English Devolution and Community Empowerment Bill

Debate between Baroness Bakewell of Hardington Mandeville and Lord Lansley

Committee stage
Monday 9th February 2026 Grand Committee

[Lord Lansley (Con)]

My Lords, we turn now to a group of amendments that all relate to the exercise of delegated powers to amend future legislation—Henry VIII powers. They are powers by way of statutory instrument to amend primary legislation in the future. The relevant document—if noble Lords are interested to read it in detail—is the 45th report of the Delegated Powers and Regulatory Reform Committee, which reported on this Bill and drew the attention of the House to the Henry VIII powers.

Before I turn to precisely what it said, it did not note, but I have, that in Clause 88 there is a general power for making consequential and incidental provision relating to future legislation. Clause 88 says:

“Regulations … may amend or repeal provision made by an Act of Parliament passed before, or in the same Session as, this Act”.


My amendments do not affect that.

My Amendments 180A, 184A, 196F and 235DA in this group relate to Henry VIII powers to amend future legislation, which was the subject of the Delegated Powers Committee’s report. It said:

“It is reasonably common for Henry VIII powers to allow for consequential amendments to amend future Acts of Parliament passed in the same session as the Bill in which they appear … the Government and Parliament are capable of passing Bills in future sessions consistent with preceding legislation”.


It says in the next paragraph that in November last year the parliamentary counsel noted to the Constitution Committee that

“the power to amend consequentially Acts in future sessions is rare and normally specifically justified in the delegated powers [memorandum] … The Bill includes numerous instances of this type of power and the Memorandum”—

that is, the Government’s delegated powers memorandum—

“does not provide justification for any of them”.

It says, in the recommendations in paragraph 23 of the report:

“In the light of the Government’s failure to justify the ability of these Henry VIII powers to change the effect of Acts of Parliament to be passed in future sessions, we recommend to the House that the delegated powers in clauses 54 and 71 … Schedule 24 and … Schedule 26 are amended to remove that ability”.


I have tabled four amendments to do precisely that. In each case, they would take out the words “whenever passed”, meaning whenever passed in the future, and insert precisely the same words as those the Government themselves used in the drafting of Clause 88—that is, that they would amend or repeal provision made by an Act of Parliament

“passed before, or in the same Session as, this Act”.

I think there is a small, technical problem with my amendment in relation to Schedule 26. Since it relates to an insertion to the Local Government and Public Involvement in Health Act 2007, the reference to “this Act” might be inaccurate. However, we will not worry about that, because we can deal with it on Report as necessary.

The purpose of these four amendments relates to a number of places. It relates to Clause 54, which we are dealing with presently, which modifies the functions of mayors and strategic authorities; Clause 71, which concerns the licensing of taxis and private hire vehicles; Schedule 24, which we have just been discussing, which concerns licensing powers for the Mayor of London; and Schedule 26, which relates to local government reorganisation powers. The subject matter of those powers is almost unimportant; the point is that, in each case, the Government have used the same language to give themselves the power, by statutory instrument, to amend future Acts of Parliament beyond this Session. In the same way as Clause 88, each of my amendments would limit that power to amend Acts passed or made up to the end of this parliamentary Session.

The noble Baroness, Lady Bakewell of Hardington Mandeville, has tabled Amendment 184. As I say, I have tabled Amendment 184A, because it does the same thing as the others, whereas Amendment 184 would remove the regulation-making power entirely. I submit that that would go too far, since there is often a need to make consequential or incidental provision.

The essential point that I come back to is that there is no basis for justifying taking a power to amend future Acts of Parliament in future Sessions, because those Bills, when they are introduced to this place, can take account of, and make their own provision for, what the future shape of legislation should look like. It is not a question of saving parliamentary time; they can be dealt with in those Acts when the time comes. I beg to move.

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, I apologise for not having spoken in the previous debates on this Bill due to the pressure of work. The noble Lord, Lord Lansley, has spoken eloquently to his amendments, and I agree with nearly everything he has said. I will speak to Amendment 184 in my name, as I am extremely concerned about the long-term implications of Clause 54(3).

