Letter
to the Chairman of the Liaison Committee from the Chairman of
the Business and Enterprise Committee, 7 October 2008
Planning Bill: Committee Scrutiny of National
Policy Statements
Now that the Planning Bill has left the House of
Commons, I thought it might be helpful to summarise the discussions
which Select Committee Chairmen have had with the Government.
I attach correspondence with Ministers to this letter.
As you will recollect, the Bill will establish a
new National Infrastructure Commission to decide on major infrastructure
projects. In making those decisions, it will be guided by National
Policy Statements (NPSs), which will be designated by the Secretary
of State. Before designation, the Secretary of State will have
to engage in a consultation process. When the Bill was introduced,
the Secretary of State for Communities and Local Government said:
To provide the stronger role for Parliament, we encourage
the House to establish a new Select Committee with the main purpose
of holding inquiries into draft national policy statements in
parallel with public consultation. We suggest that this Committee
should be comprised of members from existing Select Committees
on Business, Enterprise and Regulatory Reform, on Transport and
on Environment, Food and Rural Affairs.
We will consider the Committee's reports together
with responses to public consultation and revise draft national
policy statements where appropriate, before designating them.
In addition, if the Committee has recommended that a national
policy statement raises issues which should be debated by Parliament
as a whole, we will make available time in each House for a debate
before we designate it. [Official Report, 27 November 2007,
14WS].
The Chair of the Communities and Local Government
Committee was concerned that this excluded members of the committee
with responsibility for planning and local government. Moreover,
the Chairmen of the departmental select committees directly concerned
considered that a system in which ad hoc committees were drawn
from existing select committees would seriously disrupt those
committees' work. We thought in many cases it would be more appropriate
to refer NPSs to individual committees, who already have the expertise
needed to deal with them, and would be eager to undertake the
task.
The Chairmen wrote to the Minister pointing out that
these proposals would have implications for the work and resources
of existing committees, and since then we have been engaged in
discussions with the Government about how scrutiny of the statements
might be handled. I should put on record that although there may
still be some differences of opinion between us, the Government's
desire for proper committee scrutiny is welcome, and our discussions
have been extremely constructive.
The Amendments to the Bill
On introduction, the Bill contained no reference
to parliamentary scrutiny, because the Government rightly accepted
that it was inappropriate to set out procedure in statute. In
our discussions, some of us pressed for the Bill to be amended
to make policy statements analogous to Statutory Instruments,
and to require the approval of the House before their designation.
The Government did not accept that. The Government was however
willing to ensure the Bill required the Government to respond
to Parliamentary scrutiny. We were concerned about how this could
be done without inadvertently breaching Article 9 of the Bill
of Rights and exposing Committee proceedings to use in judicial
review. The Government took this point, and proposed what is now
Clause 9 of the Bill before the Lords (Parliamentary requirements),
which states:
1. This section sets out the parliamentary requirements
referred to in sections 5(4) and 6(4).
2. The Secretary of State must lay the proposal
before Parliament.
3. In this section "the proposal" means—
a) the statement that the Secretary of State
proposes to designate as a national policy statement for
the purposes of this Act, or
b) (as the case may be) the proposed amendment.
4. Subsection (5) applies if, during the relevant
period—
a) either House of Parliament makes a resolution
with regard to the proposal, or
b) a committee of the House of Commons makes
recommendations with regard to the proposal.
5. The Secretary of State must lay before Parliament
a statement setting out the Secretary of State's response to the
resolution or recommendations.
6. The relevant period is the period specified
by the Secretary of State in relation to the proposal.
7. The Secretary of State must specify the relevant
period in relation to the proposal on or before the day on which
the proposal is laid before Parliament under subsection (2).
Whatever the statutory structure, the way in which
the House deals with these National Policy Statements will depend
on Standing Orders. Our discussions could not result in a procedure
for scrutiny which was agreed in every detail, since the final
form of the statute cannot be known until Royal Assent, and, once
that is clear, the Procedure Committee and the House itself will
have views on what is appropriate. However, we did agree some
broad principles which it may be useful to make publicly known.
Committee involvement
The Government now accepts that there will be occasions
when a single select committee is best placed to scrutinise a
particular policy statement. Equally, we understand that these
statements will cover a wide range of issues, and that on occasion,
a specially constituted committee would be more appropriate. We
have suggested that a subcommittee of the Liaison Committee should
decide whether a particular policy statement should go to an individual
committee or a specially constituted committee, appointed by the
House. Such a subcommittee would be appointed by the Liaison Committee
itself: it might sensibly consist of the chairmen of the relevant
departmental select committees, and two other members of the Liaison
Committee to ensure an appropriate political balance. That would
mean those most directly concerned could discuss how a particular
policy statement should be dealt with, but that wider views would
also be included.
Given the cross-cutting nature of these documents,
we have made a novel suggestion that even if responsibility remained
with an existing committee, Members of other relevant committees
would have the right to attend meetings, and take part in evidence
gathering, although not to take part in agreeing any report.
