---

Finally, opposition Amendment No. 25 seeks to amend subsection (5) to make it clear that the powers contained in subsection (5),

“but CIL regulations may provide for an institution of a specified kind to be or not to be treated as an institution established for a charitable purpose”,

apply only in relation to subsection (2). This is an unfounded concern, as the whole of subsection (5) can only define the institutions that can be given exemptions or reductions under subsection (2). It has no bearing on the 100 per cent exemption from CIL for charities under subsection (1).

I have gone into some detail: I hope I have not wearied the House. I was challenged to be clear and set out what may be a minority position. I have done my best to show that what we are trying to do is not perverse or stubborn; it is to be as careful as we can in a situation where we cannot predict the future. The fact that we have not been challenged does not mean that we will not have to deal with this issue in future. I would be the last person to put the charitable sector at risk. I hope that the House will accept my amendments and reject the others.

Lord Shutt of Greetland: My Lords, I thank noble Lords who have taken part in this lengthy debate of more than an hour. I will make one comment on the specific point of the noble Lord, Lord Best. My Amendment No. 24 exactly covers the example that he gave of the housing association that is not a charity.

I started out by saying that I wanted “clarity with charity” and I return to that theme. I do not know whether I am being portrayed as an extremist: I prefer “purist”. The interesting thing is that there is no difference between what I am proposing for what happens to land that is built upon by a charity, either for itself or for a charitable purpose, and what happens

18 Nov 2008 : Column 1056

now. What is now being proposed will make things more difficult and complex. I have sympathy for the Minister, because she has a poor brief and a poor hand. It took her 26 minutes to try to explain this to us: it is very difficult. The noble Lord, Lord Hodgson, used the word “CIL-able”. I would alter that to “CIL-ability”. I do not think, after 26 minutes, that anybody can say what the CIL-ability is of any specific development. That is the problem with the Bill. It is all going to be, “Let’s hope we get something in the spring in regulations”. The aim today is to get clarity for charity. Therefore, I wish to test the opinion of the House.

5.58 pm

On Question, Whether the said Motion (No. 16) shall be agreed to?

Their Lordships divided: Contents, 79; Not-Contents, 157.

Division No. 1

CONTENTS
Addington, L. [Teller]
Alderdice, L.
Alton of Liverpool, L.
Astor, V.
Avebury, L.
Baker of Dorking, L.
Barker, B.
Bonham-Carter of Yarnbury, B.
Bowness, L.
Boyce, L.
Bradshaw, L.
Brougham and Vaux, L.
Burnett, L.
Chidgey, L.
Craig of Radley, L.
Craigavon, V.
Crathorne, L.
Dholakia, L.
Dykes, L.
Eames, L.
Falkland, V.
Falkner of Margravine, B.
Feldman, L.
Fraser of Carmyllie, L.
Garel-Jones, L.
Geddes, L.
Glasgow, E.
Goodhart, L.
Goodlad, L.
Greaves, L.
Hamwee, B.
Harris of Richmond, B.
Hodgson of Astley Abbotts, L.
Hooson, L.
Howe of Idlicote, B.
Hylton, L.
Knight of Collingtree, B.
Laird, L.
Lamont of Lerwick, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Liverpool, E.
Livsey of Talgarth, L.
Low of Dalston, L.
Mackie of Benshie, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Marlesford, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Neuberger, B.
Newton of Braintree, L.
Northover, B.
Norton of Louth, L.
Razzall, L.
Rees-Mogg, L.
Roberts of Llandudno, L.
Roper, L.
Ryder of Wensum, L.
Sandwich, E.
Scott of Needham Market, B.
Sharp of Guildford, B.
Shutt of Greetland, L. [Teller]
Smith of Clifton, L.
Stewartby, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tonge, B.
Tope, L.
Tyler, L.
Ullswater, V.
Wallace of Saltaire, L.
Walmsley, B.
Walpole, L.
Williams of Crosby, B.

