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My Lords, I congratulate the noble Baroness on racing through the 15 amendments in her name in such a short time and so clearly. The amendments in my name and that of my noble friend Lord Kennedy are Amendments 121CA, 121G and 135D. The noble Baroness has referred to Amendment 121CA, which provides that the consultation should not be confined to the first regulations but should apply to any sets of regulations that might emerge. Amendment 121G would require a full list of the type of applications that constitute a connected application to be defined in regulations by the Secretary of State, while Amendment 135D would require all regulations made under Clause 145 to be affirmative.
The Government’s intention to extend their fetish with privatisation to the provision of planning services emerged only at the last minute during the Bill’s Report stage in the Commons. It was not the subject of prior consultation and, like the Chancellor’s recent announcement about education, seems uncannily more like Lenin’s concept of democratic centralism than the localism which Ministers proclaim is their watchword.
It is instructive to consider the material produced by the Government in support of their proposals. The Bill’s impact assessment proclaims the importance of the planning application process being,
“resourced and organised in a way that allows an efficient and effective service to be provided”,
and cites fee levels as “an important factor”. Fees levels are of course prescribed by the Government themselves. The document stresses the importance of driving down the costs of processing applications and notes that there is,
“cross-sector concern that resource constraints are affecting the overall service”.
Typically, this so-called impact assessment contains no evidence as to the impact of current or future costs on the performance of the planning process, although it affirms that,
“adequately resourced planning departments depend on an appropriate level of income”,
which it fails to define. There is also no attempted definition of,
“well organised, efficient and low cost services”,
even though the costs are determined by the Government.
The document notes that the Local Government Association maintains that local taxpayers have been covering one-third of the cost of processing applications since the previous increase in fees four years ago. Interestingly, stakeholders expressed a cross-sector concern that constraints are affecting the service, while 82% of small and large builders found that 55% described the lack of resources as a “significant challenge”; 75% of applicants were unhappy with the time applications take; and 65% said they would be prepared to pay more to shorten the time.
The document goes on to enthuse about the virtues of competition in the provision of public services, including, for example, refuse collection. Though totally ignored by the impact assessment or any other document produced by the Government, there is of course a significant difference between a local authority contracting out a service when it chooses to do so and authorities being obliged to contract it out, especially when, as in this case, it will be the applicant who chooses the contractor, not the council, and who will do the work which would otherwise be carried out by the council.
Moreover, in this situation, as the Government themselves stress, councils will still have to determine the outcome of applications. I welcome the clarification that the Minister made in that respect. However, this two-tier structure is surely likely to increase the overall cost. If external contractors recruit existing planning staff to do the work, that is likely to increase the pressure on planning departments in the exercise of their residual responsibilities, if they are already having to cope with reduced staff numbers.
The Government claim that savings of up to 20% could be made in tendered or shared services and, to support that, they cite the experience in 1986 in saving around 20% in the hardly comparable sphere of refuse collection; between 6% and 12% in a 1999 survey; 20% in a 2008 survey; and a further 10% in a CBI survey—but not, of course, related to this function. These are broad surveys unrelated entirely to the planning service, which is the service we are talking about.
Processing the application is not a mechanical matter. It involves, as any councillor will tell us, public consultation—a delicate and often difficult process. I see the noble Lord the chairman of the LGA laughing, perhaps feeling the echoes of discussions in which he has been involved in the past, as I and others who have led and held other positions in councils would confirm. That is not least when proposals for new housing are being considered, which in itself is one of the more controversial areas of planning. Sensibly, one might have thought, council officers who have been engaged in, for example, the production of neighbourhood plans should be involved. But this proposal in effect doubles the cost.
Let us not forget that for all the problems faced by councils in maintaining the service at a time of draconian cuts, as some of us have repeatedly reminded the Government, hundreds of thousands of existing permissions for housebuilding have not been utilised by developers. Let me be clear, however, that councils can now, if they choose, contract out the service. Barnet, as ever, has led the way in this with G4S, the organisation which we are all aware is capable of successfully delivering any service, taking over the function.
