UPDATE 9/7/14: I have now been informed Clause 21 will be examined NEXT TUESDAY (July 15) not Thursday… I have also made updates following new amendments tabled to exempt more types of public land, and more explanation of Schedule 3 of the Infrastructure Bill and Schedule 6 of a 2008 Act which is applied to this Bill (worded identically, but with different applications/ contexts). For a backgrounder on Hands Off Our Forest’s campaign, see this article I wrote for The Ecologist last month.
NEXT TUESDAY: ALL EYES ON THE LORDS COMMITTEE
Next Tuesday, from 2pm, the Grand Committee of the House of Lords is set to examine Clause 21 (and other clauses) of the Infrastructure Bill. We campaigners to stop the privatisation of public forests will be watching keenly, as several amendments have been tabled which call for the Public Forest Estate to be exempted from the proposed sale or ‘transfer schemes’ of public land.
Well, that was an exciting intro (I imagine the few who will read this in all probability sarcastically thinking, before moving on to the latest video of a goat that sounds like a chicken). Maybe because trying to analyse this far-reaching bill without sensationalist speculation is why this proposed law which would enable so many fundamental changes to land and our country’s highways and other agencies has garnered scant – if practically nonexistent – coverage in our national dailies.
ERROR CORRECTION: NOT SCHEDULE 3 BUT THE WORDS ARE THE SAME
The Guardian’s only mention, besides its erudite ‘comment is free’ article by George Monbiot was to correct a “serious mistake when describing the potential effect of schedule 3 of the bill”. I put my hands up in my last blog entry that I made this error when I first raised the alarm about this Bill.
The Government will jump on any error, however minor, in a bid to discredit the Bill’s opponents – so again I reiterate, and I hope that those who are still repeating this Sch.3 error in their coverage will take note. I’ll try and explain it as clearly as I can…
Schedule 3, which appears near the end of the Bill, subtitled Transfer Schemes, states:
Property, rights and liabilities that may be transferred
2 (1) The property, rights and liabilities that may be transferred by a scheme
(a) property, rights and liabilities that would not otherwise be capable
of being transferred or assigned;
With the subtitle Transfer Schemes and the text above it sounds like it must refer to Part 3, which includes “land transfer schemes” via the Homes & Communities Agency. However, the Summary in the Explanatory Notes reveals…
3. The Bill is in 5 Parts and contains 5 Schedules.
4. Part 1 and Schedules 1 to 3 make provision for the appointment of “strategic highway companies” to manage strategic roads in England in place of the Highways Agency.
Therefore this Schedule 3 applies to the creation of a new national Highways Agency (or agencies, the Bill is ambiguous here – the current policy intention is to create one Highways Agency, but the Bill enables more than one to be created some time in the future). So the transfer of property, rights and liabilities in this case refers to those belonging to the existing Highways Agency moving to “strategic highway companies” (or company).
This is Clause 21 of the Infrastructure Bill:
21 Property etc transfers to the HCA
(1) After section 53 of the Housing and Regeneration Act 2008 (and after the italic
heading before section 54 of that Act) insert—
“53A Other property etc transfers to the HCA
(1) The Secretary of State may at any time make one or more schemes for
the transfer to the HCA of designated property, rights or liabilities of a
specified public body.
(2) In subsection (1) “specified public body” means a public body which is
for the time being specified, or of a description specified, by regulations
made by the Secretary of State.
(3) On the date specified by a scheme as the date on which the scheme is to
have effect, the designated property, rights or liabilities are transferred
and vest in accordance with the scheme.
(4) Schedule 6 applies to a scheme under this section.
(5) In this section—
“designated”, in relation to a scheme, means specified in or
determined in accordance with the scheme;
“public body” means a person or body with functions of a public
(6) This section and section 53B bind the Crown, but do not have effect in
relation to property, rights or liabilities belonging to—
(a) Her Majesty in right of the Crown,
(b) Her Majesty in right of Her private estates,
(c) Her Majesty in right of the Duchy of Lancaster, or
(d) the Duchy of Cornwall.
Subsection 6 exempts the Queen’s private estates, the Crown, Duchy of Lancaster and Duchy of Cornwall’s properties, rights and liabilities, but what is this Schedule 6 in subsection 4 which applies to a scheme under this section?
Schedule 6 of the Housing & Regeneration Act 2008 currently confers rights on local authorities and certain other public bodies, which are:
SCHEDULE 6 Transfer schemes
Creation and apportionment of property, rights and liabilities etc.
