Growth and Infrastructure Bill

Lord True Excerpts

Tuesday 22nd January 2013 Lords Chamber

[Lord Best]

My Lords, I declare my interest as president of the Local Government Association. We are not actually discussing the stand part debate at this moment. We have a bunch of amendments on which I detect that everyone, including both the previous Secretaries of State who have talked on this, actually agrees—namely, that if the Secretary of State is to have the power to take away powers currently in the hands of local authorities for planning, then we may need to put in place some constraints on the use by the Secretary of State of that new power. These amendments are all about putting some constraints on the Secretary of State, and they seem to be entirely reasonable and proper. Nick Boles, the Minister may get his way; he says quite clearly, and I am sure that he is right to do so, that Clause 1 is intended as a deterrent and that,

“it would, in fact, apply to very few authorities. Indeed, I hope it would apply to no authorities, should they improve their performance”.—[Official Report, Growth and Infrastructure Bill Committee, Commons, 27/11/12; col. 242.]

Fair enough; there may be a requirement on some local authorities to do better than they do at the moment. But if they can show that improvement, then I think we would all be clear that the Secretary of State would not be able to use a new power.

The consultation paper suggests that there are really two criteria here on which local authorities would be judged. The local plan does not feature very prominently but they are about the performance at appeal; quality, which is measured by the approval rate by local authorities; and speed—how fast they do it within the timetables that have been set. On the first of those measures, the performance at appeal, it is fair to say that no local authority at the moment would fail this test at all. If you take account of the fact that a local authority is quite entitled to come up with a negative view, even if the inspectorate goes against it later, it is only really where costs are awarded against a local authority that one could say that that local authority had not been behaving in a proper and sensible manner.

There are so very few cases of costs being awarded that I do not think anyone would fall on performance at appeal. It is speed—timeliness—on which local authorities are likely to be judged to be failing. Here it is possible for local authorities to change their ways in order to speed up. At the moment there is no intimation that those that are already demonstrating in their direction of travel that they are improving their performance will be acknowledged or taken into account. Northumberland County Council’s performance under the speed/timeliness measure has improved in the following way over the past 12 months, for example: it had 30% of its major applications determined within 13 weeks in the third quarter of 2011 and that was improved to 48% the following quarter, 52% the quarter after that and 57% the quarter after that. Improvements can happen. Clearly, local authorities need to be given the time, the space, the opportunity and the support to make those improvements before a very heavy-handed removal of powers ever takes place.

I offer here, as I think that I am mandated to do so, the helping hand of the Local Government Association in trying to secure those improvements. It has furnished me with a whole list of recommendations from local authorities that, in various respects, have been able to dramatically improve performance using the techniques, the peer-group opportunities, that the LGA brings. I think there is agreement in this House—and I hope the Minister will be able to go with this tide of approval—wherever we come from on the bigger point of principle, that there must be constraints and opportunities for local authorities to demonstrate improvement, given plenty of time and opportunity to do that, before the Secretary of State even contemplates doing what we are told he does not really want to do in the first place: use this new power.

[Lord True]

My Lords, I must also declare an interest as leader of a London local council that is a planning authority and as a member of the leaders committee of London Councils, but I should make it clear that I in no way speak on behalf of London Councils.

I shall not follow the Second Reading or clause stand part tone of the debate because I think the noble Lord, Lord Best, has summed up rather well the mood of the Committee on this. My noble friend Lord Jenkin of Roding made a very wide-ranging speech which cited a series of people with great acronyms and of great importance, including a professor, saying that the planning system is a great economic drag on the country and we must do something. One could say such things of employment law, health and safety, transport regulations or any number of things. It is not in itself an argument to remove elements of a system. The question that we must ask in this Committee is whether the remedies are proportionate, whether their administration is going to be objective and whether, overall, they will be conducive to the public good. I actually think that some of the things in the Bill answer that test positively and a number, as I said at Second Reading, resoundingly negatively. We must find the balance in Committee.

I must apologise to your Lordships in advance that I will be limited in the time that I can be present in the Committee, which may come as welcome news to some. I have a council meeting this evening. Doubtless I shall pass the scoutmaster’s hut on the way to the council meeting—that was something for the chairman of my party to note. I will also be unable to participate in Committee sittings next week. I apologise to your Lordships and to the Minister for that. I know the Minister will be listening courteously, as she always does, to everything said.

