My Lords, we do not have quite the audience that we had before lunch, but it is my job to speak to Amendments Nos. 3 and 5 in my name. Since first reading the Bill, I have been doubtful about the concept of "the Council". Its role is explained in Schedule 1 but there is no reference to it in the text of the Bill until Clause 60. In the Bill it is always described as "the" council, whereas in practice a new council is formed for each case. It seemed to me that the council was a superfluous concept, fulfilling a role that should be performed by the commission. Accordingly, I introduced a series of amendments in Committee removing "the Council" from the text of the Bill. Those amendments were not accepted, and we are stuck with this wording.
The question now is how best to introduce the concept of the council into the Bill. The council has a very important role; for example, it is the council, rather than the commission, which has the decisive role in assessing applications that are initially examined by a single commissioner. Given this importance, I think that its existence should be acknowledged in the opening clause of the Bill, as proposed in Amendment No. 3.
The amendments are proposed as a simple improvement to the text of the Bill and I hope that they will be acceptable to the Minister. I beg to move.
My Lords, Amendment No. 6 in this group is in my name. The noble Lord, Lord Cobbold, did a most valiant job in Committee of identifying references to "the Council". As we were debating his amendments and issues surrounding the role of the council, a number of noble Lords felt that it was an uncomfortable title for the role which the Government envisage. At that point, I suggested that the word "committee" might more properly reflect that role, but, being less energetic than the noble Lord, and rather than finding all the references, my amendment would allow the commissioners and the Secretary of State to call the council "committee" or anything else they felt was appropriate. That would not disturb the Bill, and the alternative would not even need agreement at this stage. I agree that this is not a hugely elegant solution, but it may be a practical way of addressing something that has the potential for causing confusion.
My Lords, the group contains government amendments to the schedule which aim to deal with the difficulty that I raised previously about the risk that the chairman of the commission might end the appointment of a member to the council—I shall come to that in a minute—as it were, peremptorily. No doubt the Minister will explain the government amendments later, but, by adding the words "or ending" they make it clear that there needs to be proper consultation by the chairman with the other commissioners and the chief executive before a member's appointment is ended. The Minister has met my point completely, and I am grateful for that.
I return to the amendments of the noble Lord, Lord Cobbold, and that spoken to by the noble Baroness, Lady Hamwee. I have criticised the use of the word "council". I can understand that something between a panel, which may be just three people, and the full commission is needed, but "council" seems to have an entirely wrong connotation. Apart from anything else, it is not a permanent body, but a group of commissioners who may be appointed ad hoc for a particular inquiry. A completely different body of commissioners may be called the "council" at the inquiry dealing with the next application. The noble Lord, Lord Cobbold, has drawn our attention, with huge persistence, to the fact that this is the wrong word. Whether it is left to the commission to decide, as the noble Baroness's amendment would have it, or whether the Government should recognise in the schedule that there will be something between the single commissioner, the panel and the full commission, it needs to have a name that conveys that it is a group of commissioners appointed ad hoc. That is what one is looking for. That is a sensible suggestion, but to call it "the Council" seems to be a contradiction in terms.
I serve and have served on a number of bodies where the council is the governing body. Many charities will be run by a chairman and council. There are many others. My noble friend on the Front Bench is familiar with a local authority. Local authorities have an elected council, a body which exists until the whole lot is removed. It is not a peripatetic body, or a peripatetic name for a number of different bodies that may be appointed under the procedure of the Bill. I hope that the Minister might have another look at this between now and Third Reading, because the use of "council" in these circumstances is a misnomer. It is not a council as one recognises it any other walk of life.
My Lords, there is no doubt that "council" has a particular connotation, which does not apply in this instance. The amendment of the noble Baroness, Lady Hamwee, which leaves the subject open, is probably preferable to the rigidity of the Bill. I wonder whether this group would be not more executive than a council, but even "executive" would not describe its function with sufficient accuracy. The only thing on which I think we shall be able to agree is that we do not like the title. It is a little unfortunate. If we could find something better on which we could all agree, it would be an improvement.
My Lords, we all have a sense of déjà vu and frustration about this. The noble Lord has pursued the matter assiduously and I wish that I had a solution, because it will become increasingly clear that, for different reasons, I do not.
I will address the amendments in turn. The noble Lord, Lord Cobbold, wishes the Bill to include reference to the council in Clause 1. The noble Baroness, Lady Hamwee, and the noble Lord, Lord Greaves, ingeniously suggest a way of improving the terminology. I have tabled a number of amendments in response to concerns raised in Committee about the scope of the power of the chair to end a commissioner's appointment to the council.
The noble Lord, Lord Cobbold, has consistently raised concerns, both here and in discussions outside the Chamber, that the first appearance of "the Council" is not until Clause 60. Our previous debates were to clarify the role of the council. I am pleased that we now know that it is not a superfluous body, but exists to do a very important job. As he said, several councils could sit at the same time.
The noble Lord feels that, as the council takes decisions on nationally significant infrastructure projects under certain circumstances, it should be put up front in Clause 1. Our problem in doing so, and this is not a Jesuitical argument, is that such a clause would not follow the normal conventions of legislative drafting.
We are afraid that it would lead to greater confusion about the role of the council, because the council is essentially part of the operational structure of the IPC. When we set up bodies such as this in legislation, detail on how it will operate is nearly always set out in the schedules. Schedule 1, which is about the IPC, is clearly referenced in Clause 1. It would not make sense to isolate the one activity represented by the council and put it in Clause 1, as the noble Lord suggests. It belongs in the schedule, because it is part of describing how the IPC will work. I am sorry to disappoint the noble Lord on that, but it is sensible to keep things as they are.
I turn to Amendment No. 6, in the name of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Greaves. It was argued in Committee—the noble Lord, Lord Jenkin, has eloquently done so again—that the term "council" could cause confusion as a council is more generally understood to be a fixed body whereas, under the Bill, the council will instead be a more fluid body for different purposes. I fully understand that. The terminology of the Bill was very much an issue for debate at earlier stages. It was felt that "the Council" was still the best expression for the IPC. "Committee", another obvious candidate, was considered, but it was felt that it might cause confusion with the panels of the IPC, which people might see as being committees of the commission—the noble Lord, Lord Cobbold, picked up that point previously. Using "council" therefore seemed to solve the problem. It may not be perfect. We have thought very hard about it and I have shared my concerns with noble Lords. We looked at the possibility of replacing the terms in the Bill—replacing "Council" with "Committee"—but it would have generated well in excess of 70 amendments, which we felt was inappropriate at this stage.
The noble Baroness, Lady Hamwee—bless her heart—has ingeniously proposed a different solution, by providing that the IPC and Secretary of State could agree to call the council by a different title if they so chose. The IPC and Secretary of State can agree to do that without provision in the Bill. While I am very grateful for her helpful suggestion, I am genuinely frustrated that the proposal is unworkable, because paragraph 6(1) of Schedule 1 provides that:
"There is to be a body of Commissioners to be known as the ... Council".
