Neighbourhood Planning Bill - Report (2nd Day)

Part of the debate – in the House of Lords at 6:45 pm on 28th February 2017.

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Photo of Lord Bourne of Aberystwyth Lord Bourne of Aberystwyth The Parliamentary Under-Secretary of State for Communities and Local Government, The Parliamentary Under-Secretary of State for Wales 6:45 pm, 28th February 2017

My Lords, perhaps I may respond, particularly to the points raised by the noble Lord, Lord Beecham, in relation to Wales. I will pick them up at the end of this part of the review of other noble Lords’ amendments. I once again thank those who have participated in the debate, including my noble friend Lady Cumberlege, who set out a horrifying “Yes Minister” position. I am sure that one or two officials in our department will be listening but it is not regarded there as a training manual—although it possibly is the case in other departments. However, I give fair warning to anybody who thinks it is that it is not. The point was well made.

I am grateful for the welcome given by the noble Lord, Lord Pannick, to the position exhibited in the government amendments, as well as by the noble Lords, Lord Beecham and Lord Shipley. It was certainly the subject of my fruitful discussion with the noble and learned Lord, Lord Judge, who was instrumental in putting a strong case.

I confirm to the noble Lord, Lord Shipley, that the wording is the usual wording. I hope he is reassured by that.

I think we have responded. As a lawyer I understand the concerns, so I was very keen that we responded positively. We have sought to restrict the power to the area where we will need it for reasons that I am pleased noble Lords appreciate. We have also slightly altered—perhaps significantly altered in a few words—some of the wording.

The view of experts is that the position as now set out in the legislation will be construed very strictly against those seeking to rely on it—that is, potentially, the Government. That is enforced by Craies on Legislation: A Practitioner’s Guide to the Nature, Process, Effect and Interpretation of Legislation. It provides that consequential provision,

“will be construed strictly against the legislature”.

This passage goes on to state that provision made in reliance on the power,

“will be strictly tested to determine whether it can fairly be presented as a mere consequence (whether absolutely necessary or clearly desirable) of the principal provisions”.

In the event that the power is used to amend or repeal a provision of an Act of Parliament, or a Measure or Act of the National Assembly for Wales—so, in answer to the point raised by the noble Lord, Lord Beecham, in relation to this general provision, it will apply to measures in relation to Wales as well, although I will deal with his specific point shortly—it will need to be approved by each House of Parliament before it can be made by affirmative resolution.

It may assist noble Lords if I quickly provide an example of how the power is most likely to be used. We need to make sure that the new powers to take temporary possession of land, for example, can be conferred under all the numerous Acts which enable compulsory purchase powers to be conferred. We hope to do that by the time the Bill is passed, but that may not prove possible. That may entail amendments which may not be considered minor in the strict sense of the word but go beyond merely updating cross-references.

I understand the depth of feeling about this provision and hope that with the assurances made by my amendments, particularly the significant narrowing in the scope of the power, my noble friend and noble Lords will not move their amendment.

Amendment 67 is tabled in the name of the noble Lord, Lord Beecham. It seeks to require the Secretary of State to consult Welsh Ministers before making any regulations which amend legislation in consequence of this Bill. There was a perhaps slightly unsatisfactory discussion of this in Committee, for which I share some of the blame. This happened in relation to the then Wales Bill very recently. I was seeking to say—perhaps I did not do so elegantly, and I certainly did not seem to get the message across—that, mutatis mutandis, we would apply it in the same way here. That is, as soon as we know of regulations that we need to make in this direction, we would have an exchange of correspondence with, first, the First Minister in Wales, and, secondly, the Presiding Officer in Wales, so they would be notified at a very early juncture. I will ensure that once we have the exchange of correspondence, which we do not yet have, I will share—subject to Chinese walls of government departments—the exchange we had in relation to the Wales Act, because it will closely follow that. That is the intention, so I hope that noble Lords will accept that that is effectively consultation and that they would be able to object and raise concerns at that stage—although we will, in practice, have notified them at a much earlier stage and discussed it, as we have discussed this provision.

As I said during the passage of the Wales Bill, it is tempting to think that there is always conflict between the National Assembly for Wales and this Parliament. That is not the case, and it has got less so just because of the effluxion of time. Even with different parties in government here and in government there, it is largely a helpful, fruitful discussion. We would engage at an early stage in relation to things that I think would be minor. We would formalise in an exchange of correspondence. I hope that takes care of the noble Lord’s concerns. I understand that he would prefer it in the Bill, but he has that assurance which will appear on the record, and that is the way that we have proceeded in relation to other legislation.

Amendment 64 agreed.