Consultation
We discussed the relationship between the timing
of public consultation and parliamentary scrutiny. While ideally
parliamentary scrutiny should follow public consultation, we recognise
that one of the aims of the Bill is to speed up the planning process
for major infrastructure projects. In our discussions, we agreed
it would be desirable for parliamentary scrutiny to run in parallel
with public consultation, but continue for some weeks after public
consultation had ended.
Workload
Scrutiny of National Policy Statements would lay
a heavy burden on the House and its Committees, and the Government
should be careful not to overload the system. We have been assured
that there will be informal discussions about the timing of the
statements between officials and committee staff and that the
Government will seek to understand the constraints on our scrutiny.
Clause 9 allows the Secretary of State to designate a period which
will in effect determine the time available for parliamentary
scrutiny. We hope that before making such a designation, Secretaries
of State will consult the Liaison Committee subcommittee, who
will be able to advise on the resources available, and other constraints
on Committees' time.
Parliamentary Debate and response to the Committee
The Government has committed itself to a debate on
National Policy Statements, if a committee so recommends. In Committee,
the Minister said:
Thirdly, that Select Committee, or the arrangements
that Parliament puts in place, will have the scope,[1]
as closely as they wish and in the manner that they wish, to scrutinise
and comment on the proposals, and we will then take them into
consideration in the finalisation of our national policy statement.
Finally, we have made it very clear, in parliamentary
terms, that if the Select Committee—let us call it that
for the moment—believes that the matters are important enough
to require parliamentary debate, we will make time for that. Of
course, there is also the option for Parliament to decide to move
to votes if it wishes to do so. (Public Bill Committee on the
Planning Bill, Thursday 10 January 2009, c138-9)
My colleagues and I agreed that flexibility would
be essential, and that it was quite possible that debate would
be very rare.
In our discussions, I pressed for any such debate
to take place after a committee had reported, and indeed after
the Government had indicated in what ways, if any, a policy statement
would be changed before designation. The Committee would then
be able to decide whether the Government had responded satisfactorily,
and would decide whether to recommend debate, doubtless taking
into account both the intrinsic importance of the policy statement,
and the extent to which the Government's revisions met its concerns.
The House would debate, and possibly come to a resolution on,
the final statement of the government's policy.
Clause 9 of the Bill simply requires that before
designating a national policy statement, the Secretary of State
shall lay a statement before Parliament setting out his response
to any committee report or resolution of the House of Commons.
It is possible that this would be the only response to a report,
and that the House would first see a final national policy statement
at the point when it was designated. However, it would be equally
possible for the Standing Orders that the Government produces
to provide for some kind of intervening process. Colleagues may
wish to consider whether this would be desirable.
It may be helpful to set out how a policy statement
might flow through the House, with stages in square brackets optional.
Step 1: Government and
the Liaison Committee subcommittee discuss the likely timing of
NPSs, the consultation periods on those NPSs, and the length of
time the House will need to deal with them.
Step 2: Government lays
NPS in draft, specifying a relevant period for consideration—public
consultation period begins.
Step 3: Liaison Sub-Committee
decides how it should be considered. If an ad hoc committee is
desired, it is appointed by the House, with the names coming from
the Liaison Committee. Otherwise, the NPS is allocated to an existing
departmental committee.
Step 4: The Committee
charged with NPS decides and announces its terms of reference.
The Committee might feel it is already fully aware
of the issues, and want to be extremely restrictive in its approach:
it might want to be extremely thorough. Consultation responses,
and analysis of those responses, would be made available to the
Committee as it proceeds.
Step 5: Committee inquiry
and report. The Committee's inquiry continues in parallel with
public consultation, but does not report until some time after
the consultation closes.
As noted above, it is not clear what would happen
after the Committee has reported. The minimum the Bill requires
is:
[Step 6: The House debates
the NPS in the form in which it was originally proposed.]
Step 7: Government lays
statutory response and designates NPS (possibly with amendments).
If it was felt important that the House should
see proposed revisions to the NPS before the debate, a variety
of procedures along the following lines would be possible:
Step 6: The Government
responds to the Committee, indicating whether the NPS is going
to be changed, and if so how.
Step 7: The Committee
considers that response, and may recommend a debate on the NPS,
or simply indicate that it is content with the document.
[Debate on the NPS]
Step 8: Government lays
statutory response and designates NPS (possibly with further amendments
to take account of opinions expressed in the debate).
Although most work on this will need to be done after
the Bill has received Royal Assent, the Bill remains before Parliament,
and Lords Amendments may return to the Commons. I therefore ask
you to put this letter to the Liaison Committee at it next meeting,
so that colleagues can consider whether it is appropriate to release
this letter and the attached correspondence to inform further
proceedings on the Planning Bill and consideration of the Standing
Orders which will come forward after that.
Peter Luff MP
Chairman, Business and Enterprise Committee
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