Planning Bill

My Lords, it is the duty of the Delegated Powers Committee to monitor all Bills which confer delegated powers on Ministers. When the committee, which I chair, monitored this Bill for the first time it became apparent that Part 11 gave rise to two serious problems. First, almost the entire structure of CIL was left to regulations; and, secondly, all regulations needed approval only by the House of Commons. The Government placed Part 11 into the Bill even though planning for CIL was at an early stage. It would have been much better to have left Part 11 out of the Bill and to have introduced it in the next Session as a separate Bill when more work had been done on it. That did not happen. Therefore, the Delegated Powers Committee drew attention in our 12th report both to the skeletal nature of Part 11 and to the exclusion of your Lordships’ House from any participation whatever in the approval of any regulations under Part 11. As our report makes clear, we were aware of the possible exercise of privilege, but no claim to privilege had been made then or was made until yesterday. The Government, to their credit, worked hard during and after the Summer Recess to comply with the Delegated Powers Committee’s recommendation to put the framework for CIL in the Bill. By the time we reached Report stage, government amendments enabled the Delegated Powers Committee to accept that Part 11 was no longer merely a skeleton—although it has been described, I think accurately, as being anorexic. However, the Government refused to meet the recommendation in our 12th report that the consent of your Lordships’ House should be needed for regulations which did not attract the exercise of the right to privilege. The report set out a number of precedents where the House of Commons had not claimed privilege and had waived any right to privilege in circumstances at least comparable to those of Part 11. Our recommendation could have been satisfied very easily by reserving to the House of Commons the sole right to decide matters such as who is liable to pay CIL and the amounts chargeable by a charging authority, but also by requiring the consent of both Houses to regulations on matters such as procedure and enforcement which do not interfere with the power to raise funds for this purpose. The Government have instead insisted on putting to the House of Commons the exercise of privilege in respect of all these regulations. It is rare, but not unprecedented, for the Government to reject the recommendations of the Delegated Powers Committee. If it happens, the committee does not normally respond, but leaves it to your Lordships' House to decide whether to insist on government acceptance of our recommendations. This case, however, is somewhat different because of the constitutional implications which needed to be brought to the attention of your Lordships' House. The removal by the Government of powers which your Lordships’ House could reasonably expect to be left with us weakens the constitutional position of your Lordships' House. The response of your Lordships' House to amendments previously moved by the noble Lord, Lord Jenkin, shows that this is becoming a matter of increasing concern to many Members, including a number who sit on the Government Benches. That concern will be increased, I believe, by the use of privilege to block the debate in your Lordships' House yesterday on an amendment to the Counter-Terrorism Bill on the DNA database. The ground for claiming privilege there was that the amendment would have required extra government spending. That amendment, strictly speaking, imposed a charge on public funds, but Erskine May makes it clear that it also falls within the class of amendments for which privilege can in fact be waived. Given that any extra cost would have been minimal, I believe that the Government should not have sheltered behind privilege, but should have been prepared to argue the merits of the amendment. The views of your Lordships' House have been fully expressed in previous debates and it is not for me to express a further view. Whatever the outcome of this debate, however, I believe that today should not be the end of the matter. We are facing a constitutional issue of some real importance, and I believe that your Lordships' House should consider the problems which arise from this Bill and from the Counter-Terrorism Bill. Noble Lords might well start by asking the Constitution Committee to prepare a full report and submit it to your Lordships' House so that we can then consider what action we can or should take to avoid this damage to our traditional powers.