Committee stage in the Lords
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The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Andrews)Labour- Quote
- My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill. Moved accordingly, and, on Question, Motion agreed to. House in Committee accordingly. [The LORD SPEAKER in the Chair.] Clause 5 [National policy statements]:
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Lord Dixon-SmithConservative- Quote
- moved Amendment No. 41:
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Lord Boyd of DuncansbyCrossbench- Quote
- I oppose these amendments. Indeed, my concern is that the national policy statements might not be specific enough in certain respects. As I understand it, the Government have said that both nuclear and aviation will be site specific. I think that that is right. If the national policy statement designates an area for expansion of an airport, for example, or for a new airport, there are a lot of other components to it, particularly transport into the hub that is the new or expanded airport, with railway, road and other services. If the national policy statement is to be the bedrock of our policy and national infrastructure, a certain degree of specificity—I have the same problem as the noble Lord, Lord Dixon-Smith, in saying that word—and site specification is necessary. The measure is important for two other reasons. It gives a degree of certainty not only to the nation but to communities affected by the national policy statement that identifies that location. In addition, it gives greater accountability to Parliament, because whatever system is used for parliamentary oversight on whether the national policy statement needs the formal approval of Parliament, nevertheless the policy statement will be debated. The identification of sites for infrastructure can be debated in Parliament in a way in which it has never been before, giving a much greater degree of specification, accountability and planning. My worry is that national policy statements may not be specific enough. I hope that those statements that for various reasons are not site specific are couched in language that is as clear as possible, so as to remove any possible ambiguity. We are all familiar with policy statements that give a nod and a wink in different directions. It is vital that the Infrastructure Planning Commission has as clear guidance as possible on what the Government and Parliament wish for their future infrastructure needs.
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Lord Jenkin of RodingConservative- Quote
- We touched on this subject on the first day of Committee in the context of the role of the Infrastructure Planning Commission. On that occasion, I said why I thought—and I agree very much with the views of the noble and learned Lord, Lord Boyd—that in some cases site-specific indications would inevitably be in the national policy statement. I will not repeat what I said on that occasion, which I hope is of some relief to the Minister, who is asking us to make a little more progress. I have some sympathy with that, as I do not want to sit here all night. However, my noble friend raised some perfectly valid points and I look forward to hearing the Minister’s reply.
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Lord TurnbullCrossbench- Quote
- I suspect that, like other Members of the Committee, I am finding it difficult to fathom the game plan of the opposition Front Bench in general on the Bill and on these clauses in particular. Two weeks ago, the leader of the Conservative Party announced a commitment to a big expansion of the high-speed rail network in this country. Surely he must be thinking that, should he ever come to power, it would be extremely valuable to have this Bill on the statute book, as he will not get those plans through with a tinkered-with version of the status quo. Likewise, I do not understand the objection to these clauses. The amendments were introduced by the noble Lord, Lord Dixon-Smith, with his customary moderation and courtesy, but the truth is that, if passed, they would be very damaging to the Bill. First and foremost, the purpose of this part of the Bill is to reduce uncertainty and unnecessary delay in the planning system. One of the key causes of such delay arises from location—I use “location” rather than “site” because I do not think that “site” appears anywhere in this legislation, although it appears in the amendment. A developer can spend years and millions of pounds pursuing a particular proposal only to find at a very late stage that the location is deemed unsuitable. Even worse, a developer can find himself caught in what I call the Nirex Fork. In developing its so-called Rock Characterisation Facility, Nirex initially canvassed a range of sites throughout the country, including one in the constituency of the Secretary of State for Energy at the time, which was probably a mistake. Quite naturally, there was uproar throughout the land. As only one of the sites would ever be chosen, much of the uproar was entirely unnecessary. Nirex then tried a different tack, which was to choose a suitable site and to make the case for it. It was rebuffed on the grounds that it had failed to establish whether the site was indeed the best location. We also need to avoid the mistake made by British Rail in developing the route for the Channel Tunnel Rail Link. It put forward a whole series of options coursing across Kent, none of which was used in the end. The process caused major issues of blight and distress and claims for compensation. The noble and learned Lord, Lord Boyd, pointed out that there was a specific request in the other place that in some cases aviation and nuclear power NPSs should be location specific. But there is a misconception that a location-specific NPS would fix the outcome of the examination. That is not the case, because it would identify sites as unsuitable or potentially suitable for development, but would not go so far as to be site or project specific. These proposals need to be taken away as part of a wider rethink of what the Opposition want to get out of the Bill.
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Baroness HamweeLiberal Democrat- Quote
- I, too, join the debate on location and site specificity at the start of the Bill. I take the point about the distinction between a site and a location. Nevertheless, appealing to tidy minds as it is to provide the possibility in every NPS of specific locations, that raises the question of the powers of the Infrastructure Planning Commission. That is where I have problems. The noble and learned Lord, Lord Boyd, mentioned transport in connection with development of an airport. I declare an interest now, as we will come on to airports in more detail later: I live not far from Heathrow, under one of its flight paths, and am affected by ground traffic to the airport, both rail and road. The number of times that the level crossing near my home is down because of the amount of rail transport is extremely frustrating. These things have a knock-on effect a long way down the line. I still find it almost impossible to understand how the Infrastructure Planning Commission, faced with a national policy statement that says that there will be expansion of an airport—not necessarily Heathrow—and properly going into the implications at ground level, will be able to say no to that application in the real world. Perhaps, however, the problems come at least as much in the powers of the IPC as they do in describing the scope of the NPS.
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- Baroness AndrewsLabour
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- I am grateful to the noble Lord, Lord Dixon-Smith, for giving us an opportunity to have this debate. It is an extremely important issue. I am also grateful to the noble Lord, Lord Jenkin, for flagging up our Front Bench’s concerns that we make progress. He did so beautifully; far better than I could have done by wagging my finger. Discussing the two amendments in this group is important to clarify the nature of the debate on the degree of specificity needed within the NPS. Amendment No. 41 of the noble Lord, Lord Dixon-Smith, and the noble Earl, Lord Cathcart, and their Amendment No. 45 with the noble Lord, Lord Jenkin, would alter Clause 5 to remove the discretion of the Secretary of State to identify a particular location or site as suitable, potentially suitable, or unsuitable. They would also remove the discretion to identify an individual statutory undertaker as appropriate to carry out a specified description of development. I understand that these are probing amendments and hope that I can address all the questions that have been raised. I am conscious that we are bedevilled by terminology and debating a rather elusive concept. We were helped greatly by the panel discussion we had last week, with different promoters and the CBI, about the interpretation of locations in terms of different demands and possibilities for different types of infrastructure. The noble Lord, Lord Turnbull, and the noble Baroness, Lady Hamwee, have already drawn attention to the difference between “location specific” and “site specific”. NPSs are locationally specific and will indicate, as appropriate to the particular infrastructure they are concerned with, places which are suitable or potentially suitable locations for development. However, they will not identify specific sites. It will be for the developer to bring forward the site application, and for the IPC to determine whether that site meets the criteria. It will be left to the IPC to consider the detail of specific sites, layout, access and, of course, to weigh up the adverse impacts of the proposed project. I shall come to the important question of the noble Baroness, Lady Hamwee, on this a little later. The case for some NPSs to address issues of suitable locations is simply logical. Although I take the point made by my noble and learned friend Lord Boyd, when planning for infrastructure it makes no sense to leave a policy vacuum and to leave the policy in the abstract. Certainly, although NPSs will differ in the detail they can offer about where certain infrastructure may or can go, they will be able to identify places which are unsuitable. I take the point made by the noble Lord, Lord Turnbull, about the way in which we have approached this issue in the past and the chaos and blight that have been caused by some of the ways in which it has been approached. In their amendments noble Lords argue that it is inappropriate for NPSs to identify a location because this would amount to implied planning permission. It is not planning permission or implied planning permission because planning permission permits development of a certain description to go ahead in a particular location. Even outline planning permission establishes a principle that development can take place in a particular location. To specify a potential location does not establish any such principle, it simply means that a location may be suitable for a certain type of development. In previous debates we have rehearsed at length the fact that NPSs will provide the primary reference point for the IPC, the strategic framework which draws together and integrates policy. By determining clear and predictable criteria they will also critically provide a clear and predictable framework for investment decisions. For all the reasons that the noble Lord, Lord Turnbull, pointed out, this is what we are all aiming to address. Some NPSs will be more locationally specific than others. Ministers have already given assurances in the other place that NPSs for nuclear and air transport—the two most contentious forms of development covered by the Bill—will be locationally specific. It is at this point of the deliberation that the national debate and the debate on area effects is bound to be most intense. While these national policy statements will exist to address the national need, they will also make it clear that they will be driven by logic dictated by geography, geology and demography, which will mean that certain places are more suitable for some developments than others. Making the reasons for that decision clear is very important as it will mean that the political judgment within which the IPC will in turn take the final decisions over the site has been set by Ministers and is subject to scrutiny by Parliament and to public consultation. However, it will be difficult and may not be appropriate to specify locations in all NPSs. The possible range of locations can be very wide for wind farms or gas-fired power stations. The NPS would not only not want to specify location, it would be impossible to cover all the options. This is where the broad areas might be indicated, but local considerations have to come fully into play. There are other considerations as well. For other types of infrastructure there may be real issues of market flexibility and the ability of the market to respond to demand. Ports would fit into this band. Geography would be bound to narrow choices, but at the same time there needs to be scope and flexibility for market choice as well. If we specified locations which would imply a choice, we would intervene significantly in the marketplace. That could constrain competition, threaten our competitiveness and undermine the security of our energy supply. As the noble Lord, Lord Turnbull, said, the crucial thing is clarity. In these instances where an NPS cannot be locationally specific we look to provide in the NPS as much guidance as possible to give as much certainty as is possible within all the constraints. Where an NPS does not identify locations as suitable, it will be up to it to provide criteria about suitable locations, which could be based on key physical, environmental and economic conditions, and the impact that might follow from those criteria, and to assess what would be suitable for development of specific types of projects. The NPS will also address the weight given to criteria. Before identifying particular locations as potentially suitable, however, the Secretary of State must go through a careful process of considering the relevant evidence, involving appraisal of sustainability. He or she must also consult on the proposal, crucially with people in the local area, so that people are informed about the policy, understand the local implications, and have a chance to have their views taken account of before an NPS is designated. Clause 7(5) therefore provides that, where locations are identified, the Secretary of State must ensure that appropriate steps are taken to publicise the proposal, and Clause 8 requires him to consult local authorities in the affected areas about that publicity.
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- Lord Dixon-SmithConservative
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- I shall just comment on one or two points. The noble and learned Lord, Lord Boyd of Duncansby, in raising the question of aviation, said that the solution has to be related to existing airports. I should not have to remind him that there is at least one person not too far from here who thinks that the solution to the aviation question, particularly so far as the south-east of England is concerned, lies in an area where there is no airport sited at present. There are other reasons why that may become a very real possibility. In this instance, site-specificity may not be as appropriate as the case that he mentioned. I acknowledge the enormous experience and knowledge of government of the noble Lord, Lord Turnbull, but his choice of Nirex as an issue was not a particularly good one. I was involved in a peripheral way through local government, but I had no direct connection with Nirex. The noble Lord is right—it raised a lot of hairs and caused a lot of reaction. When finally a specific site was found, Nirex still managed to get its plan rejected. Here we are, 30 years later, still getting precisely nowhere. Therefore, an argument can be made both ways. I accept that the purpose of the Bill is to reduce delay; heaven knows, I have lived with the planning system for most of my life through my experience in public life. I would be the first to acknowledge the need to reduce delay, but we need to do what we do with our eyes wide open. I am grateful to the noble Baroness for her conscientiousness and for the fullness of her reply, with which I am pleased. It was sufficient justification for this discussion. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn.
