Local Government, Housing and Planning Committee

Meeting date: Tuesday, November 1, 2022

Official Report 649KB pdf

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Levelling-up and Regeneration Bill

Agenda item 2 is an evidence session with Tom Arthur, Minister for Public Finance, Planning and Community Wealth, on the planning data parts of the legislative consent memorandum on the United Kingdom’s Levelling-up and Regeneration Bill. Mr Arthur is accompanied today by Scottish Government officials Cara Davidson, head of environment and energy, and Liz Pringle, head of digital planning services. I welcome Mr Arthur to the meeting. Before I open the session to questions from members, I invite him to make a short opening statement.

Good morning. Thank you, convener, for the invitation and opportunity to address the committee on the UK Levelling-up and Regeneration Bill. This morning, we will talk about the planning data provisions in chapter 1 of part 3 of the bill. I am conscious that the committee has recently heard evidence from key stakeholders.

Before I turn to part 3 in detail, I reiterate the Scottish Government’s fundamental concerns about the bill. As members will know, we have recommended that the Scottish Parliament not provide legislative consent for the bill as drafted, given that it absolutely poses a threat to a wide range of devolved responsibilities and fails to respect the role of this Parliament and the Scottish Government in legislating for devolved powers. We remain concerned that the Westminster Government will ignore our collective role and simply legislate without our consent.

Turning to part 3, I am not surprised that evidence has pointed to a lack of available information on how the planning data provisions in the bill will operate in practice. I would like to set out on the record my frustration that we received little advance sight of the draft bill before its introduction. That lack of meaningful prior engagement from the UK is sadly all too typical of the current Westminster Government’s approach to legislation. It contrasts with our own work in Scotland on the digital planning strategy and transformation programme, and on our collaborative approach to planning reform as a whole. Therefore, although I recognise and support the need for planning data standards in principle, the lack of detail on how the provisions will be implemented leaves unanswered questions.

With so many unknowns, there is also the potential for conflict with the work that is being undertaken already in Scotland as part of our digital planning transformation programme, with a £35 million capital investment initiative already under way. That is an ambitious programme that is led by the Scottish Government, working in partnership across the public sector. It will put data and new digital technologies at the heart of Scotland’s planning system, thereby helping to achieve the wider planning reform aim of delivering an open, streamlined and inclusive planning system that is fit for the future. Our work on the programme is making real progress, with the first new digital services expected to be rolled out next year. We are building those new digital services and products on solid data and technical foundations, working in collaboration with our partners.

At last week’s evidence session, members heard stakeholders give strong support to the direction and approach that we are taking in collaborating across the sector, rather than mandating a way forward. In Scotland, we are taking a comprehensive approach to improving planning data. Our data strategy will set out a road map to provide easy access to high-quality data for use across planning and place-based work.

Therefore, I have real concerns about the UK Government’s intention to legislate in areas of devolved and executively devolved competence without any real knowledge of what we are doing in Scotland, nor any interest in accommodating that in the bill. We could find ourselves in the unhelpful situation of having Scottish planning authorities being subjected to conflicting measures, with one imposed on them through a UK bill and the other agreed through mutual collaboration in order to improve our planning system in line with our own domestic legislation and priorities.

As currently drafted, part 3 provides one of many reasons why the Scottish Government cannot recommend that the Scottish Parliament consent to the provisions as they stand.

Thank you, convener.

Thanks very much for those comments. It was good to hear about the Scottish digital transformation project last week, and it is good to hear from you right now that it will be rolled out next year.

I will open up the session to questions. I will start. What, if any, engagement did your officials or Scottish Government planning officials have with the UK Government on planning data prior to the introduction of the Levelling-up and Regeneration Bill in the UK Parliament? You have indicated that there was a lack of consultation and collaboration in a way, but I am also interested to know whether any work was done before consideration of the bill.

