Arrangement of Business
The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)
My Lords, shall we kick off? You know the drill, but if there is a Division in the Chamber, I will let the Committee know and we shall adjourn for 10 minutes to allow noble Lords to vote.
Disclosure (Scotland) Act 2020 (Consequential Provisions and Modifications) Order 2025
(4 days, 13 hours ago)
Grand CommitteeRead Hansard Text Read Debate Ministerial Extracts
Baroness Smith of Cluny
That the Grand Committee do consider the Disclosure (Scotland) Act 2020 (Consequential Provisions and Modifications) Order 2025.
Relevant document: 18th Report from the Secondary Legislation Scrutiny Committee
The Advocate-General for Scotland (Baroness Smith of Cluny) (Lab)
My Lords, I am grateful for the opportunity to debate this order today. It comes as the result of collaboration between the two Governments in Scotland and makes provision as a result of changes made to the existing disclosure regime in Scotland. The order before us, if passed, will be made under Section 104 of the Scotland Act. Scotland Act orders are a demonstration of devolution in action, and I am pleased to say that this Government have taken through seven orders since we came to power in 2024. I will now go on to explain the purpose of the order.
This order is in consequence of the Disclosure (Scotland) Act 2020, which deals with the circumstances in which information about a person’s criminal history and other information held about them by the police and other law enforcement bodies can be disclosed. The disclosure Act seeks to modernise and improve proportionality in the disclosure system in Scotland. As a result, some changes have been made to the disclosure regime and this order is accordingly necessary to ensure the continued provision of conviction information, cautions, relevant police information and records of fingerprints that are held by UK law enforcement bodies to the Scottish Ministers for the purposes of the disclosure regime.
The order places equivalent duties on the chief officers of UK law enforcement bodies in relation to disclosure information, where relevant, to those which the disclosure Act places on the chief constable of Police Scotland. This ensures that the chief officer must provide information to the Scottish Ministers in the same way that the chief constable is required to do in Scotland. Without this order, there would be significant consequences for safeguarding across the UK, as the cross- border disclosure and information-sharing arrangements already in place under the Police Act—that is, the duties on and powers available to chief officers of UK police forces—will no longer operate. I beg to move.
Lord Bruce of Bennachie (LD)
My Lords, first, I am glad to be able to debate with the Minister. I had a conversation with her when she was first appointed, but this is my first opportunity to do that. I am obviously grateful to her for introducing this order.
The Minister has more expertise in this field than I have, but I had a look at the instrument—I can see why we need safeguarding, of course, and why there is a desire to tidy it up and ensure that there are comparable rules around the UK—and it would appear that some differences remain. In particular, the situation in Scotland is that where other, related issues are being addressed—in other words, non-criminal ones—the person who has their information disclosed has the right to make representations before it is disclosed to the applicant for the information. This instrument, as I understand it, says that where UK authorities are handing information related to other parts of the UK to Scottish authorities, they have to take that into account. Indeed, they have to apply that law, which is fine if that is what the law says, but I worry that police authorities across England, Wales and Northern Ireland will need to know that the law in that context is different. What assurances are there that that will be observed, and that information will not inadvertently be disclosed which the affected party has not had the right to test? That was highlighted in the statutory instruments committee’s comments on the order.
Although it is stated that the overall purpose of this SI is to bring more coherence, consistency and simplification to the system across the UK, it still leaves differences. The Scottish law basically says: “We have a standard, which doesn’t apply in England and Wales, but if you are feeding information into Scotland, you’re obliged to be aware of that standard”. My main question is: how are we to ensure that all the relevant people know about it, bearing in mind that we are talking about not just the police here but potentially about other related bodies that may have information?
Of course, at the other end of the scale in the changes that are made, all those who are employing people or taking them on as volunteers need to know what their rights are, what they can get and the circumstances in which they can get it. Given the change- over in volunteers, again, who is responsible for ensuring that? Presumably, it is Scottish officers in Scotland, but, obviously, it is other agencies elsewhere in the UK. I ask the Minister: what steps will be taken to ensure that the differences that still apply are understood by all the relative parties and do not lead to a situation where either information that should be disclosed is not or a person’s right to have it tested before it is disclosed does not apply? If that is the case, in effect, the law is being broken. What would the penalties be for any authority outside Scotland that broke the law? Is there any provision for a penalty in that case, or is it just unfortunate?
Lord Cameron of Lochiel (Con)
My Lords, I take this opportunity to welcome the noble and learned Baroness the Advocate-General for Scotland to the Front Bench. Although she has been in post for a while, this is the first time that I have been in Grand Committee with her, and I wish her well in all that she does for His Majesty’s Government. I am grateful to her for her opening remarks on this order.
In terms of the original legislation as passed by the Scottish Parliament, the Disclosure (Scotland) Act is intended to simplify the process by which information on a person held by the police can be shared. It will go into effect on 1 April this year, replacing the existing three levels of disclosure with just two levels. It is worth noting the broad welcome that the legislation has received, as well as cross-party support in the Scottish Parliament; for instance, Volunteer Scotland welcomed the Act for both its potential to remove barriers for individuals with past convictions seeking employment and its ability to strengthen the PVG scheme. However, we must remain mindful of the complexities and nuances involved. These changes will undoubtedly have a significant impact on various professional sectors, particularly those that work with vulnerable groups. In addition, it will significantly affect how personal data, including criminal history, is shared.
