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I do not see this as a party-political matter. The question is whether your Lordships’ House, having played a large part in the development of Part 11, should be excluded from any further involvement in development through regulations. We have already been excluded from the right to vote on resolutions needed to implement Part 11. If we in your Lordships’ House are also to be denied the lesser right to have our views expressed and considered before the House of Commons approves these regulations, that will set a dangerous precedent, which may well weaken our powers of revision. That is why I support this amendment.

Lord Howarth of Newport: My Lords, I am extremely glad that the noble Lord, Lord Jenkin, has found a way to bring this important issue back to the House at Third Reading. We owe him a debt of gratitude for identifying the issue and pursuing it so resolutely. The arguments that he and the noble Lord, Lord Goodhart, presented to the House in our debate on Amendment No. 130 on Report and the arguments that they have presented today are irrefutable. I have never seen my noble friend the Minister so miserable in dutifully defending the indefensible.

In our vote on the amendment moved by the noble Lord, Lord Jenkin, on Report, this House deprived itself of the power and the responsibility—long-established without peradventure and amply demonstrated in the many precedents cited by the noble Lord, Lord Jenkin—to approve or disapprove regulations governing charges or levies as opposed to taxes raised for the Exchequer on the principle that the noble Lord, Lord Goodhart, just explained. That was a gratuitous act of self-immolation.

If significant constitutional change is to be introduced, it should not be introduced as an incidental aspect of legislation. Although I make no personal criticism of my noble friend the Minister, I believe that in introducing this change the Government should have been candid with the House. Equally, the House should have been vigilant. The House should not abandon its rights and its responsibilities without the most careful consideration, in a fit of absence of mind. That is what happened last week when we had a vote on a poor turnout and, by 96 votes to 90, as I recollect, the noble Lord’s amendment was lost. This amendment gives us the chance to retrieve at least a good part of what we threw away last week. I hope that the House will acquit itself better today than it did last week.

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Lord Boyd of Duncansby: My Lords, I did not support the Government in the Lobbies on the vote last week. Although I was in the building, I absented myself from the vote. That was because I am a member of the Delegated Powers and Regulatory Reform Committee, which had reached a clear view on what the proper procedure should be. For those reasons, I felt that I could not support the Government. I would certainly have no difficulty, however, in supporting the Government in the Lobbies tonight if this matter is pushed to a vote. There are three reasons for that. First, although the noble Lord, Lord Jenkin, says that he respects the vote last week, it seems clear that this is an attempt to revisit that vote.

Lord Jenkin of Roding: My Lords, if I did not make it clear, I now make it absolutely clear that I am not seeking in any way to give this House a joint right to approve the regulations. The House decided last week that it did not want that and I made it clear in my opening speech that I am not challenging that. All I want is that we should have a say.

Lord Boyd of Duncansby: My Lords, I take that point; I was referring more to the point made by the noble Lord, Lord Goodhart. Nevertheless, this House took a decision last week, albeit by a small majority, on the way ahead.

The second reason why I oppose this is that it seems to bring a new procedure into the legislature. I have been a member of this House for only two years, but I have never seen any procedure like this before. We have never discussed this or anything like it in the Delegated Powers and Regulatory Reform Committee.

Lord Goodhart: My Lords, I understand the noble Lord’s position, but I refer him to the super-affirmative provision that was included in the Legislative and Regulatory Reform Act 2006. That provision is not unlike, although it is somewhat broader than, those contained in this amendment.

Lord Boyd of Duncansby: My Lords, the super-affirmative provision within the legislative reform procedure is there because we are dealing with primary legislation. This is not primary legislation; it is subordinate legislation.

Lord Howarth of Newport: My Lords, was not a procedure—closely akin to the procedure that the amendment tabled by the noble Lord, Lord Jenkin, envisages—adopted by the House last Monday in a Motion moved by the noble Lady, Baroness Thomas of Winchester, in which social security regulations were considered by the House?

Lord Boyd of Duncansby: My Lords, I am not aware of that provision; the noble Lord has the advantage of me in that respect. It does seem, however, that this is a new procedure within primary legislation to deal with subordinate legislation.

