Grand Committee
Arrangement of Business
The Deputy Chairman of Committees (Lord Geddes) (Con)
My Lords, it is now 3.30 pm. I must advise the Grand Committee that if there is a Division in the House, the Committee will adjourn for 10 minutes.
Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) (Amendment) Regulations 2019
(5 years, 4 months ago)
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Lord Bourne of Aberystwyth
That the Grand Committee do consider the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) (Amendment) Regulations 2019.
The Parliamentary Under-Secretary of State, Ministry of Housing, Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)
My Lords, I beg to move that these regulations, which were laid before the House on 10 June, be considered. The regulations will remove a sunset clause in the existing 2012 fees regulations, thereby ensuring that local planning authorities can continue to charge fees for planning applications. They will also introduce a fee of £96 for prior approval applications for a larger single-storey rear extension to a house. If approved by this House, this new charge will come into effect 28 days after the regulations are made. Planning fees are an important source of income which supports local authorities to have the resources and capacity to make effective planning decisions. It is therefore vital that the fee regulations remain in force.
It is vital that we have well-resourced, efficient and effective planning departments, capable of providing a planning service that local people and applicants expect. Planning application fees provide essential income to enable local authorities to deliver this service, and to consider and determine planning applications. In January 2018, we raised planning application fees by 20%. This was the first uplift since 2012 and it has increased income for the planning system and enabled local planning authorities to improve their performance. We estimate that in England, the total income raised through planning application fees is £450 million per annum. If there were no application fee, this cost would have to be funded by the taxpayer.
I turn to the details of the draft regulations. In Regulation 2, we are removing the sunset clause of 21 November 2019 contained in the existing 2012 fees regulations: namely, the Town and Country Planning (Fees for Applications, Deemed Applications, Requests and Site Visits) (England) Regulations 2012. The sunset clause and a post-implementation review condition were included in the 2012 fees regulations to ensure that the regulations were kept under review and removed from statute if they were no longer necessary. A post-implementation review was undertaken in 2017 and the outcome report laid before Parliament in December 2017. I am pleased to confirm that the review concluded that the objectives of the regulations remain appropriate in providing for the proper consideration of planning applications; therefore, the national planning fees regime should remain in place.
To ensure that the fee regulations remain in place, it is necessary to remove the 21 November sunset clause. This will ensure that applicants continue to pay a fair and consistent fee, and that local authorities will be able to continue to charge planning application fees and have the resource and capacity to make high-quality and timely planning decisions. If the sunset clause was not removed, the fees regulations would cease to have effect after 21 November of this year. This would mean that local planning authorities would no longer be able to charge any fees for planning applications.
Regulations 3(1) and 3(2) introduce a £96 fee for applications for “prior approval” for existing permitted development rights for a larger single-storey rear extension to a house. Perhaps I may summarise the position as it will be if the regulations proceed. This permitted development right allows householders to build larger single-storey rear extensions that are between 4 metres and 8 metres for detached houses, and between 3 metres and 6 metres for all other houses. Extensions smaller than this do not require prior approval and therefore do not attract a fee. Extensions that are larger than 8 metres for detached houses and 6 metres for all other houses would require planning permission in the normal way, so would attract a full planning application fee of £206.
The prior approval process means that a developer has to seek approval from the local planning authority that specified elements of the development are acceptable before work can proceed. The matters for prior approval vary depending on the type of development, and those are set out in the relevant part of the general permitted development order. A local authority cannot consider any other matters when determining a prior approval application.
The permitted development right for a larger single-storey rear extension to a house was made permanent by way of amendments to the general permitted development order on 25 May, but the associated application for prior approval required to exercise that development right attracts no fee. Now the right is permanent, it is appropriate that we should enable local planning authorities to charge and receive a fee for the work that they undertake to process and determine the applications they receive.
A £96 fee will be an additional cost to those home owners wanting to extend their homes in that way. However, that fee is the same as the fee for other applications for prior approval, as the cost to the local authority of handling these types of application is similar—for example, demolition of a building, agricultural buildings and certain solar developments. It is not fair that this cost should continue to be subsidised by the taxpayer generally. The fee is less than the £206 fee that would be required for a full planning application to carry out these works to a house were it not for the permitted development rights. It will provide local planning authorities with resources that may otherwise have been diverted from other planning applications.
In line with existing fees for planning applications to alter or extend a home, the regulations continue to provide for existing exemptions in the 2012 fee regulations, such as when an extension provides facilities or means of access for disabled persons; those would continue in just the same way.
We continue to keep the resourcing of local authority planning departments and where fees can be charged under review. Noble Lords will be aware that we announced in the Spring Statement that the accelerated planning Green Paper, to be published later this year, will look at new approaches for local authorities to meet the costs of their planning service through possible additional fees and to deliver improved performance. In the meantime, these regulations ensure that local authorities can continue to charge planning fees, including the new prior approval fee, after 21 November, thus providing them with the resources they need to consider such applications. I commend the regulations to the Grand Committee.
Baroness Thornhill (LD)
I thank the Minister for that concise and informative introduction. We understand the technical purpose of the SI, and particularly appreciate the need for local authorities to be able to recoup their costs. The uplift of 20% that he mentioned was certainly welcomed, although he is probably as aware as I am that there is still a gap.
Evidence shows that more and more people extend their homes rather than move, so an increasing number of prior approvals are being sought. Therefore, the ability to charge for that will be welcomed. I know from personal experience that there is a reasonable amount of work involved, the more so in larger extensions. Those usually involve conflict with the next-door neighbour, who of course has no means of stopping the development because these are permitted developments. Despite that, councillors and officers get drawn in and it all takes time. I am curious about how the nationally set cost of £96 has been arrived at, alongside other fees. Perhaps the Minister could point me in the right direction for an explanation.
