Business and Planning Bill

Lord Stevenson of Balmacara Excerpts

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Monday 20th July 2020 Lords Chamber

Moved by

[Lord Stevenson of Balmacara]

19: Clause 5, page 5, line 7, at end insert—
“(6A) Any conditions published under subsection (6) are subject to annulment in pursuance of a resolution of either House of Parliament.”

[Lord Stevenson of Balmacara [V]]

My Lords, in moving Amendment 19, I will also speak to my other amendments in this group. Since there is much agreement, and also duplication, I will try to be brief.

These amendments are drafted pursuant to the 17th DPRRC report. I thank the committee for its hard work on this Bill, and on the emergency Bills on which it has had to work in recent weeks. The timescales are very difficult, and the pressure to deliver is also very high, but it has been able to do that with considerable skill, and we are very grateful.

The DPRRC recommendations set up, in essence, a dialogue between the Government and the committee. However, in a spirit of co-operation and because of the short timescales of the emergency legislation, we often put down the recommendations of the committee as amendments as a way of encouraging the Government to act. In Committee, we had a series of notifications that the Government were preparing to accept the DPRRC recommendations. However, on this occasion, it also produced an interesting outcome. For your Lordships’ information, the wording of our amendments has been strongly influenced by the helpful advice we received from the Public Bill Office, although they are our responsibility and tabled in my name. But it is interesting that on several occasions, recommendations made by the DPRRC in the report have resulted in different wordings in the amendments that have been tabled by the Government and by ourselves. When the noble Earl comes to reply, he may be able to shed light on the Government's thinking and explain some of the differences in approach, and I think that would be helpful. Amendment 78 in the name of the noble Earl says:

“If the Secretary of State considers it reasonable to do so to mitigate an effect of coronavirus.”


But our version in Amendment 79, which we hope will achieve the same result, says

“but regulations may only be made under this subsection where the Secretary of State considers it necessary or appropriate for a purpose linked to the coronavirus pandemic.”

I am not saying that we have a monopoly on the correct drafting, but I think it interesting that we have come to different conclusions about what might be considered the same issue.

I am left with a slight concern that we may have exposed a gap in our procedures that is exacerbated by the nature of these pieces of legislation. I hope that in calmer times, the DPRRC and the House might find an opportunity to reflect on this, and that our other committees, such as the Secondary Legislation Scrutiny Committee and the Constitution Committee, might do likewise.

When he comes to respond, it would be for the benefit of the House if the noble Earl highlighted any areas where the Government have decided not to follow the advice of the DPRRC, in whole or in part. I beg to move.

[Lord Balfe [V]]

I only really need to say one thing. I am concerned that some of these clauses might turn into permanent legislation—I am aware that there is a tendency for what is temporary to become permanent. Can I have the Minister’s assurance that it is not intended to extend any of these clauses beyond what is absolutely necessary to deal with this emergency?

--- Later in debate ---

[Earl Howe (Con)]

My Lords, I begin by speaking to the government amendments in my name—Amendments 26, 28, 47, 49, 58, 60, 65, 67, 73, 75, 78, 80, 81 and 83—which are grouped with Amendment 19 and the others in this group tabled by the noble Lord, Lord Stevenson.

I am grateful to the noble Lord, Lord Stevenson, for tabling his Amendments 19, 22, 57, 63 and 71, which would require any statutory guidance issued by the Secretary of State in relation to pavement licences, extended planning permissions, construction hours or electronic inspection of the Mayor of London’s spatial development strategy to be subject to negative parliamentary procedures. As he indicated, these amendments reflect recommendations made by the Delegated Powers and Regulatory Reform Committee of your Lordships’ House in its report on the Bill. I welcome the opportunity to discuss them.

The committee’s views are always important, and we have responded positively elsewhere in the Bill to its recommendations, as I shall explain in a moment. However, in relation to this matter, I am afraid we cannot accept its recommendations or, by extension, these amendments. This reflects partly a general principle but also the practical realities. First, the statutory guidance under Clauses 5, 8, 16, 17, 18 and 21 is planning guidance. Guidance by the Secretary of State to local planning authorities has been a key feature of the planning system ever since its creation over 70 years ago—whether that guidance has been through circulars, planning policy guidance or, more recently, the National Planning Policy Framework and its associated practical guidance.

