§ 3.33 p.m.
The Minister of State, Department of the Environment (Earl Ferrers)
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(Earl Ferrers.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The CHAIRMAN OF COMMITTEES in the Chair.]
§ Clause 1 [Costs of holding certain inquiries etc.]:
Lord Williams of Elvel moved Amendment No. 1:
Page 1, line 8, after ("applies") insert (", subject to the provisions of section (Regulations.) of the Town and Country Planning (Costs of Inquiries etc.) Act 1995,").
§ The noble Lord said: I beg to move the amendment standing in my name and that of the noble Baroness, Lady Hamwee. It may be for the convenience of the Committee if I speak also to Amendment No. 3.830
§ The Committee will be aware that the Delegated Powers Scrutiny Committee of your Lordships' House has looked at the Bill and has made what I would regard as one significant comment. We are here dealing with the transitional powers between the time the Bill receives the Royal Assent and the time that regulations are passed by your Lordships and another place. During that period the sums payable to the Secretary of State are determined under Clause 1(2) or (3) in England and Wales. The position is the same in Scotland under Clause 3(5).
§ When the transitional period was debated in another place an undertaking was given by the Minister on 17th May to ensure that the normal consultation arrangements with regard to those regulations should be pursued as soon as possible. I received a letter from the Minister, to whom I am most grateful, on 6th October, saying that there was a draft regulation (a copy of which he enclosed) which was now going out to consultation.
The difficulty, in my view, is that it does not respond to the problem posed by the Delegated Powers Scrutiny Committee. I should like to quote, if the Committee will allow me, from the 12th report from that committee, page 2 paragraph 8 which says:
We nevertheless brought to the attention of the House the absence of any provision limiting that gap".
Perhaps I may put a gloss on what "that gap" means. It means the gap between Royal Assent to the Bill and the regulations being authorised and approved by both Houses of Parliament. The committee notes the Minister's statement during the Second Reading debate that,
my right honourable friend will lay regulations in Parliament and bring them into force subject to parliamentary process, as soon as practicable after Royal Assent to the Bill".
The Delegated Powers Scrutiny Committee goes on to say:
The House may be satisfied with this undertaking to keep the transitional period to a minimum, although the House may wish consultation on the proposed regulations to begin while the Bill is still proceeding through Parliament".
§ I quote that sentence because Members of the Committee will be aware that I support the Delegated Powers Scrutiny Committee in its view, but I wish to go rather further. It seems to me in the light of what the Minister said in another place in Standing Committee on 17th May, and in the light of the letter I received from the noble Earl on 6th October, that not much progress had been made.
§ Indeed, we now learn that the intention still is to lay regulations in Parliament and bring them into force, subject to parliamentary process, as soon as practical after Royal Assent to the Bill, but that the regulations are still out for consultation, or I assume that they are still out for consultation.
§ It seems to us that this is too long a transitional gap for the simple reason that the Bill authorises the Secretary of State to recoup all expenses that may be incurred in the intervening period without local authorities being aware from the regulations what those expenses might be. That is the problem. So the amendment is designed to get the Government to make a move on it. They ought, after all, by now to be aware 831 of what they wish to charge. They should be aware of the argument in favour of charging, and they should have consulted by now after 17th May. Goodness knows, that has been long enough. They should have proceeded with the process of consultation.
§ My amendment is quite simple, although technically perhaps slightly complex. It seeks to ensure that within two months of Royal Assent the Government will have produced these regulations and that the time limit for the transitional period—the guillotine—falls there. If there are good reasons why there should be an extension to the transitional period in which local authorities remain in total uncertainty about what the Government propose to do, my Amendment No. 3, subsection (2), allows for that. It allows the Government to reactivate the procedure under the Bill by affirmative resolution; in other words, if they do not meet the deadline, they have to come back to your Lordships and to another place and say, "We have not been able to meet the deadline for this, that and the other reason". It will be for another place and your Lordships to decide whether those reasons are good enough.
§ At this point we touch on the problem of retrospection. But we only touch on it because we shall come to retrospection when we discuss future clauses of the Bill. What is retrospective about the Government's proposal is that there is no time limit on when they should produce the regulations which allow local authorities to be certain as at Royal Assent of the Bill about how much they will have to pay. The Government can say that parliamentary procedure is such that they cannot introduce it for one, two, three or four years or whatever.
§ I do not doubt the noble Earl's good faith in what he wrote to me and I do not doubt the Minister's good faith in what he said to the Standing Committee in another place. However, in order to respond to the concerns of the Delegated Powers Scrutiny Committee and to the question of how far the Government should be responsible to Parliament for getting on with the business that they have set, there should be a two-month time limit after Royal Assent within which they should lay the regulations and properly deal with them. Otherwise, they will have to come back to your Lordships and explain why they have not done so. In that spirit, I beg to move.
§ Baroness Hamwee
I have added my name to the amendment, sharing the anxiety of the noble Lord, Lord Williams. It is sad that so often it seems to be a matter for the Opposition to raise points to which our attention has been drawn by the Delegated Powers Scrutiny Committee. It might be more appropriate for the Government to take points on board and to come forward with amendments rather than leaving the Opposition to do so.
