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Planning Bill

Volume 705: debated on Tuesday 25 November 2008

My Lords, I beg to move that the Commons reasons be considered forthwith.

Moved accordingly, and, on Question, Motion agreed to.

[The page and line references are to Bill 69, as first printed for the Commons.]


My Lords, I beg to move that this House do not insist on its Amendment No. 115, to which the Commons have disagreed for their Reason 115A.

Yesterday the other place rejected by a majority of over 70 the amendment put forward by this House to amend the Town and Country Planning Act 1990 to ensure that those exercising planning functions have “special regard” to the preservation of gardens, groups of gardens and urban green spaces. I hope that your Lordships’ House will now accept the argument put forward—indeed, the way forward proposed—by my right honourable friend John Healey, which was carried in the other place.

The original amendment put forward by noble Lords opposite was intended to address a problem that has become known as “garden grabbing”. The amendment as constructed was extremely problematic. It suggested that planning authorities should have special regard to back gardens in all aspects of the planning system, both at the plan-making stage and in determining applications. That was unacceptable because it would have meant that planning authorities would have had to give priority to the consideration of back gardens in planning decisions over and above other considerations, such as design or the suitability of the transport links, in determining appeals.

I made it clear at Third Reading that I do not deny that there is an issue to be addressed and that there are public and political concerns around the issue of the loss of gardens to development. Our case for a more responsible and evidence-based response, however, rests on the fact that, although there is a considerable amount of anecdotal evidence in individual boroughs where gardens are being lost—some of that evidence was rehearsed again in another place—there is a crucial absence of systematic evidence as to where, how and why this is occurring, why some local planning authorities are more successful than others in developing policies for protecting back gardens and where a sustainable solution may lie.

I return to the point that I made on Report and at Third Reading—that the solution lies in the hands of local authorities that choose to develop. As my right honourable friend made clear in the other place, local authorities can set out, within their local development frameworks, strong and specific local policies that protect gardens in particular areas if that is desirable. Our planning policy statement 3—it is on planning for housing and was published in November 2006—also strengthened the local authority’s hand in this: local authorities can set individual brownfield targets that apply only to back gardens, effectively separating them from derelict land and vacant sites. My right honourable friend in another place quoted several examples, as I have done in this House, that show where that is working well and pointed out that local authorities already have the power to turn down applications for inappropriate housing development in back gardens. Provided that the supply of land is maintained and the proposed development is in line with the council’s planning for housing objectives, they can resist garden development and expect support at appeal.

There is simply no evidence that the Planning Inspectorate overturns local authority decisions on brownfield development just because they are on garden land; that was raised in the other place yesterday. I am able to put some figures before the House, which were provided to us by PINS. They show that over the two years from October 2005 until September 2007, 28.5 per cent of appeals were granted on minor dwellings—that is, fewer than 10 dwellings—which means that in 71.5 per cent of cases PINS supported the local authority’s decision. Of that 28.5 per cent, some of the development would have been on previously residential land. It is simply not true to say that any increase in garden development—if, indeed, there is one—is because of the actions of the inspectorate.

My right honourable friend also said—I absolutely concur with this—that there is genuine confusion about the evidence that so-called garden grabbing is happening. For example, I have tried to follow up a survey that the noble Earl, Lord Cathcart, mentioned in our last debate—he referred to a survey of six local authorities. I have failed to find it; I am sure that that is my fault rather than his, but I would welcome sight of it because it is reported to have found that, in the sample of authorities, 72 per cent of all brownfield site development is on back gardens. Our published statistics—they are taken from the land use change statistics, which are collected and published by my department on the amount of development on previously developed land as a percentage of all new housing and include development of back gardens—show that the figure across England is 26.9 per cent. Indeed, the Mayor of London’s draft London housing strategy indicated that only 3.78 per cent of new units in 2006 were on gardens.

I am going into such detail because I want to demonstrate that the situation is simply not clear. We can all agree that there are no systematic figures, that there is no uniform approach to address the issue and that the issue is best addressed at local level to reflect local circumstances. That is why I confirm, in response to the debate that noble Lords started in this House and which they pursued assiduously, that we are proposing to begin a review early in the new year of evidence on the extent of development on back gardens to ascertain whether there is a clear and genuine problem. If there is a problem, we will take action to remedy the situation by, for example, making revisions to policy, changing the definition of previously developed land or offering targeted support and guidance to local authorities.

We can proceed only from a robust evidence base, which we do not currently have. I know that noble Lords appreciate that—we are always told in this House to be sure of our evidence before plunging into policy. We must take the greatest care that policy changes do not bring perverse consequences and that they are properly consulted on. Noble Lords will also agree that, given the demand for housing—especially affordable housing—we have to be sure that a change of policy would not undermine our objectives on housing.

