Tom Brake (Shadow Minister, Department for Communities and Local Government; Carshalton & Wallington, Liberal Democrat)

I beg to move amendment No. 171, in clause 97, page 66, line 23, at end insert—

‘(1A) In section 236 (procedure for byelaws), after subsection (1) insert—

“(1A) The procedure for the making and coming into force of the following byelaws shall be in accordance with this section:

(a) the regulation of hackney carriages (taxis) under section 68 of the Town Police Clauses Act 1847,

(b) the regulation of omnibuses under section 6 of the Town Police Clauses Act 1889,

(c) the regulation of local light railways and tramways under section 59 of the Leeds Supertram Act 1993, section 46 of the Croydon Tramlink Act 1994, paragraph 26 of Schedule 11 of the Greater London Authority Act 1999, section 62 of the Greater Nottingham Light Rapid Transit Act 1994 and other relevant local acts and Transport and Works Act Orders,

(d) the regulation of walkways under section 35(6) of the Highways Act 1980,

(e) the regulating of countryside recreation under the following enactments:

(i) section 6 of the Metropolitan Commons Act 1866,

(ii) section 84 of the Wimbledon and Putney Common Act 1871,

(iii) section 15 of the Commons Act 1876,

(iv) section 36 of The Epping Forest Act 1878,

(v) section 1 of the Commons Act 1899,

(vi) section 15 of the Open Spaces Act 1906,

(vii) section 193 of the Law of Property Act 1925,

(viii) section 235 of the Local Government Act 1972,

(ix) section 19 of The Ashdown Forest Act 1974,

(x) section 11 of The Dartmoor Commons Act 1985,

(xi) section 17 of the Countryside and Rights of Way Act 2000,

(xii) sections 90 and 91 of the National Parks and Access to the Countryside Act 1949,

(xiii) sections 12 and 13 of the Countryside Act 1968,

(xiv) section 41 of the Countryside Act 1968,

(xv) section 17 of the Green Belt (London and Home Counties) Act 1938.

(f) for land drainage purposes under section 66 of the Land Drainage Act 1991 (in so far as the body making the byelaws is a local authority),

(g) the regulation of acupuncture, tattooing, semi-permanent skin-colouring, cosmetic piercing and electrolysis under Part VIII of the Local Government (Miscellaneous Provisions) Act 1982,

(h) the regulation of the use of public libraries and museums and the conduct of persons in those premises under section 19 of the Public Libraries and Museums Act 1964.”.’.

Christopher Chope (Christchurch, Conservative)

With this it will be convenient to discuss the following: Amendment No. 172, in clause 97, page 66, line 28, at end insert—

‘(2A) In section 236 (procedure for byelaws)

(a) in subsection (3) leave out “by the confirming authority”.

(b) in subsection (3A) leave out “by the confirming authority”.’.

Amendment No. 173, in clause 97, page 66, line 28, at end insert—

‘(2A) In section 236 (procedure for byelaws)

(a) for “application for” substitute “the proposed”.

(b) for “apply for confirmation” substitute “confirm”.’.

Amendment No. 174, in clause 97, page 66, line 28, at end insert—

‘(2A) In section 236 (procedure for byelaws), in subsection (5) for “application for” substitute “the proposed”.’.

Amendment No. 175, in clause 97, page 66, line 28, at end insert—

‘(2A) In section 236 (procedure for byelaws), in subsection (7)

(a) for “the confirming authority” substitute “the authority by whom the byelaws are made”.

(b) for “submitted” substitute “made”.

(c) leave out “for confirmation”.’.

Amendment No. 176, in clause 97, page 66, line 28, at end insert—

‘(2A) In section 236 (procedure for byelaws) omit subsection (11).’.

New clause 14—Alternative procedure for byelaws (consequential amendments)—

‘(1) The Public Health Act 1961 (c. 64) is amended as follows.

(2) In section 75 (Byelaws as to pleasure fairs and roller skating rinks) omit subsection (8).

(3) In section 76 (Byelaws as to seaside pleasure boats) omit subsection (2).