The House needs to know why we are in the extraordinary situation of being asked to approve this radical departure, albeit on what is under Amendment 120A a temporary basis, under Clauses 145 to 148 without the consultation having been concluded or of course the Government’s response having been made available, and still less with the prospect of regulations being produced at some indefinite future date.
Yet again the Delegated Powers and Regulatory Reform Committee, to which the Minister referred—chaired, I remind the House, by a respected Conservative Peer—has published a report expressing serious concerns about the legislative process. Given the Government’s absurdly abbreviated timetable, the report was published only last Tuesday. It is unflinchingly critical of the Government’s approach. In respect of Amendment 106A, which is now behind us, it states:
“Inadequate and incomplete provisions of proposed primary legislation cannot be excused on the basis that consultation has not taken place or that the Government wish to retain ‘flexibility to set out differing timeframes as they apply in different contexts’. The policy should have been finalised following appropriate consultation before, not after, the Bill was introduced”.
Just when will the Government take any notice of the committee’s reasoned criticisms of their abuse of process?
These criticisms are voiced again in respect of proposed new subsection (6A), to be inserted into Clause 145 by Amendment 121F, which the committee describes as containing,
“an inappropriately wide delegation of power”.
The committee recommends, and my Amendment 121G provides, its replacement,
“with a provision which gives a much fuller list of the types of application that constitute a ‘connected application’ for the purpose of the clause”— proposed new Clause 145(6A)—
“coupled with a delegated power to add to the list by affirmative procedure regulations”.
Having initially rejected the committee’s proposed requirement of extensive consultations, the Government have now undergone what the committee describes as a “partial change of mind” by applying a consultation process to the first set of regulations under the relevant section. But the committee states that it is,
“highly desirable that there should be a duty to consult before making any regulations under these clauses”,
and reiterated its recommendation to do so. My Amendment 135D embodies this recommendation.
The committee reiterated its view that,
“the affirmative procedure should apply to the first exercise of the powers”,
in Clauses 145 to 148, and stated bluntly that the clauses contain,
“novel and highly significant powers for which there is no parallel in current planning legislation”.
It avers that the Secretary of State’s possible,
“desire at some future point ‘to react quickly to amend the procedures for pilots’ cannot justify minimising the ability of Parliament effectively to scrutinise exercise of the powers”.
The committee states:
“We remain firmly of the view expressed in our 21st Report that … the affirmative procedure should apply to every exercise of all the powers contained in these clauses”.
Those who elsewhere are contemplating reducing the role of this House in scrutinising legislation should know that these recommendations should, in the view of the committee, apply equally to the other House—which, as the experience of this Bill demonstrates, can be treated with even more disdain when the Government succumb to an attack of premature legislation.
Finally, the committee draws the attention of the House to,
“the failure of the supplementary memorandum to spell out clearly which powers are intended to attract the negative and affirmative procedure respectively; and … the apparent failure to give effect to the commitment given in the Minister’s initial response to the Committee”— that is, the response of the noble Baroness, Lady Williams—
“that the affirmative procedure should apply to the first exercise of the powers”.
All in all, too many provisions that could have been made optional will, if the Bill is not amended, serve to enrich the unaccountable by a process that is inscrutable and ultimately unamendable. This further encroachment on the rights and duties of democratically elected local councils is unacceptable and needs to be amended.
But the parliamentary process itself has been deeply flawed. In this year of celebrating Shakespeare, I cannot resist quoting some lines from “Richard III”, who, in act I, scene 1, confessed that he had been born:
“Deformed, unfinish’d, sent before my time”.
It is amazing that those words apply so aptly to the process that the Bill has undergone—a perfect description of it. It is a Bill that cries out to have been a carryover Bill. It need not have been rushed through to be completed in this Session. It could have been carried over; the consultations could have taken place; the House could have been properly informed about what the Government intended and why, and what the response of the relevant parties is. The Government have chosen not to do so. It is an unsatisfactory situation that can be improved only if they are prepared to accept some of the amendments before the House.