Having listened to the debate in the other place last night, I am pleased to say that my right honourable friend’s announcement of a review and a subsequent commitment on policy was welcomed by Members of the Opposition. Therefore, I hope that noble Lords who raised the issue successfully in this House will now feel that they can accept the outcome in another place.

Moved, That this House do not insist on its Amendment No. 115, to which the Commons have disagreed for their Reason 115A.—(Baroness Andrews.)

My Lords, since garden grabbing was debated and voted on in this House on Report, our amendment on the issue was debated yesterday in another place and, predictably, thrown out. During the debate, there was strong support from all parties for the need to protect gardens and open spaces. Indeed, it was heartening that on Report in this House the Minister said:

“We support the underlying aim of the amendment”.—[Official Report, 12/11/08; col. 694.]

However, when arguing against our garden preservation amendment, both the noble Baroness and the Minister in another place, John Healey, argued that there is sufficient protection within PPS3 to preserve gardens. The small print of PPS3 must be so small that this protection is unidentifiable. Even the Minister’s honourable friend Paul Truswell had to ask for clarification on how PPS3 can be used to address garden grabbing. The issue certainly is not clear to me, to local authorities or, indeed, to the Planning Inspectorate, especially as PPS3 defines previously developed land as,

“land … occupied by a permanent structure, including the curtilage of the developed land”.

That definition specifically does not exclude gardens but it includes them within the curtilage of the house. This issue was not helped by John Prescott saying, when Deputy Prime Minister and head of the Planning Inspectorate, that the need for housebuilding was such that gardens were a legitimate source of development. We can go on debating whether PPS3 offers sufficient protection for gardens but it is obvious to me that, as I think the noble Baroness said, the policy is unclear about whether gardens can or should be protected.

Another tenet of the Government’s arguments against the amendment has been that brownfield policy has been in existence for years and therefore a change of course now is either not necessary or too complicated. However, that is not the case. The previous version of the guidance, PPG3, issued by my noble friend Lord Patten in 1992 when Secretary of State, did not include any definition of gardens as brownfield, nor did it contain density targets. Indeed, the guidance discouraged residential infill where inappropriate and gave a broad discretion for councils to protect the character of their locality. It stated:

“Where authorities consider that the pressure for development and redevelopment is such as to threaten seriously the character of an established residential area which ought to be protected, they may include density and other policies in their local plans for the areas concerned, while avoiding undue rigidity. Policies may also need to cover the physical scale of new buildings, access, and in areas where new development is likely to have serious traffic implications, off-street car parking standards. Policies should take account of the character of particular residential areas … Where the planning authority considers that existing densities in a particular area should not be exceeded, a policy to that effect in the local plan can help to deter the speculative demolition of sound housing”.

That policy gave gardens and open spaces the necessary protection while giving local authorities flexibility.

The policy has now changed and it changed under this Government. I believe that they now recognise this, too, which is why they are offering us a review. I welcome the announcement that they made yesterday, which was repeated by the Minister, that there will be a review of this issue early in the new year, but that could signify either that the Government have accepted, however grudgingly, that there is a serious concern that must be addressed or that they simply wish to kick the subject into the long grass in the hope that it will go away. I hope that the former is the Government’s motivation. Indeed, I feel sure of that, given that the Minister said:

“We support the underlying aim of the amendment”.—[Official Report, 12/11/08; col. 694.]

As the underlying aim of the amendment is to protect gardens and green spaces in urban areas from infill and rapacious overdevelopment, the Government’s concession is very welcome.

I hope that the Minister can furnish the House with some details of what form the review will take. One of the great difficulties in this area is that there are no reliable national figures and facts, because the Government do not collect them. There must therefore be an external review, not simply an internal department review of whether anything should be done. The review must be evidence-based, comprehensive and countrywide, encompassing all local planning authorities in England. What is the timescale of the review? The matter is urgent and concern is widespread. When will the review report? Will the Minister facilitate a debate in this House?

I hope and expect that the Minister will agree that the following questions should be asked. What percentage of new homes is built on brownfield land? What percentage is built on existing gardens and green spaces? What is the density of such developments? How does that compare with the density of housing in the existing surrounding area? How many of these developments were refused by the planning authority as inappropriate development but were allowed on appeal by the Planning Inspectorate? How does each local planning authority interpret the local development framework set out in PPS3? Does each local authority’s framework provide specific protection for gardens and open spaces and, if so, how? These are the kinds of questions that must be asked.

If the Government claim that they cannot act because there is no evidence of a problem, they must be prepared to gather the data that will allow us to ascertain the scale of the problem. The Minister in the other place said that he was not prepared to accept anecdotal evidence. These are the sorts of questions that must be asked if anecdotal evidence is ever to be allowed to be investigated in a fair, clear and statistical way.

