Planning decisions by a local authority under the current legislative framework are a committee function rather than an executive function. The Local Government Act 1972 gives councils the power to decide which committee functions are to be discharged by a committee, a sub-committee, or an officer of the council. Consequently, each council produces its own scheme of delegation, leading to inconsistency in the treatment of similar kinds of planning application in different local authorities.

Clause 46 of the Planning and Infrastructure Bill seeks to standardise the system across local councils. It will confer power on the Secretary of State to make regulations providing for a national scheme of delegation to apply to all local planning authorities, setting out which categories of planning applications should be delegated to council officers and which to planning committees. Other than a requirement to consult such persons as the Secretary of State considers appropriate, there are no qualifications or conditions on the use of the power. As drafted, the power could be used to delegate all decisions to council officers or reserve all decisions to planning committees. This ambiguity makes it difficult for Parliament to meaningfully assess the implications of the provision. As the Local Government Association has said, “without knowing the details of what the scheme’s content might look like, it is difficult to comment on the substance of this clause.”

The Government recently published a Working Paper on Modernising Planning Committees, consulting on three possible models for a national scheme, namely:

• delegating planning decisions to an officer where an application complies with a development plan;

• delegating all planning decisions to officers by default, except for applications which involve departures from the development plan; or

• delegating all planning decisions to officers by default, except for applications which meet a specified list of exceptions.

The Explanatory Notes accompanying the Bill briefly refer to the fact that the Working Paper has been published, but the three potential models that are the subject of the consultation are not mentioned in the Bill’s Explanatory Notes or Delegated Powers Memorandum.

Good legislative practice requires that consultations on important aspects of policy should be conducted and evaluated before the implementing legislation is drafted and presented to Parliament. Any Government has a limited amount of legislative time in a Parliament to achieve its objectives, and bills produced in the first session of a new Government are always likely to be a little undercooked in terms of policy development. However, if a consultation that is already underway points to a clear policy direction, then Parliament should be told; the supporting documents accompanying the Bill should reflect that information.

However, the Government defends the delegation (in the Delegated Powers Memorandum) not by arguing that the policy detail is subject to consultation, but that the scheme’s details are complex and technical and therefore best left to regulations which will include “secondary policy detail to give effect to the changes made by the Act”. In effect, Ministers are asking Parliament to give them a blank cheque to decide what form a national scheme should take when they have made the decision.

The Bill prescribes that any regulations will be subject to the negative scrutiny procedure, meaning that no parliamentary debate or vote will be required before the provisions come into force. The Government has said that any regulations will be subject to a statutory consultation, in addition to the consultation on the Working Paper. If the provisions are sufficiently important to be the subject of two consultations, they are likely to be of significant public and political interest to MPs and Peers. However, unless the regulations are ‘prayed’ against by the Leader of the Opposition, it is very unlikely that MPs will be able to debate them.

This highlights a core flaw in the delegated legislation system: Parliament is asked to approve the level of scrutiny for future regulations before the detailed content of those regulations is even known. The Government can argue that the issues are too complex to include in the Bill, defer the actual policy decisions until later, and still set the rules for how those future decisions will be scrutinised — all without showing Parliament the detail. In effect, the Government gets to shape both the substance of the policy and the process by which it will be held to account.

That is why the Hansard Society has proposed reforms to break the link between regulations (usually in the form of a Statutory Instrument) and the scrutiny procedure assigned to them in their parent Act. Parliament should determine – through a triaging process – what form of scrutiny should apply, calibrating it according to the content of the Instrument at the time of publication, rather than anticipating what Instruments may contain years in advance.

Clause 22 of the Bill gives Ministers a power to make regulations to create a scheme offering consumer benefits – likely in the form of energy bill discounts – for households situated close to new or upgraded electricity transmission infrastructure. The Government has suggested discounts of up to £250 per year for households within 500 metres of such infrastructure.

None of the key details about the scheme – eligibility, qualifying premises, value, duration of payment, and the form in which the benefit shall be paid – appear on the face of the Bill. Instead, the Bill leaves these crucial matters to be decided later by Ministers in regulations.

Most of these decisions – such as determining who qualifies or what infrastructure is covered – will be subject to the negative scrutiny procedure, meaning they can become law without a parliamentary debate or vote to approve them. Only in three circumstances does the Bill provide for the higher threshold of the affirmative scrutiny procedure whereby both Houses of Parliament must actively debate and approve the regulations before they become law, namely if the regulations:

• impose legal obligations on persons to pass on the benefits (known as a ‘pass-through provision’);

• impose monetary penalties for the purposes of enforcement of the scheme; and

• create or amend a criminal offence in connection with the unauthorised use or disclosure of information in connection with the scheme.

However, the drafting of the Bill appears in one respect to contradict an assertion made in the Delegated Powers Memorandum. At one point in the DPM, the Government suggests that regulations that make provision about the eligibility of premises will also be subject to the affirmative procedure, requiring debate and approval by both Houses. But the actual text of the Bill does not support this claim; unless the regulations also include pass-through provision, monetary penalties or changes to criminal offences, they will only face the lower scrutiny threshold.

Given the likely political and public interest in who receives these benefits, the value of the benefits, and how they are delivered, these decisions may be something that MPs and Peers will wish to debate.[1] A published policy paper setting out the core features of the proposed scheme is welcome, but it is not a substitute for embedding that detail in legislation or ensuring meaningful scrutiny of the regulations that will give it effect. But as things stand, the Government retains the freedom to shape both the content of the scheme and the level of scrutiny it will face — securing the best of both worlds for itself, while Parliament is left with limited ability to influence how these powers are ultimately used.

[1] For concerns expressed about the proposed scheme, see the written evidence submitted to the Public Bill Committee by the Campaign to Protect Rural England (PIB41). For concerns expressed about the lack of clarity around the implementation of the scheme, and particularly around who will be responsible for the administration and funding of bill discounts, out of either network companies or energy generators, see the written evidence submitted by Solar Energy UK (PIB75), Renewable Power Capital (PIB86) and RenewableUK and Scottish Renewables (PIB92).