Moved by Baroness Taylor of Stevenage
448: Clause 211, page 243, line 20, at end insert— “(2) Schedule 18 may not come in to force until an assessment has been made of its impact on accessibility.”Member's explanatory statementThis means that schedule 18 does not come in to force until an assessment has been made of the impact on accessibility.
My Lords, during the Covid pandemic, the catering industry suffered huge disruption, and, with the support of local councils, some innovative solutions were found to create outdoor eating, drinking and dining spaces, which helped to provide some opportunity to relieve the pressure on businesses, but also to give some much-needed social space which met the constraints of Covid regulations.
In many communities, this brought a new dimension to high streets, with outdoor seating and catering creating more of a continental feel, which was, for the most part, welcomed by communities. The regulations relating to pavement trading were relaxed, and there was the opportunity to test the impact of these less formal spaces on supporting the regeneration of our high streets. So we welcome the overall aim, which is to encourage a more relaxed approach to pavement trading.
The Nationwide Caterers’ Association website states:
“The past two years have been incredibly difficult for the hospitality industry, and the hope is that refurbished outdoor spaces will help to attract customers with new offerings and a ‘continental culture that will hopefully bring Britain’s high streets to life’”.
However, as ever, the implementation of these street trading spaces during Covid highlighted some of the issues that arise, and the amendments in this group address many of them with sensible additions to the Bill that do not seek to reimpose an overbureaucratic regime.
Our Amendment 448 refers to the critical issue of accessibility. One of the main causes of complaint relating to pavement trading during the Covid crisis was that there was occasionally an inconsiderate approach to the needs of all highway users. Those with disabilities, for example, found that not enough space was left for wheelchairs or mobility scooters to get through and, for those with sight impairment, the unexpected obstacles on the highway presented major challenges. Although we support the overall drive for a more relaxed regime, it is essential that it does not create a street scene which excludes, or impairs access for, some of our community. Amendment 448 would ensure that accessibility is considered, by assessing the overall street scene and then ensuring that any pavement trading offer was compliant with keeping access routes clear.
Amendment 450 in the name of the noble Lord, Lord Holmes, allows the use of highway shared space between vehicles and pedestrians. We can envisage complexities that might arise in relation to this, but knowing how thoughtful the noble Lord is, we look forward to hearing how this might work in practice. His Amendments 451 and 452 relate to the responsibilities of businesses that trade on the highway to make a contribution to maintenance and cleansing charges. Of course, it might be simpler if there was just more discretion for local authorities to ensure that the licence fee took account of these aspects on application for the licence, but, again, I am sure that the noble Lord will have given careful thought to his proposal, and we look forward to hearing his views.
Amendment 454 from the noble Lords, Lord Holmes and Moylan, and Amendment 456, in the names of the noble Lords, Lord Holmes, Lord Moylan and Lord Blencathra, and the noble Baroness, Lady Randerson, make a sensible change to increase the consultation period for pavement licences to 28 days, in line with the Highways Act. We understand that during the Covid crisis, the provisions in the Business and Planning Act 2020 were dealing with an emergency situation, so seven days may have been appropriate, but it is an unusually short period for consultation, particularly where communities are involved, and we agree that 28 days would provide a better opportunity for all those who have a view to comment and have their views taken into account.
Amendment 455 in the names of the noble Lords, Lord Holmes and Lord Blencathra, and to which I have added my name, gives local authorities an important obligation to consider the needs of all users of the highway in granting licences. This reflects my earlier amendment on considering those with disabilities, but would also require consideration of the general flow of pedestrians in the high street, the interaction between pedestrians, traffic and cyclists, and the potential obstruction of access to other businesses, which may be undesirable.
My Amendment 462 would put in place a penalty regime for those pavement licence holders who do not comply with the local authority’s requirement to remove street furniture when the area is not in use, and Amendment 463 gives the power to local authorities to make it an offence not to remove furniture where the local authority has requested it be removed when the area is not in use for drinking or dining. Of course, we anticipate that this would be a last resort power, for use only where licence holders persistently refused to comply with local authority guidelines.
Amendment 457 in the names of the noble Lords, Lord Holmes, Lord Moylan and Lord Blencathra, and the noble Baroness, Lady Randerson, changes the default position in the Business and Planning Act 2020 for expired applications from granting those applications to rejecting them. I see no justification for granting applications that have expired, whatever the reason.
Two of the key issues that arose during the relaxation of the pavement licensing rules due to the Covid crisis were the presence of furniture on the high street when the premises were closed, which sometimes gave rise to antisocial behaviour—for example, this furniture being moved into places where it would cause an obstruction—and the issue of smoking or vaping in those outdoor areas, which rendered them inaccessible for those for whom smoke causes medical issues, and unpleasant for other users. There was a general feeling that to make designated outside eating and drinking areas accessible for all users, they should, for the purposes of smoking and vaping, be treated in the same way as indoor areas. Amendment 458, in the names of the noble Lords, Lord Holmes and Lord Blencathra, and the noble Baroness, Lady Randerson, to which I have added my name, would give local authorities the ability to put in place specific conditions in the licence to address this. This enables local authorities to take account of the needs of their own areas, and means that, where appropriate, they can require that furniture is removed when not in use and that licensees have a responsibility to prevent smoking affecting other users in the vicinity of the premises.
Amendment 459 is a more proscriptive approach to smoking in outside seating areas, which we completely understand, given the well-documented health issues. We look forward to hearing from the noble Lords, Lord Young, Lord Faulkner and Lord Hunt, and the noble Baroness, Lady Northover, how the practicalities of that might work.
Amendment 460 in the name of the noble Lord, Lord Holmes, refers to issues of accessibility, which I spoke about previously. It is vital that areas are clearly designated and marked in a way that ensures they can be navigated by all members of the community.
Our Amendment 464 comes back to the issue of the evidence base for the provisions in the levelling-up Bill, which my noble friend Lady Hayman mentioned earlier. It probes whether any assessment has been carried out of the impact on high street footfall. The new provisions of the Bill are being included because it is believed that they will help both businesses and high streets to recover from what has undoubtedly been a very difficult period for them. We are interested to know whether there is an evidence base to support this.
Amendment 465 refers to an impact assessment to test a number of measures in the Bill and those that are the subject of amendments in this group, such as the change to consultation periods, the introduction of mandatory tactile markers or barriers around licensed areas and the removal of the automatic approval of licences. In general, we see real benefits in giving local authorities the ability to manage outside spaces on their high streets in a way that works best for their communities and without unnecessary bureaucracy which makes the application and implementation onerous for either the local authority or the businesses that are applicants. However, it is important that, in doing so, we ensure that we do not create a street scene that is in any way less accessible to those with disabilities, nor create health hazards for other users by turning outside areas into smoking zones that deter them. I beg to move.
My Lords, it is a pleasure to follow the noble Baroness, Lady Taylor of Stevenage. I congratulate her on the efficient and effective way in which she dealt with 17 amendments; she did so with such clarity. I rise to speak to Amendments 449 to 460, all of which bar one are in my name.
In speaking to my amendments and thanking all the organisations that have sent helpful briefings to noble Lords, I want to cover something before we get into the detail: I simply wish to reassert the primary purpose of the pavement. It is not a place for excessive A-boards, advertisements, marketing materials or sprawling seating. It is a place to connect people. It is a place where we can meet on our streets. Yet, all too often, we experience inaccessibility, obstacles and problems when we are simply trying to go about our daily business. This is bad enough for anybody, but for those of us who use guide dogs or wheelchairs it can often be an impossibility. Add to that the excessive dumping and the discarding of e-scooters and you can hardly say that the current usage of our pavements is in any sense optimal, accessible or inclusive.
Let us take a step back to the Business and Planning Act 2020, in which sensible measures were brought in at a time when we were facing a once-in-a-century pandemic. It cannot be right that the lessons we take from that are to roll over some of those provisions in perpetuity now that we are, fortunately, in such a different set of circumstances.
The amendments in my name can be split into three categories: accessibility and inclusion; payment for our pavements; and healthy environments. First, on accessibility and inclusion, the principle of “inclusive by design” should be the basis on which we base everything that we do, be it physical infrastructure or things way beyond. It should be the heart and soul—indeed, the very fabric—of our communities. Yet, as we see with this set of amendments, this is all too often not the case when it comes to pavements.
As has already been set out, Amendment 455 puts the case that, when pavement licences are to be granted, the flow and access needs of users and pedestrians should be thoroughly taken into account. We can call this, if you will, the amendment that goes to the heart of the purpose of our pavements.
Amendment 460 talks about the need for tactile markings and physical barriers to demark seating areas. This is not only to enable them to be safe and demarked for people who may use white canes to navigate and may have buddies who need to get through; crucially, it will also stop the sprawl of seating. Amendment 460 can now be known as the “prohibition of sprawling seating amendment”.
Amendment 458 seeks to put the case that, where licences for seating and other ephemera are granted, such seating must be removed from the pavement when it is not in use for the reasons that the noble Baroness, Lady Taylor of Stevenage, has already set out.
Similarly, Amendment 450 puts a real case that not only the pavement should be considered for such licences. If the circumstances fit and are safe, it could be quite proper to include part of the carriageway in that pavement licence. We have already seen schemes to skinny highways; this could be an effective part of that where, in effect, the load of sharing the licence is more equitably shared between pedestrians and the users of the carriageway.
However, access and inclusion are not just about the physical environment; “inclusive by design” is just as important for practices, policies and procedures. That brings me to Amendments 454 and 456, which look at the application and consultation processes for the granting of pavement licences. In 2020, when we passed the Business and Planning Act, there was a particular need for increased speed. Businesses were facing an extraordinary set of circumstances, as were local authorities and, indeed, all of us. Those circumstances have now changed and there can be no case for that consultation not to be returned to 28 days. In fact, I put it to my noble friend the Minister that, if the consultation period is reduced as currently set out in the Bill, it could very well represent a prima facie breach of local authorities’ public sector equality duties and contravene wider equalities legislation; I welcome her view on that point.
I turn to payments for our pavements. Although we can all be supportive of a certain level of pavement usage, such as for cafés, eating and the like, it should be clearly understood that the pavement is our pavement. It is operated and administered on our behalf by the local authority. Amendments 451 and 452 speak directly to this point, not only in terms of the cleansing and maintenance of pavements as a result of the granting of these licences but in terms of the potential profit share. I believe that sharing the profits generated on those pavements—our pavements—should be strongly considered. As the noble Baroness, Lady Taylor of Stevenage, pointed out, a formula could well be constructed within the licence itself, not least for cleansing and maintenance, but I believe that the profit share point is a critical one. We want to support our local businesses but, when they have a licence and are generating business on our pavements, it is only right and proper that, through the local authority, we should share in that profit.