I have one more point. Given that the review will take place in 2009 and that, with the present state of the housing market, developers are reluctant to build any new housing, I hope that the Government will not be tempted to conclude that garden grabbing has been much reduced over the previous year or so and to go back to their old argument that PPS3 therefore gives sufficient protection for gardens. Unless the Government do something now, garden grabbing will return as soon as the property market strengthens. I do not doubt that the results will differ from local planning authority to local planning authority, but I am quite certain that, if the Government go about this review in a rigorous and impartial manner, the scale of the problem will quickly become apparent. Once we have got to that point, perhaps the Government will be more amenable to suggestions about how we can better protect our gardens.

My Lords, clearly this matter has different resonance in different parts of the country. In my area, suburban London, it is a major issue. I readily agree that it is a multi-faceted issue; it cannot be divorced from the matter of getting homes built that offer a good quality of life and do not inappropriately reduce the quality of life of those in existing homes. Yesterday, the Minister in another place said that there was no evidence of a problem, although he appeared to pray in aid information from the inspectorate as evidence on the other side. I do not know how many anecdotes are required to become, in aggregate, evidence, or at any rate a strong pointer, but there is clearly at least a strong pointer.

From these Benches, we very much welcome the proposal for a review and congratulate the Minister on pushing for it, as she clearly has. She mentioned this afternoon targets for brownfield development, where brownfield comprised back gardens. I do not know whether she can tell your Lordships whether one can have a target of nil for such development. In taking the review forward, I hope that the Government will consider consulting on its terms of reference and on the definitions and methodology to be used.

I hope that the review will pay attention to the fact that the sort of developments that your Lordships have been discussing are often for small units, usually flats, which are not necessarily what is most needed to address the housing crisis, and that it will also pay attention to applications for a number of units which, oddly, comes in just below the local threshold at which affordable housing has to be included. I also hope that the views of the inspectorate will be sought. Why are some local development frameworks easier to uphold than others? Why are some decisions, by which I mean refusals, easier to uphold than others?

The noble Earl rightly asked about timing. We have heard that the review will start in the new year, but the timetable is unclear. When the Minister in another place said yesterday that he failed to see that this was an urgent and pressing problem, that was an unfortunate turn of phrase. The noble Earl also referred to the economic difficulties. Those alone make it a particularly urgent matter. Developers who are able to do any work at all will look for the easiest sites to develop, and they are often those which are the subject of the amendment.

My Lords, I am very grateful for the welcome given to the idea of a review. I was intrigued by the metaphor of the long grass. We will make sure that the grass is cut regularly and that the timetable for the review is fit for purpose. I would be very bold to set a timetable for the review without knowing the full scope that will be necessary. It is important that we identify the problem, ask the right questions and set the terms of reference on that basis—I will try to keep noble Lords informed about that—and then work out a timetable that enables us to carry out the review thoroughly.

For all the reasons that the noble Earl and the noble Baroness, Lady Hamwee, have elucidated, these are complicated issues. There is a long history. The complication of curtilage, for example, in itself gives us pause for thought when we look at how best to address it without undue consequences for people who legitimately want to use their gardens.

PPS3 has been rather diminished in our debates but, in fact, it makes it quite clear. Although it does not mention back gardens specifically, it states that local authorities should develop a locally set brownfield target which can be broken down into different targets for different categories of brownfield land if necessary. Authorities with a positive policy of active management of gardens start from there, and we will be able to learn from them how they manage that and other issues.

The noble Earl also asked what the terms of reference were likely to cover. He made some useful suggestions, which can be read in Hansard by officials and Ministers, who will now think about how we can best do this so that we get a result that is genuinely productive. My noble friend made the point in the other place yesterday that some gardens, according to the statistics, have been replaced by homes with gardens, so we are not looking necessarily at a total net loss. You often find the same thing with green spaces, too; allotments that are sold under the conditions in which they can be sold are often replaced by other forms of green space. This is exactly why we have to look closely at the issue and at what we plan to do.

We had a positive and useful debate in this House. We have a good outcome and I am grateful to noble Lords for supporting this.

On Question, Motion agreed to.


My Lords, I beg to move that this House do not insist on its Amendment No. 160, to which the Commons have disagreed for their Reason 160A.

Lords Amendment No. 160 was considered by the other place on 24 November. The other place disagreed with the amendment on the grounds of financial privilege. Noble Lords will be aware that the Companion to the Standing Orders makes it clear that the Lords do not insist on their amendments when the Commons have disagreed on these grounds. Given this, I ask that the House does not insist on its Amendment No. 160.

