Business Rate Supplements Bill

My Lords, my noble friend has made an extremely powerful speech on the merits of the issue we are discussing. As he has said, the reason why we are deprived of the opportunity to reinforce the vote, which we had at an earlier stage, to pass the amendment, is that the Commons has pleaded financial privilege. I took the same point as my noble friend did when he read the words, "because it would affect the levy of local revenue". He said that it really is no more than "could have". It is as weak as that. But I am advised that the final words of the reason, ""the Commons do not offer any further Reason, trusting that this Reason may be deemed sufficient"," are the traditional words of a House of Commons determined to assert its financial privilege. The House will not be surprised that I shall touch once again on the issue of financial privilege being claimed by another place. I am delighted to see the Leader of the House in her place. I hasten to say that she is not here to listen to me because she has other business, but I am pleased to see her here. I hope that noble Lords will forgive me if I return for a moment to the previous instance where a claim for privilege on behalf of another place was hotly criticised in this House, or at least to the extent that the rules allow. I should like to bring us up to date on what has happened since then. I refer of course to what was Part 11 of what is now the Planning Act 2008, which introduced the community infrastructure levy. The Bill provided that only another place should approve the regulations, of which there will be a great many. I do not intend to recapitulate the whole sad history, but the issue came to a head at the Report stage of the Bill in this House when an amendment to provide that both Houses should approve the regulations was defeated by six votes. I moved an amendment at Third Reading which recognised that while we could not oppose the vote by the House on Report, the House should at least have a say. The amendment was carried by three votes, but another place rejected even that modest request. The significance lay in what was said during the debate in this House on 25 November 2008. I should like to draw the attention of noble Lords to one or two quotations. My noble friend Lord Strathclyde said that: ""Parliament should not accept the use of the privilege amendment in cases of doubt simply to stifle debate"." He went on to say: ""I ask the noble Baroness"—" he was referring to the Leader of the House— ""to consider this matter carefully with her colleagues in another place, with Members of this House and perhaps with the Clerk of the Parliaments and his opposite number in another place to see how this issue can be resolved"." The noble Lord, Lord Goodhart, who was working with me on the amendment and who at the time was the chairman of the Delegated Powers and Regulatory Reform Committee of this House, said: ""Whatever the outcome of this debate, however, I believe that today should not be the end of the matter. We are facing a constitutional issue of some real importance and I believe that your Lordships’ House should consider the problems which arise from this Bill"." He then went on to mention the Counter-Terrorism Bill where exactly the same point had been made: a Lords amendment returned because it was claimed to be subject to financial privilege. The noble Lord, Lord Howarth of Newport, who I am delighted to see in his place, also made a powerful speech, but he cited the noble Lord, Lord Filkin, the chairman of the Merits Committee of this House, as saying that he, ""notes that we see very many statutory instruments which impose fees and charges which have never hitherto been seen as outside the purview of this House and the Merits Committee"." Coming from such a source, that was a powerful argument. The noble Baroness, Lady Hollis of Heigham, was extremely disturbed and said: ""I find this the beginning of an extraordinarily slippery slope and I am profoundly worried. I hope that my noble friend the Leader of the House can find a way through this"." The noble Baroness, Lady Andrews, who was in her place a few moments ago, had a very uncomfortable time trying to defend what had been put in front of her, but she did so by saying: ""They raise issues that go far beyond the Bill’s narrow limits in the precedents they raise"." When I wound up the debate, I said: ""We have established that these wider constitutional concerns are felt in all parts of the House and, as my noble friend Lord Strathclyde said, this issue cannot be allowed to rest. This is unfinished business". Official Report, 25/11/08; cols. 1359-67]" So it is, and that is why I have come back to the issue today. The noble Baroness the Leader of the House was kind enough to write to me the next day in her own hand, and I have her permission to quote from her letter: ""I recognise, of course"—" she said on 26 November— ""the importance of yesterday’s debates in terms of the wider questions of ‘respective rights, rules and privileges of the two Houses’"." Those were my words in the debate. ""I will give careful consideration as to how best we can pursue the matters raised"." She was as good as her word. Early in the following Session, on 14 January, she invited me to meet her to discuss the issues. I made a careful, short note of the meeting, in which I reported: ""The leader made it clear that she is very well aware of the seriousness of the issues surrounding the Commons claims of financial privilege and also of the strength of feeling in all parts of the House following the debates on Part 11 of the Planning Bill last Session. She intends to have discussions with a number of concerned Peers and others in the House before approaching her colleagues in Government. This will include, among others the chairman of the Merits