold would eventually return to Wimbledon Park. As we have heard, that challenge is subject to the courts. The High Court has made a decision in favour of the All England Club, but it is going to appeal, so it has not yet been resolved, and we wait to see what the arguments are. Certainly, the community that benefits from Wimbledon Park is very unhappy at the situation that has become apparent. While I understand both sides of the argument, at the heart of it is that Wimbledon Park is held in trust, and the local community should have a very powerful voice in deciding its outcome.

I also have huge concerns of principle about the retrospective nature of the amendment. The amendment, which, if accepted, will become law, proposes to go back to 1980—nearly 50 years—so anything where there is a question mark over the land held in trust. It is only a question mark, because often, due to local government reorganisation, who knows what the situation is, when papers have gone astray during transfer from one local authority to another. It is going to be retrospective, and retrospective law is nearly always bad law. So let us not do it. Let us at least remove that element of the amendment.

Finally—