As the Minister said, councils need well-resourced planning departments to deliver the Government’s ambitious housing agenda; on that we agree. There is also a national shortage of planning officers, and the cost of living in different parts of the country differs considerably and means that councils struggle to recruit or have to pay higher salaries if they are to function. Yet these fees are nationally set, so from Land’s End to John O’Groats they are the same. Are there any plans to allow a fair and transparent scheme to give councils flexibility to set appropriate fees that might reflect local circumstances?
Permitted development rights in general are being extended, the latest being, as the Minister said, in May this year, despite some serious opposition from organisations such as the Campaign to Protect Rural England, the Town and Country Planning Association and others that have genuinely well-documented concern that in the Government’s legitimate desire to increase the number of homes, which we would absolutely agree with, issues such as quality and sustainability are being totally neglected, and that the most recent liberalisation of permitted development on the high street could be a blessing or a curse depending on local circumstances. Councils’ only recourse is to apply for an Article 4 direction to remove that automatic right. I know from personal experience of how difficult it was to get an Article 4 direction placed on our premier office headquarters area that this is neither speedy nor simple. We succeeded, but it was an expensive, tough battle. Do the Government keep records of the number of councils that apply for an Article 4 direction and how many are actually granted? The Minister mentioned other reviews; are there any plans to review the impact, good or bad, of the extended permitted development rights, particularly on quality and sustainability?
Lord Kennedy of Southwark (Lab Co-op)
My Lords, I draw the Committee’s attention to my relevant registered interest as a vice-president of the Local Government Association. As noble Lords have heard, these regulations will remove the sunset clause to enable fees to be charged beyond the date the noble Lord referred to and introduce an additional £96 fee for prior approval applications for larger new extensions.
As far as they go, I am very happy to support the regulations. The increases in fees in recent times have generally been welcome, but it is still fair to say that planning departments are still being subsidised by the local council tax payer. We should try to eliminate that over a period of time. I agree very much with the comments of the noble Baroness, Lady Thornhill, who asked how the £96 fee was arrived at. It would be good to hear that from the noble Lord, Lord Bourne, because it is a fair point that there are different associated costs across the country. How was this one figure reached? I look forward to hearing that.
I have mentioned many times during these debates that the Government often want to try new things out, such as new pilot schemes. I have asked many times: why can we not find just one volunteer authority to look at full cost recovery of planning fees? Surely we can find just one council in England to do that for us to see whether full cost recovery would work. It might not, and the pilot might show that that is the case, but I cannot see why we cannot find just one council somewhere in England to pilot full cost recovery on planning fees for the Government to see what effect it has. We hear lots of stuff about planning, most of it a load of old nonsense about how planning committees and planning departments are holding up all this housebuilding. It is absolutely rubbish. Was it 300,000 applications without a brick being laid? I know that the noble Lord did not say that, but we read this rubbish all over the place. I do not see why we cannot look at full cost recovery and at how it is not the planning regime, the council or the planning committees holding up housebuilding.
Having said that, I have no objection at all to the regulations. I am very happy to approve them and I look forward to the noble Lord’s response to the few points that I and the noble Baroness, Lady Thornhill, have raised.
Lord Bourne of Aberystwyth
My Lords, I thank the noble Baroness, Lady Thornhill, and the noble Lord, Lord Kennedy, for their contributions on the issue of planning fees. I seek to deal with their points in the order they were raised.
I thank the noble Baroness for her general welcome of the 20% increase, which has certainly made a difference to the running of planning departments up and down the country. She rightly referred to the use of prior approval for larger, single-storey, rear-of-house extensions. In the two years up to March 2019 there were just over 52,900 prior approval applications for such extensions of which 81% proceeded. That indicates the importance of the £96 cost.
Both the noble Baroness and the noble Lord asked how that cost was arrived at. I referred to the fact that some applications already attracted it. I will not go through the whole list as it is quite long, but I will give a sample and ensure that I send the full list to the noble Baroness and the noble Lord. Here are some examples: the erection of an agricultural building; the method of demolition of a building; development consisting of the erection or construction of a click-and-collect facility within the curtilage of a shop; the temporary use of buildings or land and the associated temporary structures for the purpose of commercial filmmaking; the installation, alteration or replacement of solar photovoltaic equipment on the roofs of non-domestic buildings; the change in use of buildings or land from offices in class B1(a)—the list goes on. I accept that the question of how the figure of £96 was arrived at remains but I hope that the fact that it is the consistent amount charged for so many different applications is helpful for the noble Baroness and the noble Lord. I will ensure that it is assessed.
The noble Baroness, Lady Thornhill, asked about the quality of developments. As I indicated, permitted development rights are delivering additional, much-needed new homes. Of course, all homes are required to meet building regulations right across the board, including in respect of fire safety. We expect all homes to be of good quality, but we are aware of concerns raised about certain developments. That is why we announced in the Spring Statement that we will review permitted development rights for the conversion of buildings to residential use in respect of the quality standards for homes delivered. I think that the noble Baroness made that point relating to Article 4, but I will pick up on it in more detail in a letter; I thank her for what she said.
The noble Baroness and the noble Lord both raised the issue of additional fees. The accelerated planning Green Paper will be issued later this year and will look at some of the issues that were touched on. For example, it could cover the point made quite fairly by the noble Lord about a pilot for full cost recovery, although let us wait to see to what extent; there will certainly be an opportunity to look at that matter.