Committee … She sees her task now to seek to avoid, so far as possible, similar conflicts in future ""legislation and believes it may make sense to involve, as well as her colleagues in Government, others such as parliamentary counsel. The aim would be to identify, and if possible, head off potential problems at an early stage as possible"." I hope I have recorded accurately the sentiments which the noble Baroness expressed to me on that occasion. The next month, on 10 February, she issued a memorandum to the House and attached to it a paper from the Clerk of the Parliaments setting out the history, the scope, the practice and the procedures affecting claims of financial privilege. Significantly, that paper had attached to it a table of figures which I certainly found very interesting. They were the figures of where privilege had been claimed, or might have been claimed. It is arranged in two columns. It runs from 2000-01 to 2007-08. The two columns are: "Number of Lords’ Amendments agreed to by the House of Commons where financial privilege was waived" and "Number of Lords’ Amendments rejected and a financial privilege reason was sent to the Lords". The number of amendments that were waived was nearly 300, actually 293; the number where the Commons insisted on it was only 42. The overwhelming number of Lords amendments potentially involving privilege had actually been waived by the Commons. I will come back to that in a moment. I saw the noble Baroness the same day. She was kind enough to give me advance notice. I quote again from a note: ""She explained that she has raised the issue with Members of the Government and with First Parliamentary Counsel. In future he will draw his colleagues’ attention to the matter so that they are aware of it from the outset … She explained that she is now trying at all times to pre-empt cases where there might be a possible questionable use of financial privilege"." I suggested to the noble Baroness that perhaps a good starting point for this would be the Cabinet Office’s Guide to Making Legislation. This is a very substantial document indeed. I may be wrong, but I got the impression that the noble Baroness perhaps had not seen it before. It is a detailed compendium of instructions and advice to departments planning legislation. Curious enough, in its 150 pages—I counted them this morning—there is no mention of Commons financial privilege. It is not an issue which the Cabinet Office has thought necessary to draw to the attention of departments. However, the noble Baroness was kind enough to say that she would take this matter up, and my question for the Minister who is replying to this debate is whether the guide has now been amended to reflect the issue of Commons financial privilege. I gave notice of that question this morning. The case before us has been admirably and forcefully stated by my noble friend. The issue has arisen over the amendment to the BRS Bill. It was not part of the Bill when it was first introduced and, therefore, the pre-emptive strike which the Leader of the House would perhaps otherwise have been able to make could not arise. The issue, as my noble friend explained, is the retrospective application of the business rates legislation to ports operators all over the country. I endorse what he said: I have had a lot of letters, too, from ports around the country expressing their huge disquiet. The amendment was simply to make it clear that the regulations to be made under the Bill, ""may not impose … retrospective liability to pay a BRS without error or default on the part of a ratepayer"." I, too, have read the debate in the other place. It was significant for the number of government supporters, some of them of considerable standing and experience, who expressed themselves forcefully to be against the Government’s position. They were the honourable Members for Great Grimsby, for Cleethorpes, for Brigg and Goole and for Birkenhead—Frank Field—yet the Lords amendment was rejected on a whipped vote. The Commons have given us their reason that it, ""would affect the levy of local revenue"." However, this whole Bill concerns the raising of local revenue by local authorities, so why is it regarded as beyond the scope of this House to debate and vote on a particular amendment that deals with a particular hardship? I shall not repeat what my noble friend said. It seems to be completely absurd, so I have two further questions, of which I have again given notice so that the Minister will have them. Why was this not amenable to the waiver procedure? The noble Lord, Lord Filkin, whose words I quoted a moment ago from the speech of the noble Lord, Lord Howarth, said that the Merits Committee is always dealing with all sorts of subsidiary legislation which raises charges of various kinds. Given that on the vast majority of potential privilege cases another place has waived the privilege, why could it not do it in this case? Was it because, as my noble friend Lord Strathclyde said, it wanted to dodge an uncomfortable debate and vote? On my second question, I believe that it has been suggested that the other place, even when it is determined to plead financial privilege, might also give the reasons why it cannot accept the Lords amendment—not just the technical reasons such as it affecting the levy of local revenue or on account of it imposing a charge on public funds but why the substance of it is unacceptable. If it did that, there might be grounds for it to be debated in this House. As it is, we have no option under the conventions but to yield to the Commons plea of financial privilege. It has aroused enormous anger among those to whom I have had to write back to say, "I’m sorry. We can’t vote again. The conventions do not allow us to vote again". My Lords, I am sure that I am not alone in finding this an extremely unsatisfactory procedure.