NOT CONTENTS
Adams of Craigielea, B.
Adonis, L.
Ahmed, L.
Ampthill, L.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Bach, L.
Barnett, L.
Bassam of Brighton, L. [Teller]
Bernstein of Craigweil, L.
Best, L.


18 Nov 2008 : Column 1057

Bew, L.
Bilston, L.
Blackstone, B.
Borrie, L.
Boston of Faversham, L.
Boyd of Duncansby, L.
Bradley, L.
Bragg, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Campbell-Savours, L.
Carter of Coles, L.
Chandos, V.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cobbold, L.
Colville of Culross, V.
Corbett of Castle Vale, L.
Corston, B.
Crawley, B.
Crisp, L.
Cunningham of Felling, L.
Darzi of Denham, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Desai, L.
Dixon, L.
Donoughue, L.
D'Souza, B.
Dubs, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Evans of Watford, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Finlay of Llandaff, B.
Ford, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Gilbert, L.
Golding, B.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grantchester, L.
Griffiths of Burry Port, L.
Grocott, L.
Hannay of Chiswick, L.
Harries of Pentregarth, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Jay of Ewelme, L.
Joffe, L.
Jones, L.
Jones of Whitchurch, B.
Judd, L.
King of West Bromwich, L.
Kingsmill, B.
Kirkhill, L.
Lea of Crondall, L.
Leitch, L.
Lipsey, L.
Listowel, E.
Lofthouse of Pontefract, L.
McDonagh, B.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Masham of Ilton, B.
Massey of Darwen, B.
Maxton, L.
Montgomery of Alamein, V.
Moonie, L.
Morgan of Drefelin, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Yardley, B.
Murphy, B.
O'Neill of Clackmannan, L.
Pannick, L.
Patel, L.
Patel of Blackburn, L.
Patel of Bradford, L.
Paul, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Prosser, B.
Prys-Davies, L.
Quin, B.
Radice, L.
Ramsay of Cartvale, B.
Rees of Ludlow, L.
Richard, L.
Robertson of Port Ellen, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Simon, V.
Smith of Leigh, L.
Snape, L.
Soley, L.
Stoddart of Swindon, L.
Strabolgi, L.
Sutherland of Houndwood, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Temple-Morris, L.
Thornton, B.
Tunnicliffe, L.
Turner of Camden, B.
Uddin, B.
Walton of Detchant, L.
Watson of Invergowrie, L.
Wedderburn of Charlton, L.
West of Spithead, L.
Whitaker, B.
Wilkins, B.
Wilson of Tillyorn, L.
Woolmer of Leeds, L.
Young of Norwood Green, L.

Resolved in the negative, and Motion disagreed to accordingly.

18 Nov 2008 : Column 1058

6.08 pm

[Amendments Nos. 17 to 20 not moved.]

Lord Cameron of Dillington moved Amendment No. 21:

21: Clause 209, page 121, line 39, leave out “(1) or”

The noble Lord said: My Lords, I took the amendment proposed by the noble Lord, Lord Shutt, which we have just voted on, as being the front-line position and perhaps even as being in no man’s land between the opposing forces, as it were. I still believe that Amendment No. 21 and the subsequent Amendment No. 25 are a reasonable last-ditch defensive position for registered charities, bearing in mind that we in this House will have no control over the regulations when they come in.

I should like to comment on the remarks made by the noble Baronesses, Lady Ford and Lady Whitaker, on state aid. I have made these points before, although I have not made them today. Charities in this country are exempt from income tax and they are exempt from capital gains tax, which are huge sums of money hundredfold times greater than the exemption that we are trying to get today. Stamp duty land tax recently gave a full exemption for charities, and I cannot understand why the Government have changed their mind on this particular levy. Council tax has an 80 per cent exemption, and most local authorities give the other 20 per cent. Virtually every other country in Europe, with the notable exception of Sweden, gives roughly similar exemptions to its charities. I do not believe the EU Commission would be politically so insensitive or bring down on its head the wrath of all the charities in Europe, and all those who support them—which may amount to as much as 50 per cent of the population—by attacking such a small exemption from what is only a local levy, when it has long ignored all the other much larger exemptions. With that in mind, I beg leave to test the opinion of the House. I beg to move.