The committee drew our attention to the fact that the interim arrangement could remain in force indefinitely. Although the matter may not be world shaking, it is not unimportant. At the beginning of this month the Government indicated that they would shortly be circulating their proposals to local authority associations, the Royal Town Planning Institute and the Royal Institution of Chartered Surveyors and asking for 832 comments. No doubt the Minister will tell us whether that consultation has started. I hope that he will not take the protests coming from these and the Labour Benches as any kind of suggestion that the consultation period should be short. Rather, our protest is that the consultation should have happened some time ago. I hope that the Government will give the bodies a reasonable opportunity to respond. I support the amendment.
§ 3.45 p.m.
I am grateful to the noble Lord, Lord Williams of Elvel, for explaining his anxieties. I do not believe that there is all that much between us. The noble Baroness, Lady Hamwee, asked, "Why should it be up to the Opposition to produce amendments? Why can't the Government produce amendments?". The answer is that the Government do not believe that it is necessary because we believe that what is in the Bill is perfectly correct and adequate.
The noble Lord's real anxiety, which was repeated by the noble Baroness, is that as the matter stands it is possible for the Government to do nothing and therefore local authorities will not know where they are. The Government do not intend to do nothing, otherwise we would not have put the provision in the Bill. It is in our interests and the interests of everyone, and it is the Government's intention to lay these regulations before Parliament as soon as possible.
The noble Lord, Lord Williams, said that the local authorities will want to know what is happening and to be consulted. That is perfectly true and we intend to consult them. Indeed, they already have the draft regulations so that they know what is happening. The noble Lord also said that local authorities will want to know what the charges are. The standard amount is likely to be £340 per day in England.
The proposed regulations about which consultation is taking place are likely to be laid before Parliament in January. The noble Baroness, Lady Hamwee, said, "We want them to be done quickly". On the other hand, she said, "Take plenty of time over them because we want to be able to consult". I hope that we have been able to strike the right balance. Of course, there should be time for consultation, and that is happening. By the time we reach January, which is not far off, everyone should know where they are. Until then the charges will be made on the previous basis. All the authorities which held inquiries already know what the charges are. There is no doubt about them. Those are the charges which would be authorised by Clause 1(2).
The noble Lord, Lord Williams, said, "Let us have two months and if the Government do not produce regulations within that time they must come back to Parliament again". That is being slightly excessive when one is legislating. I have given the assurance that consultation is taking place and I have given an assurance about when we expect to lay the regulations. Therefore, it would be unfortunate to burden the legislative statute book with something that is unnecessary.
§ Lord Williams of Elvel
I am grateful to the noble Earl for what he said. I hope that he will not think me discourteous if I say that on many occasions I have heard the Government say that they intend to bring forward this, that and the other when parliamentary time permits or in a specific month. I hope that the noble Earl will not think me discourteous if I say too that, although I accept what the noble Baroness said, I believe that the consultation period should have started when the Minister in another place said, "We intend to start the consultation period". I know that we have been on holiday in very pleasant places but it would have been better had that happened.
As regards the £340, that is in the draft order but it does not necessarily mean that it will be in the final order. The draft order can be prayed against and changed by any government between now and January, February, March, April, May or whenever the Government get round to meeting the commitment to introduce it when parliamentary time permits.
My fundamental point is that I believe that the Committee should support the view of the Delegated Powers Scrutiny Committee, even if it means that a little extra time is spent on affirmative procedure. I believe that we should adopt the proposal.
Perhaps I may make one comment. The noble Lord was slightly unfair when he said that we have heard Ministers say that we will do this, that and the other when parliamentary time permits. I agree that that expression is often used when governments want to do something but have to find a legislative slot. It is very different from saying, "We will introduce regulations. We are in the process of consultation and we anticipate producing the regulations (which is delegated secondary legislation) in about January". Therefore, I do not believe that the noble Lord's argument runs fairly.
The noble Lord, Lord Williams, says that the Government are giving a figure of £340. Earlier, he wanted to know what the figure was and I told him. He now says that that figure appears only in the first draft and that it may alter. Anything may alter but that is why consultation is undertaken; so that people know where they stand. I do not believe that the figure is very likely to alter unless for one reason or another, having heard all the views, it is deemed appropriate that it should alter.
§ Lord Williams of Elvel
That is precisely the point. In the course of consultation, it may well alter. The noble Earl has not persuaded me to change my mind. I believe that this Committee, and through this Committee, the House, should impose a deadline on what the Government are going to do. If that is not done, local authorities will remain in an uncertain position.
I accept fully the Minister's good faith when he says what he says. I do not wish to question it at all. Nevertheless, the Minister knows as well as anyone that all sorts of things may happen. The Minister may move yet again, if I may say so, to another department and others may replace him and things may change. Therefore, the January date is not a fixed date. It is an aspiration which may or may not be met. Therefore, it 834 is up to Parliament to ensure that the Government meet their commitments so that local authorities know exactly where they stand in the prescribed time.
§ Baroness Hamwee
Before the noble Lord concludes on this matter, does he not agree that there is a distinction between this Bill and other Bills? This Bill seeks retrospective permission. There was every opportunity for the regulations to he dealt with at the same time. It is not a matter of seeing how the legislation goes; seeing whether the Bill is acceptable to Parliament; looking at its final form; and then, perfectly understandably, the Government laying regulations to deal with the detail which is set out to follow the framework of a Bill dealing with a new matter. This is not a new matter and the Government would have acted more helpfully to those who are reacting and feeling a little sore—the term I used on Second Reading—about the situation were the whole matter dealt with as a package.