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- Lord Jenkin of RodingConservative
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- moved Amendment No. 42:
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Earl CathcartConservative- Quote
- At Second Reading the Minister said that, “national policy statements will be planning documents of the highest order” and that, “Individuals and local authorities will be able to have their say on how the assumptions and difficult choices made at national level could have implications in their local areas”. She added: “We will ensure that where the draft NPS is locationally specific, local peoples’ views are taken fully into account in the final NPS”. She also said that, “we want there to be a proper national debate about the need for key infrastructure … to boost opportunities for public participation”.—[Official Report, 15/7/08; cols. 1161-63.] The Minister went on to explain the clear procedures that must be followed before policy becomes a national policy statement. That is all excellent stuff, provided that it is applied to all national policy statements. It seems quite extraordinary that under Clause 12 a Secretary of State can just dust down an old policy, regardless of how old it is or whether any or all of the correct procedures and legislation have been complied with. Doing this may well undermine the very credibility of that national policy statement. We have tabled Amendment No. 95, which would remove Clause 12(3), because we do not believe it is good enough that the Secretary of State should be allowed merely to take account of pre-commencement consultation, regardless of when it was carried out and how thorough it was. There needs to be up-to-date and relevant consultation. As the Bill stands, there seem to be no checks or balances to ensure that correct procedures have been carried out and that legal requirements have been complied with for all, not just some, national policy statements. That is why various amendments are tabled to Clause 9 calling for affirmative resolution, the approval of both Houses and a Joint Committee of both Houses of Parliament once consultation and publicity requirements detailed in Clause 7 have been complied with. Those amendments would ensure that the correct procedures had taken place for all, and not just some, national policy statements. Once approved by both Houses, an NPS would have the force of law and therefore be very difficult to contest in the courts, but we will deal with those amendments later in Committee. In the mean time, the Minister may be able to clarify something when she responds. If the Secretary of State designates an old policy as a national policy statement, will it still have to go through the parliamentary requirements as laid down by Clause 9? At Second Reading, the noble Lord, Lord Greaves, said that, “if people are dissatisfied with the system and it is in disrepute, they will go to judicial review and the courts and the system will be clogged up”.—[Official Report, 15/7/08; col. 1229.] I agree with him. If the Government persist with the imperfections in Clause 12, they will create a rod for their own back and, instead of speeding up the planning process, the flawed NPS will be subject to endless legal challenges: judicial review, the UK courts, the European courts because directives have not been complied with, and the European Court of Human Rights because there was not, in the Minister’s words, a national debate and people’s views were not taken into account. We understand that the Government intend to adopt the 2003 air transport White Paper as the national policy statement in respect of aviation policy. I should probably declare an interest: I have flown this year; I flew last year; and I shall probably want to fly again next year. I have no particular axe to grind and I understand the arguments for expansion, but that policy is now five years old. If it were adopted as a national policy statement, there would be endless legal challenges, and I shall briefly give a few examples. First, if such a policy were being considered today, the proposals would first need to be subjected to a strategic environmental assessment to comply with EU directives which became law in this country by regulations in 2004—hence our Amendment No. 93. The aviation national policy statement would need to comply with those directives or risk legal challenge. Secondly, the Freedom of Information Act came into force in January 2005 but it was not until July this year that the Information Commissioner reported. The report was peppered with criticisms of the Department for Transport’s constant obstruction and prevarication in dealing with requests for information. Would that lead to legal proceedings? Perhaps it would. Thirdly, the Aarhus convention was ratified in 2005. The full title is the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. It lists airport development as one of the activities on which the public must have proper access to information, defined participation rights in the decision-making process and proper recourse in law. In so far as the UK Government had not ratified the Aarhus convention at the time of the air transport White Paper but have now done so, they have significantly greater obligations in these respects than they did in 2003. Legal proceedings? Maybe.
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Lord Cameron of DillingtonCrossbench- Quote
- I rise to speak to the stand-part debate on Clause 12. I start by repeating my mantra that these national policy statements are hugely important. They are a big step forward and are different from anything that has gone before. If they properly pass all the tests of democracy, they will be the key to making the IPC an effective and respected body. They will make the Bill work. National policy statements decided at a national parliamentary level with national consultation are a new development for our planning system, and they are a good idea. Whatever process was gone through for previous documents—PPGs, PPSs or White Papers—they were not examined by the Commons and the Lords or by the public in the knowledge that they were going to rule the decisions of the IPC on a range of bad-neighbour projects. Therefore, all national policy statements must start from scratch after the Bill has passed. It would be underhand for it to be otherwise. The Government will, of course, wish to start the NPS process from the basis of previous or existing statements, or even a White Paper—no one in his right mind expects them to start with a totally blank sheet of paper—and they probably want to get started now, before the Bill is passed. That is fine, but the process of debate and consultation must be as though they were starting from scratch. In that case, Clause 12 is redundant. I cannot see the point of it, unless the Government have some sort of ulterior motive.
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- Baroness HamweeLiberal Democrat
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- Six of the amendments in this group are tabled in my name. I shall start with Amendment No. 91, which stands on its own. The Minister and I have exchanged e-mails about it. It relates to Clause 12(1)(b), which states that, “the statement sets out national policy by reference to one or more statements”. If Clause 12 stands part, I propose that rather than referring to other statements, they should be included in whole or in part in the national policy statement. To allow reference to them could lead to a lack of clarity and certainty. There would be a temptation to be just a little bit sloppy and to abbreviate a bit too much. It is hugely important that the NPS should be clear for consultation purposes and when it is being implemented by the IPC. My other amendments propose that, rather than making use of a statement issued before commencement, the relevant period is between January next year and commencement—I do not know whether the Minister can tell us when commencement is likely to be—to ensure fresh consultation, appraisal, parliamentary scrutiny and so on in line with the intentions of the Bill. Like others, I am very concerned about the prospect of a pretty elderly White Paper, the air transport White Paper 2003, being converted without national consultation, with the sustainability and climate change debate having moved on. I appreciate the assurances given by the Minister, John Healey, when this was debated in the Commons, but this is an instance where we do not need to be caught up in the “I would not have started from here” syndrome. Like others, I believe that it would be overhasty for Clause 12 to apply. Specifically, on Clause 12(3), which would allow the Secretary of State to take account of pre-commencement consultation, does the Minister believe that on any matter that may be the subject of an NPS there has been consultation adequate for the Bill and for the ministerial assurances that we have had, especially given the way that consultation and designation processes have developed during the course of debate on the Bill? I sum up Clause 12 as undermining the statements and assurances that the Government have made. It seems to be saying, “PS. But we will get on with it come what may”. I am sure that is not what is in the Minister's mind, but it is hard not to read it that way, despite the good faith that has been expressed.
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- Lord Boyd of DuncansbyCrossbench
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- I have two quick points to make. I confess that I do not know enough about the 2003 air transport policy to know whether it would fulfil the criteria for a national policy statement, but, as I read Clause 12, it concerns power to designate a statement as a national policy statement, even if it had been issued, “before the commencement day, or ... sets out national policy by reference to one or more statements issued ... before the commencement day”, and allows pre-commencement consultation and publicity to be taken into account. Clause 5(2) defines national policy statements, and Clause 5(4) states: “A statement may be designated as a national policy statement for the purposes of this Act only if the consultation and publicity requirements set out in section 7, and the parliamentary requirements set out in section 9, have been complied with in relation to it”. So it is quite clear that the safeguards are there. Whether the air transport policy fulfils those conditions is another matter, which we can debate at a different time, but I am alarmed at the prospect of Clause 12 being removed altogether. For example, I am aware that at least the preparatory steps for consultation and publicity for the nuclear national policy statement have begun. BERR is undertaking the strategic siting assessment consultation at present. If Clause 12(3) were to be removed, there is a least an argument that the Secretary of State would be unable to take into account that consultation and publicity process, which is already being undertaken. Is that the intention of the Conservative Front Bench? It would be alarming if we were to go back to year zero, as it were, now, given the challenges that we face. We need to improve our infrastructure rather rapidly.
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Lord TylerLiberal Democrat- Quote
- Despite the safeguards to which the noble and learned Lord, Lord Boyd, referred, which are to some extent contained in other clauses, I confess that the whole of Clause 12 fills me with alarm. I share the concerns of the noble Lord, Lord Cameron, and the noble Earl, Lord Cathcart. It is rather extraordinary that the Government, at all stages of the Bill in both Houses, have said that this is a new, improved and greatly enhanced system that we are going to engage in in future. Yet we could treat previous examples as though they had gone through this process.
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- Lord Jenkin of RodingConservative
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- I declare an interest, which is in the register, as a consultant to the Thames Estuary Airport Company. I must correct the noble Lord. The mayor’s proposal is not a revival of the Maplin Sands project; it is for the construction of an entirely new island in the Thames estuary, where there is no airport at all at the moment. This project has gained a good deal of support. However, the mayor is not reviving Maplin, and we should make that clear.
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- Lord TylerLiberal Democrat
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- The noble Lord makes my point for me. What comes around goes around. I accept that it may not be precisely the same site—my geography is reasonable—but the point is made that the arguments that we were engaged in 30 years ago can come around again. That is the only point that I seek to make. Surely no one in your Lordships’ House is suggesting that that statement of policy or that consultation was appropriate to this, so we must narrow down very precisely what the Government have in mind or we could be ranging back. In the debate on the previous clause, the noble Lord, Lord Turnbull, quite rightly identified the dilemma of, on the one hand, trying to be specific and clear and avoid blight and, on the other hand, enabling communities in a democratic society to take proper decisions about where they prefer a particular development. That is what the Bill is all about. The Minister has very precisely indicated at all stages of the Bill, as have her colleagues in the other place, that this is a new and improved way of dealing with these problems. That is great, but if it is, how can the Government possibly maintain that there can be any element of retrospectivity going back to previous policy statements and previous consultations, because that would suggest that nothing will be improved under the present Bill and that there is no better methodology? Clause 12 is really most peculiar. In both principle and practice it seems to introduce an element of retrospective legislation, which this House, above all other parts of the democratic structures of our country, has always set its face firmly against. I hope that the Minister will be able to explain in her response to this short debate why the clause is felt to be necessary.