1A scheme may—
(a)create for the transferor interests in, or rights over, property transferred by virtue of the scheme,
(b)create for a transferee interests in, or rights over, property retained by the transferor or transferred to another transferee,
(c)create rights or liabilities between the transferor and a transferee or between transferees.
2(1)A scheme may provide for the transfer of property, rights or liabilities that would not otherwise be capable of being transferred or assigned.
(2)In particular, it may provide for the transfer to take effect regardless of a contravention, liability or interference with an interest or right that would otherwise exist by reason of a provision having effect in relation to the terms on which the transferor is entitled to the property or right, or subject to the liability, in question.
(3)It does not matter whether the provision referred to in sub-paragraph (2) has effect under an enactment or an agreement or in any other way.
3A certificate by the Secretary of State that anything specified in the certificate has vested in any person by virtue of a scheme is conclusive evidence for all purposes of that fact.
The Infrastructure Bill wants to extend this free-rein to the Greater London Authority and Homes & Communities Agency which, Note 98 of the Infrastructure Bill’s Explanatory Notes tells us:
From 2015 the HCA will be taking on a new role as the land disposal agency for Government.
The 2008 Act allows the HCA to “acquire” land with all restrictions waived but “due to an oversight” (says the Government) it doesn’t allow the HCA to pass on those restriction-free conditions to developers. So basically the Infrastructure Bill proposes to give the HCA carte-blanche powers to hand over any of our land to privateers with all easements, covenants and any tiresome rights of way issues extinguished.
The Government says the HCA will need permission from the public body to take land and prepare it for transfer to the private sector in the first place. But that doesn’t seem to have happened in the past when it was handed a portfolio of coalfield sites and other lands, and there is nothing written into the Infrastructure Bill which says it will seek consent now. Instead, under the provisions of the Bill, a Government minister is charged with “designating” the land it can have.
JUST WHAT IS THE HOMES AND COMMUNITIES AGENCY?
The HCA was created by the 2008 Act quoted above as a “non-departmental public body that funds new affordable housing in England” (according to its Wikipedia entry). Its own website gives it a wider remit:
The HCA, as landowner and enabling partner, works to unlock and increase the supply of publicly-owned land for commercial, housing and community-led development. Locally-backed development boosts economic activity and provides new homes and new jobs.
As a landowner, the HCA owns just over 10,000 ha of land, including:
- The economic assets transferred from the Regional Development Agencies (RDAs) in September 2011
- The coalfields sites transferred from the RDAs in July 2011
- The remaining Commission for New Towns portfolio
- A collection of former hospital sites and land transferred from other public sector landowners
- Other elements of the former English Partnerships portfolio – mostly urban and brownfield sites
- Liabilities transferred from other bodies that have been wound-up.
We update a detailed list of all our land and property assets in March and September each year.
The HCA was one of the successor bodies to the Housing Corporation (itself established in 1964 to regulate housing associations). Its 2013/14 Land Development and Disposal Plan seems quite innocuous. Most of the sites appear to be unloved derelict industrial estates and scraggy urban blots screaming out for revitalisation. However, it’s interesting that none of the three sites in the Forest of Dean which we know the HCA has possession of don’t feature on there. How many more “lovely” sites are missing from the list?
SO IF THE BILL IS PASSED UNAMENDED COULD THE GOVERNMENT “SELL OFF ANY PUBLIC LAND IT CHOOSES, WHILE CANCELLING, WITHOUT PROCESS OR DEBATE, PUBLIC ACCESS AND USE”?
Yes. Although he quoted the wrong part of the Bill, Monbiot (and before him Schnews and Scriptonite Daily) has articulated our “fears” correctly. The day (June 18) the Bill had its first debate in the House of Lords, the Government issued a response declaring a petition (which gained 27,000 signatures after being wound up as it was aimed at the June 18 debate) was “completely untrue and has no basis in fact”. The petition was launched following my blog/email alarm call by one of our (Hands Off Our Forest) supporters on the 38 Degrees platform, and the only mistake it made was to cite Schedule 3. This mistake was duly corrected by the petitioner. The Government insisted, as did the Lib Dem transport minister Baroness Kramer in the House of Lords, that “the measure that we discussed for the HCA is about transferring surplus land from government agencies. The public forest estate and our national parks are in use; they are therefore not surplus and none will therefore be transferred to the Homes and Communities Agency. This measure does not apply to them.”