Moved, That this House do not insist on its Amendment No. 160, to which the Commons have disagreed for their Reason 160A.—(Baroness Andrews.)

moved, as an amendment to the Motion, at end insert “but do propose Amendments Nos. 160B and 160C in lieu of Lords Amendment No. 160”:

160B: Page 130, line 1, at beginning insert “subject to subsection (2A),”

160C: Page 130, line 2, at end insert—

“(2A) With the exception of regulations under sections 200, (Liability: interpretation of key terms) and 201, regulations shall not be made unless, before approval by the House of Commons, a period of 60 days has elapsed, beginning with the day on which the regulations were laid.

(2B) During the period of 60 days—

(a) either House of Parliament may— (i) debate, or pass a resolution relating to, the regulations, or (ii) refer the regulations to any committee for a report; and (b) the Secretary of State must respond to any such debate or resolution or to any such report of a committee before the House of Commons gives its approval to the regulations under this section.”

The noble Lord said: My Lords, this amendment to the government Motion to accept the rejection of Lords Amendment No. 160 by the other place is intended once again to ask whether it is right that only the other place should have a formal role on the 20 or so sets of regulations to be tabled under Part 11 of the Bill.

I remind noble Lords how we have got here. The Bill as it reached this House provided that all the regulations to be made under Part 11, on the community infrastructure levy, were to be approved only by the other place. The Delegated Powers and Regulatory Reform Committee criticised this, and saw no reason why the Lords should not have the same powers as the Commons. The Government’s line all along has been that CIL is a financial matter and therefore, as a matter of financial privilege, must be reserved to the other place.

An amendment tabled on Report to substitute both Houses for the House of Commons in the Bill was rejected by only six votes, so at Third Reading I moved a different amendment to give both Houses the right to debate the draft orders on CIL and to require the Government to respond but not—I repeat not—to reverse the previous decision of this House. All it asked was that this House should have a say on the draft regulations before they are approved by the Commons. Noble Lords who were here will remember that that amendment was carried by three votes. The Bill was therefore returned to the other place with this amendment as one of the many to be considered. The Bill has now come back to us and we have the Motion to reject it entirely, which is where we are today.

The other place, no doubt led by Ministers, had a number of options as to how to treat the amendment which we accepted. They might have accepted the clear recommendations of the Delegated Powers Committee and given both Houses the right to approve the regulations. However, I entirely accept that, as that option was rejected by this House on 12 November, it might have been very difficult for Ministers to accept that proposal. As an alternative, it might have recognised the distinction drawn by the Delegated Powers Committee between regulations which are clearly financial and those which, in its words, “are not obviously financial”. On this basis, it might have tabled an alternative amendment to provide that the Commons would have the sole right to approve the financial regulations, but that both Houses would have the power to approve the others. Despite the discussions which I had with the noble Baroness and her colleague John Healey, for which I was most grateful—it was, I hope, a useful meeting—this, too, has now been rejected.

Another option might have been to recognise that our amendment did not seek the power to approve the regulations and would do no more than allow us to have a say. If there were drafting flaws, as there might well have been, they could have been amended to deal with that while still retaining a right for this House to have our say.

However, we have before us what I would regard as the worst option of all: simply to remove this House altogether from any role in relation to the 20 or so sets of CIL regulations to be tabled next year. CIL is a new charge. Part 11, which introduces it, is no more than skeleton legislation. As was repeatedly pointed out during the debates, almost all the details will be in the regulations and, apparently, we are to have no say on any of them. The upshot is that we have been asked to approve the skeleton but not the substance. I do not think that that is good enough. As the noble Lord, Lord Woolmer of Leeds, who I am very glad to see in his place, said at an earlier stage, “It is deeply offensive” and I agree with him. That is why I have tabled my amendment.

As those who are familiar with the procedures will recognise, the amendment is based on the super-affirmative procedure set out in Section 18 of the Legislative and Regulatory Reform Act 2006. It requires that the Government consult this House, among others, on the proposed regulations while they are in draft, while retaining for the other place the right to give the final approval. I find it very difficult to see how this could infringe the financial privilege of another place, unless it seeks to rely on what seems to be a very extreme interpretation of the relevant paragraphs of Erskine May.

However, my anxiety about this goes further than the CIL regulations. I am not alone in becoming increasingly aware of a tendency on the part of another place to regard a reference to Parliament as applying only to the other place. The noble Lord, Lord Turnbull, said:

“I am beginning to think that the other place has got into the habit of conflating the word ‘Commons’ and the word ‘Parliament’, when they are two different things”.—[Official Report, 14/10/08; col. 660.]

I expect that there are some Ministers in another place who may not be too unhappy about that: the more business that can credibly be reserved to the other place, which they effectively control, and the less that is allowed to come here, where they do not have control, might suit them very well. But this tendency holds profoundly dangerous implications for our constitution. We are a bicameral legislature in which each House has its proper role, and its rights and privileges. If we allow Ministers or the other place to whittle away at these, we will find ourselves inadvertently making significant changes to our constitution, with consequences that I suspect most of us would deeply deplore. I beg to move.