The effect of Amendment No. 6 would be that, while the Secretary of State and the IPC might agree to call the body something else, in strict legal terms it would continue to be the council. It would therefore not require third parties to call it by a different name; as a matter of law, it would continue to be the council.
That would have the strange result that the Secretary of State and the commission could call the body something different from everybody else. One can only imagine the confusion, for example, if—God forbid—there were an application for judicial review of an IPC decision. The parties to the proceedings could call the council by the different name agreed by the Secretary of State and the commission, but the courts would be required to follow the legal interpretation. An already complicated situation would become rather confused; it would make the perception of the role of the council even more complicated.
We have thought about this, and we have come up with a solution that I hope will provide some reassurance. Ministers will now set out the purpose of the council very clearly in guidance under the Bill, and will ensure that information on the IPC's procedures and structures is widely available, such as on the IPC's website. We will explain the terminology and ensure that people understand that this is a fluid concept. In fact, it will be explained by its functions, and putting it in guidance will ultimately be the most practicable thing to do. I can see that that may not satisfy noble Lords, but it will in effect address the problem and will not cause the complications which the solutions so generously offered in the amendments would bring.
I hope that I turn to a happier note, with our Amendments Nos. 7 to 15, which respond to concerns raised in Committee that the chair of the commission has too wide a scope to remove ordinary members from the council. The noble Lord, Lord Jenkin of Roding, was particularly concerned that there was potential for abuse of that power and that people who might be a thorn in the flesh would be too easy to remove.
As debated in Committee, our aim is that the council will be a fluid body. We want to provide the chair with the flexibility to change the council to meet different circumstances and challenges, so we need to provide that the chair can employ the right range of skills for each particular issue that comes before the council. I have looked carefully at what the noble Lord has said and agree that he has raised some important points, and therefore we have put some safeguards in place.
The government amendments require that before exercising the power to end the appointment of a commissioner who is an ordinary member of the council, the chair or, if delegated, a deputy chair, must first consult and have regard to the views of the other relevant members of the council, the chief executive and any other commissioner that the chair or deputy chair thinks it appropriate to consult. This means that at least six people—the chief executive and minimum five members of the council—must be consulted before any decision is made to end an appointment of an ordinary member of the council. This builds on the provisions set out at paragraph 9 of Schedule 1, which currently apply when making a new appointment to the council.
I think that the noble Lord has said that he feels that those proposals meet his point. I hope that they do. As I say, they are intended only to allow the chair to be as flexible as possible, with the resources available to them.
My Lords, I thank the Minister for that response, but it is very disappointing. I am grateful to the noble Lord, Lord Jenkin, for his support and to the noble Baroness, Lady Hamwee, for agreeing that the present use or concept of the council is misplaced and that we should find an alternative to that. In the event that we cannot do so and are left with the council, we should make more of a thing of this issue and introduce it in the opening session of the council. I find it hard to accept the Minister's view on this matter. However, those are the facts. I should like to see some more thought go into it between now and Third Reading. In the event, I beg leave to withdraw the amendment.
moved Amendments Nos. 7 to 15:
Schedule 1, page 138, line 29, after first "making" insert "or ending"
Schedule 1, page 138, line 29, leave out "7(1)" and insert "7"
Schedule 1, page 138, line 29, leave out "making the appointment" and insert "doing so"
Schedule 1, page 138, line 32, leave out "appointment" and insert "matter"
Schedule 1, page 138, line 36, after first "making" insert "or ending"
Schedule 1, page 138, line 36, leave out "7(1)" and insert "7"
Schedule 1, page 138, line 36, leave out "making the appointment" and insert "doing so"
Schedule 1, page 138, line 37, after "expressed" insert "about the matter"
Schedule 1, page 138, leave out lines 40 and 41
On Question, amendments agreed to.
moved Amendment No. 16:
Schedule 1, page 139, line 20, at end insert—
"11A (1) The Secretary of State must appoint a person as the Solicitor to the Commission.
(2) The Solicitor to the Commission—
(a) is to be a barrister in England and Wales, an advocate in Scotland or a solicitor of the Senior Courts of England and Wales or a solicitor in Scotland;(b) is not to be a Commissioner;(c) is to be a member of the Commission's staff.
(3) The Solicitor to the Commission shall advise the Commissioners on the exercise of their functions and in particular shall seek to ensure that the consideration of development consent applications is lawful and fair.
(4) The Solicitor to the Commission's terms and conditions of service are to be determined by the Secretary of State."
My Lords, when we think about how the commission will work and consider applications—and, more importantly, how the applicants themselves are to develop applications and present them in a fair and equitable way—the Bill as it stands is open to some question. The difficulty right at the beginning for any applicant is that they have to undertake a public consultation. Anyone who has been in the public relations business knows that if you want to get a particular answer you can go a long way towards predetermining it by how you ask the question. There is a broad suspicion—I put it no stronger than that—that applicants for planning permission and nationally significant infrastructure projects who have to undertake public consultations on applications will load the way in which they produce that system so as to colour the answer in their favour. It would in fact be remarkable if that did not happen but, if it were to happen, there is no question but that at some point someone would say that the consultation was not representative or fair. Then we would find ourselves in a judicial review situation. That is the purpose behind Amendment No. 16.
Amendments Nos. 91 and 95 deal more specifically with the issue of the public examination of the application by a panel of commissioners or a single commissioner. Here the doubts are somewhat similar; there is no question but that at that point the cross-examination of witnesses in public hearings must be seen to be unbiased. The danger is that it might not be. One cannot afford to have a situation in which a request for an order for planning permission is granted when someone can say that the commission—the panel or the individual members—undertaking the cross-examination asked questions of members of the public appearing in the public session in such a way as to predetermine the answers. There is no easy answer to dealing with that issue, but it is a vital matter of public confidence; the public must have absolute confidence in this system if it is not to be distrusted.
I am sorry that the noble Viscount, Lord Colville, is not in his place, because he is much more of an expert in these matters than I am. He apologises, but he is involved in a consultation with a regulator; that date was set in his diary before the dates were set for this Report stage and there was nothing he could do to get here in time. Much as I might wish to do so, I could not keep my speech going long enough to enable him to arrive, nor would the House thank me if I did so.
There is a vital issue of public confidence in the system. We have to ensure that the system not only is fair but is seen to be fair. Probably the people with the most expertise in this field—and there are a lot of them about—are the planning lawyers. I do not fancy myself as an advocate for what I would call the planning lawyers union, but they are very experienced and good at what they do and I would be surprised if one or two of them did not finish up on the commission. Of course, that is up to those who will ultimately undertake the appointments, but it might solve the problem. However, the solution that we have suggested of an independent legal adviser to cover these matters is likely to be seen as more equitable and fair in the interests of both sides of the argument.
The issue is very much about public confidence in the system. Whatever we might have thought about our earlier debate, that was the principle behind the amendment that we moved. In the scale of things, this is a much simpler and more straightforward issue to understand. It is important to get the public outside to believe that the system is not loaded against them. Regrettably, there is already a large concern that the system that the Government are proposing will ride roughshod over all difficulties and objections and will speedily reach conclusions without particular consideration of equity. The Minister has gone a long way towards allaying that concern in her remarks. Government Amendment No. 94 also deals with this issue, albeit in a slightly different way. I look forward to hearing her reply, which I hope will cover exactly how she sees this paragon of unbiased and unprejudiced virtue working. I beg to move.