The third reason why I cannot support the amendment is that it seems to have flaws. The new procedure would provide that no subordinate legislation would be made by the House of Commons unless a period of

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60 days had elapsed. During that period of 60 days, either House of Parliament would have the opportunity to debate the regulations or to refer them to any committee for a report. What would happen if, on the 59th day of that period of 60 days, one of the Houses—particularly this House, as it might be seen as obstructive of the House of Commons—referred the regulations to a committee? Would that suspend the operation of the 60 days?

Lord Goodhart: My Lords, I should have thought it pretty clear that it would not. There is a 60-day period within which a committee would have to produce a report and, if it had not produced a report by the 59th day, there would be nothing left for it to do.

Lord Boyd of Duncansby: My Lords, I say with the greatest respect to the noble Lord that new subsection (3) says:

“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”.

It seems to me that if, on the 59th day, the regulations are referred to any committee for a report, it is obvious that no report can be obtained from that committee before the 60th day.

Lord Jenkin of Roding: My Lords, the noble and learned Lord is misreading the amendment. The words,

in subsection (3) cover both paragraphs (a) and (b). Subsection (b) states that,

The circumstances postulated by the noble and learned Lord, frankly, lack credibility. Sixty days should be enough for either House to make a point and for the Government to respond. We are simply asking for this House to have a say.

Lord Goodhart: My Lords, perhaps the noble and learned Lord, Lord Boyd, would look—

Lord Davies of Oldham: My Lords, I hesitate to intervene, but this is Third Reading and we are rapidly turning it into Committee proceedings. This should be the last intervention in my noble and learned friend’s speech.

Lord Goodhart: My Lords, I should like to make this point. Paragraph (c), which refers to the affirmative resolution procedure, states that the regulations,

Surely that makes it perfectly obvious that the House of Commons can proceed with its resolution at the end of the 60-day period without waiting any longer for any report to emerge.

Lord Boyd of Duncansby: My Lords, in one sense, that makes my point. If, towards the end of the 60 days within which it can refer the matter to a committee, the House refers it to a committee, that makes the whole thing pretty pointless. In my submission,

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this House has taken a decision on the correct way forward and has said that it is content that the House of Commons should exercise its privilege in financial matters. We should now accept that.

Lord Dixon-Smith: My Lords, my name is added to this amendment, so I believe that I am entitled to say something, although I have little to add to what my noble friend has said. I find the remarks of the noble and learned Lord, Lord Boyd of Duncansby, very depressing. In earlier stages of the Bill, it was quite clear, in discussions on other matters, that there was a view on the government Benches that it would be completely alien for Members of this House or of Parliament to behave efficiently and in a businesslike way, that that would never happen and that progress could not be made. I am sorry, but I do not believe or accept that. It is very depressing that anyone could even make those kinds of remarks. We have spent a great deal of time already in this House considering CIL. If we have no place in the decision-making on this, what have we been doing? As the result of consideration here, the Bill has been greatly improved. That justifies my noble friend’s amendment.

6.45 pm

Baroness Hamwee: My Lords, as the noble and learned Lord, Lord Boyd of Duncansby, started to give his critique, my heart sank, but when I realised that paragraph (c) in the amendment would be part of Clause 221(2), that subsection (3) would be a separate subsection and that paragraph (c) is not subject to subsection (3), my spirits rose again. I had not thought it likely that the noble Lord, Lord Jenkin of Roding, and my noble friend, who worked together closely on this amendment, would have made a basic drafting error, although, for about 30 seconds, I thought that the noble and learned Lord had spotted one.

It has been put to me that, even without this amendment, this House could do what is suggested by having a debate, passing a resolution and setting up a committee. That is so, but paragraph (b)—the provision that the Secretary of State must respond—is at the heart of good scrutiny; it requires a response and feedback. The attention to detail shown by your Lordships’ House to Part 11 over the past few days demonstrates the value of such scrutiny. The arrangements proposed in the amendment would perfectly capture the skills of this House, although they do not go as far as those that some of us supported when dealing with the amendment last week.

We are told that this is not a tax—although that raises issues. However, the development and regeneration that might come about as a result of this levy will certainly be affected by the detail as well as by the principle. Again, this House would have a valuable role to play. Finally, the comment was made—possibly by the noble Lord, Lord Jenkin—that the House of Commons and the House of Lords have equal roles in a bicameral Parliament. I would say that they are complementary—perhaps they are equal and complementary—and the complementary element is captured by this amendment, which we on these Benches support.

