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Lord Turnbull: I agree that there are two basic issues here. The first is: one House or two? Certain features of our parliamentary work are reserved for the other place—for example, the Finance Bill—but I cannot see that planning is one of them. I am beginning to think that the other place has got into the habit of conflating the word “Commons” and the word “Parliament”, when they are two different things. We

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should rightly press for the inclusion of this House on grounds both of constitutional principle and of the expertise that is here and should be fully involved in all stages.

The second issue is whether the Secretary of State’s conclusions should simply be laid or be voted on and endorsed. When we were discussing Clause 1 last week, I strongly supported the division between the NPS and the Infrastructure Planning Commission, arguing that it is appropriate to delegate to the IPC the final decision where it operates within a democratically approved framework. Does the Secretary of State laying the conclusions represent a democratically approved framework? This has been argued at Second Reading here and in the other place. John Healey, explaining to Jacqui Lait why he did not agree with her amendment, said:

“When she spoke to her amendments, she was right to say that the House will not own the policy. The policy is properly the responsibility of the Government and elected Ministers”.—[Official Report, Commons, 2/6/08; col. 602.]

When does policy become policy? Is the mere act of laying enough to turn an idea into policy?

I gave a number of examples last week of where there was a framework and a delegated body took the decisions. One of them was the courts, where the definition of a crime and a penalty is enshrined in the hundreds of criminal justice Bills that we have seen go through this Chamber. Another is tax, which is enshrined in the Finance Bill every year. The Competition Commission was created by legislation in the normal way. A partial exception to this is the Monetary Policy Committee, where the framework was part of legislation but the one decision about the inflation target is reserved for the Chancellor of the Exchequer. I do not think, with due respect to the Minister, that we are in unknown territory; we are within the scope of known and existing practices.

Which one do we want to plump for in this case? For two reasons, I think that we should plump for the practice that requires that the final conclusions be endorsed by Parliament. First, as a number of noble Lords have mentioned, the more the policy is clear, the more difficult it is for it to be challenged in the courts, which people think is a good thing, or for objectors to try to unpick something at a very late stage. Secondly, it would make a success of the IPC, in which I strongly believe. It will be more successful if it operates in a clear framework. The noble Lord, Lord Jenkin, gave an example last week of the rate-capping dispute with local councils, where the authority of the Minister was strengthened by having the backing of Parliament. The IPC will need that authority. Moreover, it gives the IPC the answer to the question, “What right have you to decide this?”. The answer is: “Because both Houses of Parliament settled the policy within which we are operating”. Revisiting this matter will enhance the way in which Parliament works as well as increase the chances of success of the project as a whole.

The Earl of Caithness: I support the amendments. I raised the point at Second Reading and was quite vitriolic in saying to the Minister that to bring a Bill of this nature before this Chamber without it having any input to the final decision was wrong. Amendment No. 75 in the name of my noble friend Lord Dixon-Smith

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is the right one: the decision should be for the approval of both Houses. That is justified by what the noble Lord, Lord Turnbull, said. It gives much more credibility to the IPC and the national policy statements.

Lord Woolmer of Leeds: I hope that mine is not the only voice to speak against the amendments. The Minister will reject them. As I see it, the Government are the Executive. The argument that moral authority would come about only if both Houses approved something is fallacious, for two reasons. First, the moral authority—I always look with great care when people call in aid “moral authority” when arguing for something—or legitimacy of national policy statements will come about from the framework in which they have to be formulated, the consultation and the care and rigour with which the outcome of those consultations is considered and responded to. At the end of the day, the national policy statement will be a very carefully assessed and balanced judgment of some fairly complex issues about which there are a lot of strong feelings. but a judgment has to be made.

As with anything that the Government of the day do, they have moral authority if people feel, on balance, that consultation and taking account of public opinion and stakeholders in all kinds of decisions are done with care and that a judgment is overwhelmingly good. If the public start to feel that the Government are not listening carefully to what they say, or that they listen but have faulty judgment, any Government and Secretary of State lose that moral authority. Secretaries of State suffer the penalty of being sacked, and Governments are ultimately sacked by the electorate. The Government of the day, through the Secretary of State, will have the moral authority, provided all those things are done carefully. If they do not, they will suffer the eventual wrath of the electorate.