My Lords, there is a major issue other than public confidence: making sure that evidence is tested. The examining authority must have all the tools necessary, whether directly or indirectly, to ensure that points are made in a way that it can understand and on which it can act where appropriate. The testing of evidence is central to the amendment to which I spoke—I may even have moved it—in Committee and which is here again as Amendment No. 92, in my name and those of my noble friend Lord Greaves and, gratifyingly, the noble Baroness, Lady Andrews. I am sorry—well, not that sorry—that we got there before her. I will not speak to the amendment at any greater length, because the Minister may well have her own explanation and I do not want to steal her thunder. I have probably achieved what I wanted.
On government Amendment No. 94, is it anticipated, as I read it, that there will be just one person who is the source of legal advice? There are two issues: general legal advice to the commission and assistance to the examining authority in dealing with a particular application. I want to be certain that both are covered by the amendment and not just the first. I suspect that a single individual would not be able to cope. Indeed, a single individual at the level that one wants would not necessarily be available. One wants advocates with great experience of this sort of job, but such individuals may not want to take a full-time appointment with public sector pay. We must allow the commission to cherry pick from the range of talent at the Bar. I became a little uncertain about this as I read the amendment and was not wholly sure.
"a barrister, solicitor or advocate to provide legal advice and assistance to the Examining authority"— the commission, the panel or perhaps the single commissioner. Subsection (2) of the proposed new clause states:
"The assistance that may be given by a person appointed under subsection (1) includes carrying out on behalf of the Examining authority any oral questioning of a person making representations at a hearing".
In other words, where people are concerned to make representations about an application and to challenge the statements that are being made, it will be no part of the role of the person appointed to examine the applicant, as I understand it. They may examine the witness or the,
"person making representations at a hearing".
I cannot help feeling that that arrangement will look very one-sided, but perhaps I have misunderstood what the Government are getting at. All I can say at the moment is that, having studied the new clause, I am not entirely clear how it is supposed to work.
"appointed to act as advocate to the examination".
Subsection (3) of the proposed new clause states:
"An advocate ... may make oral and written representations to the examining authority and may ask oral questions of any person making representations at a hearing of the examination".
That seems to cover the same ground, although the amendments are far from identical. One is looking to ensure that there is an opportunity to examine the people who are making the application and to ask whether it has been properly thought through. That must be done in front of the decision-maker.
I referred in our debate earlier to the conference that I addressed on Tuesday. At the conference, a highly qualified lawyer practising in the City made a skilful presentation on the main thrust of the Bill and the new planning process. I was hugely impressed. He had not caught up with all the amendments that were being made in this House, but I do not blame him for that, as that would be a difficult thing to do. However, he laid stress, as we did in Committee, on the need for a forum in which someone can ask oral questions of the applicant and perhaps his expert witnesses. That may come at an earlier stage, but the arrangement is not entirely clear to me.
There was a good deal of discussion in Committee about the oral examination and I was left with the impression that part of the streamlining that the Minister and her department are trying to get will eliminate or substantially cut down the oral examination that may be allowed on an individual application. Again, I may have misunderstood what is proposed, but this group of amendments gives the Minister the opportunity to explain not only what her amendment means—as I said, it is not entirely clear to me—but how she expects the examination will be conducted and when there will be an opportunity for people who want to make representations about the application to cross-examine those who are putting it forward and their expert witnesses. I accept that it may have to be done within a tight timescale. The whole purpose of the Bill is to reach a decision much more swiftly than under the existing cumbersome system. However, it seems to me and to others that to dispense with the opportunity to put oral questions to the applicant and his witnesses is to remove a substantial part of what should be a participative process which will eventually give credibility to the ultimate decision of the IPC.
It may be that I have misunderstood these things and not read them properly. However, having looked at them carefully, I am still somewhat puzzled as to how the Government envisage this process being carried on.
My Lords, this is an important group of amendments, and I am grateful for the support for our amendment from across the House. Two important points have rightly been made. These processes must be seen to be fair, and must work in such a way that everyone feels that they have had their say and been listened to properly, that the evidence has been tested thoroughly and the judgment is sound and on the basis of the best possible evidence. Confidence in the process and ensuring that the evidence is properly tested, and that there are the skills and tools available to do that, are extremely important.
When we debated this in Committee, I sensed that there was growing understanding and support for the Bill's proposal to charge the commissioners with examining an application, to probe, test and assess the evidence through direct questions, rather than the traditional means of outsourcing this to advocates speaking on behalf of other people. At the end of our exchanges, we were also able to agree that cross-examination was not ruled out in the new regime. I made it clear that the commission can allow participants to cross-examine where it considers it necessary to ensure the adequate testing of any representations, or necessary to allow an interested party a fair chance to put the party's case. In short, this means that if there is a good case for inviting interested parties to cross-examine witnesses, the commission can certainly do so.
However, it was apparent across the House, not least behind me, that there were concerns that the commissioners might not always have the appropriate skill and expertise available to them to question parties in the same way that experienced advocates could, to dig under the evidence, and that they might need support to do that. It was argued in the debate led by the noble Baroness, Lady Hamwee, that the requirement for commissioners to consider that cross-examination may be allowed only "exceptionally" might make it more difficult for them to allow cross-examination, and that what we had inserted as a "safety valve" might not function as such.
Members of the Committee asked me to provide assurances, and to come back on Report with a better story and some amendments. I hope that I have done that. First, however, Amendment No. 16 of the noble Lord, Lord Dixon-Smith, and the noble Earl, Lord Cathcart, provides that the Secretary of State must appoint a solicitor to the commission for the purpose of advising it on the exercise of its functions, ensuring in particular that the consideration of applications is lawful and fair.
The new clause proposed in Amendment No. 95—which is, of course, closest to where we are—provides that the chair of the commission may appoint a qualified lawyer to act as an advocate to the examination, provided the solicitor of the commission considers them to be a suitable person to act in that role. It further provides that the advocate to the examination can make oral or written representations to the examining authority, and may ask oral questions of any person making representations at a hearing. It also provides that the solicitor to the commission may appoint a suitable person to assist the advocate. Amendment No. 91 is consequential to that.
I understand that noble Lords are seeking assurances that our approach to examining evidence is workable. In that context, I shall go over the opportunities that those coming forward will have to make an oral case. The noble Lord, Lord Jenkin, asked me to explain how that would work in practice. Most representations to the IPC would be written. They would be so technical that, by the time they had reached that stage, a lot of the discussion and argument on principle may be in-house. There is a good case for prioritising written representations to clarify technical issues.
However, there are two separate opportunities for oral hearings. First, there can be specific oral hearings on any one of a number of topics that are germane to the application. Secondly, and this is unique, there are open-floor hearings. That provides two powerful opportunities for individuals, both the promoters and those from the local community, to come and make their case and test each others' arguments.
