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Smith Square Review - 09 March 2018

Fri, 03/09/2018

Bonfire of the NIMBYs

The government’s revised National Planning Policy Framework (NPPF) was announced this week, as efforts to remedy the UK’s housing crisis gather pace. Prime Minister Theresa May told the annual National Planning Conference that younger generations were “right to be angry” with the status quo. Councils, corporations and so-called ‘NIMBYs’ were all in the firing-line.

Chief in the Prime Minister’s sights were local authorities. Under the new plans, where councils fail to meet their annual house building targets, they can have their powers to decide on the locations of developments curtailed. This will, theoretically, be used to target ‘NIMBY’ councils who drag their feet.

Mrs May also announced some measures to target developers, whose perceived retention of land until it increases in value were described as “perverse”. The government hopes that new powers to withdraw planning permission if building progress is too slow will incentivise developers to get sites completed sooner.  However, the question of how to turn permissions into properties endures – new build numbers are consistently outstripped by granted permissions. Conservative Lord Porter, Chairman of the Local Government Association, called for more urgency from the government: “No-one can live in a planning permission”.

Other measures announced included a 10% affordable housing target in new developments, and a vertical extension policy to make it easier for properties to expand upwards within their existing footprint. The government stopped short of encouraging development in the Green Belt; in fact certain protections, such as around ancient woodland, will be strengthened.

The proposed NPPF changes have however immediately come in for some criticism, with many commentators suggesting that Mrs May’s bark may have worse than her bite. Briefing ahead of the announcements had been tough, with Ministry of Housing, Communities and Local Government Secretary Sajid Javid MP warning councils that he would be “breathing down (their) neck every day and night”. There was some suggestion that the announced measures do not match this hard rhetoric and it will be key to see whether the revised NPPF has any demonstrable impact on housing numbers. 


Strong and stable consitution

As the EU (Withdrawal) Bill continues its slow passage through the House of Lords in Westminster, the Scottish government is taking steps to pass its own withdrawal legislation Bill. The snappily titled EU (Legal Continuity) (Scotland) Bill passed its Second Reading this week and is Holyrood’s attempt to force the UK Government to devolve powers to Scotland after Brexit.

Currently, there are a large number of powers that are exercised by the EU but which are technically devolved in the UK, covering areas such as agriculture and fisheries. The EU (Withdrawal) Bill and Ministers have not been completely clear that these powers would return to devolved administrations after Brexit, causing annoyance to both the Scottish government and Welsh Assembly.

The Scottish government responded by refusing to pass a legislative consent motion (effectively MSP’s waving through UK wide legislation) for the withdrawal bill and presenting their own legislation, which would give Holyrood direct control of 111 currently EU powers. If passed, the legislation would certainly be controversial; for the first time the Presiding Officer (Scottish Parliament equivalent of the Commons Speaker) has refused to give his consent to a Bill and Scottish Conservative Leader Ruth Davidson has urged the UK Government to legally challenge the legislation if passed.

So what does this all mean for the government? The Prime Minister is likely to ask the Supreme Court to strike down the Scottish legislation if passed, and can still proceed with the UK wide Bill without the Scottish government agreeing. However, with the Welsh Assembly planning to try a similar tactic and Scottish Conservatives understandably nervous of the political ramifications, the Prime Minister may try to offer further assurances of devolution to Nicola Sturgeon sooner rather than later to break the constitutional deadlock.

However, whilst the Prime Minister’s eyes may well be focussed north of the Border, look out for attempts by Scottish peers to take this out of the Prime Minister’s hands by forcing amendments to the EU (Withdrawal) Bill in the House of Lords anyway.


The data protection debate

The government took the next step in refreshing the statute book on data protection, as the Data Protection Bill achieved its second reading in the House of Commons this week. The existing Data Protection Act is twenty years old, and given the manifold developments in the digital world, it does not take a data scientist to work out that the Act may contain some inadequacies.

But, whilst there is agreement across the Commons that new forms of Data Protection legislation are required, the devil, as they say, is in the detail and the government faces a number of challenges to secure its proposed legislative change. 

During the debate on Monday, Labour raised their concerns that existing EU data protection laws would not be transposed into UK legislation post Brexit, potentially weakening the protections for indvidual rights. Indeed, lawyers representing the “Open Rights Group” have written to the government to warn that an immigration exemption in the Bill, banning immigrants from accessing the data that the Home Office holds on them, is illegal and could violate the EU's General Data Protection Regulations (or GDPR). 

The greatest challenge that the government may face, however, may have already come from the House of Lords. The Data Protection Bill has already been through the Lords, and peers managed to defeat the government in three separate amendments. The government has indicated its desire to overturn these changes. 

Peers added a clause requiring the government to open an inquiry into allegations of data protection breaches by news publishers, which would effectively launch Part II of the Leveson Inquiry despite the government's announcement to the contrary last week. Peers also voted to require the Information Commissioners Office to keep a register of personal data of national significance that is controlled by public bodies, something which is again opposed by the government. 

So, in addition to the normal Committee Stage challenges in a bill as technical as this, the government will have a battle on its hands if Labour decide to prop up amendments already made by the other House or if the Lords try to insist on their amendments in the future. 


Failing to plan, or planning to fail?

The Chancellor of the Exchequer has revealed that the Government is still not banking on reaching a trade deal with the EU by the end of the transition period in 2021, let alone March 2019. Speaking to the Commons European Scrutiny Committee earlier this week, Philip Hammond told MPs: “We may well have to continue with planning for a no-deal exit at the end of the implementation period as a contingency.”

Whereas Theresa May appeared confident of negotiating a better deal in her Mansion House speech last Friday, the Chancellor conceded under questioning that the Treasury would hedge its bets by allocating £3bn of the November Budget  to ‘contingency planning’. This is likely to interest both Remain Conservative rebels and the hard Brexiteers who, for very different reasons, are all keen to discuss the possibility of a 'no deal' Brexit. 

Indeed, the EU has been doing its bit to increase the likelihood of no deal this week. The EU’s Brexit spokesman Guy Verhofstadt reiterated that, outside of the single market, the UK could expect no special treatment. A sector-by-sector participation in the single market would be out of the question - only a general “association agreement”, dependent on a guarantee of EU citizens’ rights in the UK, would be on the table. And just in case Verhofstadt’s reaction left any room for confusion, the President of the European Council Donald Tusk circulated draft guidelines for trade talks which emphasised the need for Brexit to result in “negative economic consequences” for the UK.

This was all followed by Brexit Secretary David Davis MP’s appearance before the European Scrutiny Committee later in the week, in which he counted but could not name “11 areas of difference” with EU yet to be discussed. Altogether, this has not been a week to reassure Parliament or the public about Brexit.