The issuing of this guidance, as a general principle, has never required statutory instruments. For instance, there is no parliamentary procedure requirement in relation to guidance to local planning authorities about the preparation and content of local plans, a key planning function under Section 34 of the Planning and Compulsory Purchase Act 2004. Similarly, and to give an example directly relevant to this Bill, our construction working hours provisions and the extension of planning permission provisions modify the Town and Country Planning Act 1990. The various powers of the Secretary of State to issue guidance under that Act are not subject to parliamentary procedure. These documents will form part of the full suite of planning practice guidance and, in practice, it would be peculiar to have different parallel procedures for publication.

Our pavement licence clauses are linked to Part 7A of the Highways Act 1980. That Act contains four powers for the Secretary of State to issue guidance, none of which are subject to parliamentary procedure. Two of these powers were inserted by amending Acts in 2000 and 2015. The situation is similar for other statutory guidance required by this Bill. So, prescribing a parliamentary procedure for guidance in relation to the temporary planning measures in the Bill would be out of kilter with our well-established approach.

Furthermore, requiring guidance to be subject to parliamentary procedure does not reflect the practical realities of planning guidance. The draft guidance we have published is, like our other planning guidance, technical and practical and expressed in the form of questions and answers to help local planning authorities, and applicants, and has been formulated taking account of the view of sector specialists. For instance, the guidance on additional environmental approval for extending planning permissions has had input from the Environment Agency and Natural England. I hope that many noble Lords will have had the opportunity to review this guidance during the course of the Bill’s passage.

This guidance is designed to evolve over time in response to local planning authorities’ practical experience of these temporary measures. While we have obviously sought to ensure that guidance is as comprehensive as possible from the outset, we know that, in time, additional questions or clarifications may be required. We want to be able to make these updates in a flexible and timely way. We should not forget that local planning authorities are best placed to understand the specific needs, requirements and arrangements of their local areas. Providing helpful and up-to-date guidance is essential in allowing them to exercise their judgment on the ground. Requiring each change of guidance to be subject to the negative parliamentary procedure makes it more difficult in practice to make incremental changes to help them. I therefore regret that we cannot support these amendments, and I humbly beg the noble Lord, after reflecting on our arguments, to withdraw or not move them.

Turning to the other amendments in this group, I am pleased to say that the noble Lord, Lord Stevenson, and I find ourselves in broad agreement. The Government’s Amendments 26, 28, 47, 49, 58, 60, 65, 67, 73, 75, 78, 80, 81 and 83 implement another of the recommendations of the Delegated Powers and Regulatory Reform Committee, which the Government are pleased to accept. As noble Lords will be aware—I emphasise this to my noble friend Lord Balfe and the noble Lord, Lord Blunkett—the vast majority of the measures in the Bill are temporary. In several cases, clauses provide for expiry dates to be extended by regulations, subject to the affirmative or “made affirmative” procedure.

We thank the committee for its careful consideration of the Bill. Our amendments in this group would implement its recommendation to clarify that the provisions will only be extended for a purpose linked to the coronavirus pandemic. I was grateful to the noble Lord, Lord Beith, for his supportive comments on this issue. I join other noble Lords in extending my sympathy to him on the loss of his wife, the noble Baroness, Lady Maddock.

The Government’s intention has always been for the powers to extend the temporary provisions to be used, if necessary, in response to emerging information about the duration of the pandemic, the nature of social distancing requirements and the impact of coronavirus on relevant sectors. We want to provide absolute clarity that the powers to extend will be exercised only where this is necessary and appropriate, and only to mitigate an effect of coronavirus. Therefore, these amendments make this clear on the face of the Bill. The wording we have used is consistent with other legislation. I also remind noble Lords that the requirement for any extensions to be by regulations, subject to the affirmative or “made affirmative” procedure, will provide opportunity for further parliamentary scrutiny.

I am sure that noble Lords will welcome this clarity, and I hope that the noble Lord, Lord Stevenson, will agree to withdraw Amendment 19 and to not move Amendments 27, 48, 59, 66, 74, 79 and 82, which are intended to achieve the same purpose.

[Lord Stevenson of Balmacara [V]]

I thank noble Lords who have spoken in this short debate, not just for their widespread support but for their brevity. I particularly thank the noble Lord, Lord Naseby, for his kind words. I join other noble Lords in very much appreciating that the noble Lord, Lord Beith, has come in today to speak on this issue, and sympathise with him at this time of loss.

It was good to hear the noble Earl give a full response. He always couches his words to your Lordships’ House in such reasonable terms, packaged in a velvet of deepest hue, that it is sometimes easy to think that he is agreeing with you, when in fact he is not. In particular, I picked up his heavy points regarding the Government’s intention not to take up the recommendations from the DPRRC on statutory guidance to which regard must be had. The noble Earl gave very good examples, which had not occurred to me, but I have no reason to doubt that they are genuine. However, the DPRRC’s report is very firm on this issue:

“We have frequently taken the view that statutory guidance to which regard must be had … should be subject to a parliamentary procedure.”