Let us turn to the moral authority of Parliament. I shall turn in a moment to the question of both Houses or one House. Let us assume that the Government have set down draft proposals, have consulted carefully and widely over some months, have listened to what has been said, have responded carefully—perhaps even iteratively so by having more consultation—and then have reached balanced and careful judgments. Let us say that the proposals go to the House of Commons, where a committee might consider them. That committee will then form its own judgment, which might be quite different. Indeed, it might be—dare one say?—even more politically motivated than a Government. There is no necessity for that committee to have the same regard to all due processes.

Noble Lords who have spoken on this have said that the mere act of giving parliamentary approval is the moral authority, whether or not Parliament takes a decision on the same careful, balanced judgment of facts. There could be a hung Parliament—the House of Commons could be hung, and there could be horse-trading. Look at how on Capitol Hill in the United States they dealt with the big loan bail-out: they added $200 billion on to the Bill just through pork-barrel politics to get the overall figure. Anybody who wants to talk about the moral authority of

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elected Houses in reaching careful judgments should remind himself of the picture on Capitol Hill only a few weeks ago.

Even if a committee was careful, it could not possibly spend the same amount of time that the Secretary of State spent in many months of careful consultation. Even if a Select Committee or committee sought to be careful, whatever its recommendations to the House of Commons, the vote there might have no regard whatever to what the committee recommended or the process that it went through. It would be a straightforward vote.

I am reminded of the vote in the other place on whether the second Chamber should be elected or not. We all know that there was a vote for an 80 per cent elected Chamber but all those who really opposed an elected House got together and voted for a 100 per cent elected Chamber because they thought that it would sink the whole enterprise. The official position of the House of Commons is that it is in favour of a 100 per cent elected Chamber, exactly because they did not want that to happen. So let us not use words like “moral authority”. It simply is not accurate. The Government have their job while the House of Commons has another in holding the Government to account.

This is not the elected House and it should not duplicate everything that the House of Commons does. We should be very careful before we go down that route. We are here to scrutinise legislation; with the agreement of the Commons, we have done a lot more on European Union legislation than the Commons—but that might change over time. This House is given a role under Clause 9, which says that either House may make,

The House can genuinely debate something and, if it is so minded, can pass a resolution; but we have to be very careful what kind of resolution we pass, because of the sheer complexity of the issues. What are we going to do, when all this public consultation and care has gone into the proposal? We are entirely entitled to debate and pass resolutions, but to have our own committee or sit on a Joint Committee with the other place would be simply wrong; this House would be seeking to go beyond its role and function. Of course, if there was a wholly elected second Chamber and the conventions started to change, you could well find that an elected House took a different view—but we are not an elected House.

I hope that the Committee on reflection does not press the amendment to a vote and that it feels that on balance it has been a debate worth having but not a point to push.

7.45 pm

Baroness Andrews: I am extremely grateful for this very thoughtful debate on a matter of absolutely central interest to this Chamber. I am very grateful to my noble friend for setting out better than I could much of the case that I will make. I am particularly grateful to him for raising the notion of moral authority going beyond this narrow definition of a vote in either House and referring to the whole integrity of the

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process that we are trying to establish for national policy statements. I want to address the issues raised on the relationship between parliamentary scrutiny and approval. I am very aware of business waiting, so I shall try to be concise.

We stated very clearly that we are committed to a stronger role for Parliament in scrutinising the national policy statements; we have formalised the process to allow for that. I am very grateful to noble Lords for recognising what went into the construction of that process. I shall describe it briefly, because it is unique and innovative.

Although national policy statements are going to be important and innovative, they are ultimately documents of policy. They set out government policy and ministerial accountability. They are not primary or secondary legislation but a new sort of parliamentary instrument. The nearest analogy that we can make is that they are similar in many ways to planning documents or White Papers, and certainly they are not subject to parliamentary approval. Although both the noble Lords, Lord Jenkin and Lord Turnbull, chided me for saying that we were in new territory, I do not resile from that. The examples that they give are genuinely different; they are specific and partial within the context of some rather broad legislation.

National policy statements are different; they are broad and the first of their kind, much wider in scope and more significant in depth. They bring into question the relationship between the role of government in making policy as a whole and the role of Parliament in scrutinising things. We blur the distinction between the role of Parliament and the Executive at our peril, and I think that this is a step much too far. I commend what my honourable friend said in the other House about why we do not believe a vote of approval is necessary or appropriate.