Clause 54 begins with subsection (1):

“The Secretary of State may by regulations make incidental, consequential, transitional, transitory or supplementary provision for the purposes of”—


it then it goes into the detail. My concern is with subsection (3), which, for the benefit of the doubt, I will read:

“Regulations under this section may (in particular) amend any Act of Parliament (whenever passed), including by amending this Act”.


This is an amazing power to hand to the Secretary of State in the future, whoever he or she might be. The ability to amend any Act of Parliament, which may not even be a twinkle in the eye of any future government at this stage, is breathtaking.

Until the end of January, I had the privilege to sit on the Delegated Powers and Regulatory Reform Committee. The council that advises the DPRRC was extremely concerned about the number of delegated powers in the Bill that we are currently debating. There are 92 delegated powers, and a further 42 not covered in the memorandum, due to the fact that the Bill is likely to interact with existing enactments.

Similar powers were brought forward in 2015, at which point the committee felt that the powers were too broad. However, we now have a new Government and a new philosophy. I can understand that the Government want to be able to change past and current legislation in future, but they are asking for the power to change legislation that is yet to be drafted—a power that bypasses the role of Parliament completely.

The noble Lord, Lord Lansley, spoke at length on his amendments, which relate to the Delegated Powers and Regulatory Reform Committee’s concerns about the Bill. He set out his arguments extremely clearly and referred to the committee’s 45th report, which was published on 16 January. That report details the committee’s concerns; it is extensive and raises significant issues around the way in which the Henry VIII powers will be executed. The noble Lord, Lord Lansley, has already ready out the committee’s recommendation concerning this particular power, which is as follows:

“In the light of the Government’s failure to justify the ability of these Henry VIII powers to change the effect of Acts of Parliament to be passed in future sessions, we recommend to the House that the delegated powers in clauses 54 and 71, and those in paragraph 5(3) of Schedule 24 and paragraph 1(8) of Schedule 26 are amended to remove that ability”.


I apologise for repeating what the noble Lord, Lord Lansley, said word for word, but it is really important to stress this point.

Considering this strong recommendation from the Delegated Powers Committee, as well as the concerns raised by me and the noble Lord, Lord Lansley, I hope that the Minister will be able to tell the Committee that the Government are prepared to accept this amendment and amend the Bill accordingly. This is an unjustifiable abuse of power, bypassing Parliament to seek to amend future Acts of Parliament and legislation that is not even in the initial stages of being drafted.

Levelling-up and Regeneration Bill

Debate between Baroness Bakewell of Hardington Mandeville and Lord Lansley

Committee stage
Thursday 20th April 2023 Lords Chamber

[Lord Lansley (Con)]

My Lords, I remind noble Lords of my registered interest as chair of the Cambridgeshire Development Forum. This group relates to planning permissions. There are a number of different amendments for different purposes and perhaps noble Lords will forgive me if I speak only to my Amendment 258B, which has a particular purpose. It seeks to provide a clear, statutory provision in relation to an area of planning law that has recently become uncertain and which if not clarified would create a number of costly and difficult consequences both for developers and planning authorities.

I will explain the background. The issue relates to large developments which are built out over a significant period; they are developments which have had a full planning permission. Of course, if development proceeds in phases with outline permission, or with a hybrid mix of outline and full permissions for different phases, the scope for varying a large development can be adjusted over time—but I am talking here about developments with full planning permission. In relation to those, it is clear that variations to that full planning permission are limited. Section 96A of the Town and Country Planning Act 1990 permits variations to a planning permission that are not material. Clause 102 of the Bill seeks to insert into that Act a new subsection (5) stating that planning permission may be granted in relation to an existing permission

“only if the local planning authority is satisfied that its effect will not be substantially different from that of the existing permission”.

That is not quite the same as the existing law; it is a step forward, but a very modest step in that direction. However, the issue is where a developer seeks permission within the boundary of an existing large-scale development for a significant variation to the plan. What happens where two permissions exist together in relation to the same site?

This matter arises in relation to what is known as the Hillside judgment—Hillside Parks Ltd v Snowdonia National Park Authority—to which I will return soon. The Supreme Court judgment was given in November last year, so it is quite recent. In paragraph 28, it said:

“There is … no provision of the legislation which regulates the situation where two or more planning permissions granted for development on the same site are, or are claimed to be … inconsistent. The courts have therefore had to work out the principles to be applied”.