Moved, as an amendment to the Motion, at end insert “but do propose Amendments Nos. 160B and 160C in lieu of Lords Amendment No. 160”.—(Lord Jenkin of Roding.)

My Lords, while not wishing to stifle debate or discussion in any way, and recognising the strength of feeling in this House, it may be helpful if at this stage I say a few words about the amendments tabled by the noble Lord, Lord Jenkin, Amendments Nos. 160B and 160C, and Commons financial privilege. As set out in the Marshalled List before us, the Commons have disagreed to Lords Amendment No. 160 and give as their reason financial privilege. The guidance in the Companion is quite clear: where the Commons have given a privilege reason, the Lords do not insist on their amendment. This is a longstanding convention. The Companion continues by stating that noble Lords,

“may offer amendments in lieu of amendments which have been disagreed to by the Commons on the grounds of privilege”.

By convention, any amendment in lieu must not clearly invite the same response from the Commons. The House authorities have advised that Amendments Nos. 160B and 160C do not breach the convention.

With this advice and the conventions between the two Houses in mind, I urge the House to confine its debate to the substance of the amendments of the noble Lord, Lord Jenkin, and to refrain from questioning the reasons asserted by the other place.

My Lords, the statement made by the noble Baroness the Leader of the House goes to the heart of the relationship that exists between the two Houses when we are dealing with what I would call the conversation between them when we are engaged in the consideration of Commons and Lords amendments. The noble Baroness has rightly pointed out that there is a long established position that this House does not insist on an amendment where the other place cites financial privilege, and no one, least of all me, is trying to change that. However, as my noble friend Lord Jenkin pointed out, that is an immense power for the other place, and as we all know given the way the other place works, it means that it is an immense power for the Government. The issue that will need to be resolved, if not today then at some stage in the future, is how wisely and justifiably that power is used.

Yesterday, when this issue was debated in another place, my honourable friend Jacqui Lait and Julia Goldsworthy for the Liberal Democrats contested whether this was an appropriate case for the citing of privilege. Miss Goldsworthy pointed out that, if this was accepted, your Lordships’ House might be forbidden from having any say in regulations on council tax, business rates or other local matters, while my honourable friend cited other provisions such as the climate change levy, in which noble Lords have a great and legitimate interest. The Government therefore did not seek to debate the substance of my noble friend’s amendment in another place last night; they simply declared it unconstitutional and cited privilege. I do not think that that is good enough. The Government should not hide behind the principle of privilege as a matter of course, because what is constitutional should be a matter for the whole of Parliament.

Parliament should not accept the use of the privilege amendment in cases of doubt simply to stifle debate, which is the impression that the Government have given in dealing with my noble friend’s amendments. After all, if the amendments of your Lordships’ House are not to be discussed, what is the point of this House ever agreeing to any amendments?

I ask the noble Baroness to consider this matter carefully with her colleagues in another place, with Members of this House and, perhaps, with the Clerk of the Parliaments and his opposite number in another place to see how this issue can be resolved. If the rights of your Lordships are well understood—not only in their limits but in their reality and usefulness—then none of us should see those rights lightly eroded.

My Lords, the Companion also states that the Commons regularly accepts Lords’ amendments which have financial implications. If we are to function as a bicameral parliament, as has been said, it is inevitable that it should do so because almost everything costs money. Your Lordships will understand the subtleties and nuances involved in such issues.

I support the call of the noble Lord, Lord Strathclyde, for the matter not to rest here with this Bill. It is clearly a wider matter and I hope that the House can find a way of considering it—perhaps through the Constitution Committee. As has occurred to the noble Lord, Lord Strathclyde—I perhaps put it a little more bluntly—it is easy for a Minister to assert in another place that there are financial implications, and for that to be accepted there without discussion and argument as to whether that is really so. Clearly this is an issue. I am sure that the noble Baroness will listen to the points that are made and I trust that she will take it away beyond the Bill to protect the position of this House.

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.

My Lords, I am glad that my noble friend the Leader of the House emphasised that while it was not for us to challenge a Commons assertion of financial privilege, equally she did not wish us to be stifled in debate. That dual requirement leaves us in a bit of difficulty because without question there is an important constitutional issue here. Noble Lords on all sides of the House should be extremely grateful to the noble Lord, Lord Jenkin, for his vigilance in identifying that issue at a very early stage in our proceedings on the Planning Bill and for his persistence, as well as for his temperate tone and the moderation of his ambitions. He has sought to find ways in which the differing positions can be reconciled and the powers and responsibilities of this House can be preserved. Equally, we must be extremely grateful to the Delegated Powers Committee for its trenchant analysis of the issue.