As I said before, we expect that all commissioners will be provided with appropriate training to carry out their functions, including training in the techniques of testing evidence: questioning, listening and asking the right questions in the right way. However, I absolutely took the noble Lord's point that commissioners might sometimes need the support of a professional advocate to ensure that the right evidence is tested in the most effective and revealing way. That is what our new clause in Amendment No. 94 is about.
To answer the first point of the noble Baroness, that clause will provide that the chair to the commission may appoint a barrister, solicitor or advocate to provide legal advice and assistance to the examining authority—that could be a panel or a single commissioner—where the examining authority requests it. However, it cannot be a single person. Needs will differ, the scope will differ and the nature of the examination will differ. A counsel with experience in engineering projects or in dealing with different types of witnesses may be required. We have therefore left it as fluid as possible.
The noble Lord, Lord Jenkin, asks how it will work. Essentially, the advice and assistance that may be provided must be determined by the panel itself when it specifies its needs. It will certainly include the ability of the advocate in question to conduct oral questioning at a hearing, on behalf of the panel, of anybody who comes before it; it may be the applicant himself, or someone from the local community. His function is to probe the veracity and test the quality of argument and the quality of evidence provided. I hope that that addresses the concerns raised.
Our amendment will ensure that the assistance of the advocate would be available should the examining body feel it requires some extra support and forensic skill. It also provides that the chair will have the final say as he or she will have the ultimate responsibility for the deployment of the commission's resources. We are building in that discretionary power.
On Amendment No. 16 to Schedule 1, the main purpose of the solicitor to the commission would be to provide advice to the commissioners on the exercise of their functions. The appointment would be an appointment of a staff of the commission. I understand what the noble Lord seeks here; I shall try to reassure him. The Bill provides that the commission secretariat will be responsible for the internal running of the IPC, including resource planning, appointments, finance and expenditure. It will be headed by a chief executive, and we do not want to constrain or curtail their power. It is entirely right that the chief executive should have the freedom to plan and manage those resources, including the appointment of staff. It should therefore be the chief executive who decides whether there is a requirement for the appointment of a solicitor to the commission, and he is likely to do so in all probability. It is worth pointing out that similar provisions apply to other public bodies, such as the Competition Commission. Although the Competition Act 1998 does not state that a solicitor to the commission should be appointed, I understand that such appointments have been made. Therefore, I can put that on the record.
The proposed new clause in Amendment No. 95 is somewhat similar to the proposed new clause in government Amendment No. 94, but it provides that the advocate to the examination may make,
"oral and written representations to the examining authority", in addition to asking questions of witnesses at hearings. That question was raised by the noble Lord, Lord Jenkin. I, too, am not quite sure what the intention of the noble Lords is with regard to the advocate's role in making,
"oral and written representations to the examining authority".
However, it suggests that it may allow the advocate to both question witnesses about their evidence, and give evidence about the application. If my understanding of the amendment is correct, I caution against it. I suggest that decisions where an advocate could both give evidence and, as it were, get evidence might be open to a claim of judicial review because of the dual function involved. Therefore, I cannot accept the relevant amendments because that is rather problematic.
As regards cross-examination, the noble Baroness, Lady Hamwee, has returned on Report with Amendment No. 92, which seeks to remove the word "exceptionally" from the test in Clause 93(7). I know that noble Lords are concerned that "exceptionally" might make it incredibly difficult for anyone to justify the use of cross-examination. The noble Baroness is aware that I will accept her amendment, and I am very happy to do so. However, I wish to explain what it means in terms of our position on cross-examination in the context of the Bill.
I have said that the Bill sets out a way of proceeding for the IPC that aims in the best possible way to probe, test and assess evidence through direct questions rather than through cross-examination. Consequently, we expect that, in most cases, the examining authority—the panel—will question witnesses and probe the evidence. Direct questioning would be the norm; cross-examination would be used only where needed. That is why originally the Bill contained a reference to "exceptionally".
I have also said that while we believe interested parties should be able to cross-examine witnesses in certain circumstances, we think there needs to be a good case for departing from the norm. We think that the right test is therefore that of when it is necessary to ensure the adequate testing of representations, or that an interested party has a fair chance to put their case. I am sure noble Lords will understand that, given the arguments I have set out about cross-examination and direct questioning, we certainly do not consider that we should invite cross-examination unless it is necessary. However, I should stress that the Bill emphatically does not rule out cross-examination. If the commission concluded that allowing a party to cross-examine was necessary to ensure the adequate testing of any representations or to give a party a fair chance to put their case—these will be experienced people with the highest standards of argument and ability to know when it is important to be able to probe that much further—it would, as a basic matter of administrative law, have to allow it under the test we have included.
I have now further considered the strong arguments put by the noble Baroness in Committee. Although I am clear that in the examination of evidence, direct questioning would be the norm and that cross-examination would be used only where needed, I accept that the inclusion of "exceptionally" in the test to decide whether it is necessary to allow cross-examination may send the wrong, rather negative signal to commissioners and make it harder for them to allow cross-examination where it was necessary. Therefore, I am very happy to accept Amendment No. 92. I share her pleasure in seeing my name attached to that amendment, along with her own and that of the noble Lord, Lord Greaves.
My Lords, this has been a very useful and helpful discussion. Indeed, the noble Baroness went a long way to helping us further our objectives by tabling her amendment and particularly by accepting the removal of the word "exceptionally". That was definitely one of the words that those who have discussed this matter with us were concerned about.
I hear what the noble Baroness said about the possible conflict of interest in my amendment, in which I am in effect asking a lawyer to do what we criticised the process for doing, and sit on both sides of the fence at the same time. I shall have to study the matter with care to be absolutely sure that where we finish up—given the government amendment and the change that she has accepted—is an ideal situation. Subject to that minor caveat—if we need to do anything about that, we can do so at Third Reading—for now I beg leave to withdraw the amendment.
My Lords, I wish to speak to government Amendments Nos. 17, 70, 72, 76, 77, 78, 80, 81, 82 and 83. We had a full discussion of the provisions for pre-application in Part 5 in Committee and we have given considerable thought to the debate we had on that day.
As we set out then, the Government believe strongly that the promoters of major infrastructure projects should carry out the pre-application consultation on those projects. We are trying to initiate a proper dialogue between the promoter and the local community. We believe that the duties must therefore bear on the promoters and that they must take direct responsibility for meeting them. However, we were struck by what the noble Baroness, Lady Hamwee, said about the importance of the guidance that the Government will issue on pre-application consultation. We thought she put it particularly well when she said:
"What the Government have to say about encouraging genuine consultation is very important in addition to the words in the Bill".—[Hansard, 16/10/08; col. 871.]
We were also struck by the comments of the noble Lord, Lord Cameron, about the importance of making sure that promoters are under a clear obligation to spell out what responses they have had and what account they have taken of them, so that we can be assured that no corners have been cut. As my noble friend Lady Andrews said in that debate, we believe that the provisions of Chapter 2 of Part 5 represent a robust set of requirements. Promoters must consult local authorities on how to engage with people living in the vicinity of the land. They must have regard to the guidance on different points issued by the Secretary of State and the IPC. They must take account of the responses to consultation and produce a consultation report. Above all, the IPC must be satisfied that the requirements of the chapter have been complied with before it can accept an application.