(4) In section 77 (Byelaws as to hairdressers and barbers) omit subsection (3).’.

Tom Brake (Shadow Minister, Department for Communities and Local Government; Carshalton & Wallington, Liberal Democrat)

It is a pleasure to see you this morning, Mr. Chope. The purpose of the amendments is to help the Government to achieve what they set out to achieve—to give local authorities greater powers. On Second Reading, the Secretary of State for Communities and Local Government said:

“It is the job of central Government to enable local government to play”

the role of

“leading the drive for sustainable communities, regenerating our city centres”.—[Official Report, 22 January 2007; Vol. 455, c. 1145.]

Allowing local authorities to make and confirm byelaws must be part of the recipe for that, yet only the Department for Communities and Local Government is giving up its power to confirm local authority byelaws; other Departments are not. Hence, we have in front of us a series of rather complicated amendments. They refer to a number of Acts and are designed to ensure that other Departments are required to give up their powers to confirm byelaws.

The approach that the Government have adopted hardly demonstrates joined-up government. What is the logic of the DCLG giving up its confirmatory powers when, for instance, the Department for Transport does not? Is the problem that the Department for Communities and Local Government has not managed to secure support for its Bill from the Department for Transport?

Hon. Members may be wondering whether that really matters: the answer is that it does. I have been supplied with a helpful briefing by the Local Government Association, which sets out a very good reason why it matters. Newcastle city council has been unable to get confirmation of a byelaw to ban smoking in a particular public place from the Department of Transport. The council made a byelaw application under section 35 of the Highways Act 1980 to ban smoking in Eldon Garden, which I am sure is a very pretty place. I do not know if any members of the Committee have visited Eldon Garden—perhaps they could describe it if they have. The application, which was submitted in March 2004, remains unconfirmed by the Department for Transport. At one point in the process, the Department said that it did not have time to consider the application.

Another smoking ban, confirmation of which was this time requested of the then Office of the Deputy Prime Minister by Newcastle, was submitted in September 2004 and took two years to confirm. Clearly, there is a need for Departments other than the Department for Communities and Local Government to give up their powers to confirm byelaws. If the Minister will not accept our sensible and straightforward amendments, I hope that at the very least he will bang his colleagues’ heads together at the Department for Transport to try to accelerate the process of confirming the byelaw to which I referred. That proposal might well be overtaken by other measures relating to smoking, but if a Department is taking nearly three years—from March 2004 to now—to fail to make progress on a byelaw, the Department for Communities and Local Government needs to pick up the issue and run with it.

Of course, the Department for Transport is involved with byelaws that apply to many other matters, be it taxis, walkways, horse-drawn omnibuses—I am not sure how many of those are still in operation—or guided transport systems other than railways. Bylaws on countryside recreation and local nature reserves are obviously the responsibility of the Department for Environment, Food and Rural Affairs. Byelaws on public libraries are the responsibility of the Department for Culture, Media and Sport, and those involving acupuncture, piercing and tattooing are the responsibility of the Department of Health.

The experiences of Newcastle city council tell us why the amendments are necessary. I hope that when the  Minister responds to the debate, he will tell us whether his Department made any attempt to secure the support of other Departments. If it did, why did discussions about giving up confirmatory powers not bear fruit? Will he also confirm whether he will, in the example that I have referred to, put pressure on the Department of Transport to accelerate the process? Will the Government consider returning to this matter to ensure that their bid to give local authorities greater powers in relation to byelaws is delivered? I await the Minister’s response with interest.

Robert Syms (Shadow Minister (Local Government), Communities and Local Government; Poole, Conservative)

The hon. Member for Carshalton and Wallington has made a very good argument. One Department allowing the procedure but others not allowing it does not seem like joined-up government. The LGA has made a very good point and I hope the Minister can, if not today then before the end of proceedings on the Bill, at least reassure us that the Government have looked at the possibility of broadening the measure to include other Departments, which would be sensible.

