The Levelling-Up and Regeneration Bill (‘LURB’), currently before the House of Lords, aims to facilitate the government’s levelling-up agenda, which was set out in the ‘Levelling-Up the United Kingdom’ White Paper in 2022. At 222 clauses and 18 schedules, full consideration of the Bill (as amended in Committee, 24th May 2023) would require more than a blog post, but its legislative aims can be somewhat succinctly expressed. The Bill proposes a scheme of local government and planning reforms, each aimed at promoting regional growth and ‘levelling-up’. Part I sets out the scope of levelling-up, detailing the obligations of the government in determining a levelling-up agenda. Part II then proposes a series of reforms to local democracy, devolving governance powers further to county councils, and giving them greater control to determine regional projects. The theme of project infrastructure continues, with Parts III-V and VIII-IX of the Bill reforming planning law and establishing different support mechanisms for development, including an infrastructure levy and providing for development corporations. Alongside the planning provisions, Parts VI-VII reform Environmental Impact Assessments and Nutrient Pollution Standards, establishing a new framework for these environmental tests.
As can be seen, the scope of the LURB is far-reaching and it was hoped the Bill would provide comprehensive reforms to facilitate levelling-up. The reality, however, is that LURB creates legal uncertainty, painting broad brushstrokes over many of the complex legal issues it engages with. There are four types of legal uncertainty identifiable in LURB: uncertainty of definition, uncertainty of amendments, uncertainty of discretion, and uncertainty of regulation. I will address these in turn.
Uncertainty of Definition
Levelling-up was first adopted as Conservative Party policy in their 2019 Election Manifesto, with the objective to ‘level-up every part of the UK’. The LURB opens with a clause to this effect, mandating that a ‘statement of levelling-up missions’ and target dates be presented before Parliament periodically. ‘Levelling-up missions’ are then defined in clause 1(2) as ‘objectives which His Majesty’s Government intends to pursue to reduce geographical disparities in the United Kingdom significantly’. This definition is expanded upon in clause 6 which explains ‘geographical disparities’ to be ‘disparities in economic, social or other opportunities or outcomes’. The breadth of this definition creates uncertainty, both as to what levelling-up actually is and then beyond that, as to what the legislative aims of the LURB are. This is because legislation typically reflects a policy, and that policy is usually fixed at the time of enactment. By contrast, the LURB is framed entirely by a policy objective whose content is subject to change with each session of Parliament. This makes the very notion of ‘levelling-up’ for which the Bill provides a legally uncertain one and it projects that uncertainty into the content of the Bill.
Uncertainty of Amendments
The second way in which the LURB can be understood to create legal uncertainty is through the way it engages with and amends existent statutory provisions. The Bill replaces existent statutory provisions which could be seen to prevent levelling-up, with new sections which promote the current levelling-up missions. This is done without proper consideration for the amended section, should levelling-up missions change.
One example of this is the amendment to Paragraph 8(2)(e) of Schedule 4B of the Town and Country Planning Act 1990 (TCPA) to better reflect the levelling-up mission of Housing.
Paragraph 8(2)(e) relates to neighbourhood development plans, which allow communities to try to define the planning priorities in their local area. The paragraph, as originally enacted, set out the requirements needed for a draft order but did not detail what criteria might exclude an order being made. This changes under the LURB.
Clause 93 amends paragraph 8(2)(e) to read:
the making of the order would not have the effect of preventing development from taking place which—(i) is proposed in the development plan for the area of the authority (or any part of that area), and (ii) if it took place, would provide housing
This alters the nature of paragraph 8(2)(e) by introducing prohibitions into what was effectively a writing guideline for draft orders. The justification for this is presumably a concern that draft orders from neighbourhood plans could prevent housing developments, which would affect the housing levelling-up mission. Yet in amending the paragraph, the LURB places a levelling-up mission directly into existent legislation, changing the meaning of paragraph 8(2)(e) and making it contextually dependent on the levelling-up mission of housing. If housing ceased to be a mission, this change to the TCPA would remain. This creates uncertainty as to how amended legislation will function if the levelling-up missions change.