It goes on to say that:

“This is not to say that the guidance should have to be drafted like a statutory instrument … The point is that guidance which has legal significance, and which may have—and may be expressly designed to have—a transformative effect on behaviour in important areas, requires a parliamentary procedure.”


There is clearly no chance that the House will resolve this important issue in this Bill, but I point out to the DPRRC that it has now been raised. It, and other committees, may wish to return to it in order that we resolve it going forward.

The House has given this issue a good kick about. I am grateful to the noble Lord, Lord Kirkhope of Harrogate, for picking up exactly point I was trying to make about the importance of the choice of terminology. He focused on a different set of amendments, but this issue runs like a golden thread through all the Government’s proposals when compared to ours. These are important differences, but they are not necessarily going to hold the House back tonight. I hope, again, that the DPRRC will look at them in due course. I beg leave to withdraw Amendment 19.

Amendment 19 withdrawn.

--- Later in debate ---

[Lord Clement-Jones]

My Lords, Amendment 52, which I have signed and strongly support, is similar but different, in a crucial respect, to the one which the noble Baroness and I tabled in Committee. I am delighted that we are joined by even heavier artillery on Report. In Committee, the noble Baroness, Lady Williams, said:

“At present it is not possible to use a digital ID as proof of age for the purchase of alcohol in the UK because there is no industry standard for digital ID… Until such a standard is agreed, the current restrictions should be upheld. I hope that my noble friend will not press her amendment. I shall finish there.”—[Official Report, 13/7/20, col. 1435.]


I am not going to repeat what I said in Committee—for which I am sure the Minister is grateful—but I know she is always open to sound argument. I want to show why her brief in Committee was not entirely accurate.

It is rather misleading to say baldly that there is no industry standard for digital ID. Back in 2016, the age verification group of the Digital Policy Alliance—which has some distinguished and knowledgeable present and former parliamentarians among its members—sponsored a publicly available specification, PAS, code of practice standard number 1296 on online age checking. This was adopted by the British Standards Institution and the independent regulator, the Age Check Certification Scheme. It is now PAS 1296:2018.

A publicly available specification is a voluntary standard intended to assist providers of age-restricted products and services online with a means to adopt and demonstrate best practice and compliance. There are easily available audit processes and services to check conformity with the PAS, involving policy, quality and technical evaluation, and an enormous number of reputable companies provide age-verification services through digital ID systems. As the noble Baroness said, in many ways the UK is leading the way in digital ID. It is active across the range of age-restricted products and services, such as DVDs, gambling, lottery tickets and scratchcards, knives, air weapons, fireworks, petrol, solvents and cigarettes, but not—perversely and uniquely—alcohol.

This is the digital ID marketplace that the Government said they wanted to build, in their call for evidence last year. Most of these companies are UK-based and many are global. Nearly all work to the standard set by PAS 1296:2018. Many of them have other forms of certification and security standards in place, such as ISO 27001. There is an active trade body, the Age Verification Providers Association, whose members—as the Minister probably knows—have just had good news from the High Court in an important judicial review case involving non-implementation of the age-verification provisions of the Digital Economy Act.

Another government department, BEIS, through its Office for Product Safety and Standards, together with the Chartered Trading Standards Institute, provides training that

“will enable participants to confidently apply the PAS 1296:2018”.

Not only is there a form of auditable standard in place, but reputable training in compliance with PAS 1296.

As we pointed out in Committee, this is a strongly deregulatory measure. Retailers have noted that almost 24% of supermarket baskets contain an age-restricted item. As a result of current rules, many customers are waiting longer than necessary. This would ease any congestion, mitigate the risks of queuing, reduce the need for continual sanitisation by staff—as the noble Baroness said—and be for the benefit of all in infection control. Rather than being the last ship in the convoy, can the Home Office not steam ahead on this? The noble Baroness, Lady Neville-Rolfe, explained that it is essentially a pilot period only. I urge the Government to accept our amendment.

[Lord Stevenson of Balmacara [V]]

My Lords, I speak in support of Amendment 52. I very much hope that the Government welcome the spirit of what was said by the noble Baroness, Lady Neville-Rolfe, even if they cannot accept the amendment today—although I hope they can. There are a number of areas in public life where we urgently need a proper age-verification system that deals directly with what an individual can and, on occasion, cannot do. Gambling and access to legal pornography are two that come to mind, but access to alcohol, whether consumed on or off the premises, is under direct consideration today.