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The Earl of Caithness: My Lords, at Second Reading, I criticised the Minister for excluding this House from looking at the regulations. I put my name to the amendment tabled by the noble Lord, Lord Jenkin, in Committee, as I believe that it is important that this House should be consulted at least in this small way. Without the work that we have done in Committee, on Report and, today, at Third Reading, this Bill would be in considerably worse shape. To exclude this House is purely a political decision; it has nothing to do with the policy in the Bill. The Minister should think carefully about the route that she is taking.

Baroness Andrews: My Lords, I am well aware of the strong feeling about the role of the House as we have worked through this part of the Bill. I absolutely understand the genuine passions expressed so consistently, particularly by the noble Lord, Lord Jenkin. However, I need to remind the House that last week we resolved, on Report, not to accept the amendment moved by the noble Lord, Lord Jenkin, which would have provided for all CIL regulations to be made subject to the affirmative resolution of both Houses. This is a question not of what the Minister wants, but of what the House wants, and the House decided last week that it did not want affirmative regulations. This is not a political issue.

While I understand the disappointment that has been caused, I think that the amendment would create more problems than it would solve. It would provide, alongside the affirmative procedure in the other place, for a 60-day period during which either House could debate or pass a resolution on the draft regulations, or refer the draft regulations to any committee for report. The Secretary of State would then have to respond to any debate, resolution or report before the other place could give its approval to the regulations. The amendment would control the circumstances in which the other place might approve any CIL regulations. Sixty days would have to pass and the other place could not approve regulations until the Secretary of State had responded to any debate, resolution or report.

I will come to the procedural issues in a moment. On the practical details, I ask noble Lords to think about what would be involved. Part of the problem is that we do not know. The amendment risks turning the process for making CIL regulations into a long and complex one. It would permit this House to refer a draft of the CIL regulations to a committee to consider and issue a report. My noble and learned friend Lord Boyd asked some pertinent questions and some clarification was forthcoming. All I can see is that there would be considerable delay in making CIL regulations. The process would also apply to amendments to CIL regulations to close a loophole or to correct a minor error. We are looking at a long procedure every time that we try to amend CIL regulations.

Throughout this process we have tried to balance fairness and transparency with greater speed so that we can put arrangements in place to raise the funding that we now so urgently need for local infrastructure. On timing, I indicated that the Government would not make the CIL regulations before autumn 2009. However, once it is right to do so, surely those regulations should be made promptly to enable charging authorities to generate additional revenue for infrastructure.

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The substantive response to the amendment rests on two arguments. The first is that—with the exceptions of delaying the other place’s affirmative resolution debate by 60 days and compelling the Secretary of State to respond to the debate or resolution—what the noble Lord seeks to achieve is already achievable. My noble friend Lord Howarth referred to last week’s debate and the Motion tabled by the noble Baroness, Lady Thomas. There is nothing to prevent this House from debating anything that it wants on a Motion, if it should so choose. There are two issues there. The amendment would also require the Secretary of State to respond to any debate, resolution or report made by either House. It is unclear what form this response would take. How useful would it be? Exactly what duty would be placed on the Secretary of State? What would it do to the relationship between the two Houses in terms of secondary legislation?

I argue that, as noble Lords have emphasised in practically every speech, the role of our House is one of scrutiny and revision. My fear is that we would not have scrutiny and that this procedure would diminish the value of the scrutiny that we offer; it would dilute the notion of scrutiny. This would be a debate without powers to annul, at a time when we are absolutely insistent on the value of this House. What I said to the noble Lord in my letter was perfectly compatible with what I have just said and with my respect for this House. There is a genuine problem there with the role of this House.

Secondly, my noble friend Lord Howarth talked about a constitutional change suddenly being imposed. This is my real anxiety. We are inventing a new form of parliamentary procedure for secondary legislation. This is a new convention, which raises fundamental issues about the relationship between the two Houses in considering secondary legislation.

Lord Howarth of Newport: My Lords, will my noble friend explain why the Government felt it appropriate to set aside an existing constitutional convention?