However, having listened to the debate and reflected on it, we think that the requirements could be clarified and strengthened, and the amendments that we have tabled seek to achieve that. First, we have sought to clarify and strengthen the provisions for guidance across the chapter. Amendments Nos. 72 and 80 remove the various provisions in Clauses 42 and 47 that allow the Secretary of State and the IPC to give guidance at specific points in the process. I recognise that those are too piecemeal and, aside from being difficult to follow, perhaps they do not send quite the right message. Amendment No. 81 would therefore replace those provisions with a much clearer new clause that sets out unambiguously that the Secretary of State and the IPC may give guidance on how any of the pre-application requirements of the chapter should be complied with. Crucially, it also requires that the promoter must have regard to that in the guidance. That makes it much clearer where guidance can be given and by whom, and extends the scope for guidance on the part of both the Secretary of State and the IPC across the chapter.
Noble Lords may be concerned that this raises a potential for conflict between two sets of guidance. I place on record that we expect the two sets of guidance to be fundamentally different. The Secretary of State will provide high-level strategic guidance on how pre-application consultation should be carried out and how communities should be engaged with. We expect that guidance from the IPC will be based on, and will take account of, that and will focus on the detail of how it expects promoters to apply that in practice.
Secondly, we have sought to strengthen the requirement on promoters to spell out what responses they have had and what account they have taken of them. Amendment No. 70 to Clause 37 strengthens the requirement for promoters to produce a consultation report, extending the report to cover consultation and publicity under Clauses 42, 47 and 48. The report must give details of any relevant responses and the account taken of them. We will make sure that the consultation report is thorough and makes clear how responses to consultation and publicity have been addressed by promoters.
The new requirements are reinforced by Amendments Nos. 82 and 83 to Clause 54. They make clear that when the IPC has decided whether the promoter has complied with the requirements for pre-application consultation in Part 5, it must have regard to the consultation report, any adequacy of consultation representation by the local authority and the extent to which guidance issued by the IPC and the Secretary of State has been complied with.
Amendments Nos. 17, 76 and 77 are consequential. Amendment No. 78 to Clause 47 clarifies how the promoter's statement of community consultation relates to the proposed application, bringing the drafting into line with the wording used in Clauses 37, 42 and 48. Taken together, the amendments both strengthen the requirements for pre-application consultation and make clearer how they are to be enforced. The Secretary of State and the IPC will be able to provide guidance on any aspect of the pre-application procedure. Promoters must have regard to that, and the IPC must take account of whether the promoter has done so when deciding if it can accept the application.
Moreover, the amendments expand the consultation report and explicitly bring it within the scope of the IPC's decision on whether an application can be accepted. The amendments go a significant way to addressing the concerns expressed by noble Lords in Committee, and I hope that noble Lords are happy to support them.
I shall speak to Amendment No. 79, tabled by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Greaves. It seeks to ensure that promoters must consult local authorities on how to undertake consultation with people living in the vicinity of the land. I confirm that that is the effect of the Bill. Subsection (1) requires promoters to draw up a statement describing how they propose to consult the local community. Subsection (2) requires promoters to consult the relevant local authority about what should be in the statement. That has the same effect as the amendment; they are effectively consulting on how consultation should be undertaken. I hope that reassures the noble Baroness and that she will be prepared to withdraw the amendment. I beg to move.
My Lords, I am grateful for the compliment, and I am very glad to see the government amendment, which I support. The noble Lord is absolutely right in his analysis of my Amendment No. 79; I wanted to be reassured about the "how". The noble Lord may recall that we used the example of Heathrow, as they did in the Commons. If the British Airports Authority was regarded as being too close to the consultation, it would be regarded with considerable cynicism. That is a big example, but there would be smaller examples. I wanted an assurance that the local authority, which understands the nuances, was consulted on methods and mechanisms as well. I am grateful for the assurance and, when it comes to it, I shall not move my amendment.
My Lords, I hope that it will not be too tedious if I raise again the question that I raised in Committee. It is about trying to get guidance out as early as possible. I know that departments are currently working on national policy statements. As I understand it, as soon as the Bill becomes law the Secretary of State will be able to issue guidance under new Clause 81. They do not have to wait for the commission to be appointed; the Secretary of State could issue guidance and may well wish to issue draft guidance. However, potential applicants out there are very anxious to get ahead with this. They cannot actually start until they have some guidance on how the pre-application process will work, how they should draw up their applications and in what form they are expected to present them to the various stakeholders in the pre-application process.
It has been said in reply that it will be for the commission to produce the guidance, but the Government's new clause makes it perfectly clear that the Secretary of State can do this and does not have to wait until the commission has been appointed. This process is still at a fairly early stage. One has seen the advertisements for the chair of the commission, and there will be other appointments. I suspect that the process will run for several months before we have a commission in place. In the mean time, I do not see any reason why the Secretary of State should not start to draw up guidance now, or at least as soon as the Bill becomes law, which I hope will be fairly shortly, so that applicants will have a much clearer idea of what will be expected of them in the pre-application process.
I wholly welcome the pre-application process; it is a very important stage in the process of an application that will eventually go before the IPC. As I have said, many of those who propose major infrastructure projects want to get ahead with it. I hope that the Minister can provide some assurance and comfort that a start will be made on the guidance process as quickly as possible.
My Lords, the noble Lord, Lord Jenkin, raised a very important point. I can reassure him that we are just as committed to beginning this process as he is and that we will prepare the guidance as soon as is practicable.
My Lords, I thank the Minister for listening to what I said in Committee and for reacting to it. I am grateful that the IPC will not only have to take into consideration responses to the applicant, but that account has to be taken of these responses by the applicant. Those new words are exactly what I wanted. I am very happy to support the government amendments.
My Lords, the government amendments are, indeed, helpful, but my noble friend Lord Jenkin of Roding raised a fundamental point about timing. I have met potential applicants who are desperate to know how far they can go before the Act is even in place. That raises an interesting issue as to whether they are able to deal with the technical aspects of their application. If there is a proposal to build a nuclear power station on an existing site, a lot of design work and so on can be done; but we need to recognise that applicants in that situation will want to start work almost while the commission is being established.
One purpose of my standing up to support my noble friend is to ask the Minister whether the Government have a view on how far potential applicants can go in preparing an application before the commission is "up and running". The commission will probably have to be established on one day and to expect its first application on the second day of work. Some of the subjects under discussion are very urgent. Is it in the background of the Government's thinking that it will be technically possible for applicants, not to put in an application straight away—public consultation and that part of the report would have to be done—but to carry out the great deal of work that they can do? It would be interesting to know the Government's views on this. One would not wish anyone to cause themselves embarrassment because some of the papers were dated before the existence of the commission, when it is perfectly well known that when the application finally comes before the commission it will be in the proper form.
My Lords, I can probably surprise all noble Lords by showing how fast this Government work. Since my last statement, we have already started work on the guidance and we hope to consult on it in the first half of next year. Therefore, I suggest that people wait until the guidance comes out, but of course there is also the question of how fast we can deal with the detail of the NPSs.