I understand the anxiety of the noble Baroness but, with respect, I do not believe that it should be argued that we put into statute something which is unnecessary because some people feel sore about it. All right, the noble Baroness says that that should have been done beforehand. One may argue that backwards and forwards. But the fact is that the consultation is taking place and the Government are likely to lay the regulations before Parliament in January. We are always being told that it is important not to place unnecessary matters on the statute book. Therefore, I believe that it is wrong to put on to the statute book something which is unnecessary when a Minister has given an indication that the action will be taken anyhow and in a very short period of time.
§ On Question, Whether the said amendment (No. 1) shall be agreed to?
§ Their Lordships divided: Contents, 93; Not-Contents, 137.836
|Addington, L.||Donoughue, L.|
|Airedale, L.||Dormand of Easington, L.|
|Archer of Sandwell, L.||Dubs, L.|
|Ashley of Stoke, L.||Eatwell, L.|
|Avebury, L.||Ewing of Kirkford, L.|
|Barnett, L.||Ezra, L.|
|Beaumont of Whitley, L.||Falkender, B.|
|Birk, B.||Falkland, V.|
|Bruce of Donington, L.||Farrington of Ribbleton, B.|
|Callaghan of Cardiff, L.||Foot, L.|
|Carmichael of Kelvingrove, L.||Gallacher, L.|
|Carter, L.||Gladwin of Clee, L.|
|Castle of Blackburn, B.||Gould of Potternewton, B.|
|Cledwyn of Penrhos, L.||Graham of Edmonton, L. [Teller.]|
|Clinton-Davis, L.||Ham wee, B.|
|Cocks of Hartcliffe, L.||Harris of Greenwich, L.|
|Cudlipp, L.||Haskel, L. [Teller.]|
|David, B.||Healey, L.|
|Dean of Beswick, L.||Hilton of Eggardon, B.|
|Diamond, L.||Hughes, L.|
|Donaldson of Kingsbridge, L.||Hylton-Foster, B.|
|Irvine of Lairg, L.||Peston, L.|
|Jacques, L.||Prys-Davies, L.|
|Jay, L.||Richard, L.|
|Jay of Paddington, B.||Robson of Kiddington, B.|
|Jeger, B.||Rochester, L.|
|Jenkins of Putney, L.||Rodgers of Quarry Bank, L.|
|Kennet, L.||Sainsbury, L.|
|Kilbracken, L.||Seear, B.|
|Kintore, E.||Serota, B.|
|Listowel, E.||Simon, V.|
|Longford, E.||Smith of Gilmorehill, B.|
|Lovell-Davis, L.||Stallard, L.|
|Macaulay of Bragar, L.||Stoddart of Swindon, L.|
|McIntosh of Haringey, L.||Strabolgi, L.|
|Mackie of Benshie, L.||Taylor of Blackburn, L.|
|Mallalieu, B.||Thomas of Walliswood, B.|
|Marsh, L.||Tope, L.|
|Merlyn-Rees, L.||Turner of Camden, B.|
|Methuen, L.||Wallace of Coslany, L.|
|Milner of Leeds, L.||Walpole, L.|
|Molloy, L.||White, B.|
|Monkswell, L.||Williams of Elvel, L.|
|Murray of Epping Forest, L.||Williams of Mostyn, L.|
|Nicol, B.||Winchilsea and Nottingham, E|
|Aberdare, L.||Elton, L.|
|Addison, V.||Faithfull, B.|
|Ailesbury, M.||Ferrers, E.|
|Ailsa, M.||Fraser of Carmyllie, L.|
|Aldington, L.||Fraser of Kilmorack, L.|
|Alexander of Tunis, E.||Gainford, L.|
|Ampthill, L.||Goschen, V.|
|Archer of Weston-Super-Mare, L.||Gray, L.|
|Astor of Hever, L.||Gray of Contin, L.|
|Balfour, E.||Greenway, L.|
|Belhaven and Stenton, L.||Gridley, L.|
|Blaker, L.||Hailsham of Saint Marylebone, L|
|Blatch, B.||Harding of Petherton, L.|
|Blyth, L.||Hayhoe, L.|
|Boardman, L.||Hemphill, L.|
|Boyd-Carpenter, L.||HolmPatrick, L.|
|Brabazon of Tara, L.||Howe, E.|
|Braine of Wheatley, L.||Ilchester, E.|
|Brougham and Vaux, L.||Inglewood, L.|
|Bruntisfield, L.||Jellicoe, E.|
|Buckinghamshire, E||Killearn, L.|
|Burnham, L.||Kimball, L.|
|Butterworth, L.||Kitchener, E.|
|Cadman, L.||Lane of Horsell, L.|
|Caldecote, V.||Lauderdale, E.|
|Campbell of Croy, L.||Lindsay, E.|
|Carnock, L.||Lindsey and Abingdon, E.|
|Carr of Hadley, L.||Long, V.|
|Chalker of Wallasey, B.||Lucas, L|
|Chelmsford, V.||Lucas of Chilworth, L.|
|Chesham, L. [Teller.]||McColl of Dulwich, L.|
|Clanwilliam, E.||McConnell, L.|
|Coleridge, L.||MacFarlane of Bearsden, L.|
|Courtown, E.||Mackay of Ardbrecknish, L.|
|Cox, B.||Mackay of Clashfern, L. [Lord Chancellor.]|
|Cullen of Ashbourne, L||Macleod of Borve, B.|
|Cumberlege, B.||Manchester, D.|
|Dacre of Glanton, L.||Mancroft, L.|
|Davidson, V.||Merrivale, L.|
|De Freyne, L.||Mersey, V.|
|DeL'Isle, V.||Miller of Hendon, B.|
|Denham, L.||Milverton, L.|
|Dixon-Smith, L.||Monk Bretton, L.|
|Donegall, M.||Monteagle of Brandon, L.|
|Downshire, M.||Montgomery of Alamein, V.|
|Dundonald, E.||Mottistone, L.|
|Ellenborough, L.||Mountevans, L.|
|Elles, B.||Mowbray and Stourton, L.|
|Munster, E||Sandys, L.|
|Murton of Lindisfarne, L.||Seccombe, B.|
|Nelson, E.||Skelmersdale, L.|
|Newall, L.||Soulsby of Swaffham Prior, L|
|Nickson, L.||Stanley of Alderiey, L.|
|Norfolk, D.||Stewartby, L.|
|Northesk, E||Strange, B.|
|O'Calhain, B.||Strathclyde, L. [Teller.]|
|Orkney, E.||Sudeley, L.|
|Orr-Ewing, L.||Suffield, L.|
|Oxfuird, V.||Terrington, L.|
|Parkinson, L.||Teynham, L.|
|Pender, L.||Thomas of Gwydir, L.|
|Platt of Writtle, B.||Tollemache, L.|
|Rawlings, B.||Trefgarne, L.|