The purpose of the order before the Grand Committee is, rightly, to ensure that the existing arrangements for cross-border information sharing between UK law enforcement bodies and Scottish Ministers continue. It will also help prevent any disruption to the flow of crucial data between UK law enforcement and Scottish Ministers.
Although we do not oppose this order, rather like the noble Lord, Lord Bruce, I observe that the Secondary Legislation Scrutiny Committee noted this as an instrument of interest because it would create inconsistencies in the way in which information is shared between police forces and Scottish Ministers, as compared to the rest of the UK. Police forces outside Scotland would have a duty to allow the subject of a request to make representations on other relevant information when a request originated in Scotland, despite having no such duty for other requests in the rest of the UK. That introduces a critical question: why is it necessary to create this distinction? There is a concern that this difference in treatment could lead to inefficiencies for both law enforcement agencies and individuals. I look forward to hearing the Minister’s comments as to the position of the UK Government on this seeming inconsistency.
Further, can the Minister clarify how police forces across the UK will be supported in managing these new obligations on the ground, especially in ensuring that adequate resources are there to ensure that the transition to a new system does not lead to delays or hinder in some way the sharing of critical information? Finally, given the complex nature of this situation, can she assure us that the guidance due to be published will be easy to understand and clear to the public? I look forward to hearing what she has to say.
Baroness Smith of Cluny (Lab)
I thank noble Lords for their contributions. I am particularly pleased to see the noble Lord, Lord Cameron, who has done a lot of work in anticipation of this order, which has been in inception for some time. I am grateful for the points raised and the opportunity they allow for some reassurance to be given.
The noble Lord, Lord Bruce, commented that it is a question of how the differences will not come to be a problem in practice when, plainly, police forces and other public bodies are essentially required to treat requests differently, to a certain extent, depending on where in the United Kingdom the case emanates from. Many of the processes are the same; it is really on the question of review that there comes to be a bit of difference. It is also worth observing that there is a process whereby an applicant can ask for a review under the current regime and the one that will remain in England and Wales. The substance of the process—the fact that a police force is required to undertake a review—remains the same. The skills and the tests are the same. It is the substance that matters a great deal to the applicant.
It is the case that the weight of obligations will change a little bit. At present, an applicant may be asked for additional information, whereas this order places a duty on the public body to do so and to have regard to it. However, I reassure noble Lords that the substance of the matter and the questions to be asked remain the same. There is also one other difference, which is the opportunity to have an independent reviewer look at the process.
I understood the noble Lord to be asking what work has been undertaken to ensure that these differences are understood and therefore can be implemented beyond simply police forces because, as he observed, this will affect a wider group than just police forces. Scotland Office officials have worked to create the policy as well as draft this order alongside counterpart officials in the Scottish Government, the Ministry of Justice—my office—the Home Office, the Ministry of Housing, Communities and Local Government, the Department of Justice in Northern Ireland and the Welsh Government. Police forces in England, Wales and Northern Ireland have been consulted and have provided valuable input until January this year. Statutory guidance has been developed and the same police forces and bodies have been involved in its drafting. The guidance aims to be as consistent as possible with the existing guidance issued to officers across the United Kingdom.
It is worth observing that Disclosure Scotland has existing relationships with all the public bodies that provide information at the moment, so it is not a question of the scope of public bodies with which it needs to interact changing. There are relationships there, and the functions are understood. Engagement has been led by Disclosure Scotland through the National Police Chiefs’ Council, as well as with wider parties, to ensure that there is a clear understanding.
I hope I can reassure noble Lords that there has been good engagement. On the point made by the noble Lord, Lord Cameron, it is important that the guidance is clear, and efforts have been made not just to make it clear but to engage the affected parties so that it is clear to them as well as to the Government. One concern raised by the noble Lord, Lord Bruce, was that the wrong information may be disclosed. I hope that that will not be a consequence of this order, for the reasons I have given: the substantive exercise to be undertaken and the tests to be applied remain unchanged; it is simply a question of the opportunities for review and how those reviews are undertaken. As for a failure to apply the review processes properly, raised by the noble Lord, Lord Bruce, I think that speaks to the policy purpose behind introducing the independent reviewer function, which allows not only another step of review to take place but indeed for that to be undertaken by someone independent.
On the final point raised by the noble Lord, Lord Cameron, on additions to guidance and a concern around inefficiencies, I detect that that may speak to the question of resources. Again, I hope that because of the extensive engagement that has gone on over a period of time and the fact that the guidance is being drafted in consultation with those affected that will not be an issue and it will simply be the case that public bodies recognise, with the assistance of Disclosure Scotland, that this is a request coming in from Scotland and that there are slightly modified rules to be applied if, and only if, the applicant asks for a review, as of course many of these issues will be dealt with without that being required.
I close by saying that this order demonstrates the continued commitment of the UK Government to work with the Scottish Government to deliver for Scotland.
Electronic Communications (Networks and Services) (Designated Vendor Directions) (Penalties) Order 2025
(4 days, 13 hours ago)
Grand CommitteeRead Hansard Text Read Debate Ministerial Extracts
Baroness Jones of Whitchurch
That the Grand Committee do consider the Electronic Communications (Networks and Services) (Designated Vendor Directions) (Penalties) Order 2025.
