A Year in Review

Liz Jenkins, partner, Clyde & Co

The National Infrastructure Commission (NIC) was born out of a long-identified and broadly supported need for longer-term, depoliticised decision making around crucially important national infrastructure decisions.

However, after initially proposing a fully independent and statutory body reporting to Parliament, the current proposal is for an executive agency of the Treasury answerable to government, and with no statutory footing.

Questions have now been raised around whether this change will have a material impact on the ability of infrastructure investment to be taken out of the political cycle.

At its inception, it was intended that the NIC be cemented in legislation as an independent, statutory body which would publish a National Infrastructure Assessment (NIA) every Parliament, detailing its analysis of the UK’s infrastructure needs, with the government of the day being required to formally respond to the recommendations. The overwhelming response to this was highly positive, with the importance of statutory enshrinement being stressed by many.

Following Chancellor Philip Hammond’s announcement that the Neighbourhood Planning Bill would not place the NIC on a statutory footing, critics have been quick to point out that without this it would not have the independence needed.

Instead, the NIC would be an executive agency with its budget, freedom and autonomy detailed in an implementing charter rather than a statute.

Simon Kirby, the economy secretary to the Treasury, told the House of Commons that “the government considers that the commission can achieve the same objectives without legislation”, but many disagree.

The draft Charter establishes the NIC as an executive agency of the Treasury as opposed to a non-departmental public body or non-ministerial department. While the charter does mirror the duties that the statutory legislation would have given the NIC, there are limitations to this form of constitution which influence the amount of power the NIC will, or could, have.

For instance, there is no obligation for other bodies to cooperate with the NIC (as one would expect from a statutory legislated body) unless further charters are published, which could impact the level of evidence the NIC can call on to carry out its role effectively.

Had the NIC been created by statute it would have been established as a corporate body separate from government and the Crown.

Arguably, this is the only form in which the NIC could be considered genuinely independent, since it would be accountable to Parliament, rather than the government of the day, and as a result could avoid being influenced by the government when producing its NIA.

An executive agency, without statutory underpinning, is independent and permanent only if it enjoys political backing of the government at that time. A statutory body answerable to parliament would be able to make its presence felt whatever the political weather.

Under the current plans, the NIC could be discarded by a future government with relative ease. The charter is less entrenched than any statute would have been. The process of repealing a statute is far harder than that of simply retracting a charter via a government statement, or for the government to quite simply ignore the body’s recommendations.

Conversely, the very process of setting up a statutory body might have been mired in politics and it might have taken undue time. At least the implementation of the NIC as currently proposed as an executive agency means it will be up and running far quicker. Importantly, there is also nothing to prevent its statutory footing being revisited in the coming years. Any NIC is better than no NIC at all.

Going Forward

Despite the changes, the government does not seem to be wasting any time and seems supportive of its aim…for now at least.

The NIC is to produce an NIA once in every parliament, with a ‘Vision and Priorities’ document published in the summer of 2017, followed by the full NIA sometime in 2018. A call for evidence has been made, consisting of 28 questions which look at various different aspects of the UK’s infrastructure policy, including general policy and specifics such as transport, energy, waste, and digital communications.

The NIC has also put together a pair of expert advisory groups – a technical panel and an advisory panel – to offer advice and scrutiny.

Encouragingly, the Autumn Statement signalled that the Chancellor and the government are taking the NIC seriously by pledging £27m of funding to the Cambridge to Oxford Corridor “Brain-belt expressway” road and £100m to ensure the reopening of the western section of the rail link from Oxford to Bedford by 2024. This new corridor was recommended by the NIC in an interim report as an opportunity to create the “UK’s Silicon Valley” and this recommendation was supported only a week after the interim report was published.

This funding was part of a planned additional £23bn in borrowing for infrastructure spending, and it looks like the NIC will have a considerable level of input into which projects receive funding.

The NIC is a step in the right direction. But concerns over its legitimacy and longevity will not fade instantly.

In short, the method of the NIC’s creation means it requires the recent level of governmental support to be ongoing, but whether such support will survive future political challenges remains to be seen. An independent body created by statute would have allayed many of these fears.