I thank the noble Lord, Lord Kennedy, for his support. I agree that it is important that we get this right and fund planning departments appropriately; they should be funded by planning applications fees, not cross-subsidy, unless that is what councils want, perhaps in addition to putting in extra staff. That remains a possibility but, in principle, we expect the fees to pay for planning departments. I anticipate that the accelerated planning Green Paper, which will be out later this year, will look at that issue.
Once again, I would be grateful to the noble Baroness and the noble Lord if they would allow me to pick up on their points of detail in correspondence.
Environment (Legislative Functions from Directives) (EU Exit) Regulations 2019
(5 years, 4 months ago)
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Lord Gardiner of Kimble
That the Grand Committee do consider the Environment (Legislative Functions from Directives) (EU Exit) Regulations 2019.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Gardiner of Kimble) (Con)
My Lords, this statutory instrument transfers a series of limited, technical legislative functions that are currently conferred by EU environmental directives upon the EU Commission so that after exit day they can be exercised by the Secretary of State or the devolved Administrations. The regulations relate to a number of environmental policy areas: air quality, environmental noise, infrastructure for spatial information, marine, and water quality.
The powers relate to minor elements of the relevant directives. They do not allow for a general change in their implementation. One example of the type of functions being transferred is the power that the Commission currently has under the directive on environmental noise. This is a power to adopt directly applicable tertiary legislation to amend assessment methods for noise indicators in the light of scientific and technical progress. Under this instrument, the Secretary of State and the devolved Administrations will be able to update the corresponding domestic legislation to reflect the latest scientific and technical noise assessment methods.
While this instrument covers a number of directives and policy areas, it does no more than replicate the provisions in the directives so that UK authorities can exercise the powers member states considered were appropriate to delegate to the Commission. These powers will ensure that our domestic legislation continues to function properly. They are limited in nature and are not the kind of functions for which we would generally in the domestic context require primary legislation. They concern technical detail that would normally be dealt with by secondary legislation. If we had to use primary legislation to make the types of changes that will be possible under this instrument, it would take a disproportionate amount of parliamentary time and make it increasingly difficult for the law to keep pace with scientific and technical change. The powers will be subject to parliamentary scrutiny by way of the negative resolution procedure, which, for the reasons I have just mentioned, I believe is suitable due to the limited technical nature of the powers.
Part 2—Regulations 3 to 15—confers functions relating to five EU directives relating to air quality. These are the directives on emissions of volatile organic compounds—known as VOCs—ambient air quality and cleaner air, industrial emissions, medium combustion plants, and national emissions of certain atmospheric pollutants. These functions include, for example, a power to specify a common format of monitoring data for VOCs, and to specify rules for determining start-up and shut-down periods for the purpose of certain plants covered by the industrial emissions directive.
The powers in Part 2 that relate to VOCs and national emissions of certain atmospheric pollutants are conferred on the Secretary of State. VOCs are a reserved matter. Powers relating to national emissions of certain atmospheric pollutants, on the other hand, are devolved, but in this specific case the devolved Administrations have already agreed to their being transferred to the Secretary of State alone to exercise on behalf of the whole UK, because they concern national, UK-wide obligations. In each case, the Secretary of State can act only after the devolved Administrations give their consent, and the Secretary of State must also have regard to requests from devolved Administrations to make regulations.
For all other devolved matters in Part 2, powers are conferred on the “appropriate authority”. The “appropriate authority” is defined for this part by Regulation 4 and means for England, the Secretary of State; for Wales, the Welsh Ministers; for Scotland, the Scottish Ministers; and for Northern Ireland the Department of Agriculture, Environment and Rural Affairs.
Regulation 14 provides that it is possible for the Secretary of State to make regulations on behalf of one or more devolved Administrations, but only with their agreement. This allows for a common approach and legislation across the UK, providing more certainty for industry and other stakeholders. Regulation 15 provides that the appropriate authority may make regulations under Part 2 only after consulting anyone whose interests appear likely to be substantially affected and any other appropriate persons.
In Part 3 on environmental noise, Regulation 16 transfers limited functions relating only to supplementary noise indicators and assessment methods for noise indicators, which are contained in the EU environmental noise directive. This directive aims to avoid, prevent or reduce the harmful effects of exposure to noise pollution. These functions are conferred on the appropriate authority, defined in the same way as for Part 2.
Part 4 relates to infrastructure of spatial information. Regulations 17 to 22 confer functions under the EU directive, establishing an infrastructure for spatial information, known as the INSPIRE directive. Spatial information refers to specific locations and much environmental information falls into this category. Regulation 18 provides that the Secretary of State is the appropriate authority for England, Wales and Northern Ireland because INSPIRE is devolved only to Scotland, where Scottish Ministers are the appropriate authority. The Secretary of State may also legislate for Scotland if Scottish Ministers consent.
The functions in Regulations 19 to 22 include powers to make provision relating to metadata for spatial data sets and services, and interoperability and harmonisation of spatial data sets and services. These are the technical details of the INSPIRE framework, which the Commission was given power to set out in decisions, rather than in the directive itself.
Part 5 deals with marine strategy. Regulation 23 transfers functions contained in the EU marine strategy framework directive, which aims to protect the marine environment. Part 5 contains powers to lay down specifications and standardised methods to monitor and assess the marine environment, to reflect scientific and technical progress; to specify indicative lists of characteristics, pressures and impacts relevant to marine waters, of,
“characteristics to be taken into account for setting environmental targets”,
and of “requirements for monitoring programmes”; and to specify standardised methods for the application of,
“qualitative descriptors for determining good environmental status”,
of, characteristics, pressures and impacts relevant to marine waters, of
“characteristics to be taken into account for setting environmental targets”,
and of “monitoring programmes”.