The Parliamentary Under-Secretary of State, Department for Business and Trade and Department for Science, Information and Technology (Baroness Jones of Whitchurch) (Lab)
My Lords, the Government take the security of public telecoms seriously. As noble Lords know, the Telecommunications (Security) Act 2021 received Royal Assent on 17 November 2021. The Act established powers to introduce a new telecommunications security framework and introduced new vendor security powers. It is these vendor security powers that are relevant to this statutory instrument.
The Act allows the Secretary of State to issue a designation notice to a vendor whose presence in the UK networks poses national security risks, and designated vendor directions to public communications providers placing controls on their use of equipment or services by a designated vendor. The Act also gives the Secretary of State powers to impose a penalty on a public communications provider that does not comply with a designated vendor direction issued to it. That penalty can be up to 10% of a provider’s turnover. The Act states that the Secretary of State must set out rules for how they intend to calculate a provider’s turnover. That includes what relevant business the Secretary of State will take into account when calculating that turnover.
The Electronic Communications (Networks and Services) (Penalties) (Rules for Calculation of Turnover) Order 2003 sets out rules for Ofcom to calculate a provider’s turnover when it contravenes conditions set under the Communications Act 2003. The statutory instrument makes changes to the 2003 order so that rules in that legislation apply when calculating turnover for the purposes of determining a penalty for enforcement of designated vendor directions. It also defines what is to be treated as a network service facility or business by reference to which the calculation of turnover is to be made.
The Secretary of State could have relied on the 2003 order for the purposes of enforcement of a designated vendor direction. However, this SI removes any ambiguity and provides legal certainty and absolute clarity on the rules that apply. Turnover will be calculated in line with accounting practices and principles generally accepted in the United Kingdom and will be limited to the amount derived by that provider after the deduction of relevant taxes.
In conclusion, this is a narrowly focused but important statutory instrument through which we are ensuring legal certainty and clarity. It makes clear the Secretary of State’s approach to calculating turnover, which will underpin any decision to penalise a provider in relation to the designated vendor directions. I beg to move.
Lord Clement-Jones (LD)
My Lords, I thank the Minister for her introduction to this draft statutory instrument; it was brief and to the point. These penalties will be able to reach 10% of turnover or £100,000 per day for continuing breaches, so getting the calculations right is crucial. However, I have some concerns about the SI, the first of which is about timing.
I do not understand why we are looking at a three-year gap between the enabling powers and the calculation rules. The Telecommunications (Security) Act 2021, which I worked on, was presented to this House as urgent legislation to protect critical national infrastructure, yet here we are, in 2025, only now establishing how to calculate penalties for breaches in the way set out in this SI. During this period, we have had enforcement powers without the ability to properly determine penalties. As I understand it, tier 1 providers had to comply by March 2024, yet the penalty calculation mechanism will not be in place until this year—no doubt in a few weeks’ time.
Secondly, there is the absence of consultation. The Explanatory Memorandum cites the reason as the SI’s “technical nature”, but these penalties—I mentioned their size—could have major financial implications for providers. The telecoms industry has complex business structures and revenue streams. Technical expertise from the industry could have helped to ensure that these calculations are practical and comprehensive. The technical justification seems remarkably weak, given the impact these rules could have. For example, the current definition of “relevant business” for these calculations focuses on traditional network and service provision, but modern telecoms companies often have diverse revenue streams. There is no clear provision for new business models or technologies. How will we handle integrated service providers? What about international revenues? The treatment of associated services needs clarification.
Thirdly, the implementation sequence is an issue. We are being asked to approve penalty calculations before seeing the enforcement guidelines. There is no impact assessment, so we cannot evaluate potential consequences. I understand that the post-implementation review is not scheduled until 2026, and there is no clear mechanism for adjusting the framework if problems emerge. The interaction with the existing penalty regime needs clarification.
There are also technical concerns that need some attention. The switch from “notified provider” to “person” in the 2003 order, as a result of this SI, needs rather more explanation. The calculation method for continuing breaches is not fully detailed, there is no specific provision for group companies or complex corporate structures and the treatment of joint ventures and partnerships remains unclear.
Finally, I hope that, in broad terms, the Minister can give us an update on progress on the removal of equipment covered by the Telecommunications (Security) Act 2021. That was mandated by the Act; I know it is under way but it is not yet complete.
This is about not merely technical calculations but creating an effective deterrent to the telecoms industry, while ensuring fair and practical enforcement of important security measures. Getting these rules right is essential for both national security and our telecoms sector. I look forward to the Minister’s response on these points.
Viscount Camrose (Con)
My Lords, I thank the Minister for bringing this important SI forward today and for setting it out so clearly and briefly. I also thank the noble Lord, Lord Clement-Jones. He made a range of interesting points: in particular, the point on timing was well made, and I look forward to hearing the Minister’s answers on that. This instrument seeks to implement provisions relating to the enforcement of designated vendor directions—DVDs—which form part of the broader framework established under the Telecommunications (Security) Act 2021. That Act, introduced under the previous Government, was designed to strengthen the security and resilience of the UK’s telecommunications networks, particularly in response to emerging national security risks.
We all know only too well that one of the most prominent issues at the forefront of this framework has been the removal of high-risk vendors, such as Huawei, from UK telecommunications infrastructure. Huawei’s involvement in the UK’s 5G rollout has long been a point of debate, with growing concerns about national security risks tied to its equipment. This SI therefore provides a mechanism for enforcing the penalties that may be applied to public communications providers —PCPs—that fail to comply with the DVDs to ensure that the UK’s telecommunications infrastructure remains secure from undue foreign influence.