|Rennell, L.||Ullswater, V.|
|Renton, L.||Vivian, L.|
|Renwick, L.||Wade of Chorlton, L.|
|Rodger of Earlsferry, L.||Westbury, L.|
|St. Davids, V.||Willoughby de Broke, L.|
|St.John of Fawsley, L.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 4.1 p.m.
Lord Williams of Elvel moved Amendment No. 2:
Page 3, line 2, at end insert—
("( ) Any regulations made by the Secretary of State under the provisions of subsection (5) above shall provide for the application of a service level agreement governing the administration of a qualifying inquiry and the performance of any person appointed to hold it.").
§ The noble Lord said: We have had a number of debates both in another place and here on Second Reading about service level agreements. The effect of the amendment would be to write the concept of service level agreements between the planning inspectorate and local planning authorities onto the face of the Bill.
§ I have to tell Members of the Committee that local planning associations are concerned that, as the requirement for inquiries into development plans—which is a fairly new invention—is established in legislation, local planning authorities will be in the position of being required to use a service that is only offered by one agency for a function that they are statutorily required to fill. In those circumstances, they consider that it is essential that the level of service required from the inspectorate is formally set out together with some means of redress for the planning authority if the inspectorate fails to live up to those requirements. In a way, if I may put it this way, it is a form of local authorities' charter. I hope that those words find resonance with some Members of the Committee opposite.
The issue has been raised on a number of occasions and amendments have been produced and rejected which would have introduced a contractual relationship between the inspectorate and a local planning authority. Indeed, the Minister in another place said that the arrangements should not be written into legislation. Perhaps I may quote what he said:
Many of the factors that influence the practical operation of development in plan inquiries such as the number of objections are outside the planning inspectorate's control. The…[Opposition]
should realise that that is why there are no targets and penalties for the planning inspectorate".—[Official Report, Commons, Standing Committee E, 17/5/95; col. 19.]
§ That does not seem to live up to the Government's commitment to give value for money to everyone, including local planning authorities. I hope that Members of the Committee will appreciate that that is part of what I believe to be the Government's campaign.
§ As I understand it, the local authority associations have begun discussions with the department on the contents of a service level agreement and have reached the stage where a draft of such an agreement can be ratified. While we appreciate all that, we believe, nevertheless, that the principle for such an agreement should be on the face of the Bill. I beg to move.
§ Baroness Hamwee
I should like briefly to express my support for the amendment. When I was making inquiries about the matter before the Second Reading of the Bill, various comments were made to me along the lines of, "the inquiry went in a very leisurely manner and we didn't seem to make the best use of the time". Such comments came from local planning authorities which were frustrated that the inspectors were not, so to speak, observing best practice. It is that aspect to which the amendment is directed.
Before the Minister says it himself, I am sure that the noble Lord, Lord Williams of Elvel, would be perfectly happy to accept that regulations to be brought in by January (as we have heard) might not give adequate time for the matter to be discussed between all the parties. If the Government were, perhaps, to suggest a date by which they might make regulations dealing with the matter, I for one would be glad to hear it.
I long to be helpful to the noble Lord, Lord Williams. When speaking to the last amendment he said that things had not been done quickly enough because everyone had been on holiday. All I can say is that the noble Lord seems to have indulged himself in work while on holiday by trying to think of amendments which he could table and which the Government are obliged to refuse. I think that the noble Lord should try to find somewhere more relaxing to go on holiday next year so that he does not keep providing us with such curious amendments.
Again, there is not a great deal between us on the matter. The only difference is whether it is essential to include in the Bill specific statutory regulations requiring a "service level agreement" to apply as a condition of charging for an inspector's services at a qualifying inquiry.