My Lords, before the noble Lord sits down, I am sure he realises that "in the first half of next year" is a pretty vague sort of undertaking. As they have started on the guidance, I should have hoped that draft guidance, at least, would be available in, say, the first two months of 2009. I emphasise that there is a great deal of impatience out there among those who have been most enthusiastic about the new process. They want to get on with it but they cannot start until they get the guidance. So will a draft be available in the first two months of 2009?
My Lords, I completely agree with the noble Lord, but I am reassured by the fact that we have started so quickly. As soon as the draft guidance is ready, we will put it out—early in the new year, I hope.
moved Amendment No. 17A:
Schedule 1, page 143, line 2, at end insert—
"Disability Discrimination Act 1995 (c. 50)
In section 49D of the Disability Discrimination Act 1995 (power to impose specific duties) after subsection (1) insert—
"(1A) A public authority for the purposes of subsection (1) includes the Infrastructure Planning Commission.""
My Lords, I was very encouraged when the noble Lord, Lord Low of Dalston, added his name to this amendment. He has asked me to apologise to the House as, due to prior commitments, he is not able to be here this afternoon.
The noble Baroness will be aware that in Committee I moved a number of amendments on behalf of the disabled community, who have felt at a disadvantage in the operation of the planning system. I shall not weary the House by repeating all that I said on those occasions, but this amendment is one to which the disabled community attaches a great deal of importance. The purpose of moving it again—it is identical to the amendment that I moved in Committee—is, first, to emphasise that it is seen as a very important issue for the Government to address and, secondly, to ask the Minister what progress they are making in considering issuing a specific list of duties, as well as the general public duty under the Disability Discrimination Act.
I am very much obliged to the noble Baroness for the careful note that she has given me on this, and no doubt other noble Lords who have taken part on the Bill have also received it. It gives me an opportunity to speak on behalf of, I believe, a number of noble Lords. During the passage of the Bill, few Ministers can have taken as much trouble as the noble Baroness to keep us informed of the Government's thinking, to answer our points and to ensure that none is lost sight of. She may take some comfort from the fact that this has been much appreciated in all parts of the House.
My Lords, returning to the Disability Discrimination Act, the noble Baroness has described to me the three public sector equality duties: the disability duty under that Act; the race duty; and the gender duty. As the House will recognise, here I am particularly concerned with the disability duty.
There is an overarching general duty on all public authorities to avoid discrimination, but that can be underpinned—to use the noble Baroness's own word—by specific duties set out in secondary legislation. I understand that the IPC will be subject to the general duty, but I firmly believe that, when one deals with the complex structure of planning, the more specific duties should be applied to the work of the IPC. The noble Baroness has told me that when deciding which public authorities to list under specific duties, the Government consider such factors as whether the body has significant direct dealings with disabled service users, has a significant impact on the lives of disabled people, could be a significant employer of disabled people and is of sufficient size to support the duties. For planning legislation, the second point—whether it has a significant impact on the lives of disabled people—is important.
There is no doubt whatever that buildings and other facilities which are to be accessed by the public have to be accessible by disabled people, and that would certainly include a number of major infrastructure projects. One of the complaints of the disabled community is that their pleas to planning authorities have not been met with much sympathy or acquiescence. On the contrary, they make the point again and again, if that kind of thing can be taken into account early in the design of a project, the necessary facilities for access can be made available at far less cost and in a far more acceptable way than if they have to be added later. I do not want to bang on about it, but it is very important. I know from my brief discussion with the noble Lord, Lord Low, that he fully accepts that view. He asked me to emphasise his support for what we are proposing here. We need the specific duties under the Disability Discrimination Act to be applied to the IPC. I beg to move.
My Lords, I am pleased to have an opportunity to return to this matter. On the great tribute that the noble Lord paid me, I take it as no more than my duty to keep the House informed of how we are approaching the Bill and it has been a pleasure to work with noble Lords on all sides of the House. I had hoped that we would have resolved this so that, on Report, I would be able to give the detail. Unfortunately, although progress is being made, we have not quite got there. I take the point made by the noble Lord. In Committee, we debated the difference between general and specific duties. I apologise to the noble Lord that we have not been able to finalise the advice in time for Report. I would like him to accept, on behalf of the people for whom he is speaking, my assurances that this will not fall between the cracks. It will be addressed properly as part of the implementation process for the IPC. Once a final decision has been taken, the noble Lord will be the first person to know. I shall write to him and to the noble Lord, Lord Low of Dalston.
I feel confident in making that case, without reiterating what I said in Committee, because I am of the same mind as the noble Lord. Perhaps I can digress for a minute from the Bill. Last year, we spent a great deal of time in my department developing a policy called Lifetime Homes, Lifetime Neighbourhoods. Essentially, that was the first policy of its kind to address what we need as an ageing society: not only homes in which we can grow old, stay independent, safe and comfortable and which are affordable, but neighbourhoods which are welcoming, inviting and responsive to the needs of people of all ages and of all disabilities. We are now in a process of configuring what we mean by a "lifetime neighbourhood" and what it might look like, whether it be planning communities in a regenerative context or new build communities. We worked alongside groups of elderly and disabled people to make this as sound and effective as it might be. I recently visited the Papworth Trust to look at how it is providing homes in the middle of communities for people with quite severe disabilities. It was a great inspiration to see how integration is effective and happy for everyone concerned. We have this much in mind.
The noble Lord, Lord Tyler, earlier made the point that our planning system has not been particularly susceptible to people with particular needs or aspirations; it is nearly always a reactive process. I would like to see people involved in real planning—planning for real as we call it really—and being part of the debate that makes the scheme from the developer's or local authority's first vision of what they want for the community. People have to be in there right at the very beginning saying what they want. That is particularly important for people with visual or mobility difficulties. The noble Lord and I are of the same mind on this.
My Lords, I am grateful for that and for the Minister's apology for not being able to produce the answer in time for Report, which is what I asked for. However, it is more important to get it right than to do it quickly. I think the noble Lord sitting on her right might recognise the problems of the amendments we were dealing with yesterday on the Energy Bill. This is of huge importance, and it is important to get it right. The noble Lord, Lord Low, and I can take some comfort from what the Minister said, as can the communities on whose behalf we speak. I beg leave to withdraw the amendment.
moved Amendment No. 17B:
Clause 5, page 3, line 13, at end insert—
"(3A) Before designating a statement as a national policy statement for the purposes of this Act the Secretary of State must be satisfied that (taken as a whole) the policies in the statement contribute to the mitigation of, and adaptation to, climate change and to the achievement of sustainable development.
(3B) A statement designated under subsection (1) must contain a statement to the effect that it is the Secretary of State's view that the requirement of subsection (3A) is satisfied."
My Lords, I shall speak also to Amendments Nos. 29A and 51A, but not to Amendments Nos. 104A and 105A, which I shall not move. The amendments I shall speak to are concerned with climate change. I thank the Minister for her willingness to respond to concerns expressed in Committee about including a duty to consider climate change within the planning process at local, regional and national levels. She has been extremely sympathetic and accommodating. I also thank her for responding positively by placing a climate change duty within the regional spatial strategies—that will be done in a government amendment. It will strengthen the Bill and ensure that there is a duty in the local and regional planning process to contribute to the mitigation of and adaptation to climate change.