Yes, indeed, the other place is entitled to assert financial privilege, but for some of us it is perplexing that it should have wished to do so, given that the Secretary of State is not on the list of CIL charging authorities. There are a great many issues that will be subject to regulation which Parliament has not had the opportunity to examine hitherto. As the noble Lord, Lord Jenkin, said, there are perhaps some 20 sets of regulations to come to flesh out and clarify what the purport of the legislation may be. Among the issues that will be considered will be not just the level of charges—indeed, that is a matter for local determination—but matters of principle such as who should be liable for the charge, the interaction between the new regime created under the regulations and charity law, and what rights of appeal and compensation there should be. These are not matters of “financial privilege” as one conventionally understands the term; they are matters of legislative principle which it seems strange and unsatisfactory that this House should be denied the right to consider.

The Joint Committee on Conventions specifically rejected the proposition that this House should no longer have the right to reject regulations. As noble Lords have already reminded us—although we hardly need to be reminded in this House—we are a bicameral legislature.

I am authorised by the noble Lord, Lord Filkin, who regrets very much that he cannot be in the Chamber this afternoon—because, ironically, he is chairing a session of the Merits Committee—to say that he is greatly concerned that the measure deprives this House and the Merits Committee of the ability to scrutinise the instruments which will define what the CIL is to mean in practice. He notes that we see very many statutory instruments which impose fees and charges which have never hitherto been seen as outside the purview of this House and the Merits Committee. He also asked me to say that he is speaking in a personal capacity, because the Merits Committee has not yet had the opportunity formally to consider this issue. However, what he has asked me to say on his behalf bears serious consideration by this House.

The proceedings on the Planning Bill have shown very well the capacity of this House to improve legislation on a cross-party basis and on a basis that the Government are frequently willing to accept. As noble Lords have already suggested, it is the more important in that so little detail about the CIL has been made available to us in the terms of the primary legislation.

In the other place, John Healey suggested that it was inappropriate for us at this stage to put forward the amendments that the noble Lord, Lord Jenkin, has proposed to deal with this matter because they would create a constitutional innovation. However, it is the other place that has created the constitutional innovation in asserting financial privilege where so little of what would be covered by the regulations is a matter of financial privilege as it is conventionally understood. The noble Lord, Lord Jenkin, was driven to introduce what might be regarded as innovative in constitutional terms simply as a device to enable us to have a say, and how right he is to insist that we should.

The Minister in another place also said that it was inappropriate to raise this matter at Third Reading, but, as Jacqui Lait said there yesterday, the Conservative Opposition raised a preliminary concern about issues relating to the CIL even at Second Reading. These issues have been ventilated at different stages in the passage of the legislation in both Houses, very particularly by the noble Lord, Lord Jenkin, from Committee stage onwards.

It is not too late, even now at 11.59, for the Government to draw back from using the legislation inappropriately to sap powers of this House, which from time to time has the temerity to challenge the monopoly of wisdom by the Government and the other place. It is the Government who are creating the constitutional innovation, and it is only right and proper that we should express our concerns, courteously but vigorously, because this is a matter of great moment for this House.

My Lords, I am a Member of both the Delegated Powers Committee and the Merits of Statutory Instruments Committee which, as the noble Lord, Lord Howarth, said, is in session. However, its chairman, the noble Lord, Lord Filkin, has accepted my apologies and encouraged me to speak in this debate.

I defer to others on the matter of privilege, but some have not seen that this Commons-only proposal is a serious threat to the proper conduct of scrutiny in this House. Scrutiny is agreed on all sides to be one of the principal contributions that this House makes to the public good. Now that my noble friend Lord Jenkin has provided that regulations as to liability and amount, in Clauses 200 and 201, shall be excluded from his amendment, there can be no further reason to shortcut scrutiny.

This is where the Merits Committee comes in—the committee that dealt with the Manchester casino and the home information packs. It reports weekly to your Lordships and has no equivalent in the other place. I hope and believe that it provides the right balance of information and advice to the House, yet the Government’s proposal puts it completely out of play.

Nobody will have missed the proposal in subsections (2A) and (2B) of my noble friend’s amendment that,

“before approval by the House of Commons”,

the power is there to,

“refer the regulations to any committee for a report”.

That, of course, could put the Merits Committee back into play, with its duty to provide an even-handed commentary on controversial regulations. Is there now any justification for bypassing the Merits Committee? I cannot see that there is.