I want to make a relatively narrow point on important amendments that my noble friend Lord Tope and the noble Lord, Lord McKenzie, have tabled. We will come on to discuss the criteria in the next group. The point that the noble Lord, Lord Adonis, made about the criteria is accurate. I made the same point at Second Reading. It is not enough for a current Minister to say, “I will only use these criteria”—which we have not yet seen—“for a limited number of purposes”. A future Minister given extraordinarily wide powers by your Lordships could use them in a very different way. I am sure that is something that we will examine later as we proceed. As Committees of your Lordships’ House have said, greater defences need to be built into the system.

I also think that a period of notice is a useful and important defence to build into the system, not only for the reasons that have been cited. I am not going into the question of whether it should be 18 months or 12 months or of what it should be, but what the noble Lord, Lord Tope, has put before us is a very important point, as the noble Lord, Lord Best, said. That period is a safety margin in which a local authority can improve, but it is also a brake on precipitate action by the Secretary of State. It may be that I can be disabused by the Minister either now or on Report, but it looks as though the Secretary of State can just pop up, presumably on the basis of the criteria that we will have seen by Report, and say, “Toytown Borough Council, you are hereby designated”, and the next day a developer can whack in an application to the Secretary of State and, heigh-ho, off we go, everybody is happy, particularly the developer. It may be that in existing law and in the Bill there are things that prevent that, but if that can happen, there is a great moral hazard in any Executive having this sort of power. The noble Lord, Lord McKenzie, used a phrase: he said that people might “game the system”. I do not know whether that is true, but I dare day that there are ways in which you could game a system to make it look as though a local authority was not performing well.

I am slightly more worried that somebody might play the system and say, “We are having terrible trouble with these people”. Perhaps they would go along to the Treasury or some other place and say, “Well, Toytown Borough Council is not performing. It needs to be designated”. Somewhere—I would prefer via Parliament by law, in either primary or secondary legislation—there should be some brake on the moral hazard of the Executive saying, “We are designating these people, and we are going to do it tomorrow”.

That is another potentially useful aspect of time. When we have a planning application before us, we have to put online all the representations that are made. Where will be the representations that are privately being made to Ministers about bad authorities? Will they be placed online by the department as they are submitted, prior to the Secretary of State making his decision? I do not know, but I think that this aspect of potential designation should be considered. A pause, a warning, or a period in which the Secretary of State can be challenged to justify the action he proposes to take, beforehand as well as afterwards, would be useful.

There is a case for Clause 1. I do not agree with those who would like to see no long-stop power. However, the line of argument which the noble Lord, Lord Tope, has opened up is very fruitful. It would be good for local authorities and the planning system, and it might be good for future Governments as well.

[Lord Shipley]

My Lords, I declare my interest as a vice-president of the Local Government Association. I agree entirely with my noble friend Lord True and support the four amendments in this group.

The report of the Select Committee on the Constitution, published on 18 January, refers to Clause 1 being,

“a novel provision in the context of town and country planning”.

“Novel” might mean “new”, but it might also mean, “very different and therefore very important”; I think that it is meant to be the latter. It is novel and, as a consequence, it must be properly understood. A centralised form of front-line decision making is being introduced at the expense of localism, as the Select Committee has made clear. I do not find that good. In particular, I draw your Lordships’ attention to the fact that there would be no appeals system other than judicial review to a decision taken by the Planning Inspectorate. In the context of democratic control of decision making, simply to pass a decision without the right of appeal to the Planning Inspectorate is not right.

I was then particularly concerned by paragraph 10 of the Select Committee report, which is important and says:

“We have consistently expressed the view that executive assurances about how statutory powers will be exercised are no firm basis on which to legislate. Constitutionally speaking, they are no proper substitute for clarity in the statutory provision”.

The Select Committee concludes:

“In our view, the Government’s own policy intention of designation under clause 1 only in exceptional cases”—

as Ministers have been making clear—

“should be made clear on the face of the bill. The House may also wish to consider whether the criteria and procedures for making or revoking a designation should be set out in secondary legislation”.

I think I have concluded that in both cases they should and I very much hope that shortly we will hear confirmation that the Minister at least will look at this question again. The Government’s aim should be never to use their powers.