As the noble Lord implied—and I am sure that he does know—he is aware that officials of my department and those of the Planning Inspectorate Agency have been consulting officers of the local authority associations in recent months about a draft service level agreement. The consultation process which is now virtually complete—and that will please the noble Baroness, Lady Hamwee—has been most helpful. We are grateful to the associations for their attitude and approach to the matter. Provided that the associations 838 ratify the agreement (and that is a particular quirk which applies to the associations in that they have to do so) it should begin to operate for inquiries which planning authorities ask the inspector to arrange from December onwards. I believe that that, too, will satisfy the noble Baroness.
I believe that our intentions on the matter are perfectly clear. We, too, want to see an effective service agreement in operation. Once it has been in operation for a reasonable period we will want to review how effectively it is working in consultation with the associations. I believe that that is the right way to do it and not to put it on the face of the statute. I am sure that this time, at least, I will have persuaded the noble Lord, Lord Williams, who is no doubt in an amenable mood having just returned from the Summer Recess. I hope, therefore, that he will agree not to press the amendment.
§ Lord Williams of Elvel
I am most grateful to the noble Earl. I certainly will take a more relaxing holiday next time than I did this time. I hope very much that on my relaxing holiday I shall not run into the noble Earl on the same beach and in the same place. But if I do I shall certainly make sure that on future occasions I do not spend my holidays, as the noble Earl seems to think, working on amendments that he cannot possibly accept.
Perhaps I may just observe that that is a peculiarly unchivalrous remark. I had hoped the noble Lord would say that he would be delighted to have that experience.
§ Lord Williams of Elvel
We certainly enjoyed ourselves. I basically agree with what the noble Earl said; it is not entirely necessary to put this on the face of the Bill. However, I am glad to have the noble Earl's assurance that this matter is being worked on actively and will be dealt with and there will be no confusion about it. In the circumstances I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 1 agreed to.
§ Clause 2 [Validation, with retrospective effect, of certain requirements to pay, and certain payments made, in connection with past appointments]:
§ On Question, Whether Clause 2 shall stand part of the Bill?
§ Lord Williams of Mostyn
There are deep questions which we on this side believe arise out of the words in Clause 2. Perhaps I may touch on one or two of them. Clause 2(1) states:This section applies in any case where, at any time before the passing of this Act, the Minister appointed any person to hold",an inquiry. The words therefore are not limited in time or by any other form of description. If one goes further I suggest that one's doubts are reinforced. The words,in any case where, at any time before",refer as far back as the Town and Country Planning Act 1968 (that is, 27 years); the Town and Country Planning Act 1971 (24 years); and the Local Government Act 1985 (10 years). On a first reading of the words they seem to contain extraordinarily wide, unlimited powers. One is troubled, as my almost namesake the noble Lord, Lord Williams of Elvel, indicated, about this wide 839 element of retrospection. I for one would be obliged if the Minister would indicate whether there should not be some limitation in point of time. What sort of sums are involved here? I do not refer to the per diem amount that was specified by the noble Earl earlier. What are the global sums involved? How many authorities are likely to be caught by this extraordinarily wide net?
Clause 2(13) relates to the repayment by local authorities to the Minister of sums actually paid over an indeterminate number of years. How many authorities are in that category? How much has been paid to these authorities from public funds? Ought there not to be some limit of time about demands for repayment of those sums so that local authorities, which have to be the custodians of public moneys, have a degree of certainty in the conduct of their fiscal arrangements? Ought there not to be some time limit specified for requesting payments as opposed to requesting repayments? I simply ask those questions because I believe as a matter of principle that they demonstrate that these wide powers ought to be the subject of careful scrutiny. Unless a reasoned and acceptable account is given by the Minister one will have great difficulty in doing other than opposing the Question that Clause 2 stand part of the Bill.
§ 4.15 p.m.
The noble Lord, Lord Williams of Mostyn, asks some pertinent questions and, if I may say so, he is quite right to do so because I believe that all of us dislike any form of retrospective action. I hope that I shall be able to persuade him why that is necessary in this case and that the provisions will not be as bad as he thinks. He is quite right to say that there is no time limit. There was the Town and Country Planning Act 1971 and, theoretically, this measure could have applied as far back as the Town and Country Planning Act 1968. However, that is not the case because there is a limitation period of six years. Even so, if this clause were removed, it would still be possible to go back to 1989. What we are talking about here is local authorities which have paid for inspectors' services and which have always done this over the years. Everyone knew that that was the accepted course of action and everyone was content with it. However, that is a point that has now been challenged. I shall discuss that later.
The noble Lord asked what was the total cost involved. The total repaid is £3 million to 100 planning authorities and the interest is £108,000 to 28 authorities. Those would be the sorts of sums which would have to be recovered. If this clause were removed, it would mean that there would be a total cost of £11 million. Perhaps I may explain why this is necessary, and I hope that I shall be able to satisfy the noble Lord, Lord Williams of Mostyn. We are doing no more here than validating—in other words, approving—what people had done when everyone thought that what they had done was correct; that is, when an inquiry is conducted the planning inspectorate provides an inspector and the local authority is charged for the services of the inspector. That is what is at issue; it is what everyone has done and what everyone accepted was a reasonable thing to do. This has been going on for the past 20 years.