As I said, obviously there has been dialogue between relevant officials in the two Governments on provisions in the bill. However, as with other aspects of the bill, there remains a lack of detail on how the planning data provisions will be implemented. The reality is that clauses in the bill as introduced give UK ministers unlimited scope to regulate areas of devolved and executively devolved competence for Scotland. The crucial point is that the requirement is that there be consultation only—not consent and not agreement, but consultation. Over recent years, we have seen what that means in practice, given how willing the UK Government has been to ride roughshod over the Sewel convention.

The reality is that the bill poses a threat. There has been no detailed consultation. There is a lack of clarity on the details. At the very minimum—this is just a starting point—we have to move from consultation to consent and to a position that does not impact on the competences of the Scottish ministers or this Parliament.

Good morning, minister, and good morning to your officials, too. In the limited time that we have had to take evidence from planning stakeholders in Scotland on the matter, we have heard that they are unclear about the term “planning data”. What do you think planning data is, and do you think that that demonstrates that there are gaps in data in our planning system in Scotland?

I will ask Liz Pringle to come in in a moment. First, data is one of the key missions in our digital strategy for planning. I think that we all recognise the wider importance of data. For example, this morning, Audit Scotland put out a release on the importance of data in policy design.

The bill sets out the definition of planning data in clause 75(2). Planning data is said to include

“any information which is provided to, or processed by,”

the planning authority

“for the purposes of a function under a relevant planning enactment”.

A relevant planning enactment would include any enactment made by the secretary of state under part 5 of the bill, which applies UK-wide and contains provisions on environmental outcome report regulations. There is also a lack of information about how provisions on environmental outcomes reports would operate.

That, combined with the lack of detail on implementation and practice in relation to the planning data provisions, means that it is unclear what the wider implications would be for the handling of planning data in Scotland. That speaks to the point that I am making about the uncertainty and vagueness that comes with the bill.

It is important that we give some examples of what we are doing more broadly around planning data. I ask Liz Pringle to come in on that.

Thank you, minister. I agree that there is a lack of detail around the definition of planning data. As we have been developing the digital strategy, we have heard about the vast amount of data that could be used within the planning system and the impact on our planning authority stakeholders of not having it in a high-quality and well-managed fashion—for example, in relation to the time and effort that are needed to find and access data for preparing local development plans. That is one area where lack of consistency and poor data quality impact on the planning system. In our work, we are looking across the planning system at planning data needs: what they are, and how we make sure that we reach a sustainable model for managing data in a comprehensive way.

That is helpful. Thank you.

I cannot remember who gave us this evidence, but last week we heard about an information technology platform on which the data would be hosted. That might present an opportunity for data to be shared and accessed across the UK and Scottish Governments, with all local authorities being able to share it.

On potential benefits, would you agree that planning data would benefit from being processed at a Great Britain level, and that the data could be compatible?

It is important to recognise that the approach that we are taking in Scotland is one of genuine collaboration. I think that such an approach is vital if we are to get the most out of planning and fully realise planning’s potential to deliver across many areas.

The risk, and our concern, relates to conflict. Planning has always been a devolved competence. In 75 years of the town and country planning legislation, there has always been distinct Scottish planning legislation. The one time an attempt was made to combine those acts, in the 1950s, it became a bit of a mess, I think, and they had to be separated again. That has always been the nature of planning. It is a devolved competence and it is for this Parliament to take an approach.

If the UK Government wants to engage constructively, recognise the competence of this Parliament and not stick to acting in a way that means that it can legislate without the agreement of this Parliament, of course we are very happy to engage, recognising the value of a consistent approach being taken across Scotland. We are working towards that through our broader work on digital transformation in planning.

However, the key issue is that that cannot be mandated by the UK Government, and that the approach is somewhat distant from the reality of the work that we are doing in planning in Scotland. We have to have the space to continue what we are doing, which is developing an approach in collaboration with planning authorities and other partners.

09:30  

Good morning, minister. This is potentially a dog’s breakfast. The Scottish Government has already embarked on its digital strategy and has given us an indication of progress so far. My experience of East Ayrshire Council’s digital planning system is that it is very good and is robust. Members of the public can access it and can see decision processes, documents, maps and drawings—everything. It is well advanced and I hope that our system will take that further. However, if the UK legislates in the area, is it possible that our authorities could be acting illegally in doing what they are doing?