Finally, these amendments would enable not only safer but cleaner, more accessible and more inclusive pavements, and therefore in all senses much healthier spaces. This cannot be inordinately difficult. It is simply about properly considering and balancing the needs of restaurants and residents, cafes and the community. Unfortunately, this clearly is not happening at any level to the extent it should. If this Bill is about levelling up, if it is about regeneration, then this starts with our streets and with the primary purpose of the pavement. That is what these amendments are all about. I very much look forward to my noble friend the Minister’s response.
My Lords, I support the noble Lord, Lord Holmes, and thank him for the lead he has taken on this issue. I was pleased to add my name to his Amendments 456, 457 and 458.
I recall our debate on the regulations that were introduced during the pandemic. We were assured that this was a temporary reduction in the notification required and in the rights of local people to object. We all understood that this was an emergency, that businesses were fighting to survive and that restaurants and pubs were doing their best to carry on providing a service at a time when it was clearly unsafe for people to be gathering inside, even if the Government had allowed it. However, there was a debate about this and as I said, we were assured that this this would be temporary.
These amendments are a modest way of ensuring that residents are still given a reasonable opportunity to object to such applications. To this day, the usual way in which people find out about planning applications is via a local notice attached to a lamp post. Most people are not sitting at home scanning council websites on the chance of finding a planning application that applies to their area. Most people object because they see a notice on a lamp post, or their neighbour tells them about it. If you have sight loss, for example, you will need longer to ensure that you are aware and can write in response, because it is not as easy as it is for people with good eyesight.
Therefore, Amendment 457 is particularly important because it would remove approval by default, which is an indefensible approach to local planning. Amendment 458 is important because it would ensure that street furniture is not left cluttering up the pavement, where people fall over it. Also, as the noble Lord, Lord Holmes, has just pointed out, guide dogs have difficulty. I have a neighbour with a guide dog and if cars are parked on the pavement, the dog takes him around them or stops. So, life is made much more difficult.
Finally, public understanding of smoke drift has been transformed in the last decade. As a keen viewer of old television series, every time I watch them, I realise how different our view and tolerance of other people’s smoke is nowadays, compared with 10 or 15 years ago. What is in these amendments is well within accepted and reasonable expectation, so I support them.
My Lords, I have enormous sympathy for the case made by my noble friend Lord Holmes and very much hope that the Government respond as positively as they can.
The background to my Amendment 459, to which Peers from other parties have added their names, is the arrangements made during the pandemic to support the hospitality industry. In the interests of progress, not all four of us will be speaking, and it is good to see today’s Marshalled List down to a mere 68 pages for this last day of our debate. Noble Lords may recall that during the pandemic, when it was not possible to go into enclosed premises such as pubs, arrangements were made to grant pavement licences. When the Business and Planning Bill, which introduced this concession, came before the House in 2020, I added my name to a cross-party amendment tabled by the noble Lord, Lord Faulkner, saying that a condition of licence would be that outdoor seating areas were required to be 100% smoke-free, paralleling the arrangements inside the premises.
Noble Lords across the House supported that amendment, but sadly it was not accepted by the Government, who instead inserted a requirement in the legislation that
“the licence-holder must make reasonable provision for seating where smoking is not permitted”.
Amendment 459 would reintroduce the requirement for all pavement licences to be smoke-free, which was the view of your Lordships’ House three years ago. This would contribute to the Government’s ambition to make England smoke-free by 2030—an ambition we are currently on track to miss by nine years, according to Cancer Research UK. The current temporary requirements, which are being made permanent in this Bill, would mean that councils have two options on smoking: to implement the national condition to provide some smoke-free seating, or to go further and make 100% smoke-free seating a condition of licence at local level.
Since then, two-thirds of the public, polled in 2022, did not think that the current legislation went far enough. They wanted smoking banned from the outdoor seating areas of all restaurants, pubs and cafes. Fewer than one in five opposed such a ban. That was a large sample, of more than 10,000 people, in a survey carried out by YouGov for Action on Smoking and Health.
Some councils are already doing what the public want, with 10 councils in England introducing 100% smoke-free requirements. These are a mixture of Conservative, Labour and Lib Dem-led councils in counties such as Durham and Northumberland, cities such as Newcastle, Manchester and Liverpool, unitary authorities such as Middlesbrough and North Lincolnshire, and metropolitan boroughs such as North Tyneside, South Tyneside and the London Borough of Brent. Therefore, in response to the point about practicality made by the noble Baroness, Lady Taylor, practicality has already been well established by those local authorities.
When we initially tabled our amendments, the then Secretary of State for Housing, Communities and Local Government wrote to Manchester City Council, the first council to introduce the requirement for pavement licences to be 100% smoke-free, warning it that this would damage local hospitality businesses and could lead to the loss of thousands of jobs. We do not know whether that letter had the approval of Health Ministers. However, the experience from Manchester and elsewhere shows exactly the opposite: that these bans have proved popular with the public, leading to high levels of compliance, and have not been shown to cause any decrease in revenues. At the time, I reluctantly agreed to the Government’s decision to include the current smoke-free seating requirements, which, while better than nothing, do not go far enough. The current system is not only much more complicated to implement than a blanket ban; it ensures that non-smokers and children continue to be exposed to tobacco smoke, which is both toxic and unpleasant. Of course, those who work for these establishments cannot go elsewhere and will continue to be exposed to smoke.
The Local Government Association of which, uniquely, I am not a vice-president, supports our amendment for 100% smoke-free pavement licences on the basis that
“it sets a level playing field for hospitality venues across the country and has a public health benefit of protecting people from unwanted second-hand smoke … If smoking is not prohibited, pavement areas will not become family-friendly spaces”.
That is why Dr Javed Khan’s independent review of smoke-free 2030 policies, commissioned by the Department of Health and published last year, recommended that smoking be prohibited on all premises, indoors and out, where food or drink is served, as well as a ban on smoking in all outdoor areas where children are present. This 100% smoke-free pavement seating has strong cross-party support from Peers across this House. When the regulations were extended in 2021, the noble Lord, Lord Faulkner, tabled an amendment to regret that the regulations were not revised to take account of the evidence of the benefits of 100% smoke-free pavement licences. That amendment was agreed by 254 votes to 224.
Last year, the Government announced several new tobacco control measures and said that in place of the long-promised tobacco control plan to deliver a smoke-free 2030, tackling smoking would be core to the major conditions strategy currently in development. The measures announced today are welcome but fall far short of the comprehensive approach that Dr Khan made clear was essential if we are to achieve a smoke-free 2030. When my noble friend sums up, can she confirm that the Government intend to bring forward further measures to reduce smoking in the upcoming major conditions strategy? We should now take this opportunity, provided by this amendment, to move towards implementing Dr Khan’s recommendations for all hospitality venues to be smoke-free indoors and out—a small but important step towards a smoke-free 2030.
My Lords, last week, my esteemed colleague, the noble Lord, Lord Holmes, asked whether I would support his amendments on pavement accessibility. I trusted him completely so I said, “Yes, of course, I would love to support them”. Then I read them and, actually, they are quite tough and strict in places, but the more I read them, the more I liked them. I particularly liked Amendment 450, which is about taking bits of the road—I love that idea—and reducing the space for traffic, as well as Amendment 459 in the name of the noble Lord, Lord Young of Cookham, and others, because that is so tough on smoking and I loathe smoking. I support many of these amendments. Obviously, I support all the amendments from the noble Lord, Lord Holmes. There is, perhaps, some space to bring in the fact that cars park on the pavement. I hate pavement parking and I hate loads of rubbish bins being heaped up on the side of pavements because they inhibit free access.
My local shopping street has gone absolutely bananas with this, and it has changed the whole feeling of the street—it is so much more friendly. At the moment, only the Co-op, Iceland and Boots, I think, do not have tables and chairs outside them, with people eating, drinking and having fun. I am all in favour of this section and look forward to Report, when I would be happy to vote on many of them and perhaps even sign up to them as well.
My Lords, it is always a delight to follow the noble Baroness, Lady Jones of Moulsecoomb. She did say that some of my noble friend’s amendments were quite tough but that she liked them. I think the Committee would agree that the noble Baroness is quite tough and we rather like her as well. I congratulate my noble friend Lord Holmes of Richmond on the initiative he has undertaken in tabling these important amendments. He is to be congratulated by all disabled people, fighting our corner—or narrow strip of pavement, as the case may be.
I speak from 15 years’ practical experience of navigating my trusty chariot down pavements in this country and abroad. Reflecting on the work I have been doing with the Council of Europe, I have driven it in Paris, Strasbourg and St Petersburg—although I am banned from there now, not because of my pavement driving but because President Putin does not like me and some others. I have driven it in Baku in Azerbaijan, Ankara, Istanbul, Georgia, Belarus and, a couple of weeks ago, in Sofia in Bulgaria—monitoring the elections there—and various other countries. I can tell the Committee, in all honesty, that in the last two years, the pavements of this country, especially in London, have become infinitely more dangerous for pedestrians and disabled people than in any of those foreign countries I have been in. That has increased dramatically in the last two years.
I have added my name to my noble friend’s Amendments 455 to 458 because I share his concern that street furniture will make it extremely difficult for disabled people, especially wheelchair users, to get past inappropriately positioned tables and other items placed on the pavements by cafés and restaurants. Sometimes, while the café has positioned tables that allow pedestrians to pass, the users move more chairs round a table and block the pavement. At this moment, I could take noble Lords down Horseferry Road and they would see that the tables outside Pret A Manger, for example, permit the free passage of pedestrians. That is okay until half a dozen people from an office block pile out and move all the chairs around one table and block the pavement. They usually move when I ask them politely, so I can get past, but I have encountered occasions when some eastern European men are deeply resentful of having to move the chairs—and they were smoking some fairly vile cigarettes. Where is my noble friend Lord Young of Cookham with his portable cigarette fire extinguisher when I need him?
If it was just plastic chairs and tables blocking the pavement, it is an easy matter to move them aside. They should not block the pavement in the first place, but we can move them. However, I have another concern: many restaurants and cafés put out big planters and flower boxes, partly to delineate their pavement space and make the environment more attractive to customers. There are places on Wilton Road, for example, that do that. One also puts out A-boards outside the planters on the edge of the dropped kerb. As a wheelchair user, one suddenly finds oneself dipping down at a potentially dangerous angle to get past. Now, it is no problem for me: I simply flatten their board and drive on, but it is a problem for others with less powerful wheelchairs.