840 It is only now that the law is found to be not what everyone thought that it was, and with which everyone was content,
There are two main reasons why the Government consider that retrospective validation is justified in this instance. First, the provisions of Clause 2 impose no new financial burden on local planning authorities. These provisions simply validate past payments which all the local authorities concerned made in good faith, as did my department and everyone else, believing that they were sought and paid lawfully. As soon as doubts arose, the planning inspectorate stopped levying inquiry charges, but it also quite reasonably warned local authorities that in the event of legislation to validate the payments which had been made in the past, charges would be made for inquiry services which the inspectorate had provided during the interim period. Those are the figures of £3 million to planning authorities and the interest of £108,000 to 28 authorities which I gave the noble Lord earlier.
We have to have regard in this instance to the financial arrangements under which the Government and local authorities operate. In past years and in the present year general provision has been made in the annual local government finance settlement for the estimated sums which planning authorities might be expected to incur by way of charges for inspectors' services at development plan inquiries. This does not mean of course that the amount which has been allowed for each authority which is required to hold an inquiry can be specifically identified. However, it means that a sum has been included for the purpose of inquiries in a large group of local authority services which fall under the category of "all other services". Without the retrospective provisions these financial arrangements would have to be reviewed and the sums which had been allowed would have to be recovered by the Department of the Environment for the authorities in general. Frankly, that would be a bureaucratic nightmare and disproportionately expensive to administer.
Secondly, without retrospection the other charging provisions in the Bill would not be fair to those planning authorities which through no fault of their own have not yet reached the stage of holding an inquiry as part of their development plan process. It would be unfair in a number of ways. First, those local authorities which have paid but have not requested a refund would be unfairly treated in comparison with those which have obtained a refund. Secondly, those which have obtained a refund would be advantaged in comparison with those which, in the future, would be charged for what everyone believed up to now to be a proper and reasonable charge but which, if the clause were deleted, the former would not now have to pay. Thirdly, it is unfair to those local authorities which have not yet held an inquiry but will do so in the future and will be charged for that which the deletion of the clause would amend to be unchargeable in the past.
There is no good reason why planning authorities which have held planning inquiries in the past should now receive an unexpected windfall, which would be the case if the clause were to be removed. As the Government have provided funds to local authorities, 841 which the noble Lord wishes to make a windfall, it would of course be incumbent on the Government to claim back the windfall.
To put the matter in a nutshell—which is always a dangerous thing to do with the noble Lord, Lord Williams of Mostyn—everyone thought that the position was such and such and local authorities were prepared to pay for inspections. They always did so. It was found that there was a loophole, which nobody had expected, and the retrospection is to close that loophole. Without the clause the position would be grossly unfair all round. I hope that the noble Lord is satisfied with that explanation.
§ Lord Williams of Mostyn
As always, I am most grateful for the care and courtesy which the Minister devotes to answering my questions. However, I regret to say—and I am sure that the fault is mine—that I am neither enlightened nor satisfied by the explanation put forward. It is, of course, a cause of great contentment to us all to hear the noble Earl speak with commendation of a retrospective tax on a windfall. I am obliged to hear that that is now to be government policy. However, I must not intrude unnecessarily on private grief, and I shall turn to one or two specific points.
The noble Earl says that this measure imposes no new burden on any local authority. Can that be so? Subsection (13) requires that sums paid to a local authority over a considerable number of years should be repaid. Most persons dealing with economic matters would regard that as the imposition of a new burden.
I wish to put a specific question which is of some importance. I indicated that the longest period of financial attack against local authorities could be as much as 27 years because of the specific designation in Clause 2(1)(a)(i) of the Town and Country Planning Act 1968. The Minister said that my fears were unfounded because there would be a six-year limitation period. I should be grateful for confirmation that that suggestion arises from Clause 2(2). I respectfully suggest that what the Minister has indicated as his understanding of subsection (2) is not correct. Clause 2(2) provides that:The Minister shall have…power to require the whole or any part of the costs borne by him in relation to the qualifying inquiry to be paid by the local planning authority causing the qualifying inquiry to be held; andthese are the important words,any amount so required by him to be paid by a local planning authority shall be, and shall be taken at all times after the making of the requirement to have been, recoverable from that authority as a civil debt".
The construction of that subsection which I humbly offer is that the six-year limitation period will run from the date of the requirement being made, not from 1989 as in the Minister's example. In other words, if I am right, and I think I may be, the civil debt recovery period will be a period of six years from the date of the requirement. Of course, the requirement can itself relate to sums expended, or not expended as the case may be, going back to 1968. This remains a serious problem when, after all, one is dealing with fairly limited sums.
I am sorry that I did not make my position clear to the noble Lord. If I did not, that was my fault. It is not his comprehension which is adrift but merely my explanation.
Perhaps I may try to help the noble Lord a little further. I am always hesitant to get into legal tangles with the noble Lord, who is an expert in these matters. He said that his understanding of the Town and Country Planning Act was that claims could go back for 27 years. The clause validates all charges which have been levied as far back as 1968. But, by virtue of Clause 2(2) it is provided that such sums are recoverable as a civil debt from the date of the making of the requirement to pay. Therefore, if a charge has been levied and an authority has not paid it can only go back six years by virtue of Section 9 of the Limitation Act 1980.