I shall backtrack and explain the journey that we have made in this Bill towards parliamentary accountability and scrutiny, because it is unique. When the Planning Bill was first introduced, we made a commitment to provide a stronger role for Parliament. The other place was encouraged to consider setting up a Select Committee as part of that process, possibly drawn from the expertise of the four relevant departmental committees, but it was always acknowledged that it was for the House itself to decide what procedures were appropriate for each NPS. Together with the chairs of the Select Committees, over a considerable amount of time, Ministers have worked out a possible process for Commons committee examination of national policy statements, either by one of the relevant existing departmental Select Committees or a single new committee drawn from their membership.

The committee would examine the draft national policy statement in a timeframe largely parallel to that for public consultation, and it would report to the House with recommendations, including whether the issues merited debate on the Floor of either House. The Government would make time available for debate in each House, if the committee recommended it. The period for parliamentary scrutiny would continue for four to six weeks beyond the close of public consultation, to enable the Select Committee to take any additional account that might be necessary of the significant

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issues likely to be raised during public consultations. Ministers have undertaken to ensure that briefing and information on those issues is made available to the Select Committees to enable them to do this. That is a credible, rigorous and unique process.

Ministers would then consider what change was needed to the draft NPS in the light of the views of the Commons committee, and, significantly, in respect of any resolution of either House and public consultation. They would lay a Statement setting out their response before Parliament and revise the draft proposals as appropriate before laying the final version of the NPS. This House will be fully involved. If we are searching for moral authority, we find it in the equivalence of both Houses.

The procedure has taken time and effort to agree, because it has been so carefully worked out. It is a thorough and robust scrutiny process. It recognises the nature and expertise of the departmental Select Committees in the other place and their long history in holding departments to account. It acknowledges that regard must be had to the views of either House, speaking, as it were, collectively. The noble Lord said that the Government had only a duty to respond, but that is a powerful obligation to place on them.

This procedure will allow Parliament to look at each detail of policy and make recommendations that Ministers will have to take into account before laying the final policy statement. That will help to ensure that the provisions are the right ones, and take into account the full range of issues that should be captured. It will also ensure that NPSs are widely seen as authoritative statements of policy, appropriate for the roles that have been set for them. In terms of this House, our expertise and commitment are recognised in the fact that time will be made for a debate and for any resolution of this House.

Before dealing with particular amendments, let me first address the other amendments in the group, relating to timing and sequencing. In Amendment No. 81, the noble Baroness, Lady Hamwee, would like the “relevant period” for scrutiny to be not less than six months. We all want there to be sufficient time, but we also all want a process that is genuinely speedy and focused. We know that NPSs vary considerably, and in many cases Parliament may be scrutinising a minor amendment following a review. The sort of timetable the noble Baroness proposes is not strictly appropriate. It is too rigid and we need greater flexibility.

Amendment No. 76 argues that the scrutiny process would be improved by requiring that parliamentary scrutiny take place once public consultation has concluded. That would add unnecessary length and resource costs. We have allowed a hangover period of four to six weeks for the Select Committee to take additional account of what has been raised in public consultation. That should be sufficient. We do not want to extend the period. We want to be able to make substantial revisions in the light of the views of the public and statutory consultees and we have allowed properly for that.

I now turn to the amendments on the parliamentary committee and scrutiny by the committee. Amendment No. 79 in the names of the noble Baroness, Lady

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Hamwee, and the noble Lord, Lord Jenkin, would require the Secretary of State to respond to recommendations of a Joint Committee of both Houses. The noble Lord has already made the essential point. It raised particular issues. There is a serious question about whether it is appropriate at all to place such a requirement in the Bill. As we all know, the decision to set up a Joint Committee is a matter for both Houses. It presumes the agreement of both Houses, but one cannot always take that for granted.