The problem will increase: I looked at the 2020 Act and street furniture is not just tables and chairs but can include these big planters and trees in pots. Technically, they will have casters on the bottom so they can be moved, but they are impossible to move in most cases—and will not be moved. I also suggest that since these licences will be for up to two years, the majority of cafés and restaurants will invest in these planters, flower tubs and screens and the pavement will be permanently narrowed.
That will be compounded by most of these places offering takeaways. So we will find the narrowed gap cluttered with Deliveroo and Just Eat bikes, where the couriers simply do not give a damn about riding on the pavement and leaving their bikes on the pavement right outside the takeaway doors. That is not speculation on my part, I find it outside cafés and restaurants every time I go down Victoria Street.
Thus, it is vital that some amendment is made to Clause 210 to make it abundantly clear that every place getting one of these licences must leave space for people in wheelchairs and parents with child buggies to get through. Also, of course, there are those, such as my noble friend, with guide dogs who need the same width of space to get through. All of us demand the right to do it without hassle and without having to beg people to please move their chairs or tables out of the way.
My final point is this: I decided not to table an amendment on it but to make my rant in the course of these amendments. The Department for Transport must stop pandering to the e-bike and scooter thugs who ride on the pavement and dump their bikes on the pavement. Some of these big electric e-bikes are the same size and weight as motorcycle trail bikes—they are enormous. I congratulate Westminster Council on taking action and, I hope, purging our pavements of this despicable littering. I can tell the Committee that I am helping: every time I find an e-bike or scooter left on the pavement, I shove it over and use my chair to bulldoze it onto the road, where I hope it might be run over by a 30-tonne truck. I usually do about two a day, coming in or going home from this House, and I did one this morning coming here.
I wanted to make sure that I was behaving legally so, a few weeks ago, I asked the DfT a Written Parliamentary Question on what guidance it gives to pedestrians who encounter these illegal hazards on the pavement. The Minister replied as follows:
“The Department has published guidance for local authorities and e-scooter operators on the conduct of e-scooter trials. This makes clear that there will need to be sufficient parking provision in trial areas. Where a dockless operating model is being used, local authorities should ensure that e-scooters do not become obstructive to other road users and pedestrians, particularly those with disabilities.
Pedestrians have the right to use the footway without undue hazards. Rule 70 of The Highway Code advises, but does not require, people to park their cycles where they will not cause an obstruction or hazard to other road users.”
I take that as a green light to assist councils to move these hazards off the pavement. I urge all disabled people to get a bit more militant and reclaim our pavements, in the same way that I urge motorists to reclaim our roads from the Just Stop Oil agitators. We do not glue ourselves to the road and we want the freedom to move. Wheelchair-bound people cannot get into 70,000 public buildings, which have not bothered installing ramps, and the equalities department, obsessed with gender, does not give a hang about it and will not change the law. Now we find the pavements barred to us as well, so let us take them back for genuine pedestrian users who have the right to move freely, unhindered by street furniture and mobile death hazards. Once again, I congratulate my noble friend on tabling his amendments, the noble Baroness opposite on speaking on her amendments, and everyone in this House who speaks up for disabled people.
My Lords, it is normal to say what a pleasure it is to speak after a previous speaker, but it is impossible to speak after my noble friend and provoke as much of the Committee’s interest as he has.
I will speak in support of the amendments in the name of my noble friend Lord Holmes of Richmond to which I have added my name, and I do so on the basis of too many years spent on a local authority, much of it responsible for administering legislation that relates to the management of our highways. Much of that legislation dates to the 1980s, but one of the duties in it goes back to the Middle Ages and really to the beginning of having local authorities at all: that is the obligation on the local authority to keep the King’s highway clear. The reason for that is simple: if you operate commercial premises and are a frontager on the highway, you are very attracted by the prospect of trading from that highway, because you can expand your premises rent-free. That makes a great deal of sense commercially.
For centuries, it has been the sad task of local authorities to try to push back people who are trying to trade on the public highway because—here I make two points—the public highway is, first of all, a public asset. It is maintained at public expense primarily for the benefit of the public and not for the private use of frontagers. Secondly, my noble friend Lord Holmes referred to the purpose of the highway, but he was not quite as precise as I would have liked. There is a precise understanding in law of the purpose of the highway—that it allows people to go to and fro. Any use of the public highway for the purpose of trading—in this case we are discussing trading in front of refreshment businesses, restaurants and cafés, but the same applies to shopkeepers—can exist only as a concession by the local authority. In my experience, this is generally a contentious matter with local people and one should be very cautious about granting such licences.
All such caution was thrown to the wind as a result of the Covid pandemic. The Government switched from a carefully balanced system, where local authorities which understood their communities had a clear say in the matter and knew from experience how to balance various demands, to one in which the advantage was given heavily in favour of the commercial frontager, who has the right to do this. The Bill, in effect, seeks to make that even more expansive and practically to continue it permanently. I think this is a dangerous thing to do. It is and should very much be a matter for local authorities, which understand their local communities. The balance should be adjusted back to where it was before—more on the neutral part of the scales rather than heavily weighted, as it is now.
What harms arise? First, it is impossible for me to add to the harms that arise to people with various disabilities, about which we have heard. I cannot and do not intend to add anything to what my noble friends Lord Holmes and Lord Blencathra said from their own experience, but there are other harms as well. To some extent, they arise from the conceptual model that arises when we talk about “the high street”. We talk about the high street as if it were a distinct thing or use but, in most urban areas, if you lift your eyes above the gaudy shopfront, you will see lots of other things happening in the high street above ground, many of which are people living there. If you are overlooking a pavement and there are licences that allow people out on the pavement, you will suffer a harm directly in relation to that.
Some harms are quite acceptable. If the closing hours and hours of operation are sensible, perhaps you can live with that. You want to get on with your neighbours and do not want local businesses to fail, but you are entirely dependent on the licensing regime and the attitude of local councillors as to what hours should be allowed. You are also exposed to poor management and exposed, outside your window—here I speak from a degree of experience—to people talking loudly and having parties, some of which are louder than others. It is impossible to expect any management to control that properly; they simply cannot go around doing that. However well intentioned, they have to work with noisy and difficult people.
We need to get back to understanding what the highway is for, what a public asset is, paid for at public expense, and what its primary purpose is. We need to understand that local authorities are probably the best determinants of this and we need to reset the dial, so that they have the chance to do that.
I cannot sit down without referring to the amendment in the name of my noble friend Lord Young of Cookham. No chance goes by in your Lordships’ House for him to propose something restrictive of smoking without him dashing at it very much like a ferret up a trouser leg. Here we are again with yet another restrictive amendment proposed on smoking, and it is purely vindictive and entirely punitive. He endeavours to put a gloss of public interest on it, and maybe he thinks he is contributing to people giving up smoking. I gave up smoking last year and I assure your Lordships that at no point in my consideration did the possibility of being denied access to a pavement café arise, nor would I have given it any weight had it come into my mind. There were other reasons why I gave up smoking last year.
One of the problems with these vindictive approaches is that the people who make them simply do not understand smokers. The noble Baroness, Lady Jones of Moulsecoomb, who I think said that she “loathed smoking”, possibly does not want to understand them; she just wants to give vent to the loathing. I do not know. My noble friend offered a few other reasons. The first was generosity in favour of the business success of the premises. He said that they would be much happier, attract more business and be family friendly. I do not think that that is sufficient reason to impose restrictions on a lawful activity, because it is not the business of this House to make businesses successful. That is their job: we set a framework and they try to make the businesses successful. That is not our motivation nor should it be, in my view.
I very much hope that the Minister who, in the course of this Committee, has developed a great deftness at turning away suggestions made by Members of your Lordships’ House, maintains that deftness in respect of this amendment and finds a way of saying that this is not an appropriate place for the Government to pursue yet more vindictive legislation against smokers.
I did not say that I loathe smokers—both my parents were smokers. I loathe smoking because of the impact it had on my parents, both of whom died from smoking-related disease.
I did say—and I think Hansard will show—that the noble Baroness said she loathed smoking. I was careful not to say that she loathed smokers. I hope she did not mishear that, because it would have been a mishearing.
My Lords, I will speak in support of Amendment 459, led by the noble Lord, Lord Young of Cookham, to which I have attached my name. As noble Lords will know, this amendment has strong cross-party support, and countering smoking has long had cross-party support in this House. The amendment seeks to ensure that all pavement licences are smoke free. I hear what noble Lords have said about such licences, and this amendment would apply if a pavement licence is granted. It seeks to ensure that the rules inside a bar, restaurant or café apply equally to their outdoor area.
These outdoor areas were expanded in the pandemic so that there was more space between people; outdoors thus became an extension of indoors. The same smoke-free rules that apply inside should apply outside, for exactly the same reasons. As the noble Lord, Lord Young, pointed out, the Local Government Association agrees. That makes these areas more family friendly, and I point out to the noble Baroness, Lady Taylor, that the LGA argues that it makes it easier to implement if this is applied nationally.
The Government have had several opportunities to make pavement licences 100% smoke free over the last three years and have opted not to do so. The noble Lord, Lord Young, has specified those instances. This is despite the clear evidence of the health harms of second-hand smoke, strong public support for smoke-free pavement licences and examples from various councils, including Manchester, of this measure being introduced successfully.
The public health case for this policy is very clear. The scientific evidence indicates that there is no risk-free level of exposure to second-hand smoke. Associated health effects include stroke, lung cancer and coronary heart disease. The noble Lord, Lord Moylan, who has just spoken, probably gave up to protect his health. We are seeking to protect others’ as well.
If we continue to allow smoking in pavement seating, passers-by, customers, staff and above all children will keep being exposed to significant amounts of tobacco smoke. The risk is particularly acute for staff, as the noble Lord, Lord Young, specified, who have no choice but to be exposed to people smoking when they work. Of course, children are particularly susceptible to harm from second-hand smoke; we all know that. In Canada, where most provinces have had laws to implement smoke-free patios outside hospitality venues for years, these laws have been popular, easy to enforce and had a positive impact on health. Where smoke-free patios were introduced, second-hand smoke exposure went down by almost a quarter.
Fortunately, the world is changing, as others have said, and smoking is no longer the norm. In the United Kingdom, this House over the last 20 years or so has led the way by helping to reduce smoking—for example, by banning smoking in public in settings, and the noble Earl played his part in that. In 2019, the Government set themselves the worthy ambition of seeking to reduce the number of smokers to below 5% of the population by 2030. While the Government have announced some measures to help deliver this ambition, we are still waiting for the comprehensive strategy needed. Expanding the number of outdoor spaces that are smoke free helps to deliver what the Government say they wish to do.
My Lords, the noble Lord, Lord Blencathra, raised some of the problems that mean that pavements cannot be pavements. My particular bugbear is cyclists on pavements; they drive me mad. The noble Lord, Lord Moylan, raised some of the tensions when deciding how we regulate public spaces, drawing attention to residents who live on streets where maybe there are pavement cafés.