However, the words “surplus”, “brownfield” or PFE/ National Parks do not appear in the Bill. Unless they do, then the sale of non-surplus, non-brownfield and PFE and National Parks will be enabled at some time in the future, regardless of “the measure” “discussed for the HCA” now. Besides, the Public Forest Estate – and certainly the Forest of Dean – is not all in use. Non-afforested (ie treeless) areas of the forests are known as “forest waste”. And as much of the Forest of Dean was used for mining, it is likely to be classified “brownfield”.
On July 1, the Government’s Baroness Stowell waded in with a statement reacting to “uninformed and misleading speculation”. After repeating more or less what Baroness Kramer said (as well as making it clear the Bill was unconnected to long-awaited but in vain legislation to set up a new forestry management organisation – thanks, we knew that) she concluded: “The Clause 21 arrangements will only apply to public bodies included on a list set out in secondary legislation. I can confirm that this list will not include the new body to hold the public forest estate.”
Secondary legislation – or delegated powers – mean that the Secretary of State (Government minister) has the power to make decisions without any need for laws to be changed. In this case, Section 58A of Clause 21 proposes:
(1) The Secretary of State may at any time make one or more schemes for the transfer to the HCA of designated property, rights or liabilities of a specified public body.
(2) In subsection (1) “specified public body” means a public body which is for the time being specified, or of a description specified, by regulations made by the Secretary of State.
First of all, the “new body to hold the public forest estate” is not likely to be established for at least a year, maybe two years. Secondly, it’s clear that “at any time” the Sec of State could make a list of “designated property, rights or liabilities” of any “specified public body” he/she chooses. So while the new Public Forest Estate Management Organisation may not be on the list initially, there is nothing preventing it from being put on a list in the future.
WHAT IS SURPLUS LAND? COULD THAT BIT OF WILD MOOR YOU LOVE TO WALK YOUR DOG ON, FOR INSTANCE, BE CONSIDERED SURPLUS TO REQUIREMENTS?
As an aside, what public land is designated “surplus land”, and how do we the public have a say in whether it is declared surplus, or even find out if it is surplus or not? There is a register kept by a Governmental organisation called e-Pims of surplus public land. But you need to be a Government employee to access it. So currently we the public do not have a say over which of our land is classified surplus, nor any easy way to find out (unless we are an approved civil servant with e-Pims access).
WHAT ARE THE RELEVANT AMENDMENTS TO BE CONSIDERED ON THURSDAY?
It should be noted that (I am secretary of the Hands Off Our Forest – HOOF – campaign, by the way) we have a veritable champion in Baroness Jan Royall of Blaisdon, who happens to be the Shadow Leader of the House of Lords. Jan is a member of our Steering Group, and helped to form HOOF back in October 2010, and immediately waged a successful battle against the Public Bodies Bill (which would have enabled the sell-off of all public forests), making some excellent, passionate speeches – the first here – while our Member of Parliament was either nowhere to be seen or trying to nudge his constituents to supporting the Government’s sell-off/disposal plan.
So Jan (Baroness Royall) has tabled amendment 89, also backed by fellow Labour peers Lord McKenzie of Luton and Lord Judd:
Page 23, line 3, at end insert—
“(8) This section and section 53B do not have effect in relation to property, rights or liabilities comprising the whole or any part of the Public Forest Estate.
(9) The Public Forest Estate comprises all the land, property, rights and liabilities acquired by the Minister under section 39 of the Forestry Act 1967 including all such land not needed, or not used, for the purpose of afforestation or any purpose connected with forestry.”
For all those who value your public land both outside and inside forests, Lord Davies of Oldham has teamed up with Lord McKenzie – and fair play to them – to come up with a series of amendments (some tabled only today or yesterday [July 8/9]) which, if passed, could offer quite a lot of protection:
Page 22, line 23, after “HCA” insert “or local authorities”
Page 22, line 24, at end insert “provided that any designated property, rights or
liabilities to be transferred pursuant to a scheme—
(a) have been classified as surplus;
(b) do not comprise land forming part of a common, open space
or fuel or field garden allotment; and
(c) do not extinguish any public rights of way.
( ) “Common”, “open space” and “fuel or field garden allotment” have
the same meaning as in section 19 of the Acquisition of Land Act
Page 22, line 24, at end insert—
“( ) No property may be transferred to the HCA under any such scheme
unless it has been classified as surplus.”87
Page 22, line 24, at end insert—
“( ) No property may be transferred to the HCA under any such scheme
without the consent of the government department or agency
which owns it or is the sponsoring department of the specified
Page 22, line 24, at end insert—
“( ) No part of the Public Forest Estate may be transferred to the HCA.”
