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.

Parliamentary Proceedings: Statistics

Lord Judge Excerpts

Wednesday 18th January 2017 Lords Chamber

[Lord Judge (CB)]

My Lords, when I saw what the noble Lord, Lord Butler, was asking the House to consider in the Question I realised that there must be some ulterior motive. I share his ulterior motive, which is why I wish to say a little.

Although we constantly assert that we are carrying out our scrutinising responsibilities, it is very rare that Parliament is scrutinising the legislation. We have heard about having 2,700 pages of primary legislation in every year for the last however many years—it is certainly four or five—for which the statistics are available. We have also allowed 11,000 to 12,000 pages of statutory instruments to go through and out into the public, telling them how they must live their lives. In the Digital Economy Bill, we have 46 clauses which include no fewer than 12 Henry VIII clauses. They will all come into force as statutory instruments. They will go through a process of not being really much scrutinised. When they come here, if in our scrutiny we say anything about any provision in it, the whole instrument goes. We then have a Strathclyde review telling us that we have interfered with the scrutinising process carried out in the other place and are somehow acting unconstitutionally.

I want all your Lordships to try to imagine my noble and learned friend Lord Hope of Craighead wondering what a statute meant. Is it a few words in a statute; a few words which appear in a number of places in the same statute and are nearly the same; or a few words that are nearly the same appearing in two, three, four or five statutes? He may put a wet towel around his head and wonder, “What on earth does this mean?”. He does not of course think, as I always did when I had a wet towel around my head, “What did Parliament think it meant?”, with the follow-up question, “Did Parliament think about it at all?”. Of course you cannot say that as a judge, because you are bound by the Bill of Rights and cannot question anything that has happened in the process of the parliamentary proceedings, so you struggle to find the answer.

This issue has to be addressed. If I may say so to the noble Lord, Lord Butler, I take the view that this is a tiny step forward to consideration of how we legislate—how we in both Houses seek to control the Executive. That is what we are here for.

Queen’s Speech

Lord Judge Excerpts

Tuesday 24th May 2016 Lords Chamber

[Lord Judge (CB)]

My Lords, much of what I want to say has already been said, but I will say it anyway. First, I take the point made by the noble Lord, Lord Richard. I sat and listened to the housing Bill. I knew very little about it and I did not intend to vote. I listened as a Bill was debated that consisted of a whole series of almost blank pages. Metaphorically speaking, there was nothing to be debated. A debate took place. The Minister very graciously, with great courtesy if I may say so, conceded this and that and eventually we got to regulations. She again, very graciously, said, “This will be affirmative resolution”. I thought, “Isn’t that wonderful?”.

If we are to have affirmative resolution procedures decided in the passage of primary legislation, it is built into it that this House can say no when the affirmative resolution comes to be considered. We really cannot have another Strathclyde review when affirmative regulations under the housing Bill come for debate before this House. It is an indication that the old rules are ceasing to apply. That is because the whole nature of legislation is changing.

My second point arising from Strathclyde is Strathclyde arising—that is, the tax credits debate. I listened to impassioned speeches, beautifully argued, half of them saying, “This is financial privilege. You have no business touching it”. Every time I listened to one of those I thought, “That’s obviously right”. Then I listened to impassioned speeches saying, “You didn’t really engage financial privilege at all. It’s not engaged”, and I thought all of them correct and positively right. If this issue had come before the Supreme Court, it would have divided five to four and the judgment would have taken 497 pages.

My point is this: either financial privilege was engaged, or it was not. It was not an issue for debate. It should have been clear. Our system should work so that it is clear. Of course, noble Lords will all understand that I am not making a personal point about the Leader of the House, but how can we take notice of her view on such a subject when she is, by definition, a member of a political party and of the Government? What is our Speaker doing? Why do we have a Lord Speaker? Surely it is right on these occasions to take advice and say, “Financial privilege does apply here”, or, “It does not apply here”. Then we can all get on with the debate, or be bound not to go on with it.

Again to copy the noble Lord, Lord Richard, this issue needs to be addressed. I apologise to the noble Lord, Lord Lisvane, but I have a great antipathy to any single individual being able to make a bare assertion that something applies. But whatever we do, we have to have a system that says, “Yes it does”, or, “No it doesn’t”. Every single Bill I can think of—perhaps not every single Bill; the odd criminal justice Bill does not—has cash implications. Money will be spent. Can we address that when we consider the primacy of the Commons and the sovereignty of Parliament?

If we are to work, and if the public are to have confidence in the way we work, can we please address the size of the House? It is a joke. It is the issue of all issues that brings us into disrepute. We have become a laughing stock. There are more of us than there are in the Commons. Over the last 15 years, Prime Ministers on both sides have exercised what seems to be an astonishing virtual royal prerogative to appoint as and when they wish. This cannot go on. I am not so naive as to think there is any Prime Minister in the world who would give up this power, and say, “I propose a simple Bill: Clause 1, ‘There will be no more Members in the House of Lords than in the House of Commons’; Clause 2—hurrah—‘The Prime Minister will give up his power’”, or will have his power circumscribed, reduced or extinguished. That will not happen.

But what are we to do about it? We are supposed to be part of the system that controls the Executive. Yet here we are, being filled by the head of the Executive. This is simply constitutional madness. More importantly, it detracts from the value of the work we do. At some stage we will have to resolve—I use the word “resolution”—to address this question and quickly, if only to get across to the public, to John and Jane Citizen, who take these issues seriously, that we recognise that we are not a jest. Our views cannot be brushed aside as a jest by a bunch of thousands of us sitting here with nothing better to do.