The primary change introduced by this SI is the formalisation of the penalties regime for public communications providers that fail to comply with the conditions outlined in DVDs. It establishes a framework for calculating and enforcing penalties that may be imposed by the Secretary of State. The Secretary of State retains discretion in imposing penalties, but they must be applied in a proportionate manner. In considering penalties, the severity of the breach, the culpability of the provider and the broader implications for the sector must all be taken into account. The aim is to ensure compliance with DVDs while protecting the integrity of the UK’s national infrastructure.
However, while the objectives of this instrument are understood, this debate offers a good opportunity to scrutinise some of the specifics a little, particularly with regard to the proportionality of penalties and the potential economic consequences for the sector. It is with that in mind that I shall raise questions in just three areas regarding the provisions set out in this instrument.
First, the SI grants the Secretary of State significant discretion in the imposition of penalties. Of course, we recognise the value of flexibility here, but there is legitimate concern that this discretion may result in inconsistent enforcement across different public communications providers. Can the Minister assure us that transparency and accountability will be maintained throughout this process? How will the Government ensure that the application of penalties is fair and consistent, particularly when considering the varying size and scope of telecoms providers?
Further to this, can the Minister clarify how the penalties will be calculated? I echo the questions asked by the noble Lord, Lord Clement-Jones, particularly in cases where a breach does not pose an immediate or severe national security threat. Do the Government anticipate that penalties will be tiered with lesser fines for breaches that do not substantially compromise national security? Can the Minister further explain how such decisions will be communicated to the public and to industry to ensure transparency?
Secondly, providers are required to remove Huawei equipment from the UK’s 5G networks by 2027. This is, of course, a significant and costly task for telecom providers. Given these financial challenges, will the penalties for non-compliance take into account the costs already incurred by providers in replacing Huawei’s technology? Will the penalties be adjusted to reflect the substantial financial burden that these providers are already facing in removing Huawei equipment from their networks? Thirdly, where PCPs have been issued with a DVD, this can be a long and demanding process. How are the Government going to keep track of progress? What progress reports can be shared with Parliament and the public?
Baroness Jones of Whitchurch (Lab)
My Lords, I thank noble Lords for their valuable contributions to this debate. We believe that legislative certainty is important, which is why we are seeking to resolve potential ambiguity by making this instrument at the earliest opportunity. This SI will ensure that important decisions on national security, specifically the enforcement of national security powers introduced by the Telecommunications (Security) Act, have clear rules underpinning them.
I will now have a go at answering the questions raised in the debate. The noble Lord, Lord Clement-Jones, asked about the three-year gap and why the SI was not taken forward earlier. I should thank Secondary Legislation Scrutiny Committee clerks for asking for clarification on the operability of the regime. The system has not been inoperable for four years. The Secretary of State can and has used their powers to monitor compliance with a direction under the current rules. The Secretary of State could have taken enforcement action without this SI being in place. The 2003 order could have applied for the purpose of enforcement of a designated vendor direction. However, there is some ambiguity concerning whether the rules set out in the 2003 order can apply to the enforcement of a designated vendor direction. This could have left enforcement action imposing a penalty on a provider vulnerable to legal challenge. We are therefore making an SI to ensure that there is legal certainty and clarity when penalties are imposed, and that position was set out in a letter to the Secondary Legislation Scrutiny Committee clarifying that.
The noble Lord, Lord Clement-Jones, also asked about the lack of consultation, but this is a technical clarification for rules that were already in operation. He asked about how turnover would be calculated. It will be done in conformity with the accounting practices and principles that are generally accepted in the United Kingdom. The turnover will be limited to the amount derived by that provider from the relevant business after deduction of sales rebates, value added tax and other taxes directly related to turnover. If the provider’s relevant business consists of two or more undertakings that each prepare accounts, then the turnover should be calculated by adding together the turnover of each undertaking. Any aid granted by a public body to a provider should be included in the calculation of turnover if the provider is a recipient of the aid and if that is directly linked to the carrying out by that provider of the relevant business. The business activities to be included in the turnover calculation for a provider are as follows: the provision of public electronic communications network; the provision of the public electronic communication of services; and the making available of facilities that are associated with facilities by reference to such a network or service.
The noble Lord, Lord Clement-Jones, asked about the removal of equipment and the progress report on that. Using the powers provided by the Telecommunications (Security) Act, the former Secretary of State for Digital, Culture, Media and Sport issued a designation notice to Huawei and a designated vendor direction to 35 providers in October 2022. The direction gives 12 specific requirements for telecom providers’ use of Huawei equipment. The previous Secretary of State decided that these legal controls on the use of Huawei equipment or services were necessary and proportionate to the national security risks they were designated to mitigate. The UK is now on a path towards the complete removal of Huawei from its 5G networks by the end of 2027.
The noble Viscount, Lord Camrose, asked whether the application was being applied in a fair and consistent way. I would say that this was an evidence-based decision, reflecting the national security risk. The designation notice issued to Huawei set out the reasons why the use of its equipment is viewed as a national security risk; it includes concerns about, among other things, corporate control, cybersecurity and engineering quality. This action builds on long-standing advice from the National Cyber Security Centre and the Government on the use of Huawei equipment in UK public tele- communications networks.