6.11 pm

On Question, Whether the said amendment (No. 21) shall be agreed to?

Their Lordships divided: Contents, 89; Not-Contents, 138.

Division No. 2

CONTENTS
Addington, L. [Teller]
Alderdice, L.
Alton of Liverpool, L.
Astor, V.
Avebury, L.
Barker, B.
Bonham-Carter of Yarnbury, B.
Bowness, L.
Boyce, L.
Bradshaw, L.
Bridges, L.
Burnett, L.
Caithness, E.
Cameron of Dillington, L.
Chidgey, L.
Chorley, L.
Cobbold, L.
Colville of Culross, V.
Colwyn, L.
Craigavon, V.
Dholakia, L.
Dundee, E.
Dykes, L.
Eames, L.
Falkland, V.
Falkner of Margravine, B.
Feldman, L.
Finlay of Llandaff, B.
Flather, B.
Fookes, B.
Geddes, L.
Glasgow, E.
Greaves, L.


18 Nov 2008 : Column 1059

Greengross, B.
Greenway, L.
Hamwee, B.
Hannay of Chiswick, L.
Harries of Pentregarth, L.
Harris of Richmond, B.
Hodgson of Astley Abbotts, L. [Teller]
Hooson, L.
Howe of Idlicote, B.
Jay of Ewelme, L.
Laird, L.
Lamont of Lerwick, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Livsey of Talgarth, L.
Luce, L.
Mackie of Benshie, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Masham of Ilton, B.
Methuen, L.
Miller of Chilthorne Domer, B.
Montgomery of Alamein, V.
Murphy, B.
Neuberger, B.
Newton of Braintree, L.
Northover, B.
Norton of Louth, L.
Perry of Southwark, B.
Razzall, L.
Reay, L.
Roberts of Llandudno, L.
Rogan, L.
Roper, L.
Scott of Needham Market, B.
Sharp of Guildford, B.
Shutt of Greetland, L.
Skidelsky, L.
Smith of Clifton, L.
Soulsby of Swaffham Prior, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tonge, B.
Tope, L.
Tyler, L.
Wallace of Saltaire, L.
Walmsley, B.
Walton of Detchant, L.
Warnock, B.
Williams of Crosby, B.
Williamson of Horton, L.
Wilson of Tillyorn, L.

NOT CONTENTS
Adams of Craigielea, B.
Adonis, L.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Bach, L.
Barnett, L.
Bassam of Brighton, L. [Teller]
Bernstein of Craigweil, L.
Bew, L.
Billingham, B.
Bilston, L.
Blackstone, B.
Borrie, L.
Boston of Faversham, L.
Boyd of Duncansby, L.
Bradley, L.
Bragg, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Campbell-Savours, L.
Carter of Coles, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Corbett of Castle Vale, L.
Corston, B.
Crawley, B.
Crisp, L.
Cunningham of Felling, L.
Darzi of Denham, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dixon, L.
Donoughue, L.
Dubs, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Evans of Watford, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Ford, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Fyfe of Fairfield, L.
Gale, B.
Gibson of Market Rasen, B.
Gilbert, L.
Golding, B.
Goldsmith, L.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grantchester, L.
Griffiths of Burry Port, L.
Grocott, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Newport, L.
Howells of St. Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Joffe, L.
Jones, L.
Jones of Whitchurch, B.
Judd, L.
King of West Bromwich, L.
Kingsmill, B.
Kirkhill, L.
Lea of Crondall, L.
Leitch, L.
Lipsey, L.
Lofthouse of Pontefract, L.
McDonagh, B.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.