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- Baroness AndrewsLabour
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- I shall most certainly try to do that, but I do not think that I can improve hugely on my noble friend’s explanation, which was excellent. I did not expect the clause to command so much contention. It is completely benign. There is nothing sinister about it whatever, but the description offered by the noble Lord, Lord Tyler, was the exactly the opposite of what we intend to do. He is right about the NPS being a new way of doing things—it is necessarily so—but he did not understand exactly what the clause seeks to achieve. I am happy to try to make that clear, because I would hate to think that there was ambiguity about this. In brief, Clause 12 allows for a statement of policy that is issued before the commencement date to be designated as a national policy statement for the purpose of the Bill. The clause also allows the Secretary of State to take consultation and scrutiny carried out before the commencement day into account in deciding if the tests set out in Clauses 7 and 9 have been met. It also allows Ministers to treat an appraisal of sustainability that has been carried out before the commencement day as meeting the requirements of Clause 5(3). I have listened very closely to what Members of the Committee have said on the clause and the amendments about the timing. The noble Lord, Lord Jenkin, started by saying that he wanted to be sure that there was no temptation to avoid the processes which the Bill requires in terms of the high standards of consultation, sustainability and so on. As I address those amendments, I shall seek to ensure that he has that assurance. I will also address the amendments in the group tabled by the noble Baroness, Lady Hamwee. I understand the fears expressed by Members of the Committee that somehow here we have an intention to bring existing statements of policy being grandfathered into the new regime and bypassing the high standards that the Bill sets out for NPSs, which are key to the new regime. They must be robust, legitimate and credible. I should like to make it clear that the Bill provides clear safeguards which will ensure that all NPSs are subject to the tests set out in the Bill. I hope that that will satisfy the Committee that the clause is very important. The production of national policy statements where these do not already exist has got to be a thorough process, but, in all logic, it cannot be a wholly new policy process. Government policies on strategic infrastructure have developed and will develop over time at a different pace in different areas. In some cases, we will need to build on a range of work to develop policy which could contribute to a national policy statement, or a policy statement may have been issued, which appears to be a potential national policy statement, before the commencement date of this Bill. We are not talking about designating something that was written a long time ago and is out of date. The answer to the first question raised by the noble Lord, Lord Jenkin, coming from the Local Government Association, is that we certainly are not talking about designating an old policy statement and simply treating it as if it were new or did not have to satisfy any tests. I think that that was the assumption that the noble Lord, Lord Tyler, was making; namely, that somehow we would simply take previous White Papers or whatever and designate them as if they had gone through the process. That cannot happen. We are talking about ensuring that Ministers can take on board all the good work, the analysis, the evidence and the judgments that have gone into making current policy sound. It would not make sense to throw this away. We cannot start from scratch when we are looking at the balance of our energy needs, the distribution of our railway networks or where we need water in relation to building housing. We have a great deal of intelligence and evidence to suggest how we should go forward. But the national policy statements, for the first time, set out a clear direction of travel as to why we need infrastructure and, in some cases, where we need it. That is what is new. It is the processes of consultation, which are spelled out in great detail. Each state of the process from national policy statements through to the decision and sustainability will be the essential test of whether this national policy statement will stand up to public and parliamentary scrutiny. It is not sensible to throw that work away. We cannot start from scratch. It would be completely ridiculous to do that. Giving the Secretary of State this power to designate pre-existing statements of policy will enable us to take account of earlier work. At the same time, we recognise that the legal significance of national policy statements as the framework for IPC decisions in the proposed system means that it is vital that they all meet the requirements for national policy statements. It is not a question of dusting off anything. Accordingly, the obligation to carry out an appraisal of the sustainability of the policy set out in a national policy statement in Clause 5(3)) continues to apply in relation to pre-existing statements that are designated under this clause. Ministers would also have to ensure that the standards for consultation and scrutiny set out in Clauses 7 and 9 had been met. I can confirm that the clause allows Ministers to take into account consultation carried out before the commencement of the Bill, and indeed in response to a question put by the noble Baroness, the consultation on, for example, the air transport White Paper was very thorough. However, we have to apply different tests for national policy statements. As we come to debate consultation later, we will talk about the ways in which the new updated code for consultation might affect it. We made clear during debates in the other place that there is no question of bypassing the quality controls set out in the Bill for new statements of policy. I am happy to put that on the record again today. Before a pre-existing policy statement is designated as an NPS, Ministers will ensure that the standards for consultation, appraisal of sustainability, which we debated last week, and parliamentary scrutiny, which we are to debate in a while, have been met. In response to the noble Earl, designating a policy statement will mean going through the parliamentary scrutiny process. If NPSs are to be effective, whether they are based on new or existing policy, they must be robust and authoritative. Therefore I should say to the noble Lord, Lord Jenkin, that there is no incentive for us to try to cut corners. We need to demonstrate that we have done everything we intend in this Bill to make policy statements sound in their policy and credible in terms of public perception and understanding. This part of the Bill does not set out in detail how consultation should be undertaken because NPSs will vary greatly and therefore the consultation will also be different. However, this will not allow the standards for good consultation to be bypassed. We have made it clear that consultation will be thorough and effective, and will be in accordance with the recently updated code of practice on consultation. There may be difficult issues to address and tough choices to make in relation to NPSs, but our task is to expose these through consultation and inform the public so that we take them with us. Indeed, that was the exact phrase used the other day by some of the experts who came to advise us on the Bill. We want a serious national debate on serious national issues. The noble Lord raised the question of the aviation White Paper. Perhaps I may reply to some of his questions in this context because it is a good example. As I have said, before a pre-existing policy statement was designated as an NPS, Ministers would have to ensure that the standards for consultation and appraisal of sustainability set out in the Bill had been met. We are already committed to produce a further progress report on the air transport White Paper between 2009 and 2011, which will provide a good opportunity to designate the ATWP in conjunction with that report. But let me reassure the noble Lord that there can be no suggestion that the ATWP will be designated as an NPS wholesale without undergoing the process set out in the Bill. The Government have stated their intention to produce an NPS for airports that will integrate the air transport White Paper in a way which meets the policy and the statutory requirements set out in the Bill. It will therefore be subject to an appraisal of sustainability, consultation and parliamentary scrutiny. We will be scrupulous in ensuring that it meets the standards set in the Bill, and if necessary further work in those areas will be carried out as part of the progress report. Further, Parliament will obviously scrutinise what Ministers have done before any NPS, including the aviation NPS, is designated, and will doubtless make sure that if there are any problems, Ministers would take them into account before final designation. If, ultimately, people still felt that the Government had not met the standards in the Bill, we would be liable to challenge in the courts. Amendment No. 93 in the name of the noble Lord, Lord Dixon-Smith, and the noble Earl, Lord Cathcart, would alter Clause 12 to require that where a Secretary of State wished to designate a pre-existing policy statement as a national policy statement an assessment would be carried out in accordance with the SEA directive We discussed that issue briefly last week and I would not wish to detain the Committee unnecessarily by repeating those arguments here. We will ensure that pre-existing statements of policy will have to meet the same standards for appraisal of sustainability as new statements of policy before they can be designated. As the noble Baroness, Lady Hamwee, said, Amendment No. 91 would prevent Ministers from designating policy in a national policy statement by reference. The amendment would require instead that all policies be incorporated into the text of the NPS and that if there was a reference it would have to be clear—not elliptical, not sloppy and not ambiguous. I take her point. Where Ministers designate policy by reference, they will do so clearly. It is necessary that we do so because, if national policy statements are to be effective, they will have to be comprehensive in order to demonstrate that they have taken on board the range of relevant policies. To ensure that that is possible across the suite of NPSs, we have to have flexibility to make external references without incorporating every detail—otherwise we would end up with an NPS of considerable size. We intend that statements will be taken into account, but we have to do it by reference. I take the stricture about the necessity for clarity—this is already being scrupulously addressed—and for the business of cross-reference to be clear. I take the point that the noble Baroness is making, but incorporation will not solve the problem. However, I have listened to what she has said. This has been an important debate. I hope that I have reassured noble Lords that the clause is necessary as a statement of what we have to do in order to be sensible and consistent with policy work that has gone on previously and to ensure that we can make best use of our resources, our intelligence and our forecasting. I hope that the noble Lord will feel able to withdraw his amendment.
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- Lord Jenkin of RodingConservative
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- I have lit a fuse that has gone off all round the Committee. The anxieties about Clause 12 are very real and, with the greatest respect to the Minister, I am far from satisfied that she has answered all the queries. I heard what she said, for instance, about the aviation White Paper, but I am completely unclear as to what further processes the Government envisage if they intend to build on the aviation White Paper as the core of a new national policy statement. I was wise not to try to speak to all the amendments in this group because everyone who has spoken—and I am extremely grateful to all those who did—has raised considerable anxieties. I heard clearly what the noble Baroness said and I note that there is no temptation to cut corners and no question of bypassing the requirements of the Bill, but I am not at all clear, from what she said, how that is going to be achieved. The aviation White Paper is one example and a number of others were mentioned. I do not want to prolong the debate. This has turned out to be an important issue. We all support the concept of the national policy statements. We have a number of queries about the details and the procedure but I think that all parts of the Committee consider it a positive and encouraging step forward. I want to see the Bill on the statute book with that in it, but the suggestion that the Government can go back and rake over old policy statements and, as it were, tart them up so that they appear to comply with the requirements of the Bill is immensely worrying. The noble Baroness should not be surprised if a number of noble Lords in various parts of the Committee, having studied her remarks carefully—as I shall certainly do—will want to come back at a later stage to try to get greater clarity and, if necessary, perhaps strike Clause 12 from the Bill. But that is for the future. For now, of course, I am happy to withdraw the amendment. Amendment, by leave, withdrawn. [Amendments Nos. 43 to 55 not moved.] Clause 5 agreed to. Clause 6 [Review]:
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- Lord Dixon-SmithConservative
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- moved Amendment No. 56:
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- Baroness HamweeLiberal Democrat
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- I thought that “continuously” was a bit hard on the Secretary of State. My Amendment No. 58 refers to, “not less frequently than every five years”. That is my bid for certainty. Amendment No. 61 would enable a parliamentary challenge to the Secretary of State’s decision that an amendment to an NPS is not material. Included in the group are my Amendments Nos. 88 and 89 to Clause 11. I become more reluctant, as the years go on, to enter into the may/shall debate, but it seemed to me on this point that if the Secretary of State had gone through all the processes and come to the conclusions that Clause 11(1) predicates, rather than saying that she “may” suspend the operation of an NPS, the Bill should say that she should do so, because it is so extreme. That is my first proposed change to Clause 11(2). Amendment No. 89 would enable the Secretary of State to suspend the operation of the part of the NPS that was affected. She should not be at liberty to change some unrelated part. I am sure that that is not intended, but the provision reads as if it might be a possibility.
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- Lord Jenkin of RodingConservative
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- I share the anxiety of the noble Baroness, Lady Hamwee, about the word “continuously” in the amendment moved by my noble friend on the Front Bench. I am not sure how that would work. My amendment and that of the noble Baroness would require a clear, fixed period after which there must be a review. The wording of our amendments would mean that, after five years, there would need to be a review. That is a maximum; it is entirely open. If there is a major change of circumstance, a national policy statement could be reviewed earlier than that. However, simply to leave it at large to the Secretary of State to decide when to review, which is what the Bill says, is quite unacceptable. We all recognise that we are in a world of rapid change. We are also in a world in which there are often great public, even political, sensitivities—that is the subject matter of the Bill. However, if there is a duty on the Secretary of State not to leave a review longer than five years, it will be clear what he or she then has to do. It is better to be specific on these issues than simply to leave the matter at large.
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- Lord TurnbullCrossbench
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- No case should ever go to the IPC on the basis of a stale NPS. That is the abuse that we want to stop. There may be an NPS where the project has taken place and there are no further applications. It is not necessary to review an NPS in which there is no prospect of any cases being brought in that area. However, where cases are being brought, I agree that there should be a presumption, created somehow or other, that the NPS should be reviewed and that one cannot go to the next stage on the basis of something that is old.
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Lord BridgesCrossbench- Quote
- I intervene briefly and with some hesitation, because I am disturbed equally by the existing text and the proposed amendment. They alight on the point of central difficulty in the Bill; namely, how we have a solid, sensible policy, carefully worked out at the centre, which will apply, almost invariably, to a particularly difficult and sensitive part of the country. I am not convinced that we can put down in words a solution to the problem. It will require great sensitivity on the part of the Ministers concerned and a realisation that, however far you think that you are looking ahead in making a decision about a new airport or nuclear power station, something may come along and you may have to change your policy. We should ideally try to find a form of words that commits the Government of the day to a serious policy and to making every effort to get everybody to agree with it, but which admits to the possibility that, in exceptional circumstances and after careful consideration, you might have to change it. That is a difficult task, but I do not see it in the Bill.
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- Lord Boyd of DuncansbyCrossbench
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- I think that everybody would agree that there has to be a review process and an obligation to undertake it. I question whether putting in timescales is the right way to go about it, because that might suggest that the Secretary of State does not have to review until the five-year period, or whatever period is stipulated, is up. Equally, to say that the policy statement should be continuously reviewed may impose an undue obligation or undue pressure on the Secretary of State. I draw the Committee’s attention to Clause 13(2), which relates to legal challenges. It states: “A court may entertain proceedings for questioning a decision of the Secretary of State not to review a national policy statement only if”, certain conditions are fulfilled. The clear implication is that, if a request was made to the Secretary of State that circumstances had changed and that there was now material on which he should review the national policy statement, and he then, having taken account of that, refused to do so, the court could entertain a challenge to that. There will always be a trigger; when people put new information before the Secretary of State, he or she will have in his or her mind the clear stick of a possible judicial review. These are difficult issues. I appreciate that we are all trying to get to the same point. The threat of judicial review on the Secretary of State’s refusal to review a national policy statement provides an obligation on him to do so when there is new material.
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- Lord Jenkin of RodingConservative
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- Does the noble and learned Lord share my feeling—he referred to Clause 13—that with the whole of these provisions one is leaving too much to the courts via judicial review? As I said the other day, this has got a bit out of hand. The figures show a hundredfold increase in judicial review cases in recent years on what went before. I find the readiness of the courts to engage in policy making, usurping the function of the Executive and legislature, a disturbing development. It should be possible for Parliament, when considering the Bill and particularly this question of the review, to reduce the prospects of an appeal via judicial review by being sufficiently specific. I recognise that the clause from which the noble Lord quoted seemed to envisage a whole lot of judicial review, but I would have thought that we would want to reduce the possibilities of that. Apart from anything else, it introduces a whole new dimension of uncertainty. As the Minister has frequently said—and I entirely agree with her—one purpose of this legislation is to try to reduce uncertainty, so that investors and those who will spend huge sums of money on building up the infrastructure have a much clearer idea of where they stand. That was a long intervention, for which I apologise, but does the noble and learned Lord, Lord Boyd, with his great experience in this, feel that there is substance in what I am saying—that we should try to be more specific to reduce the opportunities for judicial review?