The noble Viscount asked about the cost to business of removing this equipment. The Government have estimated that the removal of Huawei equipment due to the designated vendor directions will cost providers up to £2 billion in total.
The noble Viscount also asked how the Secretary of State monitors compliance with a direction. The Communications Act 2003, as amended by the Telecommunications (Security) Act 2021, provides the Secretary of State with powers enabling the monitoring and enforcement of requirements imposed in designated vendor directions. The Secretary of State is responsible for determining compliance with a direction, based on evidence provided by the industry and Ofcom. The Secretary of State may give Ofcom a direction requiring Ofcom to monitor providers’ progress in complying with the direction and to report to the Secretary of State to inform their assessment of compliance. The former Secretary of State received Ofcom’s report in spring 2024 on the removal of Huawei from relevant providers’ core network functions, and that ongoing appraisal continues.
I hope that I have answered all the questions that were asked. If I have not answered on something that is very technical, I can write to noble Lords, of course. In the meantime, I hope noble Lords agree on the importance of introducing this instrument to ensure legislative certainty and therefore agree that enforcement through these powers should be introduced as swiftly as possible.
Lord Clement-Jones (LD)
Is the Minister confident that the 2027 deadline will be met; that no vendor, purchaser or telecoms company will be caught by the Act; that no fines will be levied; and that what we are talking about today is, therefore, entirely theoretical?
Viscount Camrose (Con)
While the Minister is working on her answer, perhaps she could include in that something about how progress against the delivery of these objectives will be reported to Parliament, potentially —and, indeed, to the public.
Baroness Jones of Whitchurch (Lab)
I am sure that it says in my brief that we are on target to meet the 2027 deadline. If I am mistaken about that, I will write to noble Lords, obviously.
In response to the noble Viscount, Lord Camrose, of course Ofcom reports to Parliament in the normal way, through its annual report, and I am sure that this activity will be included.
Town and Country Planning (Fees and Consequential Amendments) Regulations 2025
(4 days, 13 hours ago)
Grand CommitteeRead Hansard Text Read Debate Ministerial Extracts
Baroness Taylor of Stevenage
That the Grand Committee do consider the Town and Country Planning (Fees and Consequential Amendments) Regulations 2025.
The Parliamentary Under-Secretary of State, Ministry of Housing, Communities and Local Government (Baroness Taylor of Stevenage) (Lab)
My Lords, these draft regulations were laid before the House on 13 February. They make consequential amendments to the Town and Country Planning Act 1990 and other primary legislation, as well as to the planning application fee regulations. These amendments reflect the two new routes for planning permission for Crown development that were introduced through the Levelling-up and Regeneration Act 2023. This legislation forms part of a wider suite of statutory instruments needed to implement these new routes. These routes are crucial to ensure that there is a more timely and proportionate planning process for nationally important public services and infrastructure.
I will start by providing some context and background to these regulations. Recent experience, including the response to Covid-19, has exposed that the existing route for securing planning permission for urgent Crown development, which was introduced in 2006, is not fit for purpose—so much so that it has never been used. Furthermore, government departments have struggled to secure local planning permission for nationally important public service infrastructure, such as prisons. The Levelling-up and Regeneration Act made provision to address these challenges by providing two new routes for planning permission for Crown development in England.
The first route, referred to as Crown development, is for planning applications for Crown developments that are considered of national importance. These applications are to be submitted to the Planning Inspectorate directly instead of to local planning authorities. A planning inspector will consider and determine the application, unless the Secretary of State for Housing, Communities and Local Government recovers the application to determine herself.
The second route is an updated urgent Crown development route. This will enable applications for nationally important developments that are needed urgently to be determined rapidly under a simplified procedure. Applications under the urgent route will be submitted to the Secretary of State for Housing, Communities and Local Government.
These new routes can be used for developments only where it is clearly justified. Provisions in the Levelling-up and Regeneration Act require that applications can be accepted by the Secretary of State only if she deems that the proposed development is of national importance and that it is urgent, in the case of the urgent Crown development route. I made a Written Ministerial Statement on 13 February which set out the principles under which national importance and urgency will be determined. Applicants are required when submitting an application to set out the reasons why they consider that the development is of national importance and, in the case of urgent Crown development, is needed as a matter of urgency.
I turn to the detail of the regulations. This is the first of a suite of statutory instruments needed to implement the Crown reforms. It makes amendments to primary legislation to reflect the two new Crown development routes. For instance, it amends references to planning permission set out in a range of different pieces of legislation. It also removes references to the previous urgent Crown development route in Section 293A of the Town and Country Planning Act, which now applies only in Wales. This instrument also sets the fee for an application for planning permission under both routes. This is the same as the fee that would have been paid to the local authority if the application had been submitted to it.
Following this statutory instrument coming into force, a further suite of statutory instruments will be made through the negative parliamentary procedure. These instruments will set the procedures for the two routes and make further consequential changes to secondary legislation in order to reflect the implementation of these routes. We have published these instruments in draft ahead of this debate to provide proper transparency on how the routes will operate.
Lord Young of Cookham (Con)
My Lords, I am very grateful to the Minister for her explanation. I have no difficulty at all with the thrust of this statutory instrument, but I have one or two queries.
Throughout her speech, the Minister referred to Crown development, but the Explanatory Memorandum says that this concerns
“planning permission for the development of Crown land”.