I cannot comment on that specifically. However, in my opening remarks I touched on the risk of confusion when we are developing an approach in collaboration with planning authorities in Scotland and the UK Government then mandates something UK-wide. That is, as you described it, a recipe for a dog’s breakfast. At the very least, it can create confusion and it is not an efficient way to do things.

One of the benefits of devolution—as we all know from our experience as constituency and regional representatives—is that we can be far more responsive and attuned to the circumstances of the places and localities that we represent; so it is with the Government and how we design our devolved public services. We take a collaborative approach to planning, built on deep and sustained engagement. That has informed the range of work that we are taking forward in planning reform. Equally, it informs how we are taking forward our approach to digital.

Liz Pringle can talk about partnership work and how we engage with others in development of our approach to digital planning.

The digital strategy itself was a collaborative strategy. We spent a significant amount of time working with our stakeholders to agree the priorities in the strategy, so we knew that we had their support when it was published. Subsequently, delivery of the transformation programme is done very much in partnership between us and our public sector colleagues. Through the working groups and the projects that are being delivered, we are working in collaboration with all the stakeholders to make sure that what is being delivered fits the needs of each stakeholder group and that we are not developing things that are contrary to their needs.

I highlight the difference between the approach that Liz Pringle has very elegantly articulated and our having a provision bounced on us in a bill by the UK Government. The UK Government’s approach is not consistent with that collaborative spirit. It ignores the reality of devolution and has the potential to cause confusion at the very least, and ultimately to significantly undermine and frustrate the shared ambition that we are working towards collaboratively.

Has the UK Government even sought to find out what the Scottish Government is doing in this area—for example in the digital strategy—so that that can shape what it is planning to do? Has there been any engagement at least in order to understand what we are doing?

There certainly has not been direct engagement at ministerial level.

We have dialogue with our counterparts on the broader digital programmes that are taking place, but not on the detail of the planning data provisions.

Minister, you mentioned that there is no consent process, and that the bill provides just for a consultative process—the UK Government is not even asking this Parliament for consent for the proposal. What are your views on the principle of consent not being sought?

The Scottish Government’s position is very clear: we are completely opposed to consent not being sought. If you remember, for the UK Government, the word “consent” took on a perverse meaning in the context of the legislation pertaining to Brexit and the definition that was applied to consent decisions.

The reality is that we have clear devolved competencies and relevant clauses of the bill—from memory, clause 80 in particular—recognise that. Ministers are happy to engage with the UK Government to discuss any areas of shared interest. There are forums in which I engage with ministerial counterparts on a range of issues. For example, through the British-Irish Council, I took part in discussions on spatial planning and I have had discussions about social enterprise and such like. That is productive collaborative engagement in which we share experiences, and it is based on mutual respect.

What we have here is the UK Government seeking through legislation in effect to undermine and go against the spirit of devolution. We are now 25 years on from the referendum that established this Parliament and, as the Scottish social attitudes survey data that was published recently shows, a clear majority of people in Scotland trust the Scottish Parliament and the Scottish Government as institutions and want the Parliament to have the lion’s share of the decision making that impacts on their daily lives. There is no popular support and no mandate, political or otherwise, for those powers to be undermined or removed from the Scottish Parliament.

The UK Government talks about having a respect agenda but that needs to be shown in action, and not just in words. In reality, there are areas in the Levelling-up and Regeneration Bill that clearly fall within devolved competence. UK ministers should not be seeking to grant themselves powers to start legislating in devolved areas without the express agreement of the Scottish Parliament, which they do not have.

Does that mean that the process that we are in at the moment does not even reach the dizzy heights of a consent decision?

No, it does not. It is consultation, which can encompass a broad spectrum from something that is very deep and meaningful to a superficial tick-box exercise. The lack of consultation and detail in advance of the bill does not bode well for how UK ministers intend to consult if the bill becomes an act.