Despite covering a mixture of reserved and devolved matters, the devolved Administrations have already agreed that these functions will be conferred on the Secretary of State alone to exercise for the whole of the marine strategy area, as defined in Regulation 3 of the Marine Strategy Regulations. This includes the UK territorial seas, including coastal waters, offshore waters out to the limits of the UK’s renewable energy zone and the sea bed in areas of the UK continental shelf beyond the renewable energy zone.
As with national emissions of certain atmospheric pollutants in Part 2, before making regulations under this part relating to Wales, Scotland and Northern Ireland, or relating to devolved functions, the Secretary of State must obtain the consent of relevant devolved Administrations. The Secretary of State must also consult interested parties including, where appropriate, the Ospar Commission and other international organisations to which we will retain obligations after we leave the EU. The Secretary of State must publish a report on his decision following a consultation. This mirrors the existing approach to consultation relating to the UK’s marine strategy, which is set out in the regulations.
Part 6 covers water quality. Regulations 24 to 46 confer functions contained in eight EU water directives. These directives relate to protection of waters in general—the water framework directive—and the groundwater environmental quality standards, bathing water, drinking water, urban wastewater treatment, nitrates and sewage sludge directives. The functions include powers to set out technical specifications for economic analysis and water-quality monitoring; to specify the procedures for establishing groundwater threshold values, assessing groundwater chemical status and identifying upward trends in groundwater pollutants; to specify the symbols to be used for information on bathing water prohibition and for making provision about the handling of bathing water samples; and to specify reference methods for measuring nitrate levels in water.
The functions are clearly defined and are exercisable in most cases only to adapt the legislation to scientific and technical progress. They are conferred in each case on the appropriate authority, defined by Regulation 25 in the same way as for Part 2. Regulation 25 also provides for the Secretary of State to legislate for devolved Administrations with their consent.
Baroness Young of Old Scone (Lab)
My Lords, I declare a very old interest as a former chief executive of the Environment Agency and as former chairman of English Nature.
I am very concerned about this set of regulations. The Minister described them as limited but I do not think that they are. The Secretary of State is being given rather broad powers to make amendments by regulation to a wide range of significant legislation, which has really important impacts for the environment. That is made worse by the fact that these regulations have the appearance of having been prepared by different civil servants and glued together at the last minute, because they are rather a mess of inconsistency.
For example, some powers are limited to the extent that the competent authority can make changes only,
“if appropriate to do so as a result of scientific and technical progress”.
However, that requirement does not apply to all the powers—for example, it does not apply to the air-quality regulation or the regulation applying to medium combustion plants. It would be interesting to know why the Minister is happy—if indeed he is—with this range of inconsistency. I will come on to talk more about inconsistencies in other areas. With regard to making changes only as a result of the advance of scientific and technical knowledge, does that mean that the Minister can simply change the regulations that do not have that provision on a whim rather than according to science? I am sure that is not what is intended but one might read that into the regulations.
Of course, the regulations do not define appropriate change as a result of scientific and technical knowledge. If the environment is to be safeguarded, I believe that that has to be not just clarified but interpreted as requiring that powers can be exercised only where the new provisions ensure an equivalent or higher level of environmental protection. That needs to be reflected in the wording of the statutory instrument. There is another flourish of inconsistency that is useful: Regulation 45(2) on the sewage sludge regulation—we get all the good jobs in this House—has a useful additional level of protection, which might be made to refer to all the regulations in this statutory instrument.
Perhaps I may also ask the Minister about the relationship between this set of regulations, with its scientific and technical knowledge requirement, and some of the requirements about advances in scientific and technical knowledge that are already included in the directives. For example, under the industrial emissions directive there is BAT, which means best available technique; and under the urban wastewater treatment directive, there is BATNEEC, which means best available technique not entailing excessive costs. Those are useful ratchet mechanisms, because they go in only one direction—the direction of improvement. However, the regulations do not mention how BAT and BATNEEC will be dealt with under those two directives.
Of course, all the forthcoming changes will be subject to negative scrutiny. It is not a question of more scrutiny taking disproportionate time, but it is inadequate to say that they will go through on the negative procedure because that does not give adequate credence to their importance. There is always a risk of weakening existing environmental protection by cock-up rather than conspiracy, if the Committee will pardon that technical term. I vividly remember the day when the Government announced that there were one-third fewer breaches of the air quality directive in London, before we quietly pointed out to them behind the scenes that that was because the budget had been cut and there were one-third fewer monitoring stations, especially in areas of high pollution, so inevitably there were one-third fewer exceedances. Even with the best of intentions, there needs to be a higher level of scrutiny to make sure that there is no inadvertent, even if not deliberate, weakening of existing environmental protection.
There is also inconsistency in the duty to consult. For example, some of the regulations talk about consulting, as the Minister mentioned, but there is a very good consultative body—the UK technical advisory group—for the water framework directive, the groundwater directive and the priority substances directive, yet no mention of those directives needing consultation despite the standard and regular consultation process that already goes on with it.
At the end of the day, there is the vexed question of compliance. You could say that it is Parliament’s job to scrutinise secondary legislation and make sure that it is okay, but the reality is that we will have a new environmental regulator. Prior due diligence on the sorts of changes that would go through in secondary legislation is not currently in that regulator’s role, and it ought to be.
Baroness Parminter (LD)
My Lords, our Benches certainly accept that, if we are to leave the European Union, the Secretary of State or the devolved authorities need these powers to ensure that the legislation, such as it is, does not remain static but moves forward in the light of scientific knowledge and understanding. The number of areas that we are talking about in environmental legislation is reflected in this jumbo statutory instrument, so we also accept that the only way to provide them is probably through the secondary legislation route, given the chances of us being able to get primary legislation slots for all the changes that might be necessary.