Uncertainty of Discretion
The LURB also creates legal uncertainty by granting the Secretary of State broad discretionary powers through the primary legislation, leaving the remit of these powers to be defined by policy or subsequent guidelines. Clause 87, found in Part III, ‘Town Planning’, is one example of this.
Clause 87 begins by establishing a hierarchy of development plans, amending section 38 of the Planning and Compulsory Purchase Act 2004 (‘PCPA’). Clause 87 sets out that where a development plan conflicts with the national development management policy, the national policy has priority. The national policy itself, as defined in clause 88 is ‘a policy (however expressed) of the Secretary of State in relation to development or [the] use of land’. This has the effect of granting the Secretary of State broad powers to determine what constitutes the national policy. Concern has already been raised in the House of Lords about the uncertainty that this ‘top-trumps’ approach creates, leaving planning inspectorates to balance local plans with anything that could be deemed the policy of the Secretary of State. Of particular concern is that the ‘subjective’ language of the Bill leaves much to interpretation or for future guidance, meaning the exact parameters of Secretarial discretion – for example, in relation to whether something is national planning policy – are now uncertain.
Uncertainty of Regulation
This leads on to the final type of legal uncertainty. Increased ministerial discretion could allow for deregulation by the backdoor. By this I mean that the Bill does not explicitly deregulate, but through Henry VIII clauses grants the Secretary of State extensive powers to change the scope of the legal protection in different areas.
Part 6 on Environmental Outcome Reports (‘EORs’) provides the starkest example of this and arguably amounts to a reduction of legal environmental protection. EORs replace existent Environmental Impact Assessments (‘EIAs’), yet unlike EIAs there is little in the LURB detailing what an EOR should consider or do. Clause 143 grants the Secretary of State the power to specify ‘outcomes relating to environmental protection’ through the creation of EOR Regulations. This is further explained in clauses 144 and 145, which confer on the Secretary of State the power to determine what kinds of development are subject to an EOR. The Secretary of State can thus determine what environmental provisions should be considered by different developers in different sectors.
Environmental protection however, is not a levelling-up mission, which raises the question of whether developers in ‘levelling-up’ sectors like housing will be required to produce an EOR and if so, what that EOR will consider. Although, per clause 147, the Secretary of State cannot create regulations which weaken environmental protection from its status at the time of the Bill’s enactment, the legal weight of environmental protection is still reduced, with environmental assessments no longer being a compulsory legal obligation on all developments. This is particularly problematic considering the section 20 declaration of Michael Gove. Section 20 of the Environment Act 2021 mandates the Secretary of State makes a compatibility statement before Parliament, determining whether new legislation will impact environmental protection. This, in theory, operates similarly to section 19 of the Human Rights Act 1998. Gove stated that the Bill would not ‘reduce [the] level of environmental protection provided for by any existing environmental law’. This is true, in so far that the LURB does not explicitly deregulate. Yet, as this discussion of Part 6 shows, through Henry VIII clauses there is the scope for potential deregulation, leaving the status of environmental protection in development uncertain.
Conclusion
As these examples highlight, the LURB is legally uncertain in a variety of ways but why does this legal uncertainty matter? Legal uncertainty is typically critiqued due to the potential threat it poses to the rule of law. Yet this understanding, whilst important, paints broad brushstrokes over why the legal uncertainty in the LURB needs to be highlighted. This Bill is noteworthy because in the name of ‘levelling-up’ this legislation has a significant legal impact across many areas, yet the length and nature of the Bill make it difficult to see what the breadth of these impacts are. It can thus be suggested that the language of ‘levelling-up’ masks what is an extensive piece of public law reform, which instils legal uncertainty into local democracy, planning and environmental protection. This raises alarm bells and ought to make us question whether the government’s policy of ‘levelling-up’ should come at the price of ‘levelling-down’ legal certainty.
With thanks and acknowledgment to my supervisor Liz Fisher for her support.
Rhiannon Ogden-Jones is a current DPhil student at the University of Oxford, researching the legal history of national parks and funded kindly by the Christopher and Sharyn Brooks Scholarship from the University.
(Suggested citation: R. Ogden-Jones, ‘Legal Uncertainty and the Levelling-Up and Regeneration Bill 2023’, U.K. Const. L. Blog (28th June 2023) (available at https://ukconstitutionallaw.org/))