Phil Woolas (Minister of State (Local Government & Community Cohesion), Department for Communities and Local Government; Oldham East & Saddleworth, Labour)

I agree with the point the hon. Member for Carshalton and Wallington makes and I intend to explain why the Bill as it stands does what he wants it to do—and does a little bit more. I acknowledge that that is not the impression that hon. Members would have got on reading the Bill and the explanatory notes—indeed, I confess that it was not my impression—but it is the case.

The part of the Bill to which the amendments refer is an important part of the handing over of powers to local government. I urge the Committee to consider that the point the hon. Gentleman made regarding the time taken for byelaws to go through the machinery of Government is not in itself an argument for devolving those powers. A period of two or three years does not reflect laziness on the part of the Government; that period has always been fairly constant under all Governments. It simply reflects the fact that in the greater course of Government decisions, banning smoking in a park in Newcastle is not at the top of the agenda, although Opposition Members may think it should be, to take our minds off some of the bigger questions on which they disagree with us. Separate from considerations of devolution, good governance requires the measure.

In essence, the clause allows the local authority, having consulted on, prepared and advertised draft byelaws locally, to determine them itself. There is a proper process that an authority has to go through to enact a byelaw—after all, they are laws that are being passed under the powers that Parliament, not Government, has given. The remit of byelaws is defined by what is already in law, so Parliament is rightly the arbitrator. Once a council has prepared, advertised, and consulted upon draft byelaws, the byelaws can then be enacted without the authority of the Secretary of State. That is the important shift.

The hon. Gentleman asked about the Secretary of State for Communities and Local Government as distinct from the other Secretaries of State. I assure him that a Government Bill is introduced on behalf of the whole Government, agreed through the proper collective  procedures, it is not a Bill of one Department. As I said in response to the debate last week, the Secretary of State, in law, is not an individual; it is the Secretaries of State in practice. To give the hon. Gentleman more detail, I shall explain the process.

If Parliament gives the go-ahead, we intend to use the powers to introduce the new procedures first in relation to byelaws that are confirmed by the Secretary of State for Communities and Local Government. The byelaws regulate low-level nuisance in local spaces, such as parks and beaches. The Committee will recall from evidence that beaches and areas near to them are often subject to byelaws, as are marketplaces. They deal with local matters that councils and their communities are best placed to decide on. Reference to central Government in such circumstances is an unnecessary bureaucratic step. That backs up the point about time delays.

In future, other Secretaries of State with responsibility for confirming byelaws may decide, following consultation—that is not a caveat “may”, but a permissive power—that it would be appropriate to make use of the powers. In other words, the Bill allows the devolution of byelaw-making powers to councils across the board. As in all other functions, it will be for authorities to ensure that they are acting reasonably and within their powers when making byelaws under the new procedure. If they fail to do so, they risk challenge in the courts. I anticipate being asked whether there is an appeal on a byelaw. There is not, other than the normal democratic procedures in councils. The only recourse would be to the courts if proper due process had not been followed. That reflects the Government’s genuinely devolutionary approach.

To support the local authorities in following the new procedures, we shall maintain the stock of general advice and model byelaws that is currently available, so that byelaws in future are prepared within a robust framework of guidance and good practice. That is necessary to help local authorities.

The amendments, backed by an LGA briefing, are unnecessary. The Bill goes further. I shall explain why. Some byelaws deal with matters on which it might, on the face of it, be considered that some degree of central scrutiny by the Government should be retained. For example, certain transport matters might be subject to byelaws made by private operators such as tram companies or airports, which have no direct accountability to local people in the same way as local authorities do. I am sure that members of the Committee agree that there should be accountability.

Another example is byelaws to deal with countryside recreation in national open spaces, such as national parks and areas of outstanding natural beauty. Those sometimes raise national issues that cause significant controversy and debate. A specific example was the proposed byelaw on speed limits applying to boats on Lake Windermere. Those of us in the north-west will remember that that proposal caused huge controversy not only in the Windermere area, but throughout the region and probably the country because the users of the boats on Lake Windermere come from all over the country. That is a good example of my argument, so I thought that I would labour it. To add to the chuckles from Opposition Members, I must say that it was a huge issue in the Oldham Evening Chronicle.