However, following what the noble Baroness, Lady Young of Old Scone, said, we are disappointed that the opportunity has not been taken in this jumbo SI to ensure maximum protection for the environment. That is particularly so when we are having these discussions in advance of an environment Bill that sets the framework for future UK legislation outside Europe; and in advance of creating the office for environmental protection, which, in addition to statutory authorities such as the environment agencies, will be able to hold people to account.
In a slightly different way, I want to pick up a point that the noble Baroness made about changes being made only in response to scientific and technical advances. In some areas—she alluded to one, and I have another on water quality—the regulations pin down how the Secretary of State or devolved authorities can use these powers. Regulation 32(3) alludes to the fact that the devolved authorities can use the powers on water quality by looking to scientific evidence only where there will be possible harm to the aquatic environment. So, this instrument contains provisions on how the devolved authorities or the Secretary of State can use those powers to protect the environment. If it is good enough in the case of water quality to limit the powers that the Secretary of State can use in response to scientific and technical changes—and to do so only to advance environmental protection—why is that not the case in all areas? The phrase about it being in response to scientific and technical changes does not have a rider; it says that it ensures the equivalent or a higher level of protection for the environment. I think we are both making the same point.
The noble Baroness, Lady Young, also mentioned consultation but I want to pick up on a slightly different point. Given the nature of these changes, it is critical that all relevant stakeholders are consulted. However, there is an omission on the issue of environmental noise, which the statutory instrument covers. In his summing up, can the Minister say specifically why environmental noise does not merit consultation? He referred to it in general terms but not specifically. Of course, we can change negative statutory instruments to affirmative ones, but it would reassure us parliamentarians and bring us a degree of comfort if we knew that all the changes had been subjected to scrutiny by all the relevant bodies.
Baroness Jones of Whitchurch (Lab)
My Lords, I am grateful to the Minister for introducing the SI and for the helpful briefing that he arranged beforehand.
As he explained, this is another of the many SIs that we have considered to transfer legislative functions from the EU and the European Commission to the UK. In this case, the functions are transferred overwhelmingly to the Secretary of State and devolved Ministers. We have debated the limitations of this process many times before; I do not intend to go into all the arguments again but there is an undoubted democratic deficit in transferring powers from a complex European process, with all its checks and balances, to one person, however well intentioned that person may be.
With that in mind, I want to raise some issues and ask some questions. First, the department’s written response to stakeholders on the issue of environmental law governance drew attention to the proposals for the office for environmental protection contained in the draft Environment (Principles and Governance) Bill, which is intended to provide continued scrutiny and oversight. That Bill, which is not before us yet, now plays a particularly significant role. Because of where we are politically, the withdrawal Bill, which we spent many happy hours arguing over and which had a large number of environmental protections built into it, will not be taken forward; we seem to be losing it. All we have now to underpin environment guarantees is the office for environmental protection, which does not exist yet. What role will that body play in scrutinising the sort of regulations that are before us today and the Secretary of State’s powers in them? For example, is it envisaged that the OEP will collect data and monitor the effectiveness of the regulations? That includes points of detail; as the Minister said, this is about annexes and so on. Will its role go into that sort of detail? Will it also be responsible for scrutinising the Secretary of State’s performance and delivery in carrying out the functions that we are about to give him or her?
Can the Minister clarify what role this new body will play and whether it will have that oversight? While we are on the subject, can he also bring us up to date about when we will see the OEP? It seems the timetable is slipping, yet an awful lot is riding on the future of that organisation. It would be helpful if he could update us on that because, once that body is in place and we have had the assurances about what we hope will be its all-embracing role, some of these other issues will fall into place and we will not be so anxious about them.
Lord Gardiner of Kimble
My Lords, I am most grateful to the noble Baronesses for their comments on these regulations. I repeat that they create powers that will enable us to adapt our environmental legislation to reflect scientific and technical developments. We believe that they do this in a practical and proportionate way that provides for greater public consultation and parliamentary scrutiny than now occurs in the manner in which the Commission exercises the powers. I therefore say, in great friendship, to the noble Baroness, Lady Young of Old Scone, that whatever our views on the matter, we should all be pleased that in this area and in this particular place we will enable, with consultation and scrutiny—I will elaborate on that—something that is not currently available to us. Candidly, that is because, as regards the decisions that the Commission is taking, member states took the view, practically and proportionally, that these matters did not require the sort of approach that the noble Baronesses are perhaps suggesting would have been more desirable.
None of this work this afternoon is about a regression. I put it on record that it is not. I do not want the noble Baroness to be worried because this work is designed so that she is not. The whole purpose of this instrument is that it does not of itself change substantive policy, which is about having rigour on the environment. It does not change operational delivery, which we all want. It does not impose additional costs on individuals, public organisations or businesses. It is not intended to result in additional environmental impacts compared with the way in which the legislation previously operated. As I say, it is all about keeping within the rigour of what there was before while providing us with a further opportunity.
I should say straightaway that I have a note here on the office for environmental protection, to which the noble Baronesses, Lady Young of Old Scone and Lady Jones of Whitchurch, referred. We are planning for the office for environmental protection to be operational by 1 January 2021. It will be an independent statutory organisation, established by the environment Bill, to provide environmental scrutiny and advice, respond to complaints and take enforcement action. If necessary, we are ready with interim arrangements—all those are in place—which will provide an initial assessment of complaints, scrutiny of the 25-year environment plan and ad hoc advice until the OEP is established.