Those things are worth considering but I want to return to the points made at the start of this group, so well explained by the noble Baroness, Lady Taylor of Stevenage, and to reference the earlier group on reviving the high street. One of the very few positive outcomes of the dreadful lockdown period was the emergence of imaginative ways of creating social engagement outdoors. When lockdown was such an antisocial action that kept us apart from each other, we found ways of connecting.
Café society is indeed a positive innovation, and regardless of the differences between the weather and climate in the UK and, for example, continental Europe, Brits have taken to this way of enjoying hospitality services. It is a great boost to that industry, which suffered so badly under lockdown.
One of the advantages of this spilling out of café society on to pavements is that it has allowed smokers and vapers to have a coffee or a drink alongside a cigarette, which I consider—shock, horror—to be all very civilised. It is certainly better than huddling outside in doorways in between sips of a drink.
I find it rather galling that Amendments 458, 459 and 461—all of which, one way or another, involve restricting smoking outdoors and making those restrictions a precondition of the licence—have been added to this group. Amendments 458 and 461 emphasise that where there is consumption of food or drink, the licence holder must ensure that smoking or vaping does not affect others. This seems an impossible duty. How could it ever be monitored? It is a degree of micromanagement of the life of communities. It seems the licensee is being threatened—they must prevent smoke drift affecting those in the vicinity, or they will not get a licence.
Tobacco smoke in outdoor areas is highly diluted and dissipates quickly in atmospheric conditions. I worry about moves towards such punitive restrictions on people smoking outside, when all they are doing is indulging in a legal, personal activity. Do we need to overregulate in such a fashion? Smokers, a minority no doubt, are perfectly respectable and considerate citizens and it would be wrong in any way to imply that in some or most cases they wilfully blow smoke into people’s faces or are not mindful of others in the vicinity.
As to involving vaping in this, targeting an anti-smoking device seems just wrong-headed. So many people I know who have stopped smoking did so by taking up vaping, and they improved their health in the process. If the proposers of the amendments are worried about any exposure to tobacco smoke outdoors, this would require that a proper scientific study be brought before the House, or at the very least a national consultation. Amendment 459 goes the full hog and states:
“Pavement licences may only be granted by a local authority subject to the condition that smoking is prohibited”.
It seems that an attempt is being made to use this Bill as a backdoor route to banning smoking in public places per se.
This Bill has been packaged as empowering local decision-making. Can we note that local authorities already have the powers at their discretion to regulate smoking in licensed premises and on pavements outside pubs, bars and restaurants with exterior tables and seating? It is up to them. How can we justify using this Bill to bring in central government legislation that threatens that if pubs and cafés do not ban smoking outside, no licence will be given to them? This seems wholly disproportionate.
We should note that such prescriptive rules could well lead to fewer customers, more high street closures and, certainly for many citizens who as adults choose to smoke, less freedom. It goes against the spirit of a levelling-up Bill when you have an imposition from the top of a kind of “we know best approach” to local matters and individual matters such as smoking, and it will grate with many people.
I appreciate that some people do not like people smoking. Some people find it loathsome. One noble Baroness has boasted about not tolerating smoke drift. There are a lot of things that I do not like and that I would rather not tolerate. I am not keen on people chewing gum or putting on make-up in public or eating with their mouth open or talking loudly or on babies crying when I want to sit quietly with my latte and read my book outside a café, but—my goodness—this is society. We tolerate each other; we rub along. There is something really positive about a café society. We should not use it as an excuse to bring in unnecessary regulations that set us at odds with one another as a means of policing and supervising personal, legal behaviour.
To finish, I do not know whether this will encourage or discourage, but I have noticed that smoking on the Terrace outside the Lords has been banned but somehow smoking on the Terrace of the other place is perfectly okay, and guess what? It is packed with people who work in the House of Lords or sit as Peers in the House of Lords because it is the only place to go—not to damage people but just to relax and have a cigarette with a coffee. They are not breaking the law.
Before my noble friend gets up to respond to this debate and at the risk of upsetting the mood of the Committee, I remind noble Lords that we have done three groups. We have another 19 to go and we are going to finish tonight, so unless anybody does not wish to have any sleep, I suggest we perhaps cut our speeches down just a little bit if we can.
I do not know whether I dare speak now, but I am going to. I will not dare venture into the issue of smoking or non-smoking, except to say that I agree with my noble friends Lady Northover and Lady Randerson and the noble Lord, Lord Young of Cookham.
I want to raise two issues because they were raised in the Business and Planning Act and the regulations that we discussed at the time and have been raised by the noble Lords, Lord Holmes and Lord Moylan. The noble Lord, Lord Holmes, rightly brought to our attention Amendment 460, about the use of barriers to delineate a pavement licence from the rest of the highway. It was agreed at the time, and we should ensure that it is included in the regulations under this Bill. It is vital that there is a clear line between where a pavement café ends and the pavement for other users begins, because it stops drift by people using the pavement café area and helps everybody, particularly those with disabilities, so I totally support that argument and I am sorry that it is not included in the Bill.
Secondly, I support Amendment 451, about payment to local authorities for the use of the highway. Hard-pressed local authorities are apparently having to give away public assets for businesses to use without any payment. We would not expect that of any other commercial arrangement, so why should we expect local authorities to support businesses without any payment for the use of the public asset, i.e. the highway? I totally support the argument made by the noble Lord, Lord Moylan, on that score. I hope that when the Minister responds he will be able to say that local authority highways, which local authorities have to clean and maintain, are worthy of a fee from those who use them.
My Lords, this has been a full debate on the numerous issues bearing on pavement licences. I shall begin by addressing Amendments 449 and 450 in the name of my noble friend Lord Holmes of Richmond, to whom I listened with great care and respect. These two amendments relate to the definition of “relevant highway”. The Government support making it as easy as possible for businesses and local authorities to facilitate outdoor eating and drinking through the use of the streamlined pavement licence process. We believe that local authorities should maintain the flexibility to control pavement licences on highways which are both publicly and privately maintainable. The Business and Planning Act 2020 does not currently distinguish between those two types of highway, and as such any enforcement powers available to local authorities would apply equally, ensuring that local authorities can take appropriate action where there are issues with licences.
There are already a number of ways a local authority can consider the pedestrianisation of a street, including to facilitate the placement of furniture on the highway for alfresco dining. They include consideration of important issues such as whether vehicular access is required. Pavement licences can then be granted to highways that have been considered under those processes. We have seen the success of this in practice across the country, including in Soho in London and in the Northern Quarter in Manchester.
Turning to Amendments 451 and 452, which relate to fees and are also in the name of my noble friend, I can say to him that in developing proposals to make the streamlined pavement licensing process permanent, we have worked closely with local authorities, businesses and leaders from the hospitality sector and communities, and many of the points made in this debate have been raised during that process, including the issue of fees. We are increasing the fee cap from £100 to £500 for first-time applications and to £350 for renewals, having undertaken a detailed analysis of actual costs, to create a sustainable process which will cover the costs to local authorities in processing, monitoring and enforcing the process, while remaining affordable and consistent for businesses around the country, which were seeing inflated fees reaching thousands of pounds per application under the previous process. Local authorities maintain flexibility to set fees at any level under the fee cap to respond to local circumstances. For example, we have seen some areas making licences free to support their local high streets. At a time of rising costs, we are not seeking to impose additional charges on businesses, particularly given that the hospitality industry was one of the hardest hit by the pandemic.
My noble friend asked specifically whether we could include maintenance and schemes for profit-sharing in the licence. The fee cap, on which we have consulted extensively as I have mentioned, is set at a level which will cover the costs to local authorities for the administrative burden that they undertake in issuing licences. As I have emphasised, we are not looking to impose additional costs at this time.
On Amendments 453, 454, 456 and 457, also in the name of my noble friend, the pavement licence process that we are seeking to make permanent has been successful in the past few years because it provides a simpler, more streamlined process to gain a licence. Amendment 453 would introduce an unnecessary new administrative process for local authorities in requiring that receipts are sent to all applicants. It also has the potential to create a delay in the process, meaning that licences could take longer to be determined should receipts not be processed in reasonable timescales. However, we are seeking to double the consultation and determination periods compared to the temporary process to ensure that communities have sufficient opportunity to comment on applications. The total period allowed for consultation and determination will change to 28 days.
We have worked closely with stakeholders, including groups representing disabled people, local community groups, businesses and local authorities, in considering the consultation period when making the streamlined pavement licence process permanent. In working with these groups, we have sought to achieve a balance between a quick and streamlined process and ensuring that the process is sustainable for the long term and gives communities an opportunity to comment on applications. That is why we are setting the consultation and determination periods at 14 days each—double that of the temporary process. Amendments 454 and 456 would create a slower process than that which it would replace.
Regarding Amendment 457, the deemed consent provision would encourage local authorities to make determinations within the 28-day window from submission. In the rare circumstances where local authorities do not make a determination and the application is deemed to be granted, this will be subject to all national and locally published conditions, including the “no obstruction” condition, which seeks to ensure that the pavement remains accessible for all. Where this condition is not met, local authorities can revoke licences.
I turn to Amendments 455, 458 and 460, also in the name of my noble friend Lord Holmes. Free flow of pedestrians and other users of the highway is important, which is why the Business and Planning Act 2020 already requires that local authorities take this into consideration when determining applications through Section 3(5) and (6)(a), and prevents licences from being granted where they would prevent pedestrians or other non-vehicular traffic from entering or passing along the highway, or having normal access to premises adjoining the highway.
With respect to Amendment 458, we are aware anecdotally of conditions which would, for example, require that licensed furniture be removed when not in use, and conditions which go further than our national smoke-free condition. We consider that local authorities have local knowledge and appropriate powers to impose such conditions should they consider it necessary. We do not think it is necessary or appropriate to create national conditions for these issues, as there are circumstances where it may not be necessary or appropriate.
With regard to Amendment 460, I thank my noble friend Lord Holmes for raising the very important issue of accessibility and impact of pavement licensing on disabled users of the highway. I listened carefully to the powerful speeches of my noble friend Lord Blencathra and the noble Baroness, Lady Jones, among others. The existing legislative framework requires local authorities to take these matters into account and they cannot grant a licence if pedestrians are prevented from using the highway as they usually would.