The key case in this respect, up until now, has been Pilkington v Secretary of State for the Environment. I will not dwell on the two bungalows and the smallholding which were the subject of that case. Lord Widgery, in his judgment, stated that the test would consider

“whether it is possible to carry out the development proposed in that second permission, having regard to that which was done or authorised to be done under the permission which has been implemented”.

In a sense, what Pilkington established was the idea that permission could not continue to be valid where it had become physically impossible to implement it by virtue of a subsequent planning permission that has been consented. However, that has tended, over time, to imply that, where it is not physically impossible to fulfil an existing planning permission, it would remain valid, notwithstanding that there is an additional permission in relation to part of the site. So the general expectation has been that, where permissions relate to the same site, the issue is whether the implementation of one renders the other physically incapable of implementation. If it does, the approval of the latter would render the former invalid; if it did not, the former permission would not be invalidated.

I turn now to the Supreme Court judgment of the Hillside case in November last year. An issue for the appellants—Hillside Parks Ltd—was that the Court of Appeal had held that the original planning permission for the whole site could not be interpreted as separable. Paragraph 71 of the judgment of the Supreme Court justices said:

“We agree with the view expressed by the Court of Appeal in this case that where, as here, a planning permission is granted for the development of a site, such as a housing estate, comprising multiple units, it is unlikely to be the correct interpretation of the permission that it is severable”.


Consequently, if a permission were implemented in relation to a part of a larger site, even if the rest of the original permission could be completed, the fact that the whole original permission could not be completed would render the original permission no longer valid.

The problems that arise from this were summarised in submissions to the Supreme Court by counsel for the appellants who submitted that it would cause serious practical inconvenience if a developer who, when carrying out a large development, encountered a local difficulty or wished for other reasons to depart from the approved scheme in one particular area of the site, cannot obtain permission to do so without losing the benefit of the original permission and having to apply for a fresh planning permission for the remaining development on other parts of the site. The Supreme Court justices took the view that that was indeed the legal position: that where a developer had been granted a full planning permission for one entire scheme and wished to depart from it in a material way, it is a consequence of the very limited powers that a local planning authority has to make changes that a full new permission would be required.

I am very grateful to the Home Builders Federation, which supplied a full briefing after I tabled the amendment. It supplemented my knowledge quite a bit. I hope noble Lords have received its briefing, which included several case studies to show how these consequences of the Hillside judgment last November could create cost, delay and disruption to development in large sites. I am not proposing to go through the case studies. I hope noble Lords will understand that at this late hour that would not be terribly helpful. It implies, however, with a series of examples, that the cost of a new, full application with all the attendant documentation, such as environmental impact assessments for a whole site, would be a very costly and time-consuming consequence.

Local planning authorities will not easily resource new large-scale applications for sites which they had regarded as already consented. It could mean that opportunities for desired changes, such as, in one example, to give a small builder access to part of a larger development, would not be offered if they would put the whole scheme at risk. I do not think we can even get into how difficult the community infrastructure levy or, in future, the infrastructure levy, would be to calculate in relation to such further planning permissions relating to the whole existing site. The uncertainty of whether the permission for a large site might be rendered invalid would be a serious risk to the effective delivery of major sites. Only immaterial changes on a large site would be regarded as safe: everything else would put it all at risk.

My objective in Amendment 258A is to give a straightforward statutory provision which would re-establish the position as it had been understood, i.e. that only if a subsequent permission renders the completion of an original permission physically impossible would the earlier permission be invalidated and—perhaps even more important by contrast—if it does not render the original permission physically impossible on the rest of the site, the earlier permission may continue to be relied upon in relation to the rest of that site, i.e. excluding the area to which the subsequent permission has been applied.

I am very grateful for the vocal support I have received for this amendment from the Home Builders Federation. I hope that the Minister may be able to support the intention of this amendment to the extent that she might even look to Parliamentary Counsel’s expertise to see whether my amendment serves the purpose or whether something supplementary might be moved on Report to achieve this—I hope—helpful objective. I beg to move.

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, I rise to speak to Amendment 268 in the name of the noble Lord, Lord Carrington, to which I have added my name. I have to say at the outset that I have no idea whether the noble Lord, Lord Carrington, would agree with my comments, but I hope that he would.