The environment Bill plots a course to establish a pioneering new system of green governance, improve air quality, restore and enhance nature, improve waste management and resource efficiency, and improve surface water, groundwater and wastewater management. A full list of the remits is still to be finalised but that was a taster of what is a work of great ambition. The Bill will be introduced in the second Session; I am afraid that noble Lords will not find me saying when that might be. There might be quite a lot of noble Lords in the same position, so I cannot say any more about when. However, it is important work and, whoever is looking after these matters, it will be a very interesting time for scrutiny in your Lordships’ House.
I was quite rightly pressed on scientific and technical progress. The Explanatory Memorandum for this instrument explains that the powers will usually be used as a result of scientific and technical progress. This is because, in some cases—for example, in relation to monitoring and reporting standards—changes might be necessary for other reasons, such as having better regulatory measures. We also seek to replicate the provisions in directives, which take different approaches as the EU has considered it appropriate. Where the Commission’s power can be used only to reflect scientific and technical progress, we have carried over that restriction. Pressure for changes as a result of scientific and technical progress most frequently occurs, I understand, on a bottom-up basis: that is, it comes from the scientific and technical community, or the business community. In other words, it tends to come from the very experts who government would need to consult before making legislation. More generally, and where appropriate, we would normally consult experts before making regulations on such technical matters.
All of your Lordships referred to the exercise of powers by negative statutory instruments. As I have tried to explain, these powers essentially relate to technical matters that EU member states have considered it appropriate to delegate to the Commission. These are the kinds of matters of detail for which, in domestic contexts, we would normally use secondary legislation—I think that the noble Baroness, Lady Parminter, alluded to this at the beginning of her remarks—and, generally, the negative resolution procedure. We consider this approach proportionate with the powers that this instrument transfers.
The real point is that we have been desperately keen not to be in a position where we would cause environmental legislation to ossify; I think that everyone would agree with that. When we are furnished with ways in which we can, through technical changes, enhance the environment and do things better, we clearly need to attend to those changes—and do so pretty smartish. Negative statutory instruments go through the JCSI and the SLSC for scrutiny; of course, if alarm bells ring or there is an issue, parliamentarians have ways of drawing matters to Parliament’s attention. I do not see demons in this but one did appear under some future arrangements. There are all sorts of ways in which tenacious Members of both Houses would deal with this.
Misuse of Drugs Act 1971 (Amendment) Order 2019
(5 years, 4 months ago)
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Baroness Williams of Trafford
That the Grand Committee do consider the Misuse of Drugs Act 1971 (Amendment) Order 2019.
Relevant document: 53rd Report from the Secondary Legislation Scrutiny Committee
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, this draft order differs from recent amendments to the Misuse of Drugs Act 1971 in that it is based on changes to scientific and technical detail in existing legislation and does not introduce further controls on compounds under the 1971 Act. I thank the Advisory Council on the Misuse of Drugs—the ACMD—for its expert advice on this technical matter, which has informed the draft order before the Committee.
The order was first laid before Parliament on 4 June. Its purpose is to amend Schedule 2 to the Misuse of Drugs Act by reducing the scope of the generic definition of the third generation of synthetic cannabinoids. I assure noble Lords that this amendment does not repeal the generic definition of synthetic cannabinoids under the Act, and compounds commonly known as Spice and Mamba will continue to be subject to controls under that legislation. The measure is brought forward as a result of the recommendation from the ACMD published on 22 December 2017.
It may be helpful if I explain to the Committee the history of the control of synthetic cannabinoids under the Misuse of Drugs Act 1971, as it helps to frame the context of this amendment. The ACMD, the independent experts who provide advice to the Government on the misuse and harms of drugs, first published guidance in 2014 on the third generation of synthetic cannabinoids. This is a group of compounds that mimic the effects of cannabis and are commonly referred to by brand names such as Spice and Mamba. The ACMD recommended that synthetic cannabinoids should be captured under a generic definition— as class B drugs under the Misuse of Drugs Act—due to their associated harms and widespread availability, and it followed the control of the first generation of synthetic cannabinoids in 2009 and the second generation in 2013.
The ACMD advice also recommended that these compounds be placed under Schedule 1 to the Misuse of Drugs Regulations 2001, as it could not determine any known medicinal or therapeutic benefits from these drugs. Any drugs listed under Schedule 1 are deemed to have little or no known medicinal or therapeutic benefits and can be legally accessed only with a Home Office licence, which is generally issued for research or industrial purposes.
Shortly after these changes came into effect on 14 December 2016, representatives from the research community contacted the Home Office and the ACMD, informing them that a large number of research compounds not suspected as being synthetic cannabinoids were inadvertently captured under the generic definition. As a result of the controls placed on these compounds, institutions had to obtain Schedule 1 licences to conduct certain aspects of their research. The licensing process ensures that there is a minimised risk of misuse and diversion of, and harm from, controlled drugs. However, the Government have no desire to unnecessarily impose licensing requirements where compounds do not pose risks of harm. Accordingly, it is important that we amend the generic definition to remove a regulatory burden on the research industry relating to compounds that were never intended to be controlled. On that basis, the ACMD recommended in December 2017 that the scope of the generic definition be reduced.
The order amends the Misuse of Drugs Act 1971 to reduce the breadth of compounds controlled as third-generation synthetic cannabinoids. The ACMD’s amended definition will ensure that compounds which have been found to cause harm will continue to be caught by the generic definition. I assure the Committee that the Government are acutely aware of the continued harms posed by the third generation of synthetic cannabinoids, and I want to make it clear that the order does not revoke the generic definition. Harmful synthetic cannabinoids such as Spice and Mamba will continue to be controlled through the generic definition.