Does this apply only to development on land that the Government already own? Or, as the Minister said, is this about Crown development, possibly on land owned by other people or organisations? If I am right and this is confined to the development of Crown land, as the Explanatory Memorandum says on pages 1 and 3, is there a definition of “Crown land”? We are familiar with the Crown Estate but what exactly is Crown land?
Secondly, can the Minister give us some examples of the sorts of development that might be relevant to this statutory instrument? I understand the process that she described, but I did not get a picture of exactly when this would be used by the Government. It would be helpful if she could flesh that out.
Thirdly, this measure applies to development that is urgent and in the national interest or
“securing planning permission for nationally important and urgent Crown development”.
Is that justiciable? In other words, would it be possible to slow down the whole process if somebody came up and said, “This is a misuse of this statutory instrument. This is not nationally important or urgent”? In that case, the whole objective of this SI—to speed things up—could be nullified if the decision to use it was justiciable.
My final point is a petty one. I notice that, on pages 2 and 3, a whole lot of legislation is being amended. It is not clear to me why the Caravan Sites Act 1968, for example, has to be amended as a result of what we are doing in this SI. Is there some particular caravan site occupying a site of enormous national importance that might have to be used for the purpose of some giant infrastructure scheme? Looking at pages 2 and 3, one sees a whole series of pieces of legislation, and it is not absolutely clear why they all need to be amended to bring this SI into effect.
Lord Shipley (LD)
My Lords, I share the concerns of the noble Lord, Lord Young of Cookham, and I hope that the Minister will be able to respond satisfactorily to the points that he raised.
Reading the Explanatory Note, my question is: who decides whether an application for a development is “of national importance” or “a matter of urgency”? I assume that there is a proposal from a department, presumably from the relevant Minister, that then goes to the Secretary of State in the noble Baroness’s department, and that the final decision is made by the Secretary of State, but on the recommendation of the relevant department. I assume that this means that the relevant department cannot itself define that something is urgent and of national importance. I think I have concluded that it is both, but that the final decision will lie with the Secretary of State. For me, the vital question for the Minister to clarify is: will the public be able to object? The Minister talked about the need to try to ensure consultation with local people, but will local people be able to object to an application, or will the decision lie simply with the Secretary of State?
I noticed the Minister’s comments on scrutiny. I think she said that there will be full scrutiny of the use of powers, but paragraph 10.1 of the Explanatory Memorandum says:
“The instrument does not include a statutory review clause”,
and paragraph 10.2 says:
“The Ministry of Housing, Communities, and Local Government will monitor the overall effect of the implementation of the Crown Development and Urgent Crown Development routes for planning permission”.
It is not clear to me to what extent that will involve Parliament. I want to hear from the Minister that the monitoring review will be thorough and part of normal parliamentary procedures on matters of this kind.
Baroness Thornhill (LD)
I thank the Minister for her explanation of how we got from there to here; its clarity is welcome. I also thank the noble Lords, Lord Shipley and Lord Young of Cookham, for their forensic questioning, and I look forward to the Minister’s response. We on these Benches are in agreement that projects in the national interest, especially those deemed urgent, must and should be expedited as swiftly as possible. We are also in agreement that the present system has failed to deliver the improvements necessary to promote economic growth and improve the productivity of our vastly unequal regions.
Subsidiarity, a word we do not hear very often, cuts to the heart of this SI and the changes it introduces. Decisions must and should be taken at the most appropriate level, proportionate to the impact of the decision, which this SI attempts to do. Only time will tell whether it has been successful.
However, to me, this is a two-way street, with powers devolved down as well as taken up. It is nothing short of madness that when I was an elected mayor, I had to go through a four-year torment and two judicial reviews needing the Secretary of State’s approval—of which there were many during those four years—to be able to turn an allotment site into much-needed facilities for our local hospital. Conversely, it is also unacceptable that plans to build a third runway at Heathrow have been in discussion for decades. Evidence abounds that something needs to change and the system is failing. I am therefore interested in the Minister joining the dots for me as to how the new regional super-mayors will be involved in this process, given that the Government are also giving them greater planning powers.
We can also see how this joins up to the Government’s broader agenda. We have all lived through the Crown Estate Act and agree with its aims to use land—we look forward to the clarification mentioned by the noble Lord, Lord Young of Cookham—to create lasting and shared prosperity for the good of the nation as a whole. We can see how the SI is designed to drive through nationally significant projects at pace. However, the then Opposition, us included, were greatly concerned that such powers would be used only when necessary and with appropriate safeguards in place.
We will have to watch to see whether the safeguards and processes envisaged by these changes are effective, and whether the definition of “national importance” has been consistently applied and the criteria as laid out adhered to. Perhaps the Minister can give us some examples of what applications constitute a matter of urgency and warrant an expedited planning process.
Our overriding concern is the need for accountability and transparency. Can the Minister clarify what is envisaged—in the words of the Minister in the other place—to ensure that
“the House as a whole”
will have
“the opportunity to consider and scrutinise their general operation”?—[Official Report, Commons, 13/2/25; col. 33WS.]
Is this for each application or the generality of the process? To paraphrase my noble friend’s question, we would seek clarity on the review.
There are legitimate concerns around the erosion of local democracy—of not listening to local voices and their elected representatives. Can the Minister reassure us that all voices will be heard and consultation will be wide ranging, as appropriate to the application? I underline that phrase. Does the Minister agree that the undeniable right to be listened to and consulted does not confer a right of veto?