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- Lord Boyd of DuncansbyCrossbench
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- Whatever our respective views on judicial review, its growth is a genie that is out of the bottle. I suspect that we would have great difficulty putting it back in completely. The Bill attempts to limit and confine the areas on which there might be judicial review, which I think is the purpose behind Clause 13. I suspect that, even if that clause was not there, the Secretary of State would always have the prospect of a judicial review of a decision not to review a national policy statement if material was placed before him that was relevant to his policy. I pointed to the clause to show the Committee that beyond any doubt there is a right of judicial review in those circumstances; it is prescribed in certain respects but, in any event, it would be there anyway.
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- Lord Jenkin of RodingConservative
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- I am most grateful for that. I apologise for detaining the Committee a moment or two longer. We may come to this matter on Clause 13, but there is a real concern here. The noble Lord, Lord Turnbull, will know from being in the Civil Service that there is a document called The Judge Over Your Shoulder. It was so important for senior officials to realise that that was the environment in which they had to operate that it was quite recently republished. I find this a disturbing prospect because it gives rise to a significant degree of uncertainty about how the whole system will operate. It is a sort of unexploded bomb that can blow up the best-devised plans and processes and make everyone have to start again.
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Lord Mackay of ClashfernConservative- Quote
- It is strange that in this clause the Secretary of State “must review”, but then you find that it is when he “thinks it appropriate”. How does that work? How does the compulsion operate? It is not the clearest possible formulation of the Secretary of State’s position. Perhaps the provision should read, “whenever it is appropriate to do so”, without the Secretary of State's opinion being necessarily the determining factor. For example, it should be possible to indicate some factors that would point to a review such as those referred to by the noble Lord, Lord Turnbull. Are there applications in the area of the particular policy statement in question that raise issues about whether the policy statement is really up to date? I have some views, of course, on the point made by my noble friend Lord Jenkin of Roding about judicial review. The best way to limit judicial review is to make it clear what the intentions of Parliament are in relation to these matters. Clause 13, which we will come to, is intended to assist in that process.
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Lord Woolmer of LeedsLabour- Quote
- It would help me, if not other noble Lords, if the noble Lord, Lord Jenkin, could advise us on the following point. Clause 6 states that the Secretary of State, having reviewed a national policy statement, might “amend”, “withdraw” or, “leave the statement as it is”, and the need for public consultation in subsection (4) applies only if an amendment is proposed. If I have read this clause correctly, there is no obligation to have a public consultation on a review of a national policy statement. It would be helpful if the Minister could clarify that because, if the Secretary of State was under an obligation to review every five years or continuously, and if that meant that as part of the review process the full panoply of public consultation had to take place, you could be in a never-ending process of consultation. We are dealing with major infrastructure issues, and the last thing that the infrastructure industries would want is continued uncertainty about whether there is confidence to look ahead for years. We are dealing with areas that are looking for more confidence about long-term frameworks. My question to the noble Lord, Lord Jenkin, and to my noble friend the Minister is: when a review of the national policy statement is under way would that be accompanied by the whole process of consultation? If so, I for one would be loath to see in the Bill a review either continuously or every five years. That will mean that even before the five years was up a whole process of consultation would be going on. There will be no stability at all, because in the minds of the industries concerned, a review must mean that the policy can change. If the presumption is that policy can change every five years, decisions would have to be reviewed with all the necessary consultation. People who like to see change would argue strongly for it and Parliament would have to debate it. That could be a real problem. It would be helpful to me at least to see how these amendments tune in with the whole question of consultation and review.
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- Lord Jenkin of RodingConservative
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- I shall not reply at length to the question of the noble Lord, Lord Woolmer; I am quite happy to leave that to the Minister. However, I am delighted that my noble and learned friend Lord Mackay is directing his considerable intellect to this question. He may be able to help us on how best to devise a form of words that reflects what most people seem to want. There should be a process of regular review whenever necessary. However, on the amendment—like the amendment of the noble Baroness, Lady Hamwee—if a review produces changes which do not materially affect the main thrust of the thing, there should not necessarily be the whole panoply of consultation and parliamentary consideration. As a result of this debate, I do not think the clause has it right now. However, perhaps we shall hear from the Minister; she may be able to reassure us.
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- Baroness AndrewsLabour
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- I am grateful to Members of the Committee for struggling to help me with the clause. I have listened to all the advice that has come across the Committee about how we can make it better. My first task is to explain what we think that it will do, and why it takes the form that it does. The noble Lord, Lord Jenkin, began by saying that we all really want to get to the same simple place: to ensure that decisions should not be made on outdated policy. Our debate has largely been about that, because we all agree with it. I will argue that there is provision for necessary flexibility of review within a stable environment in the Bill, which is what we want. By putting forward different sorts of timescales, the amendments challenge that. The suggestion of the noble Lord, Lord Dixon-Smith, about “continuously” has been pretty comprehensively dealt with. It is in fact a recipe for general instability. We certainly do not want a continuous revisiting of any NPS in those terms. Reading Clause 6 alongside Clauses 11 and 106, we find that they set out the circumstances in which a review might be appropriate: when there is a significant change in circumstances on the basis of which any policy set out in the NPS was decided, and where, were the policy different, it will make material difference to decision making. We are looking at circumstances which change the basis on which policy is decided. I am grateful to the noble and learned Lord, Lord Mackay, for his intervention. The problem with trying to find a trigger and describe a set of circumstances is that national policy statements will vary significantly with different types of infrastructure. In some cases, the policy framework over the next 10 to 30 years may change rapidly and significantly. I am not enough of an engineer or a scientist to be able to say which technologies; maybe the noble Lord, Lord Jenkin, can. However, different technologies such as clean technologies will certainly come on-stream. We hope that carbon capture will come on-stream. There may be things that move faster than that, which we cannot currently predict. Other aspects of technology and heavy engineering may change more slowly and incrementally. This is why it is difficult to pin down in the Bill exactly what we would look for in terms of a change of circumstance, so the flexibility for the Secretary of State to respond to circumstances with the information at his or her disposal is crucial. That is why a rigid review of five to six years is inappropriate. A continuous review creates its own problems, but a rigid review might miss the point altogether. This takes us into the question of ministerial accountability. I shall come to that in a moment. We have had previous long discussions about why national policy statements now offer an opportunity for the Secretary of State to be visibly accountable for setting policy in a way that Ministers are not at present. That policy will then determine the way in which planning decisions are made. Being able to judge the circumstances on the basis of evidence that the time is right to update a statement is a challenge but is the right and proper responsibility of the Minister. We seek to create a stable and certain environment for infrastructure development to allow investment decisions to be made and to allow opportunities for the NPSs to serve exactly the purpose for which they are intended—to be an up-to-date and robust statement of what is necessary.
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- Lord Woolmer of LeedsLabour
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- Is my noble friend saying that if a review of the policy statement takes place, that in itself does not require the full panoply of consultation, but if the review leads to a proposal for amendment the consultation will take place? Is that what she is saying?
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- Baroness AndrewsLabour
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- That is my understanding. As this matter raises quite technical issues, I shall send a full letter to noble Lords dealing with this debate and that on the previous amendment.
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The Earl of CaithnessConservative- Quote
- I am grateful to the Minister for giving way. What happens if the proposed change is politically driven? For example, the current Secretary of State may decide, after full consultation, that there will be a third runway at Heathrow. However, the Conservative policy is not to have a third runway at Heathrow. Nevertheless, there is an existing national policy statement for a major piece of infrastructure. I refer also to the decision taken on the M40 in 1997, which was changed by the Labour Party. Following the point made by the noble Lord, Lord Woolmer, does one have to go through a further publicity exercise when a subsequent Secretary of State takes a totally different view on the previous consultation and wants to do something different?
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- Baroness AndrewsLabour
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- National policy statements set out the criteria on which decisions are made. The criteria are based on evidence, intelligence and foresight and are subject to public scrutiny and parliamentary process. On that basis, I suggest that it is difficult for a politically driven judgment to be made, because so much will have been settled in policy. However, if for the reasons that we have discussed the NPS has to be changed to reflect changing technologies, forecasts or whatever, and that requires not a third runway but another option, clearly that process would require public consultation. I plough on. To return to the noble Baroness’s amendment, if the Secretary of State thinks that the proposed amendment does not materially affect the policy as set out in the national policy statement, subsection (5) of Clause 6 disapplies the requirement for the sustainability appraisal, consultation and publicity. That is the converse of the statement that I have just made. The noble Baroness’s amendment would require the Secretary of State to lay an order designating the proposed amendment as not materially affecting the policy. That would bring the order within the parliamentary procedure for statutory instruments. Such a safeguard is not proportionate, because some revisions to NPSs—the noble Lord, Lord Jenkin, pointed this out—may simply reflect smaller administrative changes. Requiring a parliamentary process in those circumstances would not be appropriate. I assure the Committee that any material policy change will be subject to the full procedure. Given my assurance that I will write to noble Lords and pursue some of the questions that they have raised about the change of circumstances and public consultation on the changes, I hope that the noble Lord will be able to withdraw his amendment.
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- Lord Dixon-SmithConservative
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- I had not supposed that my rather naive amendment would provoke such an intense and appropriate debate. I am grateful to all those who have contributed. Like the noble Lord, Lord Woolmer of Leeds, I agree that we cannot have continuous uncertainty. That was not the intention of the amendment. It is certain that progress in scientific development and change will not comply with any timescale that we are stupid enough to write into the Bill, so there must be a mechanism. I am grateful to the noble Baroness for drawing our attention to Clause 106, which deals with a “significant change in circumstances”. Surely if the system was working properly the significant change in circumstances would have provoked the review anyway, before it got to the commission, and the Secretary of State would have had to intervene in what I would call an active planning application. There are difficulties in what the noble Baroness has said. A moment ago, my noble friend Lord Caithness intervened to ask what might happen if there was a politically driven consultation. I remind the noble Baroness, although I am sure that she needs no reminding, that this became an issue during consideration of the housing legislation, when there was a question of whether housing should go to the housing association or stay with the local authority in particular circumstances. At that point, it was deemed that, if a local election had been clearly won on the basis of a clear proposition that the housing should be determined in a particular way, that was a sufficiently adequate public consultation. I find myself wondering whether that in fact answers my noble friend’s question, but I suspect in the case of the Bill that it does not. That means that we shall have to treat the answer—
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- The Earl of CaithnessConservative
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- I say to my noble friend that I do not want it on the record that I was talking about a politically driven decision. It is a decision taken by a politician, which is very different. I remember when I was a Minister having exactly this argument with Mr Wedgwood Benn, who, there having been an inquiry, took a totally different view from mine and wanted me to change my mind. It is not politically driven; one party takes a view of what the national policy should be and, when that party is elected, it can change the national policy statement without a whole other inquiry and public consultation, because it had that during the election campaign.
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- Lord Dixon-SmithConservative
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- I am grateful to my noble friend, but he has reinforced the statement that I made some time ago that all these major decisions really ought to be taken finally at the political level, because they are essentially political decisions. That is what the Bill has been trying to escape from but, in the end, it cannot do it. I am particularly grateful to my noble and learned friend for his intervention, because it seems to me that we have to think carefully about this. Certainly, his advice was very helpful. I hope that when the noble Baroness takes the trouble to write, she will perhaps be able to provide a little bit of certainty after a debate that, if I may say so, has increased our uncertainty rather than resolved it. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendments Nos. 57 to 61 not moved.] Clause 6 agreed to.
