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Lord Whitty: My Lords, perhaps I may, first, assure the noble Baroness, Lady Hamwee, that my Secretary of State is very frequently and normally up at three o'clock in the morning. Therefore, he would be prepared to consider any application from local authorities in this regard. However, if we were to institute a totally formal process on what is intended to be a collaborative approach to identifying problems and exerting the ability to repeal or modify those barriers, we would be in a bit of a stand-off situation.

After all, we have gone into some institutionalised collaborative activities, such as health action zones and work on regeneration and on the need to encourage local authorities to identify barriers under these powers. But if we were to have a formal application system whereby a local authority transparently, if you like, put forward a proposal that the Secretary of State had to consider and pass judgment upon, the process would be less flexible and open in practice than under the current provisions. There is nothing in the present draft legislation that would prevent local authorities or their representative bodies putting forward any proposal to the Secretary of State in this area for him or her to regulate under the powers in Clause 5.

We are encouraging proposals. But if we have a formal legislative mechanism, I am not entirely sure that that would add to such encouragement. Indeed, it could lead to a too formalised way of considering these issues. It is possible that a particular application might be considered or thought inappropriate--"consider" is probably right in this context, but I shall have to check with parliamentary draftsmen as regards other contexts--in the way proposed, but there could be some other modification that would meet the local authority's point. It would be quite difficult to deal with that situation through a formal application system.

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Therefore, although I have some sympathy, as was the case with the amendments of the noble Lord, Lord Dixon-Smith, with the purpose of the amendment--namely, to make it absolutely clear that local authorities, the LGA or combinations of authorities could take the initiative in this area--we feel that a formal application system would not help the process and cannot accept the amendments of the noble Baroness. We shall, of course, give more practical encouragement in the statutory guidance in order to highlight to local authorities the availability of this Clause 5 provision on the use of the well-being power. That could provide the kind of permanent reminder to local authorities that they can put forward proposals to the Secretary of State at any time, including three o'clock in the morning. Given the Government's general openness to such proposals, I hope that both parties opposite will accept our goodwill in this area and not seek to institute a formal application system by pressing this amendment.

In regard to the point made by the noble Baroness, Lady Carnegy of Lour, I should say that she half convinced me when she intervened. I shall check on the wording in this provision to ascertain whether it is appropriate and parallel to other circumstances. I suspect that parliamentary counsel has a good answer of which I am not immediately aware.

Lord Dixon-Smith: My Lords, before the Minister sits down, I should remind him that he did not respond to my specific point regarding whether the provision in Clause 5 will also apply to this Bill.

Lord Whitty: I am sorry, my Lords. The answer is yes.

6.15 p.m.

Baroness Hamwee: My Lords, I am not attacking the goodwill that may apply to relations between local authorities and the Secretary of State, because I would want to encourage that. I shall leave the matter as it is, but I suggest that there are certain situations where goodwill is fine but where a degree of formality, because of the transparency and clarity, should accompany it. That is an important point. There are occasions--the revocation of enactments is likely to be quite a serious one--when the processes that would be put in train to enable all those who are interested in the subject to be properly informed would be quite appropriate.

I used the word "transparency" because, as I said, it has been recognised as being very important in relations between local and central government. In wider constitutional terms, I believe that the Government are making a mistake here if they think that informality is the right way to go forward. Having made that point, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

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[Amendment No. 14 not moved.]

Baroness Hamwee moved Amendment No. 15:


    After Clause 5, insert the following new clause--

POWER TO AMEND OR REPEAL ENACTMENTS OR REQUIREMENTS IN CONSEQUENCE OF SECTION 4 POWERS

(" .--(1) If the Secretary of State thinks that an enactment (whenever passed or made) or a requirement (whenever imposed) is unnecessary as it applies to local authorities following the enactment of section 4, he may by order amend, repeal, revoke or withdraw it.
(2) In this section "enactment" has the same meaning as in section 5(4) and "requirement" includes guidance and directions.").

The noble Baroness said: My Lords, again, this amendment relates to the word "thinks":


    "If the Secretary of State thinks that an enactment ... is unnecessary",

he may go ahead and repeal it. This builds on the provision in Clause 5. On the last occasion when I tabled a similar amendment, the Minister said that I was being rather too ambitious on the part of the Secretary of State. I replied that my ambition was for local authorities, not the Secretary of State.

The substantive criticism of the amendment at the last stage was that it applied to other bodies and not only to local authorities. The Minister said that government should not amend or revoke an enactment without consultation. I agree with that, but I believe that the consultation should be about whether or not the enactment should be repealed and not whether there should be power to do so. In any event, I have accepted the Minister's point and narrowed my amendment so that it now applies only to local authorities. I have also changed the word "shall" to "may", although, on reflection, I am not sure whether I have shot myself in the foot a little in respect of that drafting.

We have heard at this stage and at previous stages of the Bill of the 40 or so plans that local authorities are required to draw up. As my noble friend and I have said, we support community leadership plans, or sustainable development plans, whatever one calls them, and we support the rationalisation of the planning process which local authorities have to apply. The approach of rationalising the process was fundamental to the Green and White Papers which preceded the Bill. I may again have shot myself in the foot by using the term "rationalisation" rather than "modernisation" but I am sure that noble Lords will know what I mean. It is important that the Government give a clear indication of how they propose to proceed. I beg to move.

Lord Whitty: My Lords, I appreciate that the noble Baroness has changed her amendment as compared with the one that was proposed in Committee. While I do not think that she has completely shot herself in the foot the net result is that she is not proposing in the new clause anything that is not already contained in Clauses 5 and 6, which already enable the Secretary of State to rationalise or remove statutory planning

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requirements. We all agree that there should be some rationalisation. We hope that the development of the new community strategy and other aspects of the Bill will provide a context in which some amendment of the current statutory requirements in relation to plans might be sensible and deletions and modifications might be proposed by the Government to dovetail with that. However, the Clause 6 powers already provide the remedy for that.

It is also conceivable that in implementing the strategy to promote or improve the well-being of their area, authorities may encounter legislative obstacles, notwithstanding the broad new powers in Clause 2. However, if that is the case, we can use the Clause 5 powers to make changes to the legislative framework. Therefore I am not clear that any area falls between Clauses 5 and 6 where the Secretary of State would not have the appropriate powers, which he may or may not exert, to use the phraseology of the noble Baroness. Were she seeking to make it compulsory for the Secretary of State to exert the powers, the situation might be different. However, he may already exert those powers under Clauses 5 or 6 of the Bill as drafted. Therefore the noble Baroness's proposal does not add anything to his powers as regards the ability to achieve the objective which I think we all share; namely, to rationalise and make compatible the various statutory requirements on the production of plans in this area. I hope that on that understanding the noble Baroness will withdraw the amendment.

Baroness Hamwee: My Lords, we sometimes run into difficulties--I certainly do--through the drafting conventions in regard to using the terms "may" and "shall". One says politely that the Secretary of State may do something when sometimes one understands that he will do it and not just think about it. On other occasions we take the words at their normal meaning; that is, that he may do something and, implicitly, may not do it. I am concerned that if the Secretary of State thinks that a repeal or a revocation is a good idea, he should carry that out. However, I recognise that I shall not succeed in taking this matter any further. I leave the House with the thought that I hope that there will be fewer plan making requirements imposed on local authorities a year or so after the enactment of the Bill. We would be doing all of them a favour if we could achieve that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 6 [Power to modify enactments concerning plans etc.]:


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