18 Nov 2008 : Column 1060

Massey of Darwen, B.
Maxton, L.
Moonie, L.
Morgan of Drefelin, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Yardley, B.
O'Neill of Clackmannan, L.
Pannick, L.
Patel, L.
Patel of Blackburn, L.
Patel of Bradford, L.
Paul, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Prosser, B.
Prys-Davies, L.
Quin, B.
Radice, L.
Ramsay of Cartvale, B.
Rees of Ludlow, L.
Richard, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sawyer, L.
Simon, V.
Smith of Leigh, L.
Snape, L.
Soley, L.
Stoddart of Swindon, L.
Strabolgi, L.
Sutherland of Houndwood, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Thornton, B.
Tunnicliffe, L.
Turner of Camden, B.
Uddin, B.
Watson of Invergowrie, L.
Wedderburn of Charlton, L.
Whitaker, B.
Wilkins, B.
Woolmer of Leeds, L.
Young of Norwood Green, L.

Resolved in the negative, and amendment disagreed to accordingly.

6.21 pm

Baroness Andrews moved Amendments Nos. 22 and 23:

22: Clause 209, page 121, line 40, leave out “applies only” and insert “does not apply”

23: Clause 209, page 121, line 46, leave out “register” and insert “be registered in the register kept”

On Question, amendments agreed to.

[Amendments Nos. 24 and 25 not moved.]

Clause 215 [Application]:

[Amendment No. 26 not moved.]

Clause 221 [Regulations and orders: general]:

Lord Jenkin of Roding moved Amendment No. 27:

27: Clause 221, page 130, line 26, at end insert “, and

(c) shall not be made unless, before approval by the House of Commons, a period of 60 days has elapsed, beginning with the day on which the regulations were laid.

(3) During the period of 60 days—

(a) either House of Parliament may—

(i) debate, or pass a resolution relating to, the regulations, or

(ii) refer the regulations to any committee for a report; and

(b) the Secretary of State must respond to any such debate or resolution or to any such report of a committee before the House of Commons gives its approval to the regulations under this section.”

The noble Lord said: My Lords, last week noble Lords divided on an amendment that would have given both Houses of Parliament, in our bicameral legislature, the power to approve the regulations to be made under Part 11—the CIL regulations, which the House has just debated. The Bill seeks to restrict the power to another place. As a number of noble Lords said in the debate that has just ended, the whole business of CIL depends on regulations. The word “regulations” appears on every page of Part 11, sometimes

18 Nov 2008 : Column 1061

many times. If the amendment is not carried, this House will have no say in that at all. Last week, the amendment was defeated by just six votes, with the consequence that although this House has spent many hours debating Part 11—at Second Reading in July, in Committee of the whole House, last week on Report and today at Third Reading—we are to have no role whatever in relation to the many sets of regulations that will fall to be tabled.

Of course last week’s vote must be respected. I respect it; I accept that it will be for another place—and that place only—formally to approve those many regulations. However, I find it surprising that the noble Baroness has taken this line. She has been full of praise for what this House has done to the Bill, including to Part 11, and about the contribution that noble Lords have made. I have in my hands a letter that she sent to me only a few days ago, which states:

“I thought the debate was outstanding, and I continue to learn a great deal from the collective wisdom of the House”.

That is what we can bring to bear on this matter. The amendment recognises, of course, that the actual approval of the regulations must now rest with another place. We seek to provide opportunities for noble Lords to bring their “collective wisdom” to bear on the process.

This House has always recognised that certain financial matters are open to the claim of privilege by another place, and I do not seek in any way to challenge that. The purpose of the amendment is to provide, between the tabling of the draft regulations and their approval by another place, time for both Houses to consider them and express their views, and for Ministers to respond. I emphasise “both Houses”—this House as well as another place. In other words, this House should be consulted, even if we do not have power to approve the regulations. Anyone who listened to the last debate will realise just how much of CIL will depend on the regulations. How much each House might use that opportunity is not for the Bill, of course, but for discussions between the usual channels. The amendment does no more than offer several possible ways of doing it.