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- Earl CathcartConservative
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- moved Amendment No. 62:
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Lord ColwynConservative- Quote
- I wish to say a few words about my Amendment No. 65A. The question of health hazards from power line electromagnetic fields has been a subject of media attention for many years. The problem has been discussed in your Lordships’ House on many occasions in the past 25 years, most recently during our consideration of the Housing and Regeneration Bill in July. The first major western study—by two American researchers, Nancy Wertheimer and Ed Leeper—was published in 1979 and linked electromagnetic fields from power lines and domestic wiring to an increase in childhood cancer. Since then, the evidence has become stronger and, following Swedish studies in 1993, which showed a consistent doubling of childhood leukaemia risk, the National Grid has been forced to defend itself, including against inquiries from the public and the press and even against threats of legal action. In 2005, a study by the Department of Health—the Draper report—found that children living from birth within 200 metres of high-voltage power lines had a 70 per cent increased risk of developing childhood leukaemia. The statistical association is clear, but more research is needed to find the biological mechanism that links electric and magnetic fields from power lines with childhood leukaemia. I assure the Committee that high-voltage overhead transmission lines will be the subject of a national policy statement. My amendment is similar to that tabled by Richard Benyon in the other place. It would place a requirement on the Secretary of State to consult on potential health risks arising from national planning policy during the drafting of national policy statements. There is concern that the proposed system will allow much less consultation and representation from members of the public, as the IPC will be given only six months from the initial meeting to take evidence and another three months to deliberate. The IPC can decide what subjects are relevant to the discussion at the evidence sessions and can explicitly exclude subjects that are deemed to be covered by a national policy statement, which could include health. I know that the Minister will probably repeat the comments that she made during our consideration of the Housing and Regeneration Bill. It is important for everyone that the matter is carefully looked at and that more research is carried out. It is particularly important for children who live in those regions.
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Lord JuddLabour- Quote
- I shall speak to Amendment No. 74. I declare an interest as the honorary president of the Friends of the Lake District, which represents the CPRE in Cumbria. I am also a vice-president of the Council for National Parks. Those interests will apply to some of our further deliberations. I very much appreciated the courteous and full letters from my noble friend Lady Andrews in response to some of the anxieties that I have raised with her. I am sure that other noble Lords have shared that experience. I am glad that the Government have included the concept of consultation. When that is put in a Bill, all sorts of arguments can arise about who is included or excluded. It is terribly important to throw the net as widely as possible. That is not just a good principle in a democracy; it is also a way of winning, as far as possible, public identification with what is finally undertaken. Other specific organisations are charged with heavy responsibilities that have a real bearing on the Bill; among those, of course, are the national parks. In my experience, Ministers repeatedly have emphasised in glowing terms how important they believe the national parks to be and how much the tasks that their authorities undertake are respected by the Government. To provide a flavour of that kind of expression, I shall quote from a speech given by my right honourable friend Hilary Benn to the Association of National Park Authorities conference on 17 September. He was speaking as Secretary of State for Environment, Food and Rural Affairs. It was a splendid speech and I wrote to him to say so, because it absolutely captured what the national parks are all about and the role that they play. It was almost poetic at points and it was moving, because of his personal identification with the issue. When referring to the creation of the parks, he said: “It was through this people’s charter that we conserved some of the most important and iconic landscapes in our country and enabled people to see and to enjoy them. And now you”— he was speaking to the authorities— “are the guardians of this charter. And the real reason I wanted to be here today was to say thank you—to all of you—for the hugely important work that you, and all those who’ve come before you, do. And because of what you do, today our National Parks are more important than ever. They cover 8% of England, and important parts of Scotland and Wales too. Over 90% of people”— I presume that he is referring to public opinion polls— “say that the Parks are important to them. 96% think that experiencing the Parks should form part of the education of every child in the UK. I agree”. Perhaps I may quote once more from that speech: “Home to some 200,000 people, including 12,000 farmers—vibrant communities, thriving businesses. And we must ensure that the homes and local services are there to meet people’s needs. That’s why we are committed to delivering over 10,000 affordable homes in communities of less than 3,000 inhabitants before 2011. We spent this morning at Hawkshead discussing how that could be done in one particular village. Far from being a barrier to development, National Park status can bring a significant boost to the local economy, attracting new visitors, businesses and investment. We must continue to work together to realise that potential”. I need not say more. Here is the strength of feeling of a Secretary of State and Government about the role of the organisations that are charged with planning responsibilities. In those circumstances, I believe that it must simply be a drafting oversight that national parks are not included in this clause where my amendments suggest they should be. Having said that, I am certain that, in the light of her right honourable friend’s commitment, my noble friend will feel able to go away and look at this principle and come back with some kind of positive response.
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- Lord Jenkin of RodingConservative
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- I have two amendments in this group but before I come to them perhaps I may say to my noble friend Lord Colwyn that in Grand Committee on the Energy Bill we had a very good debate in the Moses Room on the exact problem that he has raised tonight of the apparent impact of electromagnetic radiation from power lines and the strange association with childhood leukaemia. However, as he rightly said, the problem at present is that there appears to be no scientific evidence of causation. We are waiting for a government report on this, which perhaps the noble Lord, Lord Hunt of Kings Heath, could comment on. I do not intend to return to this matter at the Report stage of the Energy Bill—although of course other people may do so—because there is no point until we have the response to the report setting out the Government’s evidence on it. Nevertheless, it is a strange phenomenon. I turn to the two amendments to which I have put my name. Amendment No. 66 is simply about ensuring that disabled people are able to access any consultation. As I have mentioned before, for 10 years I was on the council of the Guide Dogs for the Blind Association. There is a constant complaint from people who suffer from a sight disability that they are not taken into account on these matters and that they have the greatest difficulty in accessing the information that is necessary for them to have an input. The GDBA has drawn my attention to a number of focus groups on the issue of consultations and it has given me some rather poignant quotations from people who were consulted. One blind person said: “Everything was ‘we are doing this, we are going to do that’. We argued against it—but they took no notice”. Another said: “I went to one meeting and they didn’t listen to us—they just didn’t listen. It is always statistics and more statistics”. We can all express some sympathy with that. One guide dog owner said: “It knocks your confidence when you go to meetings and get ignored”, and so on. Therefore, it seems to me that in this day and age there is a clear duty on any public authority engaging in consultation to ensure that the form that the consultation takes is accessible, and can be responded to, by people who suffer from, in this case, a sensory disability, although that applies to some extent to other disabled people as well. Amendment No. 84 is addressed to a somewhat different and rather wider point. It would insert a new clause concerning access for disabled people. We have discussed sustainability and Clause 9 requires the Secretary of State to promote sustainable development in drawing up planning policy statements. The organisations representing disabled people ask whether there should not be the same obligation relating to access for disabled people. The new clause is therefore designed to promote that. However, clearly, if there is to be a major infrastructure development where public access is required, it is much better that that should be firmly built in at the beginning rather than be an add-on later, which is always less satisfactory and more expensive. Therefore, I think that those organisations are asking the Secretary of State to draw up the national policy statement with the objective of contributing to the achievement of an environment accessible to disabled people. I do not think that that is asking a great deal but it would make a considerable difference to the responses that may come forward and, I suspect, to those who will promote projects under the aegis of a national policy statement. It should be as much a core issue as sustainability or design. We have debated both of those issues and this gives us an opportunity to make the same point in relation to disabled people. I hope that the Minister will be able to give a favourable response.
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- Lord Cameron of DillingtonCrossbench
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- My Amendment No. 72 would merely place in the Bill the requirement for a local consultee, which in my view it would be inconceivable to leave out of any genuine consultation process. I suspect that the omission of parish councils stems from the usual city-based, departmental process, where the parish councils often do not mean a lot to the people involved—an absence of rural proofing, one might say. If you live in a rural village or market town, the views and decisions of the parish council mean a lot to you. Local newspapers will often report their decisions and debates in much more detail than those of the district or county council, which are of course more remote. Indeed, many parish council decisions probably affect local people’s lives more than these rather more remote councils. I am sure that the Government will look in favour on this amendment because in recent years and months they have deserved credit for enhancing the role of parish councils by aiding their training and opportunities, assisting with parish plans, encouraging quality parishes and easing the passage of the Sustainable Communities Act, and indeed through the Communities in Control: Real People, Real Power White Paper, published earlier this summer. Therefore, it seems inconceivable that they could do all that for parishes and then commit the sin of omission by ostensibly excluding parish councils from a consultation process on something that could dramatically affect their lives. It is probably not immediately obvious to those who live in close-knit metropolitan areas that it is quite likely that an outlying parish in an urban-centric district council, such as mine in south Somerset, will take a different view from that of its district council. Sometimes, particularly on planning decisions, the district council takes a totally divergent view from that of the parish involved. Thus the parish council must be allowed to have its own say in the process. Even surrounding parishes should be included because Clause 8(3) already refers to contiguous parishes in this instance. Even if, as is quite likely, a parish takes a rather dim view of these bad neighbour developments and in the national interest has to be overruled, it is important to recognise that it will inevitably have a far better idea of which local mitigation measures will work effectively to reduce the damage to local people’s lives. Parish council views may be very different from those of the district or county council official who is often based in a town 20 or 30 miles away. I hope that it will please the Minister, who wants to speed everything up, that in speaking to Amendment No. 72, I shall also speak to Amendment No. 189. Amendment No. 72 refers to national policy statements that are site specific, so the parish is involved. Amendment No. 189, which is in a later grouping, refers to the developer’s pre-application procedure, but it is obviously very important that any applicant consults with parish councils and gives them an opportunity to submit their views. Amendment No. 292 to Clause 99, which is in yet another grouping, governs in various places the procedures of the IPC, such as in Clauses 58(2)(a) and 54(2)(b). My remarks will refer to those three amendments. I hope that the amendments merely correct an oversight by the Bill team and that the Government will see their way to accepting them. It is inconceivable that the views of the parish council would not be sought by Parliament when discussing a site-specific NPS or by the developer and the IPC. It is extraordinary that the Government who are so keen on parish councils should not put that in the Bill. I hope that they will accept that simple amendment.
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Lord GreavesLiberal Democrat- Quote
- This is an important group of amendments about consultation and publicity arrangements on national policy statements. A little amendment, Amendment No. 73, which is in my name and that of my noble friend, is tucked away in this group. We have also added our names to Amendments Nos. 66 and 84, which were tabled by the noble Lord, Lord Jenkin of Roding, on the ability of disabled people to take part in the consultations and developments. I shall say no more about those because the noble Lord introduced them in an excellent way and we agree with everything that he said. I also added my name to Amendment No. 74, tabled by the noble Lord, Lord Judd, on national parks. I was asked to do so at a time when we thought we might reach this amendment on Monday last week. The noble Lord obviously shared the Minister’s optimism about the progress of this Committee. But I shall say something about it shortly. I want to give the support of the Liberal Democrats to the general collection of amendments tabled by the Conservatives and spoken to by the noble Earl, Lord Cathcart. The only reason we did not table similar amendments is because they pre-empted us and there was no need to duplicate them. There is a view, which we hold, that the Bill is too general and too vague on how public consultation and publicity on national policy statements will work.
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- I shall take the opportunity of the noble Lord’s important remarks to make another point that naturally follows from them. If legislation gives national parks this special planning responsibility, and people volunteer their services to do a serious job of work on that responsibility, and great care is taken in their selection so far as national representatives are concerned, is it not a slap in the face that they are not explicitly to be one of the bodies to be consulted in this process?
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- Lord GreavesLiberal Democrat
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- I agree. It seems to be an oversight, and we hope that the Government will put it right.
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Lord Williamson of HortonCrossbench- Quote
- I support this general collection of amendments, as the noble Lord, Lord Greaves described it. The motivation is similar in almost all of them. In the Bill, we are engaged in a process of accelerating and improving the planning procedures for massive projects that will affect an enormous number of people. I am in favour of that. However, when the public fully comprehend what we are doing, they will ask two questions: who is going to be consulted and by what means will people discover what is proposed? Those are the points that will come to the top of the pile when people begin to discover what is happening. I support these amendments about the process of consultation and the publicity for it. I specifically support Amendment No. 74, which was tabled by the noble Lords, Lord Judd and Lord Greaves. As they say on television, it is location, location, location that matters. Even if a project is excellent, if it is proposed to be in a national park, it is obvious that the national park, as the planning authority and the guardian of that part of our countryside, needs to be properly consulted. I hope that the Minister will be in a benevolent mood, as she often is, in relation to Amendment No. 74 in particular, but if she wants to favour all the others as well, I will be happy.