On Amendment No. 80 in the name of the noble Lord, Lord Cameron, he will know that, although Clause 9 does not specifically mention committee scrutiny in this House, nothing in the Bill prevents this House from deciding to set up a committee to look at and report in any form on one or all NPSs. Indeed, a proposal along these lines may have some merit. However, I have listened to the arguments. I do not need to be persuaded of the expertise of this House, not least standing at the Dispatch Box in the context of this Bill. I also know that we deploy our expertise and experience with care and proportion. There is merit in looking at ways in which this could be brought to bear most effectively in the consideration of draft NPSs. If the House will allow, therefore, I propose to take this amendment away to give it further thought. With that assurance, I hope that noble Lords will be able to withdraw their amendments.

Lord Dixon-Smith: I had thought that this would be the big debate of the evening, but surprisingly we have run out in less time than the previous debate on consultation. However, in terms of importance and significance, this is the debate that matters most this evening.

I am grateful to my noble friend Lord Jenkin for setting out the background to this, particularly the parliamentary precedents that quite clearly indicate that what we are looking for is within existing practice in other areas. I do not intend to pick up the points made by everybody in the Committee because that would be a bit hard at this hour of the evening. In any event, I rather think that the meat came towards the end. We need to take very seriously what the noble Lord, Lord Turnbull, had to say. He said that what we are suggesting is within existing practice and would strengthen the position of the Infrastructure Planning Commission. Coming from a man with his background, that is a significant statement.

The noble Lord, Lord Woolmer, got into an interesting position. I found his discussion rather depressing. He clearly has no confidence in Ministers’ capacity to persuade Members of either House to accept the position that they adopt. I found that slightly peculiar. Of course, he had an interesting time trying to question the moral authority of Parliament, but I accept that the Government go through a long procedure in order to reach a conclusion. However, if having gone through that procedure, which is known, they are unable to persuade Parliament that they have come to the right conclusion, the decision is flawed.

Finally, the Minister said that national policy statements are government policy statements and that they are therefore to be inviolate. However, she opened up the dreadful prospect of a national policy statement that

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lasts as long as a Parliament and no longer. We have to be above that in these decisions. There is no question in my mind that, if we want this Bill to succeed, we cannot have a situation where these are simply statements of the Government of the day. That will not do.

That is enough for me for now. We will go away and consider very carefully what the Minister has said. I am grateful for her explanation, even though I disagree with it. She should not be surprised if we wish to bring this back with rather more determination on another occasion. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 76 to 83 not moved.]

Clause 9 agreed to.

[Amendment No. 84 not moved.]

Clause 10 [Sustainable development]:

[Amendments Nos. 85 to 87 not moved.]

Clause 10 agreed to.

Lord Patel of Bradford: I beg to move that the House do now resume.

Moved accordingly, and on Question, Motion agreed to.

House resumed.

European Parliament (House of Lords Disqualification) Regulations 2008

7.58 pm

Lord Trefgarne rose to move that an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 24 June, be annulled (SI 2008/1647).

The noble Lord said: My Lords, I am not an ardent Euroenthusiast, but nor am I an extreme Eurosceptic. I am not in favour of a United Kingdom withdrawal from the European Union, for example, and I could perhaps be persuaded to look again at the single European currency, although I confess that I think that many European institutions, especially the Commission, need reform. However, those are matters for another day. I mention them only to make it clear that my Motion tonight is not a ritual exercise in Eurobashing. I have a number of questions about the regulations to which my Prayer refers, which I hope that the noble Lord, Lord Bach, will be able to reply to in due course. I am grateful to him for coming to the Dispatch Box this evening; incidentally, I warmly congratulate him on his new appointment.

The purpose of the regulations is to disallow life Peers in your Lordships’ House from sitting or voting if they become Members of the European Parliament. They apparently emanate from a decision of the European Council of Ministers, and we are obliged to pass them into law—an obligation that we long ago accepted, wisely or not. However, since when was an assembly or parliament in another state entitled to say who should be Members of your Lordships’ House? I suppose that it is open to the European Parliament to receive a Member of your Lordships’ House but, to put it the

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other way around, to interfere with our national selection of who should be Member of this House seems an altogether different matter. They can say who they want in their parliament, and surely we should say who we want in ours.

The Merits of Statutory Instruments Committee has been unusually scathing about these regulations. Your Lordships will have seen its report, which says:

“Under these Regulations, MEPs will join aliens, bankrupts, those under 21 and those convicted of treason as the groups disqualified for membership of the House”.

It goes on to say that, in a little while, judges will apparently be disqualified for some other reason. What a very distinguished group that will be.


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