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Planning Bill

My Lords, Amendments Nos. 130 and 149, which have just been spoken to by the noble Lord, Lord Jenkin, raise an unusual issue and one which is of some constitutional importance. That issue is the extent to which the House of Commons could or should reserve to itself the sole right to make regulations in connection with a levy such as CIL. I am speaking in this debate because this was an issue which, as the noble Lord, Lord Jenkin, said, was considered by the Delegated Powers Committee in its 12th report. What I will say broadly reflects its conclusions. It may be helpful if I explain the constitutional background. As all of us know, your Lordships’ House has no power to intervene in the raising of taxes which go into the Consolidated Fund. This Bill contains no such provisions. Part 11 creates a framework. It confers on local authorities a power—not an obligation—to impose on the owners or developers of land, not on the general public, a levy which will be paid to the charging authority to help defray the cost of infrastructure needed to serve that development. As the Bill was amended in Committee to exclude the Secretary of State from the list of possible charging authorities, none of this money will go to the Government. It is clear from the passage in the Companion to Standing Orders of your Lordships’ House, which the noble Lord, Lord Jenkin, quoted, and also from Erskine May, that it is entirely legitimate and proper for your Lordships’ House to vote to amend Clause 214(2) so that it requires the approval of both Houses for regulations. If such an amendment in your Lordships’ House infringes the privilege of the House of Commons, the House can either insist on its privilege or waive it. That subject is dealt with in some detail in chapters 32 and 33 of Erskine May. What emerges from a study of those chapters, however, is a fog. It reminds me of a story of my father’s when he was lecturing at Oxford University. One of his students came to him after the lecture and said, ““Well, Professor Goodhart, before you lectured I was confused. Now I am still confused but at a much higher level””. That is my reaction to what I have obtained from Erskine May. It does not provide answers to some important questions. What is the boundary between matters which give rise to privilege and those which do not? Are there any principles or precedents which guide the House of Commons as to whether it should waive privilege or not? If so, what are those principles and precedents? None of this is clear. So far as we do get guidance from Erskine May, the most relevant guidance is that given in two passages in chapter 33. The first of these is at page 919, where it says, "““the Commons have long included not only bills dealing with the public expenditure and revenue but also bills which deal with local revenues or charges as matters to which their privilege extends””." The second is at page 926, which states: "““The Commons now generally waive their claim regarding amendments made to bills that they have sent to the Lords, dealing with local revenues, more especially when those amendments affect charges upon the people incidentally only and are made for the purpose of giving effect to the legislative intentions of the Commons””." Those two passages suggest to me that Clause 212 is indeed within the privileges of the House of Commons, but that it would be normal for the House of Commons to waive its privilege if requested to do so. The committee took the view that Clause 214(2) should therefore be considered carefully by your Lordships’ House. There are many precedents here for a full waiver of privilege by the Commons, some of them in which a stronger case for waiver could be made than in this case. In the 12th report, the committee cited as charges subject to the procedure in both Houses those various forms of taxation or levy which were referred to by the noble Lord, Lord Jenkin. Some of them are far wider in scope than CIL and several of them affect ordinary citizens, whereas CIL affects only those who carry out or profit from development. I do not think it would be right, therefore, for your Lordships’ House to accept Clause 214(2) as it stands. I can see no justification for leaving the whole of the regulation-making power in Part 11 in the hands of one House only. Even if there is—as I think there is—an argument for leaving it to the House of Commons to approve regulations which identify who is subject to the levy and which govern the amount of it, I can still see no serious argument for excluding your Lordships’ House from regulations on matters such as procedure for CIL, the method of its collection or of its enforcement. Not all these regulations would need the affirmative resolution procedure that they have been given in this Bill. Looking at this, the Government might consider that some of them should be lowered to the negative resolution procedure. It is therefore my intention to vote for the amendments of the noble Lord, Lord Jenkin. If your Lordships’ House then accepts them, the House of Commons can decide, when the Bill goes back there, the action appropriate for it to take. That is a more appropriate procedure than simply excluding your Lordships’ House from any power to make regulations, without enabling us to express our view. The Commons can then consider whether it will exercise its powers rather than waive its privilege, and, if so, to what extent. I support Amendments Nos. 130 and 149.