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Lord ReayConservative- Quote
- I support Amendment No. 72, which is tabled in the name of the noble Lord, Lord Cameron. I do not think that parish councils should be squeezed out of the consultation process. They easily could be, and a formal reminder that they have a right to be consulted would be a very good thing. I also support Amendment No. 74, tabled by the noble Lords, Lord Judd and Lord Greaves. The Bill does not recognise that protection of the landscape should be a factor in decisions about where nationally significant infrastructure projects are sited and what sort of projects should be sited in what sort of areas. I hope that, following the debates we had last week, at the next stage there will be a reference in the Bill to landscape. This amendment would reinforce that message. In many cases, there are plans to extend national parks, which can be pre-empted by developments that take place beyond the current frontier of the national park. That is another reason why the views of national park authorities should be sought. A national park authority is a local authority for the purposes of the Bill and it should be treated as such.
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Viscount Colville of CulrossCrossbench- Quote
- I want to add a few questions to those raised by the noble Lord, Lord Greaves, about consultation. This matter has puzzled me since I started to read the Bill, and it has puzzled me all afternoon. As my noble friend Lord Cameron said, it is clear that when an application is being considered for a particular project, Chapter 2 of Part 5 provides for another set of consultations. They will be specific to the project concerned. At this stage, we are talking about the national scene, and I see that Clause 7(5) deals with policy statements where there is a specific description or site for the proposal. This applies to nuclear power stations and airports, but not to the rest. I should be grateful if the Minister would explain what the subject matter of the consultation will be in these other cases.
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Lord ChorleyCrossbench- Quote
- I shall speak principally to Amendment No. 74 to Amendment No. 65. I shall start with Amendment No. 74 in the names of the noble Lords, Lord Judd and Lord Greaves, regarding national parks, which has been referred to by several speakers. I am delighted to support them on the amendment. The noble Lord, Lord Judd, is president of the Friends of the Lake District. I am merely one of his vice-presidents. As he said, he is a vice-president of the Council for National Parks. I am also a vice-president. I think that those are the only interests that I have to declare. The point has been made—so I will not elaborate on it—that national parks are planning authorities in their own right and that therefore it should be axiomatic that they should be consultees on the same basis as the various local planning authorities listed under Clause 8. I should like to think that this is a question of, “Homer nodded”. Nevertheless, it is a curious fact that the Council of the Scilly Isles is a consultee but none of the eight or nine English national parks is a consultee. It is possible that most of the proposals that will be directly relevant to national parks will have to do with wind farms. There may be road, railway or electricity grid schemes, and so on, but I suspect that wind farms will be one of the most contentious areas. I suspect that the issues will be not so much about wind farms proper but about wind farms adjacent to national parks. Therefore, it is rather important that, when we bring national parks in as consultees, the area of consultation should be wider than the specific boundary of the national park. Clause 8 (2) states: “A local authority is within this subsection if any of the locations concerned is in the authority’s area”. What is adjacent to the area is also important. Turning to Amendment No. 65, although my main concern has been to include national parks in the Clause 8 consultation process, it is equally important to say, although the noble Lord, Lord Greaves, did not emphasise it, that the other relevant agencies listed in that amendment should also be included in Clause 7. I assume, incidentally, that in including Natural England, the other important landscape categories of areas of outstanding national beauty and SSSIs would be covered in the consultation process. That is important. Time goes on and I will close on that note.
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- Lord BridgesCrossbench
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- I shall speak briefly on a similar point arising from Amendment No. 62, which states: “The Secretary of State shall provide for early public participation”, on important matters concerning environmental questions. I shall refer to something that went wrong—it is not, I think, the fault of the current department involved in environmental matters, but it is an object lesson in how not to do it. Soon after I retired, when I was doing some voluntary work for the National Trust, I was invited to take part in a serious discussion about the future of Stonehenge and, in particular, of the road works surrounding it. I went to one of the first conferences held in the new conference centre just over the road. It was a very serious conference addressed by experts on all aspects involved and we produced a very thorough report that was unanimously accepted by the Government of the day—although clearly public finance for some of the work that we proposed was difficult. The key to that was the future of the A303—a principal highway of the south-west that runs along the site and, in effect, poisons the whole of it. The suggestion made in our report was that serious consideration should be given to undergrounding the A303 so that it would not run on the surface at all. That was accepted in principle by the Government, although whether and when it would be built was not decided. Three months ago, I received a postcard from the department concerned—I suppose that it was Defra—informing me: “No. Can’t do that. No money available”. If a public consultation of that kind takes place engaging a major department of state and the report is in principle accepted, it should not be thrown on the rubbish heap. Those of us who took part in those voluntary activities will not take part if such things go on.
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Lord BurnettLiberal Democrat- Quote
- I will not keep the Committee too long, but I ally myself with the points made by the noble Lord, Lord Chorley: national parks should be consulted not only in respect of developments within them but of those developments in the vicinity of the national park, where the development will have some impact on it. I declare an interest: I am involved with Dartmoor National Park. I hope that the Minister can give us some comfort on these matters this evening.
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- Baroness AndrewsLabour
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- Noble Lords will forgive me if I feel a schizophrenic because, on the one hand, I am told that I am rather benign and, on the other, I am represented as a tyrant who just wants to bash through the Bill as fast as possible. When we come to consultation, this Committee is extremely alive to all the implications. That is why we have had such a good debate. I hope that noble Lords will forgive me if I go fairly swiftly through the amendments, because they cluster around several consistent issues about how serious we are about consultation: how open it will be, will the right people be consulted, will they be properly listened to and will they know that they have been listened to? Those are all the right questions. I have said many times during the course of our three days of debate so far that, because the national policy statements are unique, because they set out to do things differently, they must do consultation differently as well. It must be a serious process. The noble Lord, Lord Bridges, has just given a fine example where consultation sounds to have been rather token. We are not in the business of having just token consultation on the national policy statements. This will be a national debate about infrastructure that will serve the purposes of our communities for many years to come, and it must be seen to be real. Strengthening public participation is important at all three key stages of the process. I am grateful to the noble Lord, Lord Cameron, for his additional amendments to this list. Because consultation has been thorough, noble Lords will expect me to explain why we have given such prominence to the code of practice in the Bill. I reassure them that the consultation on national policy statements will reflect the full seriousness of this. It was striking in our meeting with all the promoters and the CBI that everyone spoke about the necessary evidence that public involvement had been tangible and demonstrated the ownership of change. Local communities were critical to that. They made their voices heard and felt that they had been listened to. A considerable number of amendments have been tabled. Amendment No. 62 would require the Secretary of State to carry out consultation on national policy statements at an early stage, when options remain open. That is precisely what we want to do. The amendment appears to be intended to implement the UK’s obligations on consultation under the Aarhus convention on public participation in decision-making. The noble Lord, Lord Greaves, called for open and thorough participation and, as he knows, the convention governs access to information, public participation, and access to justice in environmental matters. It is based on the principle that sustainable development can be achieved only through the involvement of all stakeholders. The rights that it grants include the opportunity to have an “early and effective opportunity” to comment on the environmental effects of proposals. We have ratified this convention and must therefore ensure that our domestic legislation is compatible with it. We are content that the procedures set out in the Bill, and those to be established by secondary legislation under the Bill, are compatible with this very important convention. Let me reassure noble Lords that at all three stages—at the formative, development stage of the draft NPS; at the pre-application stage when people in the local community make their views felt about how they will be affected; and during the IPC’s examination when the site and the implications are discussed in detail—the public voice will be fully heard and the public fully involved. Those basic principles accord with the principles that apply to the conduct of consultations. Under domestic law, they are already written into the Bill and will be followed in the processes that are set out. Amendment No. 64 would impose a minimum period of 12 weeks and minimum publicity requirements that proposals for national policy statements should be publicised in one or more national newspapers, in the London Gazette, on the Secretary of State’s website and by giving notice to Parliament. We share that interest, but we do not think that it would be appropriate to set out in the Bill detailed procedures and processes for national policy statement consultations. Let me explain why, because much of our debate this evening has focused on this. Very detailed requirements in the Bill would tie the hands of those who are conducting and participating in consultations. I know of no Act that has gone through this Parliament that has set out forms of consultation in detail, for the very reasons that consultation is local and each NPS will be different. We want to give the Secretary of State in each case the opportunity to consider how best to achieve the detailed consultation required by the Bill. I have given an assurance that that consultation will accord with the code of practice, which has been updated. The code of practice on consultation does not set out deliberate methods, but it does require positive and proactive consultation. Government consultations often centre on written consultation over 12 weeks. That has been the standard. The code of practice encourages departments to consider the most appropriate means to gather views, but those means change constantly. Departments are increasingly using additional innovative means such as web-based consultation, discussion forums, facilitated meetings around the country, road shows, citizens’ juries and market research. We are doing things very differently, and we want the most fertile and the loudest public debate possible on national policy statements.
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- Lord JuddLabour
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- I thank my noble friend for her generous remarks. Her very full response is characteristic of her commitment to taking us all on board. While the argument about democratically elected bodies being in the Bill is strong—a part of me of course responds to that—we do have a problem. The Government give specific responsibility to the park authorities to have the powers of planning for the area for which they are responsible. It may be that local authorities in the area of the national parks do not see things quite in the same way as the people who have been given the authority for doing the planning in that area. There is a gap. How does one get a full, thorough and proper consultation if the people who have been given the responsibility are not enabled, as of right, to put their arguments before those who are drawing up the national plans?
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- Baroness AndrewsLabour
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- I hear what my noble friend says. As I say, it will be open to the local authority certainly to consult the national park. But he makes a powerful case.
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- Lord GreavesLiberal Democrat
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- I am always astonished at the noble Baroness’s ability to find good reasons for opposing what I think are unassailable arguments, and for doing so in great detail and with great commitment. But I do not think that she has given any good arguments as to why national parks should not be in this list. Her main argument is that they are not elected authorities, which raises the issue of parishes. When we talked about parishes on, I think, the Local Government Bill, the Government revealed that they did not have a list or database of all the parishes in the country, which could cause a problem. Would it be possible to use the planning authorities, the development control authorities, as an intermediary for consulting parishes on these matters? In a formal way, the development control authorities consult parishes on planning applications probably weekly. They certainly do so in the ones that I know. They are all consulted on every planning application. They know them and how to do it. It would be possible to use the planning authorities, the district councils, the borough councils, et cetera to consult their parishes. Perhaps the Minister would go away and think about that and make it formal in some way.
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- Baroness AndrewsLabour
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- I am always happy to think about the highly innovative solutions that the noble Lord has to most problems. I shall certainly read Hansard carefully tomorrow.
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Lord Brooke of Sutton MandevilleConservative- Quote
- I shall be extremely brief. I did not speak on any of the amendments earlier, but, in a funny way, the Bill was a consultation on the process that we are going through. The Minister said that district councils have the ability to consult parish councils. Sutton Mandeville parish council is extremely active. When we were visited by a lady from the county council, after we had had the debate on the unitary authority in this House in which the noble Baroness and I took part, it was clear that no one on the parish council and no one attending the parish meeting on that occasion had been given any briefing at all either by the county council or by the parish council on the implications. It so happened that our particular district council was quite different in its make-up and behaviour from any of the other councils, so we were joining a body that was in fact quite different from us. No one in the parish had any idea of that happening until it was a done deed.
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- Lord BurnettLiberal Democrat
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- I want to say one more word about national parks. I chaired the Dartmoor National Park public consultation for the emerging local plan. It was done extremely well by the officials and members of the national park. It was a conscientious consultation that took place in the park itself and, in my view, was an exemplary public exercise.