The noble Lord, Lord Williams, will be far more familiar with the niceties of these criteria and legal positions than I. However, what I am trying to tell the noble Lord, and the Committee, is that the sole purpose of the clause is to close an unsuspected loophole, one which everyone thought did not exist. For the past 20 years everyone had been quite content to pay.
Perhaps it is not the noble Lord's intention, but if he were to remove Clause 2 that would cause terrible problems, because all payments made by local authorities over the past six years could have to be refunded by the Government. However, the Government had included in standard spending assessments and the revenue support grant figures which included moneys which local authorities would have to pay for those services. That is why I say that if local authorities received a windfall because your Lordships deemed it necessary to remove Clause 2, as a result of which windfall the Government had to pay back all that the local authorities had spent, then the Government would have to recover from the local authorities that amount of money that they had given to local authorities to meet that expenditure. I think that that is unreasonable and would cause problems all over the place. All we are trying to do is to restore the position to what everyone thought it was.
I hope that with that simple explanation the noble Lord will find it easier to understand the position than he did before.
§ Baroness Hamwee
Perhaps I may pursue that point before the noble Lord responds. The words:shall be taken at all times to have hadappear on the first line of subsection (2). The Minister has told us that those words go back to the first of the Acts referred to. There is a similarity between those words and the words introduced by the Limitation Act:and shall be taken at all times after the making of the requirement to have been".Does the Minister agree that the use of similar terminology meaning different things is bound to lead to confusion? I apologise to the Committee, but that is why I am prolonging this short debate.
One could describe this as an important drafting matter. We are dealing with an Act which states that this provision shall apply to all those cases and that is limited by the six-year limitation in Section 9 of the 843 Limitation Act 1980. We are dealing with both the town and country planning Acts which refer back a long time and it is the Limitation Act which prevents it going further than the six years.
§ 4.30 p.m.
§ Lord Williams of Mostyn
I simply wish to be helpful as will doubtless be recognised by all. Subsection (2) introduces the six-year period of limitation in the Limitation Act to which the noble Earl rightly refers to the date of the making of requirement—in other words, not from the date of the original liability.
My essential purpose was to raise the question of principle, which I maintain to be important. My subsidiary purpose is to ask the Minister to consider whether some of the words and phraseologies might have been rather more felicitously drafted. Some thought at least should be given to the questions raised.
I apologise to the noble Lord. He is quite right. He referred to the matter and I did not reply to it.
The noble Lord thinks that the six year application goes back to when there is a requirement to pay. I believe that he will find that the six year period goes back from the Royal Assent, when the Bill becomes an Act, which is then curtailed by the six years. That is the time when the provision will come into effect.
The noble Lord asked a number of quite technical, legal points. Rather than to have a possibly wrong explanation from me I should like to write to him so that he knows the exact position.
§ Lord Williams of Elvel
Will the noble Earl be good enough to look at the drafting to which my noble friend referred? The Report and Third Reading stages are to come. In the light of the remarks made by my noble friend, if the Government feel that there is a point we are happy to accept whatever amendment the Government may put forward to clear up the matter.
Of course I shall take account of what Members of the Committee have said. I accept the kind offer of the noble Lord, Lord Williams of Elvel, that he would be happy to accept any amendment that the Government put forward. I assume that the noble Lord, Lord Williams of Elvel, having asked the question, wishes me to respond to the noble Lord, Lord Williams of Mostyn. It is a complicated way of doing things, but if that is the way in which the noble Lord, Lord Williams, wishes me to deal with it I am content to do so.
Of course I shall consider these matters. The noble Lord, Lord Williams of Elvel, said that if we put down an amendment, it would go down quite happily. By that I assume he also meant that if we did not put down an amendment that would go down quite happily too. On that assumption and generosity of understanding—it is always there if nothing interrupts it—I shall certainly consider the points made. I shall also let either of the noble Lords, Lord Williams, know the result of our considerations before the next stage.
§ Clause 2 agreed to.844
§ The Deputy Chairman of Committees (Lord Murton of Lindisfarne)
Before we proceed, there is a correction to be made. The result of the Division on Amendment No. 1 was announced incorrectly. The correct figures are: Contents, 90; Not-Contents, 140. The figures given earlier—namely, Contents, 93; Not-Contents, 137—should be disregarded.
§ Clause 3 agreed to.
§ Clause 4 [Retrospective validation of payments etc. in connection with certain past Scottish inquiries and hearings]:
§ On Question, Whether Clause 4 shall stand part of the Bill?
§ Lord Ewing of Kirkford
It may seem to the Committee that the debate that we are about to have is similar to the debate on whether Clause 2 shall stand part of the Bill. Perhaps I may take a few moments of the Committee's time to explain that there is a significant and major difference between the contents and needs of Clauses 2 and 4 of the Bill. Clause 4 has the same effect in Scotland as Clause 2 has in England and Wales.
Perhaps I may explain the background to the legislation. As the noble Earl has been at pains to explain throughout our short discussion, the legislation has arisen because the Government were challenged in the English courts by Birmingham City Council, which questioned the Government's legal right to charge them for such inquiries. The court upheld Birmingham City Council's approach that the Government had no legal basis on which they could charge for those inquiries. As time passed, it was necessary for the Government to introduce this legislation and, in the case of England and Wales, to make it retrospective in order to validate what had been understood to have been the position over the years.