We have taken this issue very seriously in the light of experience since the pandemic. The Business and Planning Act 2020 sets out that all licences are subject to the “no obstruction” condition, which protects pavement users to ensure that they are not prevented from using the highway. In particular, it states that local authorities must have particular regard for disabled people when considering applications, and must have regard to the guidance published by the Secretary of State. This guidance, developed in close collaboration with Guide Dogs and the RNIB, sets out considerations that local authorities should take into account, including whether they should require barriers separating furniture from the rest of the highway—such as colour contrast and tap rails—or more rigid physical barriers. I hope that, taken together, these comments are helpful to my noble friend Lord Holmes and, indeed, to the Committee.
I turn next to Amendment 459 tabled by my noble friend Lord Young of Cookham. The streamlined pavement licence provisions under debate may be granted, as he will know, subject to any condition that the local authority considers reasonable, as set out in Section 5(1) of the Business and Planning Act 2020. As he rightly mentioned, we are aware that a number of councils across the country, including Manchester and Newcastle, have put in place local conditions that ban smoking in pavement licence areas. We believe it is important to allow local areas to make the decisions that are right for them, using local knowledge and the powers that they already have to impose conditions.
But that is not all. Any licences granted under temporary pavement licence provisions will be subject to a smoke-free condition whereby the premises will need to make reasonable provision for seating outdoors where smoking is not permitted. This condition ensures that customers have greater choice so that smokers and non-smokers are able to sit outside. As I have indicated, local authorities are also able to consider setting their own local conditions where appropriate and where local decision-makers believe that it is reasonable to do so.
I turn next to Amendments 462 and 463 in the name of the noble Baroness, Lady Taylor of Stevenage. The Government recognise the importance of having a system that can be properly enforced to both deter and tackle the unauthorised placement of furniture. Powers introduced in the Bill enable local authorities to serve notice requiring that businesses remove furniture that has been placed on the pavement without a licence. If this notice is contravened, local authorities can remove the furniture themselves or instruct to have the furniture removed, and can then recover the costs of this and sell the furniture and retain the profits.
It is the Government’s position that the introduction of the powers proposed will lead to appropriate protection of our communities by giving local authorities powers that both work as a deterrent and directly tackle where notices are ignored, ensuring that the licensing system operates appropriately. Highways authorities already have powers in the Highways Act 1980 to tackle obstructions on the highway, including Section 148, which creates an offence of depositing, without lawful authority or excuse, things on the highway that cause interruption to users of the highway.
I turn finally to Amendment 448, 464 and 465 in the name of the noble Baroness, Lady Taylor of Stevenage. These amendments seek to introduce requirements for assessments of impacts relating to various aspects to be taken by local authorities, by businesses or by government in advance of the measures being made permanent through the Bill. The Government agree that accessibility is incredibly important, and that our towns and city centres should continue to be accessible for all residents. As I set out earlier, we have made it a requirement—set out in Section 3(5) of the Business and Planning Act 2020—that the local authority must consider the impact of the proposed licence on accessibility of the highway to non-vehicular traffic before granting a pavement licence. As I also mentioned a second ago, we worked closely with the RNIB and Guide Dogs on the guidance that supports this.
We also recognise the importance that these measures will have on the vitality and vibrancy of high streets across the country, and encourage businesses and local authorities to embrace the opportunities that this regime offers while considering the impact of new licences on the community. We do not think it necessary or appropriate to require, through legislation, local authorities to consider to what extent a licence will increase high street footfall for the purpose of regeneration, because this would introduce additional burdens on both businesses—in the form of likely needing to undertake analysis and provide evidence of this—and local authorities in assessing this.
Finally, on Amendment 465, I am grateful to the noble Baroness for raising these important issues, which reflect previously tabled amendments that we have discussed on consultation periods, the introduction of tactile markings and the removal of deemed consent. We do not think it appropriate to require a report to be published on these matters as they have already been actively considered, as I have made clear. I hope these comments are helpful to her as regards the amendments in her name and that, specifically, she will feel able to withdraw her Amendment 448.
My Lords, I am grateful to the Minister for, as ever, a thorough response to the issues that have been raised during this interesting debate. I am grateful to all noble Lords who have participated.
I appreciate the frustrations of Government Whips, but the purpose of your Lordships’ House is to give proper scrutiny to legislation that comes before us. This is a long and complex Bill with diverse issues, many of which go right to the heart of our communities’ concerns, and it is only right and proper that we raise the issues that we know they would want us to probe and explore in this House.
I turn to some of the comments that have been made. I am grateful to the noble Lord, Lord Holmes, for, as ever, championing the needs of the disabled members of our communities and making sure that we consider those, as he often does with legislation. It is important to have his voice making that very clear. I took on board his point about reasserting the primary purpose of pavements. He is quite right to say that they are our pavements, and we need to protect that.
The noble Lord mentioned A-boards, which are a particular bugbear of mine; they have proliferated on our high streets in recent years. What tends to happen is that a local authority makes a representation to a business asking it to move the board; it does so, but two days later the board is back where it was. They constitute an obstruction, as does sprawling pavement furniture.
Regarding the e-scooters that he and other noble Lords mentioned, I was interested to hear the solution proposed by the noble Lord, Lord Blencathra. Perhaps we all need one of those high-powered buggies that can move them into the road, but maybe there are better solutions. After all, we know who operates e-scooters—they have to be booked and registered for each ride—and it should be the responsibility of the companies that run them to go after the people who irresponsibly leave them in inappropriate places.
The noble Lord, Lord Holmes, referred to this being the “prohibition of sprawling seating” amendment. I like that description; it is very clear.
There are complexities regarding the use of highways. I am a councillor in a two-tier area, and the district council, not the highways authority, offers pavement licences. Highway closures require a different type of legislation; you need a traffic order to do that. I know that because we have a fantastic farmers’ market in Stevenage, and I had to use my locality budget to pay for the road closure the first few times it operated, because it did so on the highway. It is very successful now and runs on its own. So if we are going to use bits of the road, we may need to look at formal road closures.
The noble Baroness, Lady Randerson, said that these were brought in as temporary measures, and that is right. That is why the consultation processes need to be extended. I was pleased to hear the Minister say that they will be extended to 28 days but, ridiculously, the Government still insist that these appear in local newspapers, meaning that any such notices, including planning notices, take a long time to get out to people. If we could do them and advertise them online, that might be a more efficient way of doing things, but that is an argument for a different day.
On the powerful advocacy of the noble Lord, Lord Young, for prohibiting smoking in the defined areas, I am pleased to say up front that in Stevenage, smoking is prohibited in those areas. It was interesting to hear that two-thirds of the public do not think that smoking should be permitted in those outside areas. The Minister said that, where local authorities make these designations without specifying smoking or non-smoking areas, both have to be included, but that does not really account for issues such as smoke drift. If you are somewhere where there is both smoking and non-smoking areas—especially outside, where it might be windy and smoke will blow towards you—I do not see how it will be possible to make any of those areas smoke free. That took me back to the days when prohibitions on smoking indoors started to be mooted. Back in the day, it was quite common to smoke in cinemas, restaurants and even, dare I say it, council meetings. We would not dream of doing that now; things have changed over the years, and for the better.
The noble Lord, Lord Blencathra, referred to being banned by Putin. That is probably a badge of honour; I gather that my noble friend Lady Hayman is also banned by Putin, so well done for that.
The issue of accessibility is not just for those with mobility issues. A couple of noble Lords mentioned buggies. As a conscientious granny, I am sometimes charged with pushing a double buggy around, and it is incredibly difficult to navigate the streets with one of those.
The noble Lord, Lord Moylan, referred to ancient obligations to keep the King’s highway clear. Things move on. I agree with the noble Baroness, Lady Jones, who said that these areas have livened up our high streets and made them better and more interesting places to be, so I think we can move on. Still, I congratulate the noble Lord on giving up smoking. It is usually recent converts who are the most powerful evangelists for non-smoking, so it was interesting to hear his intervention.
The noble Baroness, Lady Pinnock, referred to fees for cleaning and maintenance. The LGA has long advocated that local authorities should be able to set their own fees for such matters. It is important that we are not prescriptive but allow local authorities to set fees that meet their local needs. I said that when I introduced the amendments and still believe it to be true.
The Minister talked in his closing remarks about the vivacity and vitality that these outdoor areas bring to our high streets. We agree; we just need to make sure that the accessibility is right. We need to make sure that they are accessible for everyone and are not creating unnecessary obstructions for those who already have enough difficulty getting around. With that, I beg leave to withdraw the amendment.
Amendment 448 withdrawn.
Clause 211 agreed.
Schedule 18: Pavement licences
Amendments 449 to 460 not moved.
Amendment 461 had been withdrawn from the Marshalled List.
Amendments 462 to 465 not moved.
Schedule 18 agreed.
Clause 212: Historic environment records
Amendments 465A to 465C not moved.
Amendments 466 to 467A had been withdrawn from the Marshalled List.
Clause 212 agreed.
Clause 213: Review of governance etc of RICS
Debate on whether Clause 213 should stand part of the Bill.
My Lords, I rise to argue that Clause 213 should not stand part of the Bill, as it has absolutely no place within this Bill. That is partly because it has nothing to do with levelling up or regeneration, but it is also because it gives the Government the right to interfere in the activities of an independent, non-statutory, standard-setting members’ organisation—indeed, a chartered body.
It is strange that, of all the actions being taken around increasing regulation, the target is a respected, self-regulatory body with an independent standards board. I am mystified as to why, if Ministers really want to help the residential sectors—tenants, owners and leaseholders—they are not implementing the report of the noble Lord, Lord Best, on the regulation of property agents which, after enormous work with great detail, has come up with some extraordinarily useful proposals covering areas of considerable consumer detriment. Much work went into that report and I then chaired a group, in full collaboration with the department, developing codes of conduct covering letting and estate agents as well as managing agents.
Indeed, back in 2018, the then Housing Secretary announced measures to professionalise the estate agent market, driving up standards and bringing an end to rogue managing agents. As he said at that time, more than six out of 10 buyers and sellers experienced stress. Therefore, he promised, estate agents would be required to hold a professional qualification, with the Government undertaking to bring this industry up to
“the same professional standards as conveyancers, solicitors and surveyors”.
At that point, the department was really keen on regulating that group of residential agents to bring them up to the quality of surveyors. What a shame that this Bill does not implement the report of the noble Lord, Lord Best, and the commitment given by the department at that stage, which would bring high standards and proper protections to users of all property agents.
Instead, the Bill proposes a statutory power for the Secretary of State to instigate a review of an independent, member-funded, non-statutory body: any time, any place, with no excuse or cause and no threshold for such an intervention. All this comes with no rationale for the interference in such an independent and professional body, whose standards and enforcements are key to the safety of our built environment as well as to the market valuation of property, which has to be free—like interest rates—of any Treasury interference. So what, one might ask, is behind all of this?