I also thank the Minister for her amendments to Clauses 5 and 10. They include climate change within the drafting of national policy statements and as part of the duty of the Secretary of State. However, I am still concerned that these amendments do not go far enough and leave the Government's carbon strategy to achieve an 80 per cent reduction in emissions by 2050 very vulnerable.
In the Government's amendment to Clause 5, the national policy statement must take,
"account of Government policy relating to the mitigation of, and adaptation to, climate change".
In the Government's amendment to Clause 10, the Secretary of State is called to,
"have regard to the desirability of ... mitigating, and adapting to, climate change".
By contrast, the regional spatial strategies and local planning documents must not just have regard to or take account of but must contribute to the mitigation of and adaptation to climate change. In the government's amendments, the NPSs and the Secretary of State are called upon simply to have climate change in mind. There is no requirement upon them to contribute to the mitigation of and adaptation to climate change. I imagine the Minister assumes in good faith that in practice that will be more rigorous than the language of the Bill implies.
My concern is for future Administrations, who will be called on to operate the legislation in 2010, 2020 and 2030. The Government have clearly understood the need to place a clear duty on the process locally and regionally, so the question is: why not nationally? At a national level, all we have is the provision "to take account", "to have regard" "to have in mind", not "contribute", which is the responsibility laid on people locally and regionally.
As we know, the national policy statements offer the framework for the development of national infrastructure and for decision-making by the Infrastructure Planning Commission. As we move towards a low-carbon economy, we need to transform the planning process. Many national infrastructure projects will make a significant impact on our carbon emissions. That is why we require decisions for the development of the national infrastructure to "contribute" to the mitigation of and adaptation to climate change.
The Minister may say that through the range of the NPSs, through the assurance of sustainability, which is in the Bill, and through the Government's Climate Change Bill, the Government will be able to maintain their strategy towards a low carbon economy, so that what you lose on one development, you gain on another in reducing emissions. But where is the mechanism that allows us to measure that, that enables us to hold them accountable? My fear is that, without a mechanism and an explicit duty in the national policy statement and on the Secretary of State, we will fail to achieve the Government's target of 80 per cent reduction by 2050.
As we are giving so much authority to the Infrastructure Planning Commission, we need to send an unequivocal message from the Secretary of State and from the national policy statement to the IPC industry that we simply cannot accept construction that ignores our responsibility to reduce carbon emissions. We must lay on the NPS and the Secretary of State a duty not just to "bear in mind", not just to "take account" but to "contribute" to mitigating and adapting to climate change. That is why the amendments are important. I beg to move.
My Lords, I support the amendment moved by the right reverend Prelate, which would strengthen the Bill immeasurably. My name is not associated with the amendments, but, if I may say so, I have associated myself in a spiritual sense with the sentiment that he expressed.
I also note the government amendments, which are an attempt to address the issue but which are, in my view, insubstantial in their commitment to the thrust of the Bill. After all, we all know that, along with energy policy, climate change policy is one of the drivers behind the Bill. To include specific mention of it at these key points of decision-making is vital. I think that the right reverend Prelate has hit on the right points of incidence. I hope that the Minister will accept that that is a better way than the government amendments to ensure that climate change mitigation, adaptation and sustainable development are at the heart of the decision-making process that the Bill will introduce.
I welcome the Government's provisions on regional spatial strategy, a subject on which I spoke in Committee; I am very pleased that they have been included. I wish only that they included the amendments now being tabled by the right reverend Prelate.
My Lords, my pager message says that we are in contempt of the amendments, but it meant content. We on these Benches support Amendments Nos. 17B, 29A and 51A, although I am glad that the right reverend Prelate is not pressing ahead with his other amendments because it is right that we look at these issues while we are debating the national policy statements.
We support the amendments in particular to strengthen the Minister's arm in toughening up the provisions in the Bill and to find a way of showing the importance of climate change as part of wider sustainability concerns. I recognise that there might be irreconcilable differences between some noble Lords as to whether climate change should override everything, but we still need to work towards making it a part of the mosaic of the environment—this is not only about climate; there are other environmental concerns—and economic and social matters. I apologise for my pager; it will not shut up. That is probably the correction.
My Lords, I join my noble colleague Lady Hamwee in supporting the right reverend Prelate's amendment. It is extremely important that the decisions that we took on the Climate Change Bill are applied right across government. Here we are, considering the same issues in our debate on the Planning Bill, and it is extremely welcome that the right reverend Prelate has raised this issue and made sure that the Government fully address it. I support the amendment also as a spokesperson in international development.
My Lords, I am in the hands of the House. As I will also respond to other amendments, is the noble Lord prepared to go first? I am sure we would all be grateful if he was. I will then cover all the amendments.
My Lords, I am quite happy to do that. I start by repeating an interest, which I declared in Committee, in that a planning application for a wind-power station may be made close to where I live on the Lancashire-Cumbria border.
In Committee, I introduced an amendment that sought to require the Secretary of State to ensure, before designating a statement as a national policy statement, that the statement was consistent with the terms of the European Landscape Convention, a convention of the Council of Europe that we signed up to a few years back. That amendment received some support in this House. The noble Lord, Lord Williamson of Horton, spoke in favour of it, as, I think, did others. The noble Lord, Lord Judd, who is in favour of wind farms, said that there were suitable and unsuitable places for them. The noble Lord, Lord Howarth of Newport, also tabled an amendment at that stage that required the Secretary of State to take account of the impact of policy on the,
"built heritage, scheduled ancient monuments and important landscapes".
Now, the Government's own Amendment No. 37 requires the Secretary of State to,
"have regard to the desirability of ... achieving good design", following the excellent campaign of the noble Lord, Lord Howarth, on that subject. The noble Lord has tabled another heritage amendment, Amendment No. 64, which I hope will be accepted. Landscape has, alas, disappeared except in the restricted sense in which it appears in the amendment tabled by the noble Lord, Lord Howarth, which covers conservation areas, registered parks, gardens and battlefields, but no more.
Hence, my amendment seeks to rectify an omission by adding just four words to the Government's amendment. It requires the Secretary of State to have regard to the desirability of,
"respecting high quality landscape".
The phrase, "high quality landscape", is to be found in the preamble to the European Landscape Convention. If it is thought to be a subjective concept, it is no more so than good design, which the Secretary of State will also now have to take into account.
Recently, I received in the post—in common, no doubt, with many other noble Lords—a small pamphlet which described itself as a snapshot of the work of areas of outstanding natural beauty. The covering letter, which was signed by the chairman of the National Association for Areas of Outstanding National Beauty contained the following two glowing sentences. It states:
"David Miliband commented in 2007, 'landscape provides the backdrop and basis for the nation's tourist industry, which contributes over £70 billion every year to the British economy. What attracts tourists to Britain is overwhelmingly the beauty and character of our landscape'".