If that had been the position in Scotland, and against the background of the debate on Clause 2, I would not oppose the Question that the clause stand part. However, that is not the position in Scotland. The retrospective application of the legislation to Scotland is both unnecessary and, for that reason, highly undesirable. There never has been a problem in Scotland. No local authority has ever challenged the Government's right to charge those payments. No local authority has any intention of challenging the Government's rights to charge those payments because the local authorities referred to go out of existence in six months' time with the whole local government scene in Scotland changing and new authorities coming into being on 1st April 1996.
The extent of the problem in England has been defined by the noble Earl, involving amounts of £2 million to £3 million, possibly rising to £11 million.
I tabled a Written Question before the House adjourned for the Summer Recess. I asked the total amount of payments by Scottish local authorities to the Scottish Office for such inquiries. I asked for the figures over a 10-year period. I was given the most recent up-to-date figure for the five-year period. The total figure for five years is only £220,000. I am reliably informed—I shall not reveal my source—that I was not given the figures for 845 the 10-year period because they would have been extremely embarrassing to the Government's case and that the whole issue would have been made to look ridiculous. Therefore, there is no need for retrospective legislation in the case of Scottish local authorities. There never has been a problem. There never will be a problem. Therefore, there is no need for retrospection. Both Houses guard with jealous care the principle of not having retrospective legislation if at all possible. In my 25 years in both Houses I can count on one hand the number of times that retrospective legislation has been introduced.
I simply say this to the Minister who will reply to the debate. In all seriousness, I ask him sincerely to accept that the clause does not stand part of the Bill. There is simply no reason for the provision in Scotland and therefore no need for it.
The Parliamentary Under-Secretary of State, Scottish Office (The Earl of Lindsay)
I have some sympathy with the noble Lord, Lord Ewing, when he says that Clause 4 is highly undesirable. I agree that any retrospective legislation is undesirable. Where I have no sympathy is when he says that it is highly unnecessary. We believe that Clause 4 is a necessary addition to the Bill.
My noble friend Lord Ferrers earlier set out to your Lordships the principles underlying Clauses 2 and 4 and therefore I do not propose to go over the same ground in comprehensive detail, given his recent explanation. The reasons why the Government feel that retrospection is justified in Scotland are in parallel with those which my noble friend used to justify the legislation for England and Wales as regards Clause 2. First and most important, past transactions were carried out in good faith and Clause 4 simply validates payments made in the past. That is absolutely crucial to the reasoning behind Clause 4. Clause 4 is vital in order to introduce validation of something which has been carried on in good faith for so long. Secondly, in validating payments it raises no new costs for authorities, not least because account has been taken of the costs in successive local government annual settlements.
Thirdly, without the inclusion of the clause, authorities which have not yet reached the point of holding a local plan inquiry will be required to pay costs which others which have already held an inquiry might be entitled to reclaim. In other words, if the retrospective powers for Scotland were not included in the Bill, it would be open to authorities to reclaim the sums paid in recent years. That right would not be open to other authorities, so there would be a basic unfairness there.
Your Lordships have accepted the principle that it is right that an authority pays the charges for the services of a reporter appointed to an inquiry. I believe that that has been widely recognised, both by the Opposition parties and CoSLA and so on. The principle applies equally to the past and to the future. It is the basis on which all parties have operated in good faith for more than 20 years. For that reason, the Government are persuaded that retrospection is justified in this case.
I conclude my explanation to the noble Lord, Lord Ewing, with the basic point that if we were not prudent enough to take the retrospective power now, we would 846 simply lay ourselves open to a challenge in the months to come. That would then invalidate all payments made to date and we would have to seek new primary legislation to sort the position out. It is common sense that we sort it out now, before there is a problem and not later, after one arises.
The Earl of Balfour
I wish to ask the noble Lord, Lord Ewing, a question regarding his figure of £220,000. I wondered whether that money had been spent on just one or two cases in the five-year period. If so, it is quite a big sum for the local authority involved or whoever pays.
We must never leave local authorities in any doubt about who pays what. I was slow in rising to my feet to ask that question, but I should like some idea whether many cases were covered in the £220,000, the rough figure which was mentioned, or just one or two.
§ Lord Ewing of Kirkford
The figure I was given was not broken down into the number of public inquiries held. To anyone in Scotland who follows events in the field of local public inquiries, it is obvious that a fair number involve appeals from the applicant to the Secretary of State. They are held fairly regularly by all local authorities throughout Scotland. So we can take it that a fairly large number of public inquiries were included in the global figure that I gave of £220,000 over a five-year period. That is not a great sum.
I was disappointed with the response of the noble Earl, Lord Lindsay. There is no comparison between Clause 2 of the Bill and Clause 4. Clause 2 is there because the Government were challenged in the courts by Birmingham City Council. Clause 4 is there because the Government want the Scottish position to be the same as in England. However, the problem that led to the English position has never arisen in Scotland. The noble Earl said that the payments were made in good faith. On what authority does he present to the Committee the scenario or possibility that local authorities will now break that good faith? There is no indication now and never has been of that.
I have to accept that the noble Earl will not move, he has been given a bad brief, he read it fairly well and there is not much substance to the case but he has done his best. I shall not push the matter to a vote but he has failed to convince me of the need for the retrospective part of the Bill in its application to Scotland.
§ Clause 4 agreed to.
§ [Amendment No. 3 not moved.]
§ Clause 5 agreed to.
§ House resumed: Bill reported without amendment.