RICS was one of the first professional bodies to split off its member representation role from its regulatory function following the Carsberg review, well before the Law Society and the Bar Council did the same. Since then, RICS and its thousands of members abroad has played a vital role in independent standards setting as well as in the enforcement of those high standards. Across the world, regulators and clients depend on RICS standards of ethics and good practice, as well as RICS technical standards. RICS valuers are recognised and admired worldwide and perform a vital service for a swathe of industries. RICS works with Governments, regulators and international standards setters to adopt common, transparent standards. This fuels the influence of UK professionals and business globally, supporting inward investment. About one-fifth of RICS members work outside the UK, many of them in large, global businesses.
It is, perhaps, for this reason that a firm such as Savills worries about the possible end of true independence of RICS and thus a loss of confidence that it is acting in the public, rather than Ministers’, interests. As James Sparrow, CEO of Savills UK, writes:
“A strong and independent RICS remains key for the well-being and effective operation of the real estate sector ... Any actions which have the effect of undermining RICS or compromising its independence as a free-standing professional institution would … be detrimental. ... RICS plays an important role internationally … influencing the development and standards required of the surveying profession globally. Its independence is fundamental to this”.
Indeed, the UK’s global role could well be at risk if RICS and its standards are seen as being supervised by the Government. Self-regulation via a hived-off independent oversight board, chaired by the redoubtable Dame Janet Paraskeva, gives confidence to consumers that standards will not be lowered to satisfy either RICS members or government requirements. It gives confidence to mortgage lenders that a valuation of a property is robust and a figure that they can rely on in considering the security backing to any loan that they give.
As one of the big lenders said to me, “We’re lenders, not surveyors. We’re not the experts on this, so it is important that we can trust valuations, and having an independent body is important for consistency and reliability. As a lender, we rely on a surveyor whose qualifications and standards are independent, free from any arm-twisting that is not evidence based. The Government are also not RICS-qualified; it is not for them to make decisions in this area. We need independence of standard setting”.
RICS, which operates under a Royal Charter for public advantage, produces what is known as the Red Book Global Standards, which sets out standards relied on by the industry, market regulators—the PRA and the FCA—and the public. Its work underpins confidence in the property and construction markets.
Not only have the Government given no good reason for this clause but—at least as of last Friday—the Commons Minister, despite a promise, had failed to meet RICS to discuss the issue, with its vital perceived independence and reputation possibly affected. Also, the singling out of just one body smacks to me of a hybrid Bill: that is, a public Bill with private elements, one that affects a particular private interest, different from the interests of similar bodies, effectively picking out just one organisation in a way that is injurious to it.
Surveying is not a protected title. The profession does not have any reserved functions and nor does it exercise any statutory powers. RICS holds no monopoly and other bodies also set building standards, so claiming it is a class of one does seem to stretch the definition. Moreover, as a hybrid Bill, the party affected would have the opportunity to put its views to Parliament, not just to a Minister.
However, the real issue is that this clause is unnecessary. RICS asked the noble Lord, Lord Bichard, to review its structure and working, and has made many adjustments in the light of his report. Recommendation 14 of the report called for a similar independent review every five years to be laid before Parliament. In fact, however, RICS, valuing that suggestion and the help provided by the noble Lord, Lord Bichard, has decided to do just that—to have another independent review—after every three years, not five. The first will be in 2025. This seems timely and sensible, and enables a report to Parliament, independent of the Government of the day.
The concern about the extraordinary power in Clause 213 that allows a Minister—with no particular evidence or reason, and at any time—to set up an inquiry into RICS is that there is very little, if anything, in terms of a threshold. It does not say, for example, if there are complaints, if the markets are uneasy about it, if it seems to have failed consumers or if it fails to undertake valuations properly. There is no reason given for allowing the Secretary of State—who was here just a few minutes ago but has left now—to decide, at any time, to set up an inquiry into RICS.
There is no threshold to be covered. Yet the very threat of that presents a chilling factor to RICS, as even the launch of such an inquiry—being at any time, rather than at a fixed time, as the noble Lord, Lord Bichard, said—could severely damage the reputation of RICS at home and abroad, for no good reason. The Minister will know that his colleagues at the Department for Business and Trade are busy negotiating agreements to promote our service sector, something that I see a lot of in my role of chairing our International Agreements Committee. Again and again, Ministers say to us that one of the UK’s greatest strengths is its service sector. Part of that is the financial sector, but a large part of it is surveying. Along with architecture, it is a key part of our service sector and a major part of our exports. That sector should be supported, not undermined.
The Government have made out no case for Clause 213. It is unnecessary and an unjustified interference in an independent, professional standards-setting body. In a way, just the threat of a review could exercise a chill factor over a chartered institute which works in the public interest. The clause will do nothing to promote the aim of levelling up and it is a wasted opportunity, when the mischief of residential agency could have been regulated along the lines set out by the noble Lord, Lord Best. It is an unnecessary clause and, potentially, a harmful disruptor. It has no place in the Bill and this clause should not stand part.
My Lords, I support the noble Baroness, Lady Hayter, in what she has said. I have put my name to the opposition to this clause standing part. I declare an interest, such as it is, in that I was a chartered surveyor. It took me six years to qualify as one, and I gave up being a chartered surveyor when I was asked to join the Government in 1984. I subsequently gave up my membership of the RICS, because I was not doing that work any more.
I totally agree with what the noble Baroness said about the institute’s independence and reputation, which are hugely important. I found that from personal experience, because I was asked to appear as a specialist witness in a court case. It was my evidence as a professional surveyor that turned the case. Surveyors need to have their independence and a strong reputation to perform their job in the best possible way.
I take a slightly different tack from what the noble Baroness has said. Perhaps I should put it on record that I have not been in contact with the RICS about this. What I say now are entirely my own views; I have not even talked to it, because I thought it was better that I did not.
Ministers have three powers. The first is a statutory power under an Act of Parliament; the second is the law of prerogative, such as Neville Chamberlain used to declare war in 1939; and the third power under which Ministers act is a common-law power, which is applicable not just to Ministers but to every single one of us, and it does not require legislation. Perhaps I could give as an example the ability to buy or sell a building of one’s own without legislation; that is a common-law power.
Clause 213(1) is a classic common-law power. Anybody can set up an inquiry into the RICS—I could, if I had the money, or the noble Baroness, Lady Hayter, could. My noble friend the Minister could set up an inquiry into it. While the RICS does not have to co-operate with us—it can if it wants to—we already have that power. It does not need to go into legislation. Clause 213(3) can be done by contractual obligation, while if we did not have subsection (4) it could be judicially reviewed. The point is that an Act of Parliament is to change the law, but this clause does not change any law. It does not give the Minister any new powers or require the RICS to take any action whatever. It is an otiose piece of legislation.
Time and time again, we have been told that any amendment which we put forward has not been necessary because it is covered by existing legislation. Indeed, my noble friend Lord Howe used precisely that argument against my noble friend Lord Holmes of Richmond on one of his amendments with regard to pavements, which we discussed a few minutes ago: it was covered by existing legislation—the 2020 Act, if I remember rightly—which meant that there did not need to be any further legislation.
As the noble Baroness said, the general council of the RICS commissioned the noble Lord, Lord Bichard, to do a review by its own will. He undertook that review within a very short time, and it reported in June 2022. By the end of November 2022, eight out of 36 amendments had already been implemented and the rest were on their way to being so. If the Government acted with a quarter of the speed with which the RICS acted, that would be a revelation and a bonus for this country.
This clause is a dreadful piece of legislation. It has nothing to do with levelling up or regeneration. It is worthy of the Governments of Moscow and Beijing; it is not worthy of a Conservative Government in 2023.
My Lords, it is a privilege to be a co-sponsor of this proposal, so ably introduced by the noble Baroness, Lady Hayter of Kentish Town, and spoken to by the noble Earl, Lord Caithness. The noble Baroness has far greater knowledge of regulation, which goes back a long time. Especially on the regulations of bodies, that surpasses anything that I could do.
I am a fellow of the Royal Institution of Chartered Surveyors; I have been a member for 48 years and was at one time chair of one of its expert panels. I am also an RICS-registered valuer. Although I am semi-retired, I still pay a subscription to the RICS. I am governed by its rules and its requirements for continuous professional development, and so on. I must make it absolutely clear that the views I express are my own and are not to be taken as any statement by the RICS on its policy, or as its acquiescence in any way with the conclusions that I draw. Although I have spoken at length with the RICS, my views are essentially my own.
I will give your Lordships a few facts. The RICS has a membership of 130,000, 20% of whom are foreign-based. It has international and national status. It sets standards of technical compliance in areas of valuation, measurement, physical assessment and methodology of appraisals in many areas. It does that within a framework of ethical and competence standards, backed by disciplinary powers over its own membership. Other bodies and sectors have frequently and voluntarily adopted the standards that it sets. It has members who survey the ocean floor and others who auction fine art; such is its range and scope.
It should be noted that, as the noble Baroness, Lady Hayter, mentioned, RICS does not have reservation of title or function, either of the label “surveyor” or of any sole dominion over the many areas in which its members operate. Core to this is freedom from political and sectoral commercial influences, along with powers of self-regulation. These form the bedrock of trust and confidence in markets across the world and sit behind the inward investment to the UK property market, which is one of the most fluid and effective anywhere. Remove those factors and there is little to distinguish the UK from jurisdictions which seek to control areas such as the judiciary, press freedoms and citizens’ rights of association.
There is much at stake. The noble Baroness referred to James Sparrow, the chief executive of Savills UK and Europe, Middle East and Asia. He tells me that the annual investment in UK commercial property alone is worth £60 billion—a figure I mentioned earlier. Half of that is inward investment from abroad and most of it is through the advice of RICS members and their firms. We also have a substantial residential loan book, supported by valuations, in the main from RICS registered valuers. What other profession makes that level of contribution to national wealth?
All this, as we have heard, could be affected by the Secretary of State’s step-in powers in Clause 213—a perceived, if not actual, loss of independence. Arguably it is a disruptive power for an appointee of the Secretary of State to review at any time, as we have heard, for any purpose—presumably including technical standards—under their terms of reference and sole discretion. The Secretary of State is by definition not politically neutral, so would never be seen as coming to the situation with total objectivity. That is simply how such step-in powers from any Government of any persuasion anywhere else in the world—and now here in the UK, as we see from this clause—will be interpreted.
A great deal reputationally hangs on this. It affects the image both of RICS and of UK plc at home and abroad for investor confidence and an orderly rules-based system. Even more significantly, it affects the ability to offer candid advice based on expertise and experience and to speak truth to power. It is worth pointing out what a huge influence in soft power abroad, as well as international generators of revenue to this country, companies like Savills and other UK-based but internationally focused firms of general practice surveyors are.