The order, if accepted and made, will come into force on 15 November. To complement it, a further statutory instrument will be introduced to make parallel amendments to the generic definition under Schedule 1 to the Misuse of Drugs Regulations 2001 and in the Misuse of Drugs (Designation) (England, Wales and Scotland) Order 2015. As a result, the compounds currently captured unintentionally will no longer require a Home Office licence for the conduct of research as they will no longer be controlled.
I hope that I have made the case to amend the generic definition of the third generation of synthetic cannabinoids to remove the compounds that were unintentionally controlled from the generic definition. I commend the order to the Committee.
Lord Paddick (LD)
My Lords, I thank the Minister for explaining the draft statutory instrument.
It is regrettable that, in 2016, the Advisory Council on the Misuse of Drugs advised the Government to include such a wide definition of third generation synthetic cannabinoids. Between 40,000 and 90,000 compounds captured by this wide definition were not synthetic cannabinoids and therefore were not intended to be controlled under the Misuse of Drugs Act 1971. In addition, it inhibited research by requiring researchers to obtain a Schedule 1 licence.
That highlights a series of issues with the Government’s approach to drug misuse. First, the ill-thought-through Psychoactive Substances Act, while making previously so-called legal highs illegal, did not make the possession of such substances an offence—only their manufacture, sale and supply, even though some of the substances are more dangerous than the substances controlled under the Misuse of Drugs Act that they were designed to replace.
Secondly, as a result, the ACMD still has to play catch-up with synthetic alternatives to controlled drugs, such as synthetic cannabinoids, which need to be controlled under the Misuse of Drugs Act because they are so dangerous. To get ahead of the game, on the basis of what the Minister said and what is contained in the material published by the Home Office on the SI, the ACMD appears to have gone to the other extreme and banned swathes of innocuous substances.
Thirdly, these synthetic alternatives to controlled drugs were created only because the controlled drugs that they were designed to replace were illegal. For example, I know a doctor who has had to deal with a number of patients with serious psychiatric problems caused by these synthetic alternatives; they took the synthetic alternatives because they were legal at the time, but they would not have had psychiatric problems if they had stuck to the controlled drugs that the synthetic alternatives were designed to replace. My understanding is that the synthetic cannabinoid Spice, which the Minister mentioned, induces far more psychosis and is far more addictive than even the strongest form of cannabis, for example. Can the Minister confirm that?
Fourthly, this sort of mistake further undermines the credibility of the system of controlled drugs under the Misuse of Drugs Act. Drugs are being classified primarily on the basis of politics rather than scientific evidence. For example, the previous Labour Government downgraded cannabis from class B to class C on the basis of scientific evidence only for the same Labour Government, under a new Prime Minister, to reclassify it back to class B for political reasons. Some drugs, such as GHB or GBL, that cause a large number of deaths—particularly among gay men, including a former partner of mine—are in class C while MDMA or ecstasy, which cause far fewer deaths, are in class A. We do not oppose the correction of this mistake by means of this SI but we clearly state it again: drug misuse should be treated as a health issue, not a criminal justice issue; all the efforts of government and law enforcement should be focused on harm reduction, not criminalisation; and the Government need to expand their review of drug misuse to include law changes, including potentially legalising and regulating controlled drugs.
The Liberal Democrats are not the only ones saying this. Last week, a survey showed that twice as many people were in favour of the legalisation of cannabis than against it. Research published last week showed that fewer teenagers used cannabis when it was legalised in the United States. The debate on drug misuse is changing. We believe that it is time that the Government paid attention to that.
Lord Rosser (Lab)
My Lords, I too thank the Minister for her explanation of the content and purpose of the draft order, which we do not oppose. It amends the Misuse of Drugs Act by narrowing the previous definition of synthetic cannabinoids, as the previous definition has had the effect of requiring compounds that are not of concern to be licensed as class B drugs.
Following the control of the first generation of synthetic cannabinoids in 2009 and of the second generation in 2013, the Advisory Council on the Misuse of Drugs first published advice in 2014 on the third generation of synthetic cannabinoids—a group of compounds commonly referred to, as the Minister said, as Spice and Mamba, which mimic the effects of cannabis. The ACMD recommended that these compounds be captured by way of a generic definition as class B drugs under the Misuse of Drugs Act. It also recommended that the compounds be placed in Schedule 1 to the Misuse of Drugs Regulations 2001, meaning that they can be legally accessed only with a Home Office licence, which is generally issued for research or industrial purposes.
Following the ACMD’s recommendations, the changes came into effect on 14 December 2016 but, as has already been said, shortly after their implementation the ACMD and the Home Office were told by research bodies that the breadth of the definition meant that it captured a large number of research compounds, many of which were not synthetic cannabinoids. The effect of this was that research institutions had to obtain Schedule 1 licences when they should not have needed to do so.
The ACMD recognised that its advice that led to the 2016 changes had unintended consequences. As a result, it made a further recommendation in December 2017 to the effect that the scope of the generic definition be reduced. Accordingly, this order amends the generic definition of third-generation synthetic cannabinoids by replacing the term “univalent” with a defined number of substituents. This will apparently reduce the number of compounds unintentionally captured by the generic definition, estimated by industry at more than 40,000 substances, while retaining those that have not been found to cause harm. As the Minister said, the revised definition does not alter the position for class A drugs or the licensed medicines previously excluded.
When this order was discussed in the Commons, the Minister said,
“so that while those compounds that have been found to cause harm are captured by it, fewer compounds are unintentionally captured”.—[Official Report, Commons, 3/7/19; col. 1263.]