Thank you, minister. I am sure that other members will have questions on that.

It was very noticeable from last week’s evidence that stakeholders are not sure what the bill is about.

Another thing that came through in last week’s evidence was that the UK minister wrote to the Scottish Parliament’s Delegated Powers and Law Reform Committee on 25 October, indicating that constructive discussions had taken place with Scottish Government officials and committing to tabling amendments to the bill to ensure that it reflects what had been agreed with the Scottish Government. That does not seem to be the case from what you have just said. Can you elaborate or touch on that? It does not seem to be coming through in what we have been hearing.

We have on-going dialogue with UK Government officials. We have heard at that level, and from UK ministers, that there is a commitment to amending the devolution-related clauses that are currently in the bill. However, so far, we have not seen any proposals about what the replacement clauses would look like; we have not had sight of any drafts, which is a concern. As you know, the timetable for the bill remains unknown, although it continues to make its way through the UK Parliament.

I share Willie Coffey’s concern that a bill that stakeholders do not know about is passing through the UK Parliament, and that the Scottish Government does not seem to know about the amendments. Minister, do you want to say anything else about that? The evidence that we have heard so far has said plenty about it being a bill that is passing through Westminster without consultation of the Scottish Government or other stakeholders. You have already indicated what the Scottish Government is doing about planning data and digital planning.

Our approach to planning, regeneration and building community wealth is about collaboration and engagement, in recognition of the fact that in trying to achieve the outcomes that we want, no one agency or body can do it all alone. We need to work together—that is very important when we are designing policy. The UK Government’s approach does not seem to be like that. The levelling-up agenda seems to be more a soundbite that it is now chasing to invent a policy programme to justify it.

If the UK Government genuinely desires to engage seriously on these issues and with respect for the competence of the Scottish Parliament and Scottish ministers, we would, of course, be happy to engage. That is the responsible thing to do. However, as has been said this morning and as you will have inferred from the contributions of stakeholders last week, the UK Government has not taken that approach.

Cara Davidson mentioned amendments, but what they will be and when they will come seems to be a mystery. What role will the Scottish Parliament have in scrutinising outputs from the discussions that you have been having?

It is fair to say that discussions at official level have not brought forward any more information than we have in the bill. At the moment, it is possible for us to comment only on what is in the bill as it is before the UK Parliament. The process itself remains unknown and the timetable for further meaningful proposals to come forward is also unknown.

You will be aware that Mr Matheson wrote to the UK Government on 14 October; we await a response to that letter.

I apologise for arriving late, convener, and to you, minister, if you covered this point in your opening statement.

The committee understands that the revised draft of national planning framework 4 is due out shortly. Has there been an analysis of any impact that the bill might have on NPF4 and on the timeframe for approval?

There is nothing, at this stage. I come back to the point about the degree of uncertainty that makes it difficult to come to a rounded judgment. I do not think that there would be any direct impact on NPF4 and certainly not on the timescale for Parliament to consider it.

Looking beyond that to implementation and delivery, we are, of course, discussing an exceptionally important part of the planning process, so an impact on data could have an indirect impact on delivery of NPF4. However, I do not want to indulge too much in speculation; ultimately, we do not have enough clarity from the UK Government to come to a fully informed view.

Similarly, can you speculate on whether the bill would have any impact on the local authority local development plans that will follow on from NPF4?

We touched on the matter earlier. We are taking a collaborative approach and are working together on digital planning. However, if the UK Government mandates something else, that will create the possibility—or even the likelihood—of the conflict and confusion that characterise much of the levelling-up agenda, because it trespasses on devolved competencies. There is a potential risk, but we do not have clarity—first, on the UK Government’s intentions around planning data and, secondly, about amendments and how they would impact on Scotland—so it is too early to be able properly to quantify the risk.

That concludes our questions. Thank you very much for giving evidence today along with your officials.

09:44 Meeting suspended.  

09:50 On resuming—