The noble Baroness, Lady Neville-Rolfe, spoke convincingly in Committee and again this evening on the benefits that a digital ID system would bring. This was echoed by the noble Lord, Lord Clement-Jones, who also explained what is happening in the digital marketplace. If, as the noble Baroness says, this boils down simply to putting ID cards, passports or driving licences on mobile phones, it is hard to see why the Government do not grab this initiative. It is already widely used, particularly for verifying age for knife sales.

There may be other work going on in the Home Office on digital ID, but I would be satisfied if the Government today confirmed that they are aware of the benefits of digital ID, supportive of the technology in principle and prepared to work with the industry to resolve any outstanding issues in the near future.

[Baroness McIntosh of Pickering]

My Lords, I too will address Amendment 52. I thank my noble friend Lady Neville-Rolfe for the interest she has shown in digital ID. I again declare my interest as chairman of the board of PASS, the Proof of Age Standards Scheme. I welcome the opportunity to again put on record my support for digital age verification. I am proud of the work PASS does; it has stood the test of time well in providing assurance through a set of national standards and an independent audit of physical proof-of-age cards. However, we are determined that PASS will not stand still. In an age when so many young people own a smartphone—according to Ofcom data in 2018, 95% of 16 to 24 year-olds own a smart- phone—it is only pragmatic for proof-of-age schemes to adapt to the technology most widely used by young adults.

That is precisely why PASS launched a consultation to seek views on its proposals to develop a set of standards to underpin digital proof of age. The PASS proposals will offer a seamless transition from physical to digital verification, continuing to support the many thousands of physical proof-of-age cards currently in use while mirroring those high standards for a new generation of digital proof of age. It will create a universal solution that will work in any number of outlets that sell or provide age-restricted products, as well as for alcohol licence holders. It will avoid additional costs for retailers and pubs, which are, as we all recognise, experiencing unprecedented challenge and change—that is why this Bill, and its measures to help businesses as the economy starts to reopen, are so welcome. It will allow for a level playing field of competition and choice for the new market of digital-age providers, where retailers and licence holders will not be reliant on a single supplier.

I do not believe that we want to prejudge the findings of the consultation: it closes this week, on 24 July, and the responses so far run into hundreds. However, there is support for the direction of travel set out by PASS from retail trade bodies, including the Association of Conveniences Stores, the National Federation of Retail Newsagents, the Retail of Alcohol Standards Group, and the Wine and Spirit Trade Association, and high-street supermarket brands, some of which are members of the British Retail Consortium. There is support within the hospitality sector, including from some well-known pub companies, and from the majority of card issuers, including CitizenCard and Young Scot. There is also support from the Age Verification Providers Association, which includes many of the new generation of tech companies, specialist in digital solutions, and the Government’s very own commissioned expert panel on age restrictions.

I pay tribute to the hard work and responsibility of the retail and hospitality industries over recent years. That we talk less today than in the past of the scourge of underage drinking and the dangers of age-restricted products is a great tribute to their hard work and responsibility. But let us not lose sight of the importance of preventing the sale of such products to minors; the protection of children from harm is a vital licensing objective. Regulation is important in managing risk, and accreditation against agreed and independently audited national standards is vital.

--- Later in debate ---

[Baroness Kramer (LD) [V]]

My Lords, first, I thank the noble Baroness, Lady Penn, for her willingness to talk virtually to a number of us who have been focused on this issue; however, I came away from those discussions almost more confused than I went into them. This House will be aware that the financial regulators—certainly the FCA—do not regulate institutions but activities. One of the activities it cannot regulate is commercial lending, which is on the far side of what is generally called the regulatory perimeter. A slight sleight of hand is, to some extent, made available to sole traders, micro-companies and the very small end of small businesses so that they do merit some protection, that typically coming in the form of an appeal to the ombudsman. Although the ombudsman has very limited power to actually make sure that any remedy is effected, there is at least one to go to.

For companies that do not fall into this category—my noble friend Lady Bowles provided the detail, so I will not repeat it—there is no form of protection; the FCA has no standing. Therefore, when those companies are put into default and the banks come to collect on their debts, their only resort has been to the courts. Under this arrangement, that is now removed from those companies if they have taken out a bounce-back loan. I really do not understand why the ability to go to the courts to protest unfair treatment has been removed.

The Government have full knowledge that the FCA cannot act under these circumstances. I suppose that, occasionally, somebody in government will argue that the FCA can turn to the Senior Managers Regime, but, as we all know, having listened frequently to the testimony from Andrew Bailey, only in very rare instances would the regime apply. Indeed, the FCA has been very reluctant to use it, even in some very egregious cases; in fact, I would be interested to hear from the Minister the number of times the FCA has actually used it. It is not a workable mechanism for trying to force the banks to provide fair treatment to the larger end of SMEs if they go into default under their bounce- back loans.