Clause 213 also sets a wider precedent for government intervention. By precedent, I mean it could affect any similar body and, by specifically referring to “governance”—the Long Title, on the very frontispiece, refers specifically to governance—of RICS, it proposes Secretary of State powers on a matter that, as far as I know, constitutionally should be between a chartered body and the Privy Council. In the absence of better justification, it is necessary for me to ask the Minister if Secretaries of State generally are to become the gatekeepers on matters of chartered body governance in priority to the Privy Council. If so, what public discussion has taken place about that process?
As to the genesis of the matter, the Government’s actions and other things that led up to this state of affairs, I will skip the chronology to focus on four points. First, it is clear that there has been insufficient departmental appreciation of the differences between such things as critical fire safety in terms of building resilience—the building’s ability to withstand that sort of event—the safety of residents in the face of fire-related hazards and the risk assessment criteria for secured lending. All of them have different technical, ethical and policy criteria.
Secondly, I observe that the reaction to the RICS decision on EWS1—the protocol for dealing with external cladding systems which led to the freeing up of a mortgage logjam—in December 2021 and its guidance to valuers that month was followed by the Secretary of State’s public comments on taking powers vis-à-vis RICS in the following month. Four months later there was the inclusion of these measures in the Bill, then at Clause 186, as introduced. These all took place after the noble Lord, Lord Bichard, had been appointed and before he issued his report. I question the propriety and timing of such a potentially prejudicial intervention.
Thirdly, I gather that the noble Lord, Lord Bichard, discussed his review’s terms of reference with the department from inception, regularly updating it on progress, and that the department expressed its satisfaction with the manner in which things were unfolding—and indeed, with the outcome. The expectation—I believe this is common knowledge—was that the clause would probably be deemed unnecessary and be withdrawn. It was not, and it has remained for poorly defined reasons that are difficult to conclude are now either necessary or were ever well founded.
Fourthly, the Government need to understand how the timeline and sequence of events appear to the outside observer. It does not look good and neither does Clause 213 appear a necessary, desirable or proportionate response to whatever it was that triggered this in the mind of the Government. The department seems to believe that RICS somehow governs and controls property markets. If that is the belief, this is a wholly mistaken concept. It fails to understand how markets operate or the role of this professional body in setting technical norms, laying down standards and advising on the use of analytical tools in property which facilitate the opening up and transparent operation of markets by other players.
In the context of purely technical issues, which generate core facts and inform appraisals, and set alongside the normal interpretation of “public advantage” and “proper standards of conduct”, these are never likely to wholly sit ad idem with what a government department has across its desk any given moment. There is a necessity for give and take within departments and recognition that there is a mutual understanding of the importance of professionals being able to offer their views to the Government without fear or favour, with the Government of the day respecting that but acknowledging that, ultimately, they make decisions on public policy as a democratic political exercise at their own political risk.
RICS technical standards are built up painstakingly over decades—I was going to say hundreds of years, but the techniques change rather more rapidly than that—by observing market sentiment and the fundamentals of transaction analysis. These are not rules set by the RICS simply for its own arbitrary convenience so much as observation and codification of how people interact in markets and other property-based relationships, especially those having regard to the fiscal, legal and other similar considerations set by other institutions, wider society, and, most principally, central government itself. To challenge these because a Government of the day may disagree with a professional standpoint is to risk market disarray and to create doubt, mistrust, and, ultimately, investment chill, as we have heard already. I sense that there is also some notion that this independent, self-funded, member-driven body should now be beholden in some way to reporting to the Department for Levelling Up, Housing and Communities. When responding, can the Minister confirm, categorically, whether that is intended—and, if so, on what justification—or else that it is not intended?
Governance and policy, as well as public versus private interests, seem to have been mixed up here. The Government may not have thought this through, but, assuming they have, I can only assume that there is some other metric at work. Despite the efforts of my noble friend Lord Bichard to ensure that the department was satisfied with what he undertook and that it approved all his conclusions—and, furthermore, he has been retained by the RICS to ensure that the institution delivers on what it has promised—the department seems to continue to find fault with the processes and makes no secret of implications that it might take other unspecified action if necessary. As we have heard from the noble Earl, Lord Caithness, it would be entitled to do that under common law—and at any time.
Personally, I would prefer the views of my noble friend Lord Bichard, as the reviewer, on what is happening in the RICS—as well as his views expressed to me on the coherence, good order and progress with which things are proceeding—rather than those of a department standing outside that process and, seemingly, wishing to involve itself in some sort of micromanagement while building a negative picture of how the process is unfolding.
The Minister explained in her letter to me of
“The clause does not change the regulatory status of RICS. It makes clear in law that the Secretary of State may commission a review by an independent person as to whether the RICS is operating effectively while maintaining the ability for the Institution to operate independently from Government. We are not seeking powers to respond to the findings of future reviews because we cannot pre-empt the outcomes of independent reviews. If any further action is required, this can be considered fully upon reflection of the review report. It will also be for the RICS as an independent body to consider the findings and respond accordingly in the public interest”.
However, her letter did not explain the policy justification that I had asked for; it did not inform me why the Secretary of State requires to intervene on governance in particular. If the absence of powers to follow up on findings is intentional, why do we need this clause at all? After all, the RICS, having just had two reviews in quick succession, is indeed considering and acting on its findings, but this still does not seem to be good enough.
The noble Baroness, Lady Hayter, reinforced the point about the willingness of the RICS to conduct its own independent reviews—as it should—but that does not prevent the Government making their own views known at any time, as indeed they should. However, they need to work with the RICS, as they have always done in the past and they claim to want for the future; it is something that the RICS itself clearly welcomes. Yet this should not be done by undermining its objectivity and independence, and, certainly, not by way of suggestions of other forms of action; that is simply inappropriate. Despite the Minister’s and officials’ protestations that the Government want to work with the RICS, that the RICS is of great importance to their plans and that they wish the RICS to be a strong and confident organisation, that is not how the body language reads. So the Government need to explain the circumstances in which this power will be used, and to confirm that it is reserved for specific instances of serious misdemeanour and will not be held as a general threat hanging over the head of the RICS in respect of any issue, great or small, they might happen to alight on, or, indeed, decide to generate from within. Will the Minister give me that assurance? Will he confirm what rules and trigger mechanisms will apply to the proposed power, and if he cannot do so now, can he write to me, copying in other noble Lords, before Report?
I conclude, as have the previous two speakers, that Clause 213 is unnecessary, undesirable, inappropriate and capable of generating more damage than it procures benefit. It is discriminatory in that it singles out the RICS for special treatment in circumstances where nearly every one of its areas of activity has at least one other participant body or organisation over which the RICS has no member regulatory function. Whether this makes it a hybrid Bill is something I have pondered; but I am not expert on this, and it is difficult for me to pronounce on such a matter. Like this Parliament, much is held together by conventions, mutual trust, and the wish to share information and to transact other than through letters of the law. The RICS certainly needs to consolidate its reputation. It has been through a period of turmoil—let us make no mistake about that; that is a matter of common knowledge—but it is on the road to putting things in order, and, with the aid of my noble friend Lord Bichard, I have every confidence that it will achieve that. However, Clause 213 is capable of much wider mischief, which will not, ultimately, be in the power of the Secretary of State to put right, if, as I suspect, it goes wrong. So I support the noble Baroness, Lady Hayter, that the clause has no beneficial purpose in the Bill and should be removed.
My Lords, I declare my interest as a former chartered surveyor—I was one for some 35 years; I resigned when I left private practice—and my comments now, which will be brief, are entirely my own.
Why do the Government want to interfere with an independent professional body? I do not believe that architects, civil engineers, solicitors, doctors, nurses or any of the other many noble professions have this sword of Damocles hanging above their professional organisations as is proposed here. The noble Baroness, Lady Hayter, and my noble friend Lord Lytton have mentioned the worldwide influence of the RICS. I was slightly involved with it many years ago; it is extensive and has done ground-breaking work across the world in bringing together the numerous different property-related organisations in the advisory field to try to create common standards internationally. This is the stuff of soft power; it has a royal warrant.
I accept that the RICS has had its own internal issues—pretty serious ones—but it instigated robust, independent reviews and accepted all recommendations. Why does His Majesty’s Government want this power? It is inappropriate. As we have heard, the Bill has all the characteristics of a hybrid Bill anyway, so what on earth is this clause doing in the Levelling-up and Regeneration Bill?
My Lords, I start by thanking my noble friend Lady Hayter for her very detailed and clear explanation of the concerns felt by a number of noble Lords about why this clause is in the Bill at all. I thank the noble Earls, Lord Caithness and Lord Lytton, for their very detailed knowledge and perspective from their professional point of view; that was extremely helpful and I think this is a very important debate.
I added my name to the clause stand part notice because we are also extremely concerned by the wording of Clause 213 as currently drafted. As we have heard, it provides a power for the Secretary of State to instigate a review of RICS at any time and with very few limits in terms of scope, rationale or process. At the same time, it fails to set out any related statutory protections for RICS or for the chartered surveying profession more broadly. Our concerns stem from the fact that this seems a very significant step for a Government to take—to actually create powers to instigate reviews of an independent, member-funded institution, which does not itself, as we heard, exercise any statutory powers. Noble Lords have said they are concerned that this could risk creating a perception of RICS’s inability to act independently and in the public interest. As the noble Earl, Lord Lytton, said, it has nothing to do with either levelling up or regeneration and could set a highly unusual precedent for any other royal chartered body in the future.
We have heard about the independent review by the noble Lord, Lord Bichard, and the previous review mentioned by my noble friend. She went into the detail of what the independent reviews have said. Also, recommendation 14 of the report by the noble Lord, Lord Bichard, required an independent review of RICS to take place every five years. My noble friend said that it has agreed to do that even more frequently, every three years, so I do not really understand what the Government’s concerns are. It strikes me that, despite the concerns the noble Earl, Lord Lytton, laid out about recent issues within RICS, it has taken concerns raised extremely seriously, has accepted the recommendations in this report and is amending the RICS charter and by-laws to reflect the recommendations in full, subject to the approval of the Privy Council.
So my first question to the Minister is: why do the Government feel the need to interfere in this process? RICS itself, having accepted the recommendations in the review, is looking to ensure that it is held accountable in a transparent, orderly and appropriate manner, so I genuinely do not understand why the Government feel they need to legislate, as other noble Lords have said. It would be extremely helpful if the Minister could properly explain.