LORD DAVIES OF OLDHAM
LORD MCKENZIE OF LUTON
Page 24, line 4, leave out paragraphs (a) and (b) and insert “after subsection (7)
“(7A) An instrument containing (whether alone or with other
provisions) regulations under section 53A(2) may not be
made unless a draft of the instrument has been laid before
and approved by a resolution of each House of Parliament.
(7B) An instrument containing (whether alone or with other
provisions) regulations under section 53B may not be made
unless a draft of the instrument has been laid before and
approved by a resolution of the House of Commons.””
WHAT HAPPENS IF THE GOVERNMENT WON’T ACCEPT THE AMENDMENTS?
That’s when this campaign really kicks off (and yes we need you all on board)!
By convention (though not law), Lords don’t vote on amendments at committee stage (the current stage). The Government is unlikely to accept amendments either at this stage, but may do during the next stage, the report stage, which will be after the summer recess (in autumn). What the Government is likely to do is request Lords making the amendments withdraw them, and on the first day of committee (July 3) which discussed the Highways element, quite a few amendments WERE withdrawn, allowing these clauses and subsections of the Bill to sail through as the challengers bowed, apparently satisfied with the answers they received from Baroness Kramer/ the Government.
As you can see from the second blog I wrote on this site, about politics, I’m quite the cynic (or realist, you decide). The role of the unelected House (the Lords) is said to be to hold the Government (also unelected, some members may have been as MPs but we voters play no role in selecting the Government) to account. We at HOOF have much faith in Baroness Royall to do this on behalf of HOOF. I’d guess that her fellow Labour peers will be on board too. But only 218 of the 778 peers are Labour.
Therefore, to get these amendments accepted before the Bill passes through to the House of Commons, and then becomes an Act of Parliament following Royal Assent, we need to go all out to persuade the 181 Crossbench, 26 Bishops, 20 Non-Affiliated, and 15 Other Parties to support us/ the amendments when autumn comes. I have written to most of them, and received some positive responses. Although Lord Teverson boasted just after the Bill’s first debate that it was “a very Liberal Democrat Bill” this view may not be shared by all Lib Dems, particularly if it looks as if that esoteric leveller, the universal enjoyment of forests and parks, is threatened, so the 99 Lib Dem Lords are worth lobbying. Who knows, maybe some of the 219 Conservative Peers may be a bit uncomfortable – in an “old Tory” way – with the Bill’s ultra-neoliberal aspects?
APART FROM HOOF AND OTHER FOREST CAMPAIGN NETWORK GROUPS, WHO IS OPPOSING THE INFRASTRUCTURE BILL?
You would have thought the Ramblers’ Association would be opposing this tooth and nail as public rights of way, the Countryside Rights of Way Act and public access in general is threatened, but according to their briefing of July 1, they’re not at the moment. However, the Woodland Trust is also lobbying for amendments to protect public forests. Britain’s oldest conservation body, the Open Spaces Society, is rightly concerned about the threat to all public land from privatisation by what it says is the Bill’s “sloppy drafting”.
I’ve been focusing on Clause 21 of the Bill, but there are many other sections to be concerned about: the PCS trade union is alarmed at the prospect of privatisation of the Highways Agency, not contained in the Bill, but suspected by Labour Lords (on July 3) of the Bill’s proposals enabling this transition. Baroness Kramer was quick to dismiss this fear of “sinister mechanisms”… As if the Government would do ANYTHING sinister!:
I want to pick up on some of the issues mentioned by the noble Lords, Lord Davies and Lord Berkeley—that this is somehow some sinister mechanism for achieving privatisation. Nothing could be further from the reality of this Bill. The SHA is owned solely by the Secretary of State; if he were to cease to own it, it would lose all of its powers. There can be no way in which this company can be privatised. If the Secretary of State were to cease to be its owner, effectively it would cease to have any functions, powers or anything else. It would take a separate Act of Parliament to create a privatised entity. Everyone should be clear on that point.
The Campaign for Better Transport reasonably argues that rather than building loads more new roads and motorways, maybe to get more people in fewer vehicles (ie with more efficient public transport and vehicle sharing), could be more sensible? (Noam Chomsky has made the point that if you want one example of why capitalism is flawed, consider the warped logic of more and more pollution-creating private cars being more profitable than considerably less polluting but unmarketable mass transportation systems such as buses). So, with its Roads To Nowhere campaign, The Campaign for Better Transport is opposing the highways and road-building elements of the Infrastructure Bill, and the CPRE (Campaign for the Protection of Rural England) also points out that the proposed watchdog is acting solely in the interests of road users and ignoring the communities which the roads pass through.