Your Lordships have listened to, and taken part in, many debates over the years on the challenges faced by rural communities. The noble Lord, Lord Cameron of Dillington, and my noble friend Lord Foster of Bath have chaired committees looking in depth at these challenges. The noble Lord, Lord Cameron, called for a national rural strategy, and I support this. Similarly, my noble friend Lord Foster pressed the case for there to be proper recognition of the challenges rural communities face and for the Government to have a discreet policy which recognises this. There is an industrial strategy, so why not a rural strategy?

The Government’s response was that all the issues faced by rural communities were covered under many other policy areas, so there was no need for a rural strategy. Assurances were given that all government policies would be rural-proofed. This, therefore, was a refusal to have a rural strategy—and there is very little evidence that all government policies are rural-proofed.

Fisheries Bill [HL]

Debate between Baroness Bakewell of Hardington Mandeville and Lord Lansley

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting & Report: 1st sitting: House of Lords
Monday 22nd June 2020 Lords Chamber

[Lord Lansley]

My Lords, I join my noble and learned friend Lord Mackay and other noble Lords in paying tribute to the courage, fortitude and skill of those who work in our fishing fleets. In that sense, I think that we are all very much behind the spirit of the two amendments.

I hope that it will be unnecessary to insert an additional clause on sustaining the workforce, because it is implied by the fisheries objectives as they exist, but I hope that the Minister might also tell us more about the ways in which the Government are proposing to assist Seafish, the NDPB which under the Fisheries Act 1981 has responsibility to provide support to the workforce of the sea fish industry and, under regulations introduced in 1982, the ability to place a levy on the first sale of sea foods in this country. Its corporate plan is due to be renewed. It would be helpful, if not this evening then perhaps subsequently in a letter placed in the Library of the House, if the Minister were able to say something about how the Government hope to support Seafish in its endeavours. Its last corporate plan had as one of its five challenges to support a safe and skilled workforce. The issues that we are talking about, of recruitment to the industry, of training for those in it and the achievement of an as-safe-as-possible working environment for them, are things that Seafish is endeavouring to address, and we want to see it supported.

[Baroness Bakewell of Hardington Mandeville [V]]

My Lords, I shall speak briefly to Amendments 5 and 6. As all noble Lords have said, the fishing industry is nothing without its workforce, whether they work on vessels in the process of fishing or onshore in packing and processing plants. This workforce deserves to be treated properly and protected.

This is an occupation that is not for the faint-hearted. The seas are not as calm as millponds but often have raging storms, yet trawlers go out to sea in all weathers in order to catch fish. There are, unfortunately, accidents resulting in serious injuries and, as we have heard, occasional deaths. The onshore packing industry can also be fraught with danger. It is essential that the fishing industry workforce be trained, and it should be protected as much as is reasonably possible from accidents and death.

The noble and learned Lord, Lord Mackay of Clashfern, has set out his arguments, as he always does, with great clarity and force. I support him in his efforts to ensure that the Government implement a legal training infrastructure for the fishing industry and workforce, and that the immigration regulations allow for a sufficient workforce to be available for the fishing industry.

Housing and Planning Bill

Debate between Baroness Bakewell of Hardington Mandeville and Lord Lansley

Wednesday 27th April 2016 Lords Chamber

[Lord Lansley (Con)]

My Lords, I will briefly contribute to the debate on this group of amendments. I am pleased that the Government have brought forward Amendment 2. As many of your Lordships will recognise, we have always felt strongly that it was likely in many places across the country that the need for additional housing was such that the desire of local authorities, the local development community and local people for that housing would mean that we would very much be looking for an agreement of this kind with the Government. I declare again my interest as chair of the Cambridgeshire Development Forum. Cambridge and the surrounding area is one of those places. So Amendment 2 seems to be very welcome.

Amendment 3, the amendment to Amendment 2, in the name of the noble Baroness, Lady Bakewell of Hardington Mandeville, would be very unwelcome. In Cambridgeshire we have a number of local plans, for East Cambridgeshire, South Cambridgeshire, Cambridge City, and many of these development sites cross the boundaries of two local authorities. The local authorities work closely together, but it would be very unwelcome for them to feel that the decisions that they were making and the agreements reached with the Government led directly to rigid and potentially distorting requirements about where the new homes could be built. At Trumpington Meadows, to the south of Cambridge, there is a new development with considerable demand. It would be great to have more affordable housing as the development is extended and we would want the City Council and South Cambridgeshire District Council to be able to support the new affordable housing through these kinds of agreements.