I also found it very concerning to hear from my noble friend Lady Hayter that there do not seem to have been any recent meetings between RICS and the Government. Can the Minister confirm that and explain what meetings have been held to discuss this and when? It does seem quite an extraordinary step. We support either the removal or the amendment of this clause so that it aligns with the wording of recommendation 14 of the review of the noble Lord, Lord Bichard, if it is going to stay in here. Surely the regulation of professions should be overseen by independent governance and decision-making that uphold the public interest and also guard against any risk of improper interference. Can the Minister explain why this clause is in the Bill? Will he also comment on the suggestion of hybridity, because this is extremely concerning?
My Lords, I am grateful for the discussions my noble friend Lady Scott and I have had with the noble Baroness, Lady Hayter, and the noble Earl, Lord Lytton, prior to this debate. I appreciate that they and others have hesitations and reservations around this clause; however, I hope I can persuade the Committee that those reservations should not be given weight.
The Government consider that Clause 213 should remain in the Bill because retaining the Secretary of State’s power in legislation to initiate reviews demonstrates that the Government are committed to supporting RICS in regaining and retaining its reputation after some very serious public failings in 2018-19. The clause also gives the Secretary of State discretion to set specific matters for the independent reviewer to consider that are connected to its governance and effectiveness. The noble Baroness, Lady Hayter, said that there was no rationale for this. The provision is to ensure that a review could specifically include issues that become a public concern, such as providing leadership to the market for the benefit of consumers, rather than always seeking to satisfy members.
The noble Baroness, Lady Hayter, indicated that she viewed the clause as interfering with an independent, free-standing institution. The noble Earl, Lord Lytton, made a similar point. While the clause clarifies the Secretary of State’s power to initiate a review, it would create no power to intervene in the workings of RICS, so I disagree with the premise that Clause 213 interferes with the independence of RICS. Indeed, the clause is clear in clarifying the independence of any proposed reviewer and, with regard to the review itself, mandates only the remit and a requirement to publish, and not, for instance, how the review is undertaken.
I point out to the noble Earl, Lord Lytton, that the power conferred by the clause is strictly limited. The Secretary of State would be required by the clause to publish the independent reviewer’s report but, as he mentioned, the Government are not legislating to act on the review’s outcomes or the independent reviewer’s report, because we cannot, as he said, pre-empt any findings or recommendations. Should the Government require any legislative powers to enact any of the recommendations from a review, we will need to return to Parliament for permission. Once again, this approach will ensure RICS’s ability to operate independently from government while strengthening its accountability to Parliament. The noble Earl asked whether any report would be made directly to the Department for Levelling Up, Housing and Communities. The answer is no: the report would be independent and the Secretary of State is simply required to publish it.
The noble Baroness, Lady Hayter, said that there would be no reason for the Secretary of State to establish an inquiry under the terms of this clause. RICS is uniquely influential across construction sectors and their links with financial service markets. It is the sole body for bestowing chartered surveyor status in the UK and its reputation took a big hit as a result of the failings of 2018-19, which, given its unique role in these matters, is a very serious issue. We cannot and should not gloss over those failings. Historically, RICS took a very limited view of providing leadership to the market for the public good, being constrained by its internal practices and policies, such as on EWS1 forms, and this contributed to difficulties for leaseholders in selling their flats.
My noble friend Lord Caithness said that the Government do not need this power: he asked what the point was of including the clause. In this clause, we are setting out the scope of any review, and this should act as a reassurance as to the limits of what the Secretary of State is empowered to do. I say again: RICS’s independence of working is not in question. At the same time, the Government are signalling the importance we attach to RICS in protecting consumer interests through its guidance and standards, as well as the regulatory functions it undertakes across the market, improving and managing the built environment and land.
The noble Earl, Lord Lytton, asked me what the relevance of this clause is to levelling up. The work of RICS touches on several areas of the levelling-up agenda, such as guidance on how developments should be valued for Section 106 agreements, the approach to valuation for the infrastructure levy, influencing the housing market through guidance on such matters as external wall systems and developing industry-wide methodologies for whole-life carbon in buildings. As an organisation with such influence, RICS needs to demonstrate that it is getting and keeping its house in order, in order to rebuild its reputation following such serious previous problems. The clause, along with our regular engagement with RICS—and we do have regular engagement—will encourage that momentum.
To address a further issue raised by the noble Baronesses, Lady Hayter and Lady Hayman, among others, the Government do not agree that this clause renders the Bill hybrid. A hybrid Bill is one that affects a particular private interest in a manner different from the private interest of other persons or bodies of the same class. RICS is a body in a class of its own, and this clause does not affect any private interest of RICS because the Government are not legislating to act on the review’s outcomes or the independent reviewer’s report. The noble Baroness, Lady Hayter, was also concerned that there has been no meeting between RICS and Ministers. She may like to know that the chief executive of RICS, Richard Collins, will be meeting my honourable friend in another place, Rachel Maclean, on
I would ask the noble Baronesses, Lady Hayter and Lady Hayman, the noble Earl, Lord Lytton, and my noble friend Lord Caithness to reconsider their opposition to this clause.
My Lords, I regret that my noble friend has done absolutely nothing to reassure me. He said that the reason for the clause was to set out the conditions and parameters of any review. That can be done under common law now; we do not need a piece of legislation. This clause does not alter common law or the powers of the Secretary of State in any way. Can my noble friend tell me in what way it does alter the powers?
My Lords, I am fascinated by the possibility of using this same mechanism on the chartered accountants, of whom I am a fellow and whom government often wishes would conduct themselves otherwise when looking after and examining the health of companies on behalf of shareholders; and on bodies such as psychiatrists’, which are currently adopting some very strange policies that seem to run counter to the national interest. But do we really want to rob these bodies of their independence, in a way that this clause starts us down the road to doing? Or do we want to encourage—and I have nothing, I am glad to say, to do with the role of the Royal Institution of Chartered Surveyors—these bodies to heal themselves when they are sick, as appears to have happened in this case? There are a lot of bodies that have grown up over the years doing very important work within their segments of British public life. Are we really saying that this is the start of bringing them all under the Government, or are we happy to say that they may go wrong sometimes but what matters is that they sort themselves out and stay independent?
My Lords, I would simply encourage my noble friend to read my remarks in Hansard. There is no promise in this clause to the effect that the current or a future Secretary of State will initiate a review, but that there should be a power for them to do so. I would encourage my noble friend to reflect on the justification I gave in the terms that I gave it, which is that we are clear that the independence of RICS in operating as it does is not in doubt.
My Lords, I thank the noble Earls, Lord Caithness and Lord Lytton, the noble Lords, Lord Thurlow and Lord Lucas, and my noble friend Lady Hayman, for their contributions on what I think is a rather significant and important issue. I also thank the Minister; “nice try” is how I would summarise what he has tried to do. Much more serious than that, though, I think he gave the game away.
I did not talk about EWS1, quite deliberately, at the introduction of this because I thought it would put the Government on the wrong foot. I felt that that was not a debate we should get into. I must declare an interest, as I live in a cladded building, so I was very involved from day one with the issue of cladding. I remember EWS1 and I remember before that. I remember when the threshold was 18 metres, which affected where I live. The Government asked RICS whether it would say a building was safe below, I think, 14 metres. RICS felt it could not, in all seriousness, give that assurance. I, as a consumer and a resident of a tall building, was reassured that a standard setter—a surveying organisation—did not give in to the Government and did not say that a building would be safe when it was not.
I deliberately did not use that at the beginning of this debate because I did not want to start a ding-dong about something in the past that I thought the Government had got wrong at the time. They were trying to put together a package, which was very complicated after Grenfell. There was the matter of how much money would go towards the buildings that would be affected, and that would come out of a £6 billion fund that was not there at the time. I understand the Government were having difficulties, but it is giving the game away that the Minister has mentioned that, because it is a row that happened then.
RICS may have been completely wrong—it could have been absolutely safe. It could have said that all these buildings under 14 metres that are cladded are absolutely safe. RICS could have been absolutely wrong, and the Government could have been right to ask them to sign off the form. I think we were on Advice Note 14 at the time, so we have been through a lot of these. I, as the consumer, would prefer an independent organisation, even if it is wrong, to tell me whether my dwelling house is safe, rather than the Government, who obviously had a vested interest because of the amount of money they were going to put into it. I was not going to raise that issue, because I thought it was going back. I do think this has given a lot away.
The noble Earl, Lord Caithness, has asked why we need this, because the Government can do it anyway. The Minister has said that the Government have no powers to do anything; even if they set up an inquiry and it proved everything, they still cannot do anything. So the only thing it does is give a chill factor, a threat factor. I think it was the noble Lord, Lord Thurlow, who called it the sword of Damocles. We have had this from the Government before; twice, I have had to deal with it. I dealt with it once before I was in this House, when I chaired the Legal Services Consumer Panel. At that stage, the coalition Government tried to make us—the consumer panel and the Legal Services Board itself—put our websites on GOV.UK. That may not sound very serious, but for an independent regulator of lawyers, it was seen as a real threat to the independence of regulating lawyers. We fought the Government off and just refused to do it.
We then had it again during the passage of the Bill on the mutual recognition of professional qualifications, when the noble Lord, Lord Grimstone, was the Minister. The Government were trying to take a power over the regulators to decide whether they should, for example, accept nurses, vets and other professionals as part of a trade deal, so they would have been regulating the recognition of the qualifications of people coming here from another country as part of a trade deal. We saw off the noble Lord, Lord Grimstone, at the time, and the Bill was much changed, as he admits. We wrote into that Bill a clause saying that the regulators must remain independent of government. So, here we have the itchy fingers of government trying to tell independent regulators what to do. The Minister says there is no power to intervene, and so there is no interference—but the threat is a power to intervene.
I am not going to answer all the points that have been made, because I think they speak for themselves. The Government will understand the unease around the Committee about this proposal. I do not think they have made any argument for the need for this. Frankly, if the Government intervened in every organisation that had gone a bit awry, we would have them looking at the CBI at the moment, which is another important institution in civic society. It is going through much more of a meltdown than anything poor old RICS did, but I assume that the Government are not going to try to interfere in any chartered institute or anything else, or just an independent organisation that has had some troubles.
I do not think the Government have answered how this clause is going to promote the levelling-up agenda. Indeed, if there is any loss of confidence in surveyors, it will do exactly the opposite. The Minister has failed to give assurances that it will not be used as a big stick to make RICS do their bidding in the future.
I am delighted that the Minister has reported, finally, that there will be a meeting between his oppo in the Commons and the chief executive of RICS. It is a bit late, frankly, when we already have a clause in a Bill—I am not going to push it to a vote now, so within a minute or two it will be in the Bill—to have a meeting. We need this self-regulation; that is the right way for independent regulation. I think the Committee and the Minister will not be surprised by me saying that I will return with an amendment to delete the clause on Report.
Clause 213 agreed.
Sitting suspended. Committee to begin again not before 8.50 pm.