I am unconvinced that a retrospective annual report in the form of a letter of decisions taken, placed in both Libraries, fulfils the commitment to make sure this is scrutinised and accountable. We are looking forward to the changes to come in the context of the new Planning and Infrastructure Bill, which I am sure we are all eagerly looking forward to—or not. However, that is an argument for another day. We support this SI, with caveats on future scrutiny and transparency.
Lord Jamieson (Con)
My Lords, as usual I declare the fact that I am a current councillor in Central Bedfordshire. I thank the Minister for her explanation on the SI and the reasons behind it. Like my fellow noble Lords, I recognise that we need to get on with these major infrastructure projects. The noble Baroness, Lady Thornhill, gave the example of Heathrow, but one can also think of the Lower Thames Crossing, which I understand has received approval just today, after about 800 million pages of planning documents.
It is important that we do that, so in principle we support the need for the SI. The Minister has reiterated to us how important it is to get on with these things, but to do so by completely ignoring the public and the local planning process is a concern to this side of the House. We really want the assurance that it will be done only in exceptional circumstances and where speed is absolutely necessary. We recognise that the planning process is far from perfect; I too look forward to debating the Planning and Infrastructure Bill. This very much seems to be a mechanism to shoehorn through a process in a system that does not work. We really ought to look at making the system work.
I very much look forward to hearing the Minister’s comments on why it is so necessary to do that and her assurances on why it is necessary to circumvent local planning processes and local transparency. I also support the calls from fellow Peers that local involvement should be maintained and representations to the Minister should be still able to be made.
Baroness Taylor of Stevenage (Lab)
My Lords, this has been a helpful debate. As ever, our great experts on planning in the House contributed to a good discussion. I will, of course, attempt to answer all the questions. I am sure that noble Lords will pull me up if I do not if I do not answer them. I will, of course, check in Hansard afterwards and reply in writing on anything to which I have not responded to fully.
The noble Lords, Lord Young and Lord Shipley, asked who is able to apply for planning permission through these routes. Section 293 of the Town and Country Planning Act defines who is an applicant known as an appropriate authority for the purpose of applications under these routes. For example, this includes where land belongs to a government department or is held in trust for His Majesty for the purposes of a government department. That department is considered to be an appropriate authority. For land belonging to His Majesty in right of the Duchy of Lancaster, the Chancellor of the duchy is the appropriate authority and for land belonging to the Duchy of Cornwall, a person that the Duke of Cornwall appoints is the appropriate authority. So land that goes into any of those routes will be appropriate for this route.
The uses for Crown development and confirmation of which developments Crown development can be used for was the subject of the question asked by the noble Lord, Lord Young. I am sure that he will ask again if I have got that wrong. It will be for the Secretary of State to assess on a case-by-case basis what is deemed nationally important, and it would not be appropriate to comment now on specific schemes. However, it is likely that the Crown development route will be used most for HMG programmes relating to nationally important public service development. For example, this would include, but not be limited to, new prisons or border infrastructure. Traditionally, those things are difficult in the planning process. The route could also be used for defence-related development, as PINS is able to put in place special procedures to handle information dealing with matters of national security. Special provisions exist whereby the Secretary of State can issue a direction limiting the disclosure of information relating to matters of the security of a premises through Section 321 of the Town and Country Planning Act 1990. The Crown development route can also be used for particularly sensitive or significant development being brought forward by, or on behalf of, the Crown. We expect few applications to be submitted through this route every year. It is not going to be used all the time; it would be an exception.
In terms of urgent Crown development, again, it will be for the Secretary of State to assess on a case-by-case basis what is deemed nationally important and needed urgently. When I looked at the papers for this SI, the first thing that came to my mind was the time when, during Covid, we were getting desperately short of mortuary space. This is a bit of a morbid subject but, in the middle of a pandemic, it is vital that you think about that and you may want to have an urgent process to deal with that sort of thing.
It would not be appropriate for me to comment on specific schemes, but the urgent Crown development route is expected to be used very rarely, where other planning application routes just cannot be used to secure a decision quickly enough. The pandemic might have been one of those instances. It will be used only where development needs to be put in place quickly, in a matter of days or weeks, and where it is in the national interest—for things such as medical centres, the storage and distribution of key goods and services in the event of a pandemic or, potentially, mortuary space.
The noble Lord, Lord Shipley, asked who makes the decisions—he was correct in his assumption on that; I hope that that is helpful—and whether the public will be able to object. I will come to those issues in a moment.
The noble Lord asked about how national importance is defined. The Government are committed to a planning system in which decisions are made locally. However, it is a well-established principle that, in limited circumstances, it is necessary for the Secretary of State to make planning decisions where issues of more than local importance are involved. In general, the Secretary of State will consider a development to be of regional or national importance only if it would: involve the interests of national security or foreign Governments; contribute to the provision of national public services or infrastructure, such as prisons or border infrastructure; support a response to international, national or regional civil emergencies; or otherwise have significant economic, social or environmental effects and strong public interest. The applicant will have to set out, as part of a statement accompanying the application, evidence demonstrating that at least one of those principles has been met.