In view of the Commons Minister’s words, how many compounds will still be unintentionally captured by the amended order that we are discussing now, and what level of inconvenience or difficulty will that continue to cause the research community in the pharmaceutical and healthcare sector in respect of having to continue, where necessary, to apply for Schedule 1 licences? How cumbersome, time-consuming and time-delaying is the process of applying for Schedule 1 licences, the need for which this order is designed to reduce but apparently not eliminate, in respect of compounds “unintentionally captured” by the 2016 changes? Bearing in mind that the ACMD made its recommendation, which led to the Government making this draft order some 18 months ago, why has it taken as long as it has to reach this stage?
The ACMD’s 2014 recommendations did not come into effect until mid-December 2016. Again, what was the reason for the apparent delay of at least two years? If consultation took place during that lengthy period, did any individuals or organisations raise the problem about the breadth of the definition that the research community raised shortly after mid-December 2016? If not, why did the ACMD—or anyone else—not realise the problem that this order seeks to address before its recommendations were implemented? Did the changes that were brought into effect in mid-December 2016 properly reflect the ACMD’s recommendations of two years or more previously? If not, is that one reason why the problem of the breadth of the definition came to light only after the mid-December 2016 changes came into effect?
This draft order does not seek to address the issue of the use, or rather misuse, of drugs. The UK now has, I believe, the highest recorded level of mortality from drug misuse since records began. I hope that we will soon hear from the Government the different approaches, based on what would most effectively reduce harm, that they intend to consider and adopt in response to a drug situation that appears to be getting worse.
Baroness Williams of Trafford
I thank both noble Lords for their points. The noble Lord, Lord Paddick, made the point that this is regrettable—I agree. It is never a good place to be in, having to amend legislation for this reason. He is right that research was taking far longer because of the application process. That is why we have the order today. He also made the point that psychiatric problems would not be as problematic as they are with synthetic versions. However, I have thought back to several examples that I am aware of, for example, skunk weed, which has caused psychiatric problems. He asked whether I could confirm that Spice is more addictive than non-synthetic cannabis. It is indeed stronger than some other drugs. That is why it is controlled under the Misuse of Drugs Act, in line with the expert advice. The SI does not change the control of Spice.
He also made the point that drugs policy should be aimed at reduction. Of course, reduction of the use of drugs is at the heart of what we are trying to achieve, particularly—
Lord Paddick
I said the aim of policy should be harm reduction, not reduction in use.
Baroness Williams of Trafford
The two probably go hand in hand—the harm of drugs and the use of them are quite parallel to each other—but I take the noble Lord’s point. He made a slightly different point and maybe I just took licence because I could respond in the way that I did. He also talked about the legalisation of cannabis. He knows that the Government do not intend at this point to legalise cannabis. In fact, the statutory instrument is not about the legalisation or otherwise of cannabis but, again, he took the opportunity to bring the issue up.
The noble Lord, Lord Rosser, asked why it has taken so long to get here, given that the recommendation was made back in December 2017. The initial recommendation from the ACMD in December 2017 acted as interim advice, covering a range of proposed solutions for the Home Office to consider. Officials then liaised with the ACMD on the feasibility of the proposals and the ACMD made short-term recommendations amending the generic definition and longer-term recommendations. Following those recommendations, from spring 2018 the Home Office engaged in a targeted consultation with the research community on the proposals, which confirmed at the end of 2018 that it supported the short-term solution of amending the generic definition. Steps were then taken to make this legislative amendment. The unintentional capture did not come to light until after the introduction of the legislative changes in 2016. After receiving representations from the research community, the Home Office and the ACMD then acted.
The noble Lord, Lord Rosser, asked how many compounds will still be unintentionally caught by the MDA. The nature of a generic definition is such that it is not possible to specify an exact number of compounds. I will write to him with further detail once I have confirmed that point. We are continuing to work with the ACMD on longer-term solutions. With that—
Lord Rosser
I raised another issue. I am not suggesting that we should not pass this order, but how cumbersome and time-consuming is the process of applying for the Schedule 1 licences? Is it some great bureaucratic procedure or not?
Baroness Williams of Trafford
I think I made that point in response to the noble Lord, Lord Paddick. It is quite a procedural undertaking; hence it is good that this SI is before us today. My note from the Box just says that it varies from case to case depending on the complexity of the activity being licensed, and that clear guidance is given on the Home Office website on how to make licensing applications. However, there is a broader point: that to get a Schedule 1 licence is quite a serious matter.
Lord Rosser
There is one other point—I say this as a complete lay man. It is fairly sobering to find that the ACMD made a recommendation—I understand that it consists of people who know what they are talking about—but we were apparently not able to appreciate that this difficulty would arise, and, because presumably there was some discussion and consultation, nobody outside the ACMD realised that it would arise. Is it not quite a sobering thought that such a mistake could have been made by not only the experienced body that is meant to advise on this but by those who were going to be affected by it? To me, as a lay person, that is quite worrying. Are the Government not worried that a mistake will be made again in some other sphere?
Baroness Williams of Trafford
I agree with the noble Lord that any such amendment that we have to make based on SIs that we have put before this House, without the full information before us, is always a concern. However, we are talking about new compounds that need research. We are at the forefront of research and controls but that does not take away from the fact that the noble Lord is right—it is unfortunate when we have to amend secondary legislation like this.
Lord Rosser
I am not quite sure from what the Minister says whether the answer to the point I raised is that the problem could not have been envisaged at the time—that it came to light that new substances or compounds suddenly were affected. However, if I am not right in saying that, did the Government inquire of the ACMD why it had not realised that this would be a difficult? Did they get an explanation from it?
Baroness Williams of Trafford
I will have to write to the noble Lord on that, but I thank him for raising that valid point.