My Lords, I have been listening very carefully to this debate. This is the second day running in which the privilege amendment has been raised by the House of Commons. That is rather worrying. I have a little experience of this because, when I was a Whip in another place, I occasionally sat on the Reasons Committee. At that time, the idea that on a matter of this sort the privilege amendment should be used would have been frowned on and not accepted. A sort of ratchet is being wound by the Government to eliminate the powers—or not powers but privileges—of this House to debate matters that come before us.

I have said before in this place that what we have in this country is not a bicameral but a unicameral system. In the last analysis, the House of Commons will have its way, because of the Parliament Act, which it often uses—or perhaps not too often, but it does use it—to show that in the last analysis it has the ultimate sanction. That is right and proper, as it is the elected House. But what is now proposed—and the noble Lord, Lord Jenkin, is to be congratulated on bringing it to this House—is the removal of this House even from discussing and advising. That is something entirely new and outwith what has gone before.

This House has the ability and power to have the Finance Bill, which is absolutely a matter for the Houses of Parliament, brought to this House and for it to remain here for a month, during which time it can be discussed, amended and sent back to the House of Commons. After that, nothing happens except that the Finance Bill is passed, but at least on the Finance Bill, which is the most important Bill of the parliamentary year, this House has the right to receive it, discuss it, amend it and send it back. The other House has the right to say, “Well thank you very much for your discussion. Now we will apply for Royal Assent”. However, in this case, the House is being told that it should not have the right to discuss orders emanating from this Bill. This House is entitled to make strong objections to the Government. If the Government are wise and really do believe that this House has some worth in giving them good advice, they should accept that advice. They should consider what they are doing and ensure that they do not use the privilege amendment lightly. They should reconsider the whole attitude towards the powers and future of this House.

My Lords, I do not propose to discuss the planning issue, but I want to ask my noble friends on the Front Bench a simple question. Let us assume that after the next general election there may be some adjustment in the nature of government. Any Minister at that stage might find it extremely convenient for controversial regulations to be swathed with the financial privilege embargo. Would my noble friend be happy if, as a result, virtually all social security regulations were not debatable by this House because they came with a flag saying financial privilege?

I find this the beginning of an extraordinarily slippery slope and I am profoundly worried. I hope that my noble friend the Leader of the House can find a way through this. I would almost like to say modus vivendi given the Question earlier today, but I hope that my noble friend can find a way through because she must see that there is deep unease, irrespective of party alignment, around this House about where the principle may go. Some regulations under the guise of financial privilege may not be debated or scrutinised by this House.

My Lords, throughout the passage of this Bill, I have listened very closely and consistently to arguments that have been made on all parts of it. It has been a long and complex Bill. Noble Lords have been very generous in the tributes that they have paid at previous stages about the extent to which the Bill has been improved because we have listened and responded—not least, for those noble Lords who were not part of our debates earlier, to give a greater role to this House in the scrutiny of national policy statements, for example. We have been pleased to listen and we are absolutely sure that the Bill is better for that. I pay particular tribute, as I have done previously, to the interrogation that the noble Lord, Lord Jenkin, has applied to the Bill. In the short debate that we have had today, we have rehearsed many of the issues that arose in the course of the Bill, particularly the community infrastructure levy.

Now we come to the stage of the Bill where we are in conversation with the other House on an issue about which I am constrained in what I can say and on which there are limits to what I can do. Noble Lords who have been in this place far longer than I have will understand that. However, we do not shelter behind privilege. We guard our conventions in this House very jealously and one of those conventions is that Ministers do not comment on reasons from the Commons and we do not anticipate them either. That is quite proper and the House be would be right to challenge me if I did otherwise. I therefore have to walk a careful line in what I can say in reply to the issues raised. The noble Lord, Lord Jenkin, returned to the argument that he made on Third Reading. He reminded your Lordships that this House rejected and soundly defeated the substantive argument that this House should have a voice in the making of affirmative regulations under the CIL. His argument now—described by my noble friend Lord Howarth as a device—raises very complex issues about the nature of the regulations governing the CIL and proposes the creation of new procedure for dealing with regulations under the Bill.

My noble friends and other noble Lords have spoken about the implications for this House of not abiding by the decision of the other place. This amendment sets a very serious precedent. We debated these regulations throughout the Bill’s passage, and the noble Lord has paid tribute to the fact that we worked hard in response to the Delegated Powers and Regulatory Reform Committee’s recommendations in an attempt to ensure that the House knew the substance of what we were debating. We had many long and detailed discussions. The committee’s recommendations were not specific but gave an indication of what it thought were the issues. We tried extremely hard in every other respect to meet those.