The Bounce Back Loan Scheme is brilliant, but I am very concerned that it will end up with a stain on its character when, in 18 months’ or two years’ time, we have a chain of companies that are clearly being treated unfairly by the banks and both the Government and the regulators stand back and say, “There is nothing we can do. This was an unregulated activity, only contract law applied, and we have disallowed these companies’ ability to go to the courts to seek any form of redress”. Frankly, it is a tragedy and a scandal in the making.

I am not sure it has been made clear to companies that when they apply for bounce-back loans, it is caveat emptor and they will be without even the normal range of protections should they go into default. If I understand correctly, the Government have decided to disapply the right to turn to the courts as part of an enticement to the banks to participate in the Bounce Back Loan Scheme. I cannot believe that that concession should be given; and if it was asked for by the banks, I am even more worried because, as we know, the banks seek opportunities to make profit—that is the business they are in.

Perhaps the Minister is not that familiar with the RBS and GRG scandals. The GRG was a profit centre. The RBS staff who were part of the GRG were looking not only to get loans and interest repaid but to make an additional profit, particularly by seizing assets. Under the various contract terms, they could identify firms that would value those assets. The owners or borrowers could argue that the assets were being valued at well below market value, but had no means of enforcing that, and of course we know from the various reports that followed that it was not infrequently the reality that assets were valued very low, triggering the default, and months later, having been seized by the bank, were resold for multiples of the valuation.

The mechanisms that the banks use when they have the opportunity to put a company into default are frequently outside the boundaries of what any of us would consider fair and appropriate. I do not understand stripping away from companies any possible route to a remedy under those circumstances.

[Lord Stevenson of Balmacara [V]]

My Lords, my name is on this amendment, and I am in general support of the points powerfully made by the noble Baroness, Lady Bowles, in Committee and today, and by others who have spoken. They have made the main arguments, which I will not repeat.

The Government argue that the key driver for this initiative is to get the bounce-bank loans out to as many small businesses as want them and can use them, and to reduce barriers to that effect. I sympathise—it is very hard to be against that aim—but there are clearly risks here, as we have heard. While my concerns are not identical to those of the noble Baroness, Lady Bowles, they are very similar, and I would like to make three points on the issue.

First, there is general agreement that the Consumer Credit Act 1974 urgently needs bringing up to date, to be fit for purpose regarding the changed regulatory landscape of different lending practices and the tighter financial circumstances of the 2020s, now and post Covid-19. The current lender/borrower relationship envisaged under the Act does not work but, as others have said, it is very risky to remove all the court protections, and I sympathise with that.

Secondly, the Government have put on record the very tight constraints that they are putting on lenders who wish to engage with bounce-back loans, including banning fees, banning punitive interest and forbidding reach-through sanctions to personal assets such as houses and vehicles, but is that enough? There is a powerful tool in the Government’s armoury.

Thirdly, the 100% guarantee that we have been talking about is on the lender, not the borrower, but that gives the Government considerable powers which they say they will use to drive good behaviour. For me, the key question is whether, in removing access to the courts under the unfair trading clauses of the 1974 Act, the Government have put the bounce-back loan borrowers in a worse position than if they had left it all in place, or—as suggested in the amendment—just the affordability issue. It is a close call.

I would be very grateful if the Minister, when responding, could deal fully with the following points. First, will she confirm that the Government will undertake to overhaul the Consumer Credit Act 1974 in the near future, taking full account of the issues raised in this debate? Secondly, can she list concisely the limits on lenders’ ability under the bounce-back loan to penalise borrowers who are in default or otherwise transgress, irrespective of the amount of money borrowed, and the statutory and non-statutory opportunities for borrowers to protect themselves and their possessions if lenders attempt to penalise them absent the core protection of the 1974 Act?

Thirdly, can the Minister set out what she called “the steely determination” of the Government to use their power to reduce or cancel the 100% underwriting of loans made under the BBL scheme, if lenders transgress? This could be a very powerful weapon. It would be useful to know who will have the power to trigger certain sanctions, and how borrowers will be informed about the process. The noble Lord, Lord Carlile, suggested that an arbitration structure was needed, and he may well be right. If the Minister can confirm that these points are in play and give assurances on them, then I suggest that the noble Baroness, Lady Bowles, does not press her amendment to a vote this evening, as we will not support her.