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- Earl CathcartConservative
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- I shall be brief. When I introduced this group of amendments I said that I hoped it would provoke discussion, and I believe it has. We have had a good debate and generally there has been support from all sides of the Committee, and certainly Members want to know more about how the consultation will work and how the publicity surrounding it will be handled. The Minister has given a very full response, but I have to say that I found it to be rather like a curate’s egg, good in parts but with other bits that were not so good. It was so full that the best thing at this point is to read it and see where we go from there. At this stage, however, I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendments Nos. 63 to 70 not moved.] Clause 7 agreed to. Clause 8 [Consultation on publicity requirements]: [Amendments Nos. 71 to 74 not moved.] Clause 8 agreed to. Clause 9 [Parliamentary requirements]:
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- Lord Dixon-SmithConservative
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- moved Amendment No. 75:
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- Lord Jenkin of RodingConservative
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- I am grateful to my noble friend for his trailer, if I may so describe it, because I think that the amendment I have tabled in this group is one of the most important that we shall discuss during the Committee stage of this Bill. Those who attended the Second Reading debate will recall that I made the point at col. 1178 that the whole process should have the “credibility and authority” of an affirmative vote in both Houses. The noble Lord, Lord Oxburgh—I am sorry that he is not able to be in his place this evening—in his Second Reading speech used what I thought was a telling phrase when he referred to the “moral legitimacy” that national policy statements would otherwise lack. Indeed, he went on to say: “It would make them much more difficult to challenge by special interest groups, and even those who oppose the plan would know that it was not simply a bureaucratic diktat, but had been examined and approved by Parliament”.—[Official Report, 15/7/08; col. 1214.] That is what this amendment is mainly all about. The noble Lord, Lord Mogg, with whom I was discussing the matter earlier today, gave his warm support to this proposition, as did a number of other noble Lords, while the noble Lord, Lord Turnbull, when we were discussing the Infrastructure Planning Commission on the first day in Committee, said: “If one wants to close an apparent democratic deficit one should look to the way in which the NPS is handled in Parliament, rather than turning the IPC into an advisory body”.—[Official Report, 6/10/08; col. 20.] Amendment No. 78 seeks to enshrine this in the Bill. It requires affirmative votes in Parliament instead of it just having a consultative role, and it should involve both Houses. The same points are made in Amendments Nos. 82 and 83, which no doubt noble Lords will wish to speak to. Amendment No. 78 goes on to provide that if there is no approval, formal recommendations could be made by what I suggest should be a Joint Committee. Here I make one point: the actual details of parliamentary committees are really not for Parliament itself but for discussion through the usual channels. I quite understand that—the same problem arose, as the noble Lord, Lord Turnbull, will recall, on the statistics Bill. If no formal recommendations are made, the Government may table revised proposals unless both Houses reject the recommendations. That is the shape I am suggesting we might establish in this Bill. Parliamentary procedures and conventions have developed over the centuries and there is a whole range of ways in which Parliament can be asked to handle government proposals. Clearly the main means of doing this is for the Government to produce a Bill which goes through its stages in both Houses, is amendable at almost all stages and then becomes law with Royal Assent. That is not an appropriate procedure for a national planning statement. At the opposite end there are statutory provisions which simply require the Government to lay a proposal before Parliament with no subsequent procedure laid down. That might be appropriate for a report with recommendations but, again, it would be wholly inappropriate in this case. In between the extremes of legislation on the one hand and merely tabling a proposal on the other is a range of statutory instruments—negative, affirmative and so-called super-affirmative procedures. These become law. Yes, they are debated and, if necessary, can be voted on in both Houses, but there are no amendments and we have become accustomed, in almost every case, to having them confined to one-off, short debates lasting little more than an hour. A quite different approach involves Select Committees. There you can have wide inquiries, sometimes on proposals put up by the Government’s pre-legislative committees. I was privileged to serve on such a committee on the human fertilisation and, as it was then, the human tissues draft Bills. These are wide inquiries which can hear evidence and make reports containing recommendations, but they do not become part of the law and are not binding on Governments or anyone else. The only obligation is that a Minister is required to give a reply. Those are the existing procedures—I hope I have covered the main ones—but what do the Government propose here? They propose the publication of the statement, the consultation of Parliament, the entitlement of Parliament to propose amendments and, in the House of Commons only, under Clause 9 there are certain parliamentary requirements. It envisages a resolution of either House or, again, a committee of the House of Commons which can make recommendations. But, rather like the Select Committee reports, the only duty on the Government is to respond. The proposal in the Bill is that the establishing of a national policy statement remains entirely with the Secretary of State to decide on its form and content; it remains, to use the phrase of the noble Lord, Lord Oxburgh, a “ministerial diktat”. Moreover, it applies only to another place to make recommendations, and even then Ministers are under no obligation to follow them. I do not regard this as an acceptable or appropriate way of handling these hugely important policy statements. It is essential that they must have the positive approval of Parliament before they can be applied by the Infrastructure Planning Commission. I see no reason why both Houses should not be fully involved in this process; after all, our roles are, in many ways, complementary. It is quite right that local and constituency interests should be of primary concern to Members of Parliament—who, of course, are also concerned about the national implications—but Members of this House, while always respecting the constituency interests of Members of another place, can sometimes bring a wider application of the law to bear on matters of national interest.
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- Lord Cameron of DillingtonCrossbench
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- Clause 9 is at the heart of the Bill—or at least those parts of it that seek to speed up infrastructure projects. The national policy statements really make it work and allow the IPC to proceed to do its business with due democratic authority. It is right that national policy statements should be decided at national parliamentary level, which, as I said earlier, is a new development for our planning system. We must ensure that we utilise the full voice and expertise of Parliament as a whole. I know that this is not the time or the place to debate the future make-up or role of this House—that has been done ad nauseam and will probably continue to be done at other times—but in that debate it has always seemed to me that the one question that cannot be asked enough is how we ensure that we continue to have a House of experts, as we have in this House, not only inputting into the legislative process but contributing in a variety of different spheres and ways to the future well-being of our nation. National policy statements are a prime example of where real, experienced expertise will be imperative, whether we are talking about nuclear power stations, ordinary power stations, highways, airports, railways, water storage or other engineering projects, not to mention simple, straightforward planning expertise—if planning expertise can be simple. We in this House have our share of the nation’s experts. Experts know how to ask the right questions; they know how to set the right parameters. Above all, they have credibility and integrity, which means that they are slightly less likely to succumb without question to the Whip, as happens in the other place. I do not think that a Joint Committee of both Houses quite achieves what I am looking for in this clause. It is, as the noble Lord, Lord Jenkin, said, up to this House how it handles these numerous NPSs and their rolling reviews. If Amendment No. 80 is successful, I suggest that a simple scrutiny committee, with the power to co-opt the necessary expertise from within the House, will suffice. The committee should have the power to make the necessary recommendations to, and enter into negotiations with, the Secretary of State and eventually either release the NPS from scrutiny, or otherwise. The key question is what happens when we come to “otherwise” and there is a deadlock between the Secretary of State and the scrutiny committee. Bearing in mind my inexperience when it comes to parliamentary procedures, I would favour Amendment No. 82 in the name of the noble Lord, Lord Berkeley, or Amendment No. 83 in the name of the noble Baroness, Lady Hamwee. Each House as a whole would vote on the national policy statement and have the ability to accept or reject it—always, as the noble Lord, Lord Jenkin, has said, bearing in mind the supremacy of the other place.
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- Baroness HamweeLiberal Democrat
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- I have been impressed by how the Government have developed the thinking and the debate on this area of the Bill. Clearly some issues remain—the fact that I have tabled four amendments in this group indicates that I would like to take some matters further. I have read the Commons Hansard and learnt what has happened behind the scenes—not just who does it but how it is done—and the Government’s thoughtfulness has impressed me, even if I do not necessarily share their conclusions. The issues in this group fall into two distinct parts. One concerns the scrutiny of the proposed policy statement. I tabled an amendment proposing that it should be scrutinised by a Joint Committee of both Houses, in which case there would need to be discussions with the other end. Impressed though I have been, it is a pity that discussions at the other end have continued apace without, as far as I can discern, any reference back to this House. Not to involve Members of this House is both daft and wrong. It is daft because of the expertise and the time that some Members here could devote to this matter; it is wrong because we are a part of Parliament. To get the scrutiny right is almost more important than the final vote, as it gives the opportunity for detailed consideration of very complex issues. When we come to vote on a proposed NPS, we will inevitably polarise and tend to simplify some of the arguments, because we will have one vote. I know that I am affected—some might say infected—by eight years of doing a scrutiny job, but I believe that it is important for that process to be as good as possible. There are issues of capacity; Parliament needs a variety of mechanisms, and this is a part of the consultation. It is not a passive process, as my noble friend said in an earlier debate. I guess that we will be told that it is a continuous and iterative process, but the sequence is important. If there are issues of locations, one can see the enormous controversy that there could be and the possible risk of legal challenge if the consultation is not carried out correctly. Any committee will probably have huge numbers of representations and requests to be heard, which is why I would like to see Members of this House involved. On the final vote, I cannot imagine explaining to the many millions of people who are concerned about the development of Heathrow that this House has no role in shaping the final formal policy statement. It seems completely counterintuitive. I understand the concerns that the Minister will have about not setting the two Houses against each other, which is why getting the scrutiny right is particularly important. However, we cannot forget about the politics, because the NPSs are political statements. The noble Lord, Lord Jenkin, is absolutely right to direct us to the final approval.
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Lord BerkeleyLabour- Quote
- I have a couple of amendments in this group. The variety of ideas in the group and the contributions tonight indicate a lot of concern about how this will work. I agree with the noble Baroness, Lady Hamwee, that the Government have done a great job in getting this far with an extremely tricky issue. She asked how we would scrutinise and approve a national policy statement for Heathrow, or other airports, which would include a site-specific third runway. Would that mean that the whole House approved the creation of a third runway? It is an interesting question which we must debate. The House would be well advised to scrutinise these NPSs separately. We will have to find a way of doing it, as there will be quite a lot to get through given that each sector has an NPS and they have to be updated. We will have to find a way of doing it. As suggested in my Amendment No. 82, when we scrutinise a statement we should be able to approve it or not, along with the other place. This raises some interesting issues. I do not have a solution and I am not sure that anyone else has come up with one, but we have had a good debate about it. I would like the opportunity for a small scrutiny committee, which could co-opt Peers with particular expertise in different fields, to be able to do this, but how it would do it and how long it would take need discussing in the next week or two.
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- Lord TurnbullCrossbench
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- I agree that there are two basic issues here. The first is: one House or two? Certain features of our parliamentary work are reserved for the other place—for example, the Finance Bill—but I cannot see that planning is one of them. I am beginning to think that the other place has got into the habit of conflating the word “Commons” and the word “Parliament”, when they are two different things. We should rightly press for the inclusion of this House on grounds both of constitutional principle and of the expertise that is here and should be fully involved in all stages. The second issue is whether the Secretary of State’s conclusions should simply be laid or be voted on and endorsed. When we were discussing Clause 1 last week, I strongly supported the division between the NPS and the Infrastructure Planning Commission, arguing that it is appropriate to delegate to the IPC the final decision where it operates within a democratically approved framework. Does the Secretary of State laying the conclusions represent a democratically approved framework? This has been argued at Second Reading here and in the other place. John Healey, explaining to Jacqui Lait why he did not agree with her amendment, said: “When she spoke to her amendments, she was right to say that the House will not own the policy. The policy is properly the responsibility of the Government and elected Ministers”.—[Official Report, Commons, 2/6/08; col. 602.] When does policy become policy? Is the mere act of laying enough to turn an idea into policy? I gave a number of examples last week of where there was a framework and a delegated body took the decisions. One of them was the courts, where the definition of a crime and a penalty is enshrined in the hundreds of criminal justice Bills that we have seen go through this Chamber. Another is tax, which is enshrined in the Finance Bill every year. The Competition Commission was created by legislation in the normal way. A partial exception to this is the Monetary Policy Committee, where the framework was part of legislation but the one decision about the inflation target is reserved for the Chancellor of the Exchequer. I do not think, with due respect to the Minister, that we are in unknown territory; we are within the scope of known and existing practices. Which one do we want to plump for in this case? For two reasons, I think that we should plump for the practice that requires that the final conclusions be endorsed by Parliament. First, as a number of noble Lords have mentioned, the more the policy is clear, the more difficult it is for it to be challenged in the courts, which people think is a good thing, or for objectors to try to unpick something at a very late stage. Secondly, it would make a success of the IPC, in which I strongly believe. It will be more successful if it operates in a clear framework. The noble Lord, Lord Jenkin, gave an example last week of the rate-capping dispute with local councils, where the authority of the Minister was strengthened by having the backing of Parliament. The IPC will need that authority. Moreover, it gives the IPC the answer to the question, “What right have you to decide this?”. The answer is: “Because both Houses of Parliament settled the policy within which we are operating”. Revisiting this matter will enhance the way in which Parliament works as well as increase the chances of success of the project as a whole.
