Neighbourhood Planning Bill

Lord Judge Excerpts

Committee: 4th sitting (Hansard): House of Lords
Wednesday 8th February 2017 Grand Committee

[Baroness Cumberlege (Con)]

My Lords, as this is the first time I have spoken in this session of the Committee, I declare an interest in that I have a legal case pending concerning a planning application. I have taken advice from the Clerk of the Parliaments and have been told that the sub judice rule does not apply here. I also have some interests in the register which I declare.

I will talk to the short version of the amendment, bearing in mind that we are coming to the end of this Committee stage. I was interested in what the noble Lord, Lord Beecham, said about the report of the Delegated Powers Committee. I have also read it and understand what it says. I understand that the noble Lord, Lord Thomas of Gresford, is on that committee and will know the detail. I have also looked at the House of Lords Constitution Committee, which makes it very clear that Henry VIII clauses are a departure from constitutional principle and should be contemplated only when a full and clear explanation and justification is provided.

Throughout this Committee, there has been quite a divergence of views on the purpose of the Bill. The Government see it as a way of building the maximum number of houses in the minimum of time. Local people see it as an opportunity to make the best decisions for their towns and villages, and that should be sovereign—I use that word advisedly.

The Henry VIII clause is not justified in the Bill. The Bill is an attempt to overtake the Localism Act by giving more power to the Secretary of State. I have found this tendency threaded throughout the Bill. On another clause, when I voiced my concerns, the Minister told me that the Secretary of State would use his powers sparingly. In a previous debate, my noble friend talked about consequential and minor amendments and the rest of it. That might be true of this Secretary of State, but I do not derive any comfort from that because, as we all know, attitudes change and the situation could be very different with a future Secretary of State.

I urge my noble friend to reflect on what the Bill is all about. I think he will agree that it is part of a raft of planning Acts. It is not dealing with the security of the state in a time of war, or to tie the hands of the Government in foreign negotiations. It is about ordinary people having some say in their communities and in planning the future of their neighbourhoods. Yet the Secretary of State wants to introduce an autocratic power to rule over good people in case they do not conform to his aspirations. I find that outrageous. I seek to defend the aspirations of good people who have their communities at heart. I strongly resist the incorporation of the clause, as I feel it has no part in the Bill.

Sadly, the noble Lord, Lord Pannick, cannot be here this evening. He has a family engagement that he tells me is a three-line Whip and he sends his apologies to the Committee. However, I am truly delighted that I have the support of the noble and learned, Lord, Lord Judge. He is a wise and wonderful person who is internationally admired for his in-depth knowledge of the British constitution, which is what we are talking about. I also welcome the noble Lord, Lord Kennedy, who has proved to be a doughty fighter throughout the Bill. I think of him not as a Rottweiler, but more as a terrier.

[Lord Judge (CB)]

It is the lion that represents Millwall, is it not? I shall be brief, but not as brief as perhaps I should be because, with respect, this clause is totally flawed. I shall not go over the debate I had with the Minister over what is now the Wales Act, but we still have to face the fact that under the clause as it now stands following the debate on Amendment 129, the Secretary of State in London will be empowered to overrule the legislation of the elected Assembly. There is no arguing; that is what it says, and that is what it means. I understand that the Minister would have no intention of telling us anything other than how he envisages this power being used, and of course I accept it from him, but the power is being given to wipe out the enactments of the National Assembly for Wales without so much as a reference to it.

In my respectful submission, it is subsection (2) of this clause that is so unacceptable: the Henry VIII clause, the legislation that will set aside the legislation. It will give power to the Secretary of State to say, “I don’t like this legislation any more” or “I don’t like this part of this legislation any more, I’m going to get rid of it”. That is what we are empowering if we allow this to go through.

With Henry VIII clauses, you have to ask whether they are justified. Here, you ask the question: how is it justified? The answer to that question is that it is not justified. I looked through the Explanatory Notes. They state:

“Part 3 Final Provisions … Clauses 37-40”—


that covers Clause 38—

“and 42 are self-explanatory”.

That is it. No doubt the clause is self-explanatory, but, with great respect, so what? Self-explanatory is no sort of justification. It is not even an attempt to justify.

Assiduously, I hunted further and found what the department’s memorandum tells us the clause is for:

“There are a number of consequential changes being made by the Bill, particularly those flowing from the addition of a new procedure for modifying neighbourhood plans, restricting the imposition of planning conditions, and amendments to compulsory purchase legislation”.


That is a very neat summary of a very complex piece of legislation, but this is the justification that the department advances:

“It is possible that not all such consequential changes have been identified in the Bill. As such it is considered prudent for the Bill to contain a power to deal with these in secondary legislation”.


Is that any sort of justification?

Going back to the wording, if,

“the Secretary of State considers appropriate”,

is an entirely subjective discretion, entirely uncontrolled in any way by the legislation. Is that really what the department wants? Well, the department may want it, but we are being invited to give powers to a Secretary of State years down the line to repeal an Act of Parliament, the whole Act, the Act that noble Lords have spent four days working on in this Committee. By this provision, if it comes into force, it can all be wiped out. That is what Henry VIII means.

I repeat that I totally accept the good faith of the Minister, I accept it completely and utterly, but he will not be the Minister 10 or 20 years from now, and the list of legislation that the noble Lord, Lord Cameron, gave us reminds us of how long this legislation could last. So because the department thinks there is a vague, undefined possibility that may arise in the future, I respectfully suggest that we are being landed with a hugely dangerous piece of legislation because it is totally unjustified. Of course the future is unsure. We all know that; Shakespeare told us that. It is the most important line he wrote. We know that the future is unsure, but it is not a justification for giving literally sweeping—sweeping away—powers to the Executive. That is not how we should operate.

[Lord Thomas of Gresford]

I wholly support everything that the noble and learned Lord, Lord Judge, just said, and what the noble Baroness, Lady Cumberlege, said in introducing this debate. The matter that concerns the Delegated and Regulatory Reform Committee is on page 9 of its report, at paragraph 54. Not only is the power “very wide” in scope, but it,

“is to make whatever provisions—including ones amending and repealing Acts of Parliament … We note that it has become standard practice for provisions of this type to be included near the end of a Bill”.

This is appearing all the time. It is really an insurance policy: “We might make a mistake, and if we make a mistake we do not want to have the trouble of admitting it; we will just get some secondary instrument through Parliament, and that will be all that we have to do”. That is not a sufficient justification for such a wide power.

The committee suggested that at the very least, the power could be restricted by some type of objective test of necessity: to where it is necessary—to “where we have made a mistake” if you like—or to where something important has been omitted. We need something that gives substantive limitation to such a widely expressed power.