The PCS union has concerns about the proposed Strategic Highways Authority becoming a “PubCo”, presumably for similar reasons that we at HOOF are concerned at the last Government proposal of turning the ownership and management of our public forests to a public corporation – that it appears it could be a halfway-house to privatisation, despite Baroness Kramer’s assurances.
The PCS is also fiercely opposed to the Land Registry being privatised – again, not included in the Infrastructure Bill, but going ahead all the same. The Law Society is calling for Clauses 23 to 25 (which propose the Land Registry is given extra powers to take over Local Land Charges and act as a consultant and advisory body over ruling who owns which land) to be “paused” until the status of the Land Registry is “decided”. Amendments are also due to be discussed on Thursday regarding the Land Registry, including one asking for Clause 23 (transferring Local Land Charges) as a whole to be abandoned.
WHAT CAN YOU/WE ALL DO NOW?
Share this information in whatever way you can, first off…
There is a petition of more than 100,000 names against the privatisation of the Land Registry. There is also a second petition calling for Lords to back amendments and for new forestry legislation which follows the recommendations of the Independent Panel on Forestry to be introduced – both HOOF aims. Sign it, if you do nothing else. But if you are up for doing anything else, visit HOOF’s website for ideas.
WHAT ABOUT FRACKING AND THE THREAT OF OTHER PUBLIC LAND BEING SOLD OFF?
The only trailer for the infrastructure bill in the media was the spectre of trespass laws being changed to allow hydraulic drilling, or fracking, for shale gas, coalbed methane etc, under private land. This doesn’t YET form part of the Bill. The Government proposes it will ADD it to the Bill after August. How topsy-turvy is it that a Bill not even defined as a draft Bill is progressing through Parliament with probably its most controversial element (polls indicate between 75 and 80% of the public are opposed to fracking) as yet unpublished?
As for the prospect of other public land being flogged off – more people should be up in arms about this. What doesn’t help is there has been next to nothing in the media: nothing on the telly (apart from a bit on Russia Today), the radio or even the so-called “quality” press.
WHY IS THE MAINSTREAM MEDIA SILENT?
It’s a far cry from October 2010 when it was a Sunday Telegraph article about the sell-off of forests that quickly led to the formation of HOOF. The Telegraph had got hold of a draft public consultation document from Defra which outlined options for sell-off, the first option being forests flogged on the open market. The Forestry Minister Jim Paice explained to a select committee that the Forestry Act 1967 only allowed the Government to sell 15% of the Public Forest Estate (which itself is a questionable figure, as the Act offers no percentage) and the Public Bodies Bill would allow him to dispose of any or all of it.
The difference this time around is that there has been no public consultation document (or at least no draft which has reached any journalist), and there has been no talk in Parliament about the proposals: there is just the Bill published on the Parliament website and debates in the House of Lords. The synopsis and the Lords Library Note doesn’t even MENTION the public land transfer proposals to the HCA, focusing instead on subdued controversy over the Land Registry clauses.
It seems that unless the media is handed stories on a plate from Government sources it will not report on them. That questions have been asked is evident from the two statements so far the Government has made on the Infrastructure Bill and forests – no story materialised, however. The debate on June 18 should have sent reporters rushing for their notepads, as Lord Adonis and McKenzie both raised the spectre of all public land being transferred/sold, and the debate on Thursday should do as well.
What will it take before any mainstream national journalist sits up and takes notice?
As I worked more than a decade in newsrooms – from weekly local papers, to daily regionals, to national papers – I would have hazarded a guess that a law enabling the sell-off of all public land without even any scrutiny involved, would be considered a news story.
And although Labour peers are tabling amendments to limit transfer schemes to non-PFE, surplus-only land, the Party doesn’t seem to be briefing journalists, either. Instead, Miliband has raised the prospect of forming an Infrastructure Commission (I can’t tell whether that’s a good or a bad idea).
IT’S UP TO ALL OF US… WITH OR WITHOUT THE MEDIA’S HELP
Media noise or not – we the people need to make a noise and ensure this gets spread around in any way possible.
This blog isn’t very casual-reader friendly (no pictures etc), but what I have tried to do is round up everything so creative types can run with the links and the info, and maybe even the mainstream media will appreciate the research all in one place?
Anyone is welcome to use any of this info and you don’t even need to credit me!
If you need anything clarified or anything else, email firstname.lastname@example.org