The noble Lord, Lord Shipley, asked how “urgency” is defined. The applicant will be required to provide a statement to accompany the application setting out why they consider that the development is both nationally important and needed as a matter of urgency. The Secretary of State will accept applications through the urgent development route only where the applicant can demonstrate that the proposed development is both of national importance and needed urgently. The applicant will need to demonstrate that the proposed development needs to be made operational in an accelerated timeframe and that it is unlikely to be feasible using other application routes, including the Crown development route, and will need to evidence the likely consequences of not securing a decision within the accelerated timeframe. I hope that that is helpful.
The noble Baroness, Lady Thornhill, asked me about mayoral powers and strategic planning. I share her pain, as any local councillor will, over the planning process. I will never get back the hours that I have spent in discussion about great crested newts and rare species of bats and insects, so I feel her pain on that. However, these reforms are for national and very urgent issues only.
On mayoral or strategic powers, the Crown reforms will affect the ability of combined or mayoral authorities to call in applications of potential strategic importance. The relevant combined authority will instead be consulted for development coming forward through the Crown development route, so it will be done at that strategic level.
In response to all noble Lords’ questions about how further information on this will be provided, we will publish updated planning practice guidance to reflect the new routes coming into force. We intend to publish the amended guidance closer to the implementation of the routes.
The noble Baroness, Lady Thornhill, asked about transparency. As I said, applicants need to demonstrate that the application is of national and urgent importance, and the Secretary of State can accept that application only if she considers that that is the case.
When a decision is made to accept an application, as I set out in my opening speech, a letter will be written to the MP whose constituency the development falls in and will be deposited in the Libraries of both Houses. Application documents will be available and applications to both routes will be determined on planning merits, with the reasons behind whether to grant or refuse set out in the inspector’s report or the Secretary of State’s decision letter. I hope that that is helpful.
In my opening speech, I set out in some detail how community engagement will work; the noble Lords, Lord Shipley and Lord Jamieson, raised it again. Of course, community engagement is very important. Any comments made during the consultation and publicity period that raise material planning matters will be taken into account as part of the decision-making process. The local planning authority will also have a role to play. It will need to place the application and documents on its planning register and, as PINS does not have a local presence, the local planning authority will be required to affix site notices during the mandatory publicity period and notify owners or occupiers who adjoin the site. So, for that purpose, it will work just the same as the local planning process.
Regarding urgent Crown development community engagement, as I said, we would encourage consultation with local communities, where possible. If it is possible to do meaningful engagement in a timeframe, we would encourage that. Where it is not possible, the Secretary of State should use alternative methods to make sure that community views can be taken into account.
The noble Lord, Lord Jamieson, talked about fixing the planning system; we hope we will be able to do that. Working very quickly, we have already managed a major consultation on the NPPF and published a revised version in December. Yesterday, the other House had a long debate on the Planning and Infrastructure Bill, which will come to this House shortly. My belief is that there will always be a need for an urgency procedure for decision-making in councils. There will always be a need for some kind of urgent process and for the Secretary of State to be able to make a decision on national grounds. I hope that that has answered all noble Lords’ questions.
Lord Young of Cookham (Con)
The Minister has been enormously helpful in answering the questions, but she did not touch on the question of whether a decision to use this route would be justiciable. She may not be able to answer that, but I assume that it would be.
The Minister mentioned the case of Covid and the mortuaries. As I understand it, this system can be used only where the Crown owns the land, so if it does not own the land, it will have to buy it before it can use this SI. If something is urgent but the Crown does not own the land on which the building is needed, I wonder whether the CPO will hold things up, or whether that can be part of a streamlined process.
Baroness Taylor of Stevenage (Lab)
I was assuming that it would be an application made on land already owned, but I will write to the noble Lord and set that out in further detail.
On his other point, my understanding is that all things are, technically, judicially reviewable, but I will find out the detail of that and set it out. Obviously, if we are going to put an urgent and national process in place, we want it to be able to speed through as quickly as possible, but, in the planning world, it would be most unusual for there to be no process of review should that be needed. I will get our planning team to check that for the noble Lord, and I will write to him with the exact details.
Lord Jamieson (Con)
I have a question; it is not dissimilar to the one from my noble friend Lord Young. As I understand it, from what the Minister has laid out, it will in essence be up to the Minister or Secretary of State to determine whether this is urgent, nationally significant and so on. My real question is: what constraints will there be on him or her in determining that? Where is the opportunity to challenge, review or assess? I know that the Minister is going to come back on the issue of judicial review. Clearly, we do not want to have an urgent process be bogged down by it for two or three years; however, we would want some constraint on it. So what process is in place to ensure that the Minister is not in a position to determine all of this by himself or herself?
Baroness Taylor of Stevenage (Lab)
I am grateful to the noble Lord for reiterating those points. I set out that there is a set of criteria deeming whether an application is of national importance. The applicant will need to say which of those criteria they are using to say that it is of national importance. The same applies to the urgent procedure: the applicant will need to demonstrate one of those criteria for it being urgent, and the Secretary of State will decide whether or not that is the case. Out of the criteria I set out, the applicant will need to demonstrate that at least one applies. That is how it is going to work. I will have to come back to noble Lords on whether it will be reviewable.
In conclusion, the two new routes for planning permission that we are seeking to implement are necessary and timely; all noble Lords agree with that, I think. These regulations represent a crucial step to their delivery. I hope that the Committee will welcome the regulations, which address this critical requirement for a proportionate planning procedure for nationally important Crown developments.