It is for such reasons that we propose the approach provided for in clause 97 whereby, for the byelaws prescribed in regulations, the Secretary of State will no longer have a role. In that way, the policy decision on whether particular byelaws should remain subject to the Secretary of State’s consent can be taken on a subject-by-subject basis. If, following consultation, it is decided that a central confirming role is no longer required for particular types of byelaw, the Bill will allow us to use the new powers provided in regulations made under new section 236A of the Local Government Act 1992, which we propose in the clause.

Tom Brake (Shadow Minister, Department for Communities and Local Government; Carshalton & Wallington, Liberal Democrat)

Will the Minister tell the Committee whether other Departments are looking favourably on the approach that his Department has adopted? I would have thought that the Department for Transport, for example, might be very keen to give up any responsibility for Eldon Garden.

Phil Woolas (Minister of State (Local Government & Community Cohesion), Department for Communities and Local Government; Oldham East & Saddleworth, Labour)

I can give the reassurance that the hon. Gentleman is looking for in two ways. First, this is a Government Bill and, secondly, it is not only agreed, but pursued with enthusiasm. Such matters are not at the top of the in-trays of Secretaries of State. As the evidence sessions showed, although the decisions are signed off by the Secretaries of State, in practice it is humble junior Ministers such as I—with the professional advice of our officials—who deal with these matters. It is sensible not to have such matters dealt with by a Secretary of State. New section 236A will allow for the new approach to be adopted.

The amendment offers a specific list of organisations. Prescribing clearly in regulations the types of byelaw that can be enacted without first seeking central confirmation also enables certain elements of the byelaw-making process to be subject to minimum requirements—for example, consultation on draft byelaws and publicity of byelaws following their enactment—that are different from those provided for in current legislation, ensuring some consistency of standard if necessary. Through that regulation and through the change to section 236 of the 1972 Act, we will capture the totality and other organisations that may not be included in the amendment, as well as future bodies that may come about as a result of process and some of the processes in the Bill.

My rationale for not listing the organisations as the amendment does, which on the face of it seems to move against the approach that we took regarding the list of bodies that are subject to the duty to co-operate, was twofold. First, there is the pragmatic consideration that we need to be certain that we cover all bodies. We did not want to have to come back to primary legislation because we missed some out. Some of these bodies are pretty obscure and date back centuries, although that is not to say they are not honourable and worthy bodies—Lichfield park may be included for all I know. Secondly, not listing them gave us a catch-all regulation for which we believe there is a consensus.

Robert Syms (Shadow Minister (Local Government), Communities and Local Government; Poole, Conservative)

The Minister has set out the complexities surrounding the organisations. At what point, following the passage of the Bill, will the Government come forward with those regulations? Will we be waiting a long time or are things ready to go?

Phil Woolas (Minister of State (Local Government & Community Cohesion), Department for Communities and Local Government; Oldham East & Saddleworth, Labour)

We are out of the hangar and on the runway, but the engines are not yet fired up. To give two examples, in the Department for Culture, Media and Sport, my hon. Friend the Member for West Ham will be pleased to learn, libraries and museums byelaws are intended to be handed down once the Bill is passed, while the Department of Health wants to pass over that hugely important issue of regulation and byelaws regarding tattooing, which has been hotly contested in some parts of the country. There are other examples, and I will do my best to ensure that the Eldon Garden case is pursued as well.

That is the argument against the amendment. The intention is welcomed, but in fact the regulations will do what the hon. Member for Carshalton and Wallington wants to achieve and more. On that basis, I resist the amendment.

Tom Brake (Shadow Minister, Department for Communities and Local Government; Carshalton & Wallington, Liberal Democrat)

I thank the Minister for a very full, straightforward and sensible explanation of the reasons why it is not appropriate for us to press the amendment to a vote. Clearly, the momentum will be behind the Departments that want to make those changes because, as the Minister says, a byelaw relating to Eldon Garden is clearly not going to be top of the agenda for the Department for Transport. On that basis, I am very happy to withdraw the amendment.