We are now at a very late stage in the Bill’s passage. It is a very significant Bill—a strategic Bill that will guarantee that we will have the infrastructure that we need for the future and that is so heavily dependent on energy security and climate security. The House, to its great credit, has supported the Bill and been assiduous in its interrogation. Although I can appreciate the noble Lord's frustration with this element of the Bill, and the frustration voiced by other noble Lords around the House, I can only say, as I said at Report and Third Reading as well, that this is not the time to raise such complex and far-reaching issues of procedure. I think that many noble Lords will agree that these matters are far too substantial to be resolved at the tail end of a complex Bill. They raise issues that go far beyond the Bill’s narrow limits in the precedents they raise. This House is always very careful about its procedure and the creation of precedents.

I do not want to weary the House by repeating what I said at Report and Third Reading. However, I hope, noble Lords having made their concerns clear, that the noble Lord will share my urgent desire to ensure that we pass the Bill. I hope he will feel that the issue has been debated.

Noble Lords have made various constructive suggestions this afternoon, and I am glad that my noble friend the Leader of the House is beside me on the Bench; she will have listened to what has been said in the House today. However, there is a point at which I can go no further in reply to this argument and the amendment. I hope that the noble Lord feels that he has been properly listened to and that he can withdraw the amendment.

My Lords, I thank all noble Lords, not only those who spoke in this short debate but also the many others who stayed to listen. I think that there is a widespread recognition that we are dealing here with something a great deal more significant even than Part 11 of the Planning Bill: the whole question of the relationship between the two Houses; the respective rights, roles and privileges of the two Houses. That issue has been raised by almost every noble Lord who has spoken and been recognised in all parts of the House, and for that I am grateful.

When I started down this path and tabled the first amendment on Part 11 in Committee, proposing that this should be a matter for both Houses, not just for another place, I did not realise that it would raise such profound—I use the word advisedly—issues of constitutional importance. Like a clause that appeared earlier in the Bill—the noble Baroness, Lady Andrews, will remember it—I thought that it was, as it were, an aberration. Earlier in the Bill, she tabled an amendment to ensure that a provision that had applied specifically to another place should apply to both Houses. In my innocence, that was what I thought I was doing as regards Part 11. However, as the debate has shown, the matter goes much wider than that.

I thank the noble Baroness the Leader of the House for her intervention just after I had spoken. She acknowledged that the House authorities had recognised that my amendment did not breach the conventions of the House, did not simply repeat what was in an earlier amendment and did not simply invite the same response, as it were, from another place and therefore that it was entirely in order. I am grateful to the House authorities for having made that clear to me and to the Leader of the House.

We have had a hugely important short debate, but this must not be the end of it. I listened to the points made by noble Lords in all parts of the House. As I told the noble Baroness, Lady Andrews, when I met her and John Healey in the office upstairs, I have been made aware that concerns about this are not confined to this side of the Chamber. Several people have pointed out to me that if the circumstances were different they would have supported my amendment, perhaps even the amendment on Report, which we lost—not “soundly”, I must point out, but by six votes. Therefore, I think that this matter concerns the whole House. I was interested to hear the remarks of the noble Baroness, Lady Hollis, who asked where this left social security regulations, a subject dear to the hearts of many noble Lords and noble Baronesses in this House, not least those on the Bishops’ Benches, who frequently make interventions on that matter. Is that an implication of the interpretation that the other place is putting on financial privilege? Wide issues are involved here.

My noble friend Lord Strathclyde said to the noble Baroness the Leader of the House that we should not allow the rights of this House to be whittled away and asked her to consider where this is taking us. Several noble Lords have suggested that this subject should be referred to the Constitution Committee of this House under the chairmanship of my noble friend Lord Goodlad. There certainly is a place for a significant and substantial debate on the Floor of this House to consider the matter. That is one of the options that I think we should pursue. However, I come back to my first point, that these constitutional issues are very much greater than the specific issue about the CIL regulations.

The noble Baroness told the House this afternoon that this measure is presented at the 59th minute of the 23rd hour of this Session. Certainly, noble Lords on this side of the House—myself in particular—have no wish whatever to defeat the Bill, as so much in it is important to the future construction of our infrastructure in this country and such a step would create dismay outside the House. Therefore, what do we do? I have listened to the concerns. We have established that these wider constitutional concerns are felt in all parts of the House and, as my noble friend Lord Strathclyde said, this issue cannot be allowed to rest. This is unfinished business and we have to return to it in the next Session of Parliament. I leave it to wiser heads than mine to decide how that might best be done.

In the mean time, do we invite another rejection by another place on the ground of financial privilege, simply in order to make a point? I do not think so. If we can have the kind of discussions that the noble Baroness the Leader of the House, my noble friend Lord Strathclyde and the noble Baroness on the Liberal Democrat Front Bench are having, we will all recognise that we have to pursue this issue on another occasion, free from the specific problems of this Bill. In those circumstances, it would not be right for me to ask the House to express a view in the Division Lobbies. We should recognise that we are where we are—the last two days of a Session of Parliament. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Motion B agreed to.