Baroness Andrews: My Lords, I really do not think that is comparable. As I said, it raises profound questions, not only about the relationship between the two Houses in considering secondary legislation but about the role of the Secretary of State in this. When this House chooses to change and improve, it does so on the basis of serious consideration that crosses all parties. I have sympathy with what the noble Lord has tried to do, but I am seriously concerned that it would have dire consequences for the business of the House, the making of regulations and, perhaps, even the nature of regulations. It is not the way to reform the conventions of this House at the final stages of a complex, much improved Bill, in response to the failure of an earlier vote. I know the noble Lord is not revisiting that, and that what he wants is to give this House a voice at all costs. I am afraid that I cannot accept the amendment.

Lord Jenkin of Roding: My Lords, that is a deeply disappointing speech. Perhaps I must remind the Minister of the words that I used in moving this amendment: of course that vote must be respected, and I accept that it

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will be for another place only formally to approve the many regulations. The noble Baroness began by saying that we were trying to reverse last week’s vote. That is absolutely not true. We are now asking for a say in what happens here, that is recognised in the legislation. If the Minister does not like the procedure which I have set up, it is open to the Government to come forward with some other way in which this House could have a say. They can only do that if we send this amendment back to the other place. I wish to test the opinion of the House.

6.56 pm

On Question, Whether the said amendment (No. 27) shall be agreed to?

Their Lordships divided: Contents, 128; Not-Contents, 125.

Division No. 3


Addington, L.
Alderdice, L.
Anelay of St Johns, B.
Astor, V.
Avebury, L.
Barker, B.
Bew, L.
Blaker, L.
Bonham-Carter of Yarnbury, B.
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Bridges, L.
Brougham and Vaux, L.
Burnett, L.
Byford, B.
Caithness, E.
Cameron of Dillington, L.
Cathcart, E.
Chidgey, L.
Chorley, L.
Colwyn, L.
Courtown, E.
Craigavon, V.
Crathorne, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Dundee, E.
Dykes, L.
Eames, L.
Eccles, V.
Eccles of Moulton, B.
Elliott of Morpeth, L.
Elton, L.
Falkland, V.
Falkner of Margravine, B.
Feldman, L.
Ferrers, E.
Fookes, B.
Fowler, L.
Freeman, L.
Freyberg, L.
Gardner of Parkes, B.
Garel-Jones, L.
Goodhart, L.
Goodlad, L.
Greaves, L.
Greengross, B.
Hamilton of Epsom, L.
Hamwee, B. [Teller]
Hanham, B.
Hanningfield, L.
Harris of Richmond, B.
Hodgson of Astley Abbotts, L.
Hooson, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Hunt of Wirral, L.
James of Blackheath, L.
Jenkin of Roding, L. [Teller]
Kingsland, L.
Lawson of Blaby, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Liverpool, E.
Livsey of Talgarth, L.
Luke, L.
McColl of Dulwich, L.
Mackie of Benshie, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Marlesford, L.
Masham of Ilton, B.
Mayhew of Twysden, L.
Methuen, L.
Miller of Chilthorne Domer, B.
Montrose, D.
Morris of Bolton, B.
Moynihan, L.
Neuberger, B.
Newton of Braintree, L.
Noakes, B.
Northesk, E.
Northover, B.
Norton of Louth, L.
Pannick, L.
Perry of Southwark, B.
Razzall, L.
Reay, L.
Roberts of Llandudno, L.
Rogan, L.
Roper, L.
Scott of Needham Market, B.
Seccombe, B.
Selborne, E.
Selsdon, L.
Shaw of Northstead, L.

18 Nov 2008 : Column 1070

Sheikh, L.
Shrewsbury, E.
Shutt of Greetland, L.
Skelmersdale, L.
Smith of Clifton, L.
Soulsby of Swaffham Prior, L.
Stewartby, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tonge, B.
Tope, L.
Tyler, L.
Verma, B.
Waddington, L.
Wakeham, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Walpole, L.
Walton of Detchant, L.
Warnock, B.
Warsi, B.
Wilcox, B.
Williams of Crosby, B.
Williamson of Horton, L.


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.
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 Barnes, 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.
Darzi of Denham, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dixon, L.
Dubs, L.
Elder, 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.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
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.
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