If the amendment is carried, as I hope it will be, it will be open to the other place to accept it or redraft it in a form acceptable to parliamentary counsel. Alternatively, another place might choose to draw a distinction between the regulations that bear directly on the charging of CIL and the rest, which are of a more administrative nature. That distinction was made in paragraph 26 of the Delegated Powers Committee’s report, which referred to “matters referred to” in certain clauses which are “not obviously financial”. That must be for another place; it is not open to me to table an amendment to make that distinction. The important point for us this evening is that another place will not be given the chance to decide what to do unless we return the Bill to it with this amendment in it.

What lies behind my concern is the increasing tendency of the other place to regard references to “Parliament” as meaning the House of Commons only, a point made on the Bill by the noble Lord, Lord Turnbull. I am sorry that he is not in his place; I drew his attention to the fact that I was going to quote him. He said:

18 Nov 2008 : Column 1062

“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”.—[Official Report, 14/10/08; col. 660.]

As I said a moment ago, we are a bicameral legislature and that must never be forgotten. We had a striking example of the tendency with the statistics Act last year. The Act provided that the new statistics authority was to be accountable to Parliament. The Liaison Committee of this House unanimously recommended that that should be via a Joint Committee of both Houses. That was accepted by noble Lords, but Ministers in the other place interpreted the Act to mean accountability to the House of Commons alone. Despite appeals from the then Leader of the House—the noble Baroness, Lady Ashton—the proposal by this House was simply rejected. Tonight we have another example.

I accept that it is for the other place to assert its financial privilege, but that should not exclude this House having a role in the consideration of the CIL regulations. There may be honourable and right honourable Members in another place who want further reforms of this House, but that should not lead to the exclusion of this House from any role with respect to the regulations to be made under Part 11. I beg to move.

Lord Goodhart: My Lords, the Government have been constructive, through the Minister, in response to many amendments proposed by other Members. However, the response to the issue of the involvement of your Lordships' House in the making of the regulations that will be needed under the Bill has been negative, to say the least. I must make it clear that I do not speak today on behalf of the Delegated Powers Committee, because it has not had an opportunity as a committee to consider the amendment. However, one necessary function of the committee is to see that the rights of your Lordships’ House are not overlooked or diminished by legislation that the Government propose to introduce. That, I am afraid, is what is happening now.

We should surely start from the presumption that the roles of your Lordships’ House and of the House of Commons in respect of delegated legislation are equal, subject to the exception of supply Bills and other financial Bills and to the exercise of financial privilege of the House of Commons. I therefore greatly regret the vote last week that resulted in your Lordships’ House rejecting its own right to claim involvement in the making of statutory instruments. That weakened your Lordships’ House. It would have been a good thing if new regulations had required resolutions of both Houses—certainly in many cases. That is especially so because the secondary legislation gets far less attention in the House of Commons than it does here. The House of Commons has nothing equivalent to the Delegated Powers Committee or the Merits of Statutory Instruments Committee. Debates in the House of Commons on statutory instruments are notoriously brief.

6.30 pm

We are a revising House. The exercise of our revising powers in recent weeks has shown the importance of these powers, both in this Bill and in others that have

18 Nov 2008 : Column 1063

been before your Lordships’ House in the last few days. It is obvious, however, that a great deal of work on the Planning Bill remains to be done. Although the Delegated Powers Committee has accepted that Part 11 is no longer to be regarded as a skeleton, an enormous amount is still left to be exercised by secondary legislation. No fewer than 18 of the 21 clauses in Part 11 contain powers relating to the making of regulations. This amendment would merely enable your Lordships’ House to express its views on the draft regulations and to require the Secretary of State to respond to those views. The House of Commons would thereby have the benefit of the views of your Lordships’ House but the House of Commons would not be bound by them in any way. This plainly would not trespass on the privilege of the House of Commons.

---