I simply did not understand the noble Baroness’s references to the revenue that is to be returned to the Government under Chapter 3 of this part, which is not relevant to the determinations and agreements under Chapter 2. That part of her speech was irrelevant to the question we are considering. This part is about liberating value in vacant high-value local authority housing, both to build more houses and to support the extension of right to buy to housing association tenants. It is not about funding the deficit.

[Baroness Bakewell of Hardington Mandeville]

My comments about the money being retained for local authority replacement homes was entirely related to the amendment of the noble Lord, Lord Kerslake, and not to Amendment 3.

[Lord Lansley]

We are debating the extent to which the Government allow local authorities to retain money that would otherwise be payable to support the right to buy for housing association tenants, in recognition of building houses, and that is under Chapter 2 of this part. If at the same time under this legislation separately under Chapter 3 they are returning money to the Government as a result of the rents for high-income social tenants, that is not about the business of funding right to buy for housing association tenants under this part; it is separate. Anyway, it is a digression.

I was not a party to the procedural discussions on Amendment 6 to which the noble Lord, Lord Kerslake, refers. As a participant in the debates in this House, it was always clear to me that the Government were viewing sympathetically and would bring back proposals on Third Reading for one-for-one replacement. I never understood my noble friends on the Front Bench to say that they would do so on a like-for-like basis. There is a distinction.

Leaving aside the processes concerned, the Government are quite right not to have brought back an amendment to mandate like-for-like replacement. They should not do so. The amendment of the noble Lord, Lord Kerslake, seems to me to be thoroughly defective, because it places in the hands of local authorities the decision whether or not there is an agreement with the Government. It does not give the Government any discretion in that matter—it says the Government “shall enter” into such an agreement. Placing a rigidity on the Government in this respect is wholly undesirable. It would remove the flexibility to replace one kind of tenure with another and the flexibility to respond to the demand for new affordable housing in an area in a way that matches the needs of that area. It would also remove from the Government the flexibility of whether to enter into an agreement with a local authority at all, which is a central part of the Bill.

Housing and Planning Bill

Debate between Baroness Bakewell of Hardington Mandeville and Lord Lansley

Thursday 10th March 2016 Lords Chamber

[Lord Lansley]

I do not dispute that that is the reason it is in the amendment; I just think that it is wrong. We are not in the business of giving additional borrowing powers to local authorities but of releasing value from high-value assets and determining to what extent that is used to fund the discounts for housing association tenants buying their homes—or, on the other hand, to provide for replacement housing. The first point is very straightforward: if one wants to do this, Amendment 66B would include it in the wrong place; it is too inflexible and would introduce too many rigid criteria.

When the Government begin to create agreements with local housing authorities for replacement properties, I think that many of us would share the wish that, in the right places, where agreements are entered into—which will, of course, not be everywhere—those agreements should look for at least one for one; otherwise, why is the local authority being given that reduction in its payment if it is not in recognition that there is a greater need for housing there than for that money to be made available to housing associations through purchase of the properties by their tenants? It seems to me that the theory is: do you take this into Clause 72 and do you make it a minimum requirement of a one-for-one replacement? That is an issue to look at. I certainly do not think you need a new clause to do it.

[Baroness Bakewell of Hardington Mandeville (LD)]

My Lords, there is not much more I can add to the contributions that have already been made. I support those comments and I oppose the Question that Clause 72 stand part of the Bill.

I agree with the comments the noble Lord, Lord Kerslake, made at the beginning of his speech about the danger of raising the expectations of housing association tenants that they have the right to buy, which they will think has been enshrined in law—and it has not. This is a voluntary agreement in which housing associations may have very good reasons for excluding certain properties. Similar legislation was brought in to allow parental choice over school places. Parents believed that they had choice but they did not. What they had was the right to express a preference about the school they wanted for their child, and that is a very different thing. Great care is needed with the wording on this issue.