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- The Earl of CaithnessConservative
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- I support the amendments. I raised the point at Second Reading and was quite vitriolic in saying to the Minister that to bring a Bill of this nature before this Chamber without it having any input to the final decision was wrong. Amendment No. 75 in the name of my noble friend Lord Dixon-Smith is the right one: the decision should be for the approval of both Houses. That is justified by what the noble Lord, Lord Turnbull, said. It gives much more credibility to the IPC and the national policy statements.
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- Lord Woolmer of LeedsLabour
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- I hope that mine is not the only voice to speak against the amendments. The Minister will reject them. As I see it, the Government are the Executive. The argument that moral authority would come about only if both Houses approved something is fallacious, for two reasons. First, the moral authority—I always look with great care when people call in aid “moral authority” when arguing for something—or legitimacy of national policy statements will come about from the framework in which they have to be formulated, the consultation and the care and rigour with which the outcome of those consultations is considered and responded to. At the end of the day, the national policy statement will be a very carefully assessed and balanced judgment of some fairly complex issues about which there are a lot of strong feelings. but a judgment has to be made. As with anything that the Government of the day do, they have moral authority if people feel, on balance, that consultation and taking account of public opinion and stakeholders in all kinds of decisions are done with care and that a judgment is overwhelmingly good. If the public start to feel that the Government are not listening carefully to what they say, or that they listen but have faulty judgment, any Government and Secretary of State lose that moral authority. Secretaries of State suffer the penalty of being sacked, and Governments are ultimately sacked by the electorate. The Government of the day, through the Secretary of State, will have the moral authority, provided all those things are done carefully. If they do not, they will suffer the eventual wrath of the electorate. Let us turn to the moral authority of Parliament. I shall turn in a moment to the question of both Houses or one House. Let us assume that the Government have set down draft proposals, have consulted carefully and widely over some months, have listened to what has been said, have responded carefully—perhaps even iteratively so by having more consultation—and then have reached balanced and careful judgments. Let us say that the proposals go to the House of Commons, where a committee might consider them. That committee will then form its own judgment, which might be quite different. Indeed, it might be—dare one say?—even more politically motivated than a Government. There is no necessity for that committee to have the same regard to all due processes. Noble Lords who have spoken on this have said that the mere act of giving parliamentary approval is the moral authority, whether or not Parliament takes a decision on the same careful, balanced judgment of facts. There could be a hung Parliament—the House of Commons could be hung, and there could be horse-trading. Look at how on Capitol Hill in the United States they dealt with the big loan bail-out: they added $200 billion on to the Bill just through pork-barrel politics to get the overall figure. Anybody who wants to talk about the moral authority of elected Houses in reaching careful judgments should remind himself of the picture on Capitol Hill only a few weeks ago. Even if a committee was careful, it could not possibly spend the same amount of time that the Secretary of State spent in many months of careful consultation. Even if a Select Committee or committee sought to be careful, whatever its recommendations to the House of Commons, the vote there might have no regard whatever to what the committee recommended or the process that it went through. It would be a straightforward vote. I am reminded of the vote in the other place on whether the second Chamber should be elected or not. We all know that there was a vote for an 80 per cent elected Chamber but all those who really opposed an elected House got together and voted for a 100 per cent elected Chamber because they thought that it would sink the whole enterprise. The official position of the House of Commons is that it is in favour of a 100 per cent elected Chamber, exactly because they did not want that to happen. So let us not use words like “moral authority”. It simply is not accurate. The Government have their job while the House of Commons has another in holding the Government to account. This is not the elected House and it should not duplicate everything that the House of Commons does. We should be very careful before we go down that route. We are here to scrutinise legislation; with the agreement of the Commons, we have done a lot more on European Union legislation than the Commons—but that might change over time. This House is given a role under Clause 9, which says that either House may make, “a resolution with regard to the proposal”. The House can genuinely debate something and, if it is so minded, can pass a resolution; but we have to be very careful what kind of resolution we pass, because of the sheer complexity of the issues. What are we going to do, when all this public consultation and care has gone into the proposal? We are entirely entitled to debate and pass resolutions, but to have our own committee or sit on a Joint Committee with the other place would be simply wrong; this House would be seeking to go beyond its role and function. Of course, if there was a wholly elected second Chamber and the conventions started to change, you could well find that an elected House took a different view—but we are not an elected House. I hope that the Committee on reflection does not press the amendment to a vote and that it feels that on balance it has been a debate worth having but not a point to push.
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- Baroness AndrewsLabour
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- I am extremely grateful for this very thoughtful debate on a matter of absolutely central interest to this Chamber. I am very grateful to my noble friend for setting out better than I could much of the case that I will make. I am particularly grateful to him for raising the notion of moral authority going beyond this narrow definition of a vote in either House and referring to the whole integrity of the process that we are trying to establish for national policy statements. I want to address the issues raised on the relationship between parliamentary scrutiny and approval. I am very aware of business waiting, so I shall try to be concise. We stated very clearly that we are committed to a stronger role for Parliament in scrutinising the national policy statements; we have formalised the process to allow for that. I am very grateful to noble Lords for recognising what went into the construction of that process. I shall describe it briefly, because it is unique and innovative. Although national policy statements are going to be important and innovative, they are ultimately documents of policy. They set out government policy and ministerial accountability. They are not primary or secondary legislation but a new sort of parliamentary instrument. The nearest analogy that we can make is that they are similar in many ways to planning documents or White Papers, and certainly they are not subject to parliamentary approval. Although both the noble Lords, Lord Jenkin and Lord Turnbull, chided me for saying that we were in new territory, I do not resile from that. The examples that they give are genuinely different; they are specific and partial within the context of some rather broad legislation. National policy statements are different; they are broad and the first of their kind, much wider in scope and more significant in depth. They bring into question the relationship between the role of government in making policy as a whole and the role of Parliament in scrutinising things. We blur the distinction between the role of Parliament and the Executive at our peril, and I think that this is a step much too far. I commend what my honourable friend said in the other House about why we do not believe a vote of approval is necessary or appropriate. I shall backtrack and explain the journey that we have made in this Bill towards parliamentary accountability and scrutiny, because it is unique. When the Planning Bill was first introduced, we made a commitment to provide a stronger role for Parliament. The other place was encouraged to consider setting up a Select Committee as part of that process, possibly drawn from the expertise of the four relevant departmental committees, but it was always acknowledged that it was for the House itself to decide what procedures were appropriate for each NPS. Together with the chairs of the Select Committees, over a considerable amount of time, Ministers have worked out a possible process for Commons committee examination of national policy statements, either by one of the relevant existing departmental Select Committees or a single new committee drawn from their membership. The committee would examine the draft national policy statement in a timeframe largely parallel to that for public consultation, and it would report to the House with recommendations, including whether the issues merited debate on the Floor of either House. The Government would make time available for debate in each House, if the committee recommended it. The period for parliamentary scrutiny would continue for four to six weeks beyond the close of public consultation, to enable the Select Committee to take any additional account that might be necessary of the significant issues likely to be raised during public consultations. Ministers have undertaken to ensure that briefing and information on those issues is made available to the Select Committees to enable them to do this. That is a credible, rigorous and unique process. Ministers would then consider what change was needed to the draft NPS in the light of the views of the Commons committee, and, significantly, in respect of any resolution of either House and public consultation. They would lay a Statement setting out their response before Parliament and revise the draft proposals as appropriate before laying the final version of the NPS. This House will be fully involved. If we are searching for moral authority, we find it in the equivalence of both Houses. The procedure has taken time and effort to agree, because it has been so carefully worked out. It is a thorough and robust scrutiny process. It recognises the nature and expertise of the departmental Select Committees in the other place and their long history in holding departments to account. It acknowledges that regard must be had to the views of either House, speaking, as it were, collectively. The noble Lord said that the Government had only a duty to respond, but that is a powerful obligation to place on them. This procedure will allow Parliament to look at each detail of policy and make recommendations that Ministers will have to take into account before laying the final policy statement. That will help to ensure that the provisions are the right ones, and take into account the full range of issues that should be captured. It will also ensure that NPSs are widely seen as authoritative statements of policy, appropriate for the roles that have been set for them. In terms of this House, our expertise and commitment are recognised in the fact that time will be made for a debate and for any resolution of this House. Before dealing with particular amendments, let me first address the other amendments in the group, relating to timing and sequencing. In Amendment No. 81, the noble Baroness, Lady Hamwee, would like the “relevant period” for scrutiny to be not less than six months. We all want there to be sufficient time, but we also all want a process that is genuinely speedy and focused. We know that NPSs vary considerably, and in many cases Parliament may be scrutinising a minor amendment following a review. The sort of timetable the noble Baroness proposes is not strictly appropriate. It is too rigid and we need greater flexibility. Amendment No. 76 argues that the scrutiny process would be improved by requiring that parliamentary scrutiny take place once public consultation has concluded. That would add unnecessary length and resource costs. We have allowed a hangover period of four to six weeks for the Select Committee to take additional account of what has been raised in public consultation. That should be sufficient. We do not want to extend the period. We want to be able to make substantial revisions in the light of the views of the public and statutory consultees and we have allowed properly for that. I now turn to the amendments on the parliamentary committee and scrutiny by the committee. Amendment No. 79 in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Jenkin, would require the Secretary of State to respond to recommendations of a Joint Committee of both Houses. The noble Lord has already made the essential point. It raised particular issues. There is a serious question about whether it is appropriate at all to place such a requirement in the Bill. As we all know, the decision to set up a Joint Committee is a matter for both Houses. It presumes the agreement of both Houses, but one cannot always take that for granted. On Amendment No. 80 in the name of the noble Lord, Lord Cameron, he will know that, although Clause 9 does not specifically mention committee scrutiny in this House, nothing in the Bill prevents this House from deciding to set up a committee to look at and report in any form on one or all NPSs. Indeed, a proposal along these lines may have some merit. However, I have listened to the arguments. I do not need to be persuaded of the expertise of this House, not least standing at the Dispatch Box in the context of this Bill. I also know that we deploy our expertise and experience with care and proportion. There is merit in looking at ways in which this could be brought to bear most effectively in the consideration of draft NPSs. If the House will allow, therefore, I propose to take this amendment away to give it further thought. With that assurance, I hope that noble Lords will be able to withdraw their amendments.
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- Lord Dixon-SmithConservative
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- I had thought that this would be the big debate of the evening, but surprisingly we have run out in less time than the previous debate on consultation. However, in terms of importance and significance, this is the debate that matters most this evening. I am grateful to my noble friend Lord Jenkin for setting out the background to this, particularly the parliamentary precedents that quite clearly indicate that what we are looking for is within existing practice in other areas. I do not intend to pick up the points made by everybody in the Committee because that would be a bit hard at this hour of the evening. In any event, I rather think that the meat came towards the end. We need to take very seriously what the noble Lord, Lord Turnbull, had to say. He said that what we are suggesting is within existing practice and would strengthen the position of the Infrastructure Planning Commission. Coming from a man with his background, that is a significant statement. The noble Lord, Lord Woolmer, got into an interesting position. I found his discussion rather depressing. He clearly has no confidence in Ministers’ capacity to persuade Members of either House to accept the position that they adopt. I found that slightly peculiar. Of course, he had an interesting time trying to question the moral authority of Parliament, but I accept that the Government go through a long procedure in order to reach a conclusion. However, if having gone through that procedure, which is known, they are unable to persuade Parliament that they have come to the right conclusion, the decision is flawed. Finally, the Minister said that national policy statements are government policy statements and that they are therefore to be inviolate. However, she opened up the dreadful prospect of a national policy statement that lasts as long as a Parliament and no longer. We have to be above that in these decisions. There is no question in my mind that, if we want this Bill to succeed, we cannot have a situation where these are simply statements of the Government of the day. That will not do. That is enough for me for now. We will go away and consider very carefully what the Minister has said. I am grateful for her explanation, even though I disagree with it. She should not be surprised if we wish to bring this back with rather more determination on another occasion. I beg leave to withdraw the amendment. Amendment, by leave, withdrawn. [Amendments Nos. 76 to 83 not moved.] Clause 9 agreed to. [Amendment No. 84 not moved.] Clause 10 [Sustainable development]: [Amendments Nos. 85 to 87 not moved.] Clause 10 agreed to.
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Lord Patel of BradfordNon-affiliated- Quote
- I beg to move that the House do now resume. Moved accordingly, and on Question, Motion agreed to. House resumed.
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