There we have it. In the words of one of our most senior Ministers, when it comes to tourism and the famed attractions of this country, landscape is paramount—unless this was just an example of the art of triangulation, which is to say to each audience what will please them and not worry about the contradictions.
The fact is that some of our finest landscapes are being industrialised and ruined by wind power stations. That is very much true of the corridor that runs between the Lake District and the Yorkshire Dales National Park, with which I am familiar, but there are many other areas as well. In my opinion, the Government should not let that happen. It need not happen. This Bill could be a tool to prevent it happening. The Secretary of State could make use of the terms of Clause 5(5), which provides:
"The policy set out in a national policy statement may in particular", designate,
"one or more locations as suitable (or ... unsuitable) for a specified description of development".
This amendment would require the Secretary of State to take landscape into account before designating a national policy statement. Let the Government show that they do not always triangulate, but that they occasionally engage in joined-up government, and accept this amendment.
My Lords, before the focus returns to climate change, perhaps I may support Amendments Nos. 23 and 37 in the name of the Government very warmly. My noble friend has shown great enlightenment in proposing that the obligation on the NPS to insist on good design is explicit. The citizens of this country will have a better future because of it. It remains only to say that I am most grateful to my noble friend and to the team at the DCLG which has worked extraordinarily hard with us to achieve this excellent result.
My Lords, to follow what my noble friend Lord Reay said, it has often been said that the Government have three connected Bills. The Climate Change Bill, the Energy Bill—to which we bade farewell last night, I hope—and this Bill all have broadly the same objective. Therefore, I hope that noble Lords will not consider it inappropriate if I refer to something we discussed during the passage of the Energy Bill, which refers precisely to the point made by my noble friend Lord Reay.
When we were looking at the contribution that wind farms—offshore as well as onshore—should make to achieving our environmental objectives, it was said again and again that it was being held up not by the inability of the regulators to provide the necessary financial flexibility, and certainly not by any reluctance on the part of investors to invest in wind farms, but by two other factors. The first is access to the grid, on which I will not say another word because that is not directly applicable today, and the second is the planning system. The other day I saw an article about wind energy in a newspaper supplement headed: "Where are the wind farms? Blame the councillors". It is well known that a great many wind farm applications are pending because they have fallen foul of the planning system.
The difficulty for the Government and the IPC is how to break through the barrier to achieving the production of the amount of renewable energy to which the Government have committed themselves, while protecting precisely the kind of thing described by my noble friend and on which there has been so much debate. The place to do it is in the national planning statements. They should make it clear to those who are going to make applications based on a national planning statement for energy—I do not know how many statements there will be; one overarching statement for energy and perhaps others for more specific areas of energy—that they have to have regard to the aesthetic and human values related to these issues as well as the need to press ahead with achieving our environmental objectives. That is why I want to speak strongly in favour of these amendments, although I am not particularly wedded to the actual wording. If we are going to make sense of our energy policy we will do so not only by paying attention to the climate change legislation, but also by paying attention to this legislation.
Let me say this to the Minister: I do not envy the officials who will have to draw up national policy statements which are going to have regard to these multifarious objectives. However, we cannot go on with applications simply being held up indefinitely because of the opposition of local planning authorities. That is what this legislation is supposed to be about: major infrastructure projects of national significance, and no one can deny that wind farms fall firmly into that category. Here is a classic example of how all three parts of the legislative structure Parliament is now putting in place actually hang together.
I cannot sit down without telling a story that the noble Lord, Lord Chorley, may well remember because it relates to a wind farm he was concerned with in Cumbria. A cartoon in one of the papers showed a man rushing in and waving a piece of paper at his wife, saying, "We've won! We're not going to have a wind farm, we're going to get a nuclear power station instead".
My Lords, this group is a bit of a jumble containing amendments on climate change, important landscapes and design. It is a pity that we have not had an opportunity for separate debates on all three, but of course we need to make progress. I am glad to have the opportunity to say a word about the amendment tabled by the noble Lord, Lord Reay. He rightly takes me somewhat to task for omitting a reference to "important landscapes" in Amendment No. 64, tabled in my name and which we will debate later. The reason I did not include the phrase is because, in the formulation of that proposed new clause, I have drawn on the language of existing legislation and it was rather difficult to bring it in. I am therefore glad that he tabled his amendment. I have every sympathy with it and I am most grateful to him for picking up the baton. I hope that the House will look favourably on his proposal.
It was my intention to present a bouquet to my noble friend Lady Andrews at this point, but entirely exceptionally she is not in her place. She is there for hour on hour so it is not unreasonable that she may have nipped out for a cup of tea or, more likely, for a conference with her officials. I want to echo the words of my noble friend Lady Whitaker and say that Amendments Nos. 23 and 37 on design are a civilised and important development on the part of the Minister and the Government. I thank the Minister and her colleagues in the DCLG for the thought that they have put into how to promote good design in the new national infrastructure which the development consent regime will herald. My noble friend has responded constructively to the strong views expressed around the House that a requirement for good design should be written plainly on the face of the Bill. I suspect that she has negotiated toughly and effectively with other government departments that did not readily recognise its importance, notwithstanding that good design will save time and money in their projects.
I also thank noble Lords who have spoken in a series of debates in which we have made the case for the importance of good design and for the Government finding more effective ways to promote it. There is a world of difference between reliance on generalised aspiration in policy statements and specific duties laid in statute; between the policy for the time being of the Government and the settled will of Parliament. With these amendments, the Secretary of State will have no choice but to insist that all concerned in the new development consent process take conscious thought and make a genuine effort to achieve a high standard of design whatever kind of infrastructure they have in hand. We could not assume that this would have happened without a clear requirement in statute.
Of course developers and the commission would have sought to achieve something that worked, but why should they have aimed higher? All the pressures for haste and cheapness would have driven them towards developments that were adequate for their function, but no more than that. If Clauses 5 and 10 are amended in the terms of Amendments Nos. 23 and 37, developers and the commission will know that it is their duty to do their job not only adequately but well. Not only will this requirement make it more likely that highly visible features of our built environment will perform well and be satisfying in appearance, but it will influence our whole national culture of design for the better.
My Lords, I support the right reverend Prelate the Bishop of Liverpool in his amendments on climate change. First, however, I must apologise to the House because this morning, when I spoke for the first time on Report, I failed to declare my interests in the register, notably as a landowner and farmer and, with particular relevance to the Bill, as chairman of the Charities' Properties Association.
Climate change is the most important issue of our age. Banking crises, world recessions and even presidential elections might knock it off the front page every now and then but, given its importance to our generation and the next, there could not be anything more important than our climate change agenda. The Government recognise the case being made in the Bill. As the noble Lord, Lord Taylor, mentioned, one of the primary aims of the Bill must be to hasten our ability to react to and fight against the danger of climate change that threatens this country in various ways. I hope the Government will be able to strengthen their own amendments and give more backbone to the Bill on the issue of climate change
My Lords, the noble Lord, Lord Cameron of Dillington, has reminded me that I also should have repeated my interest as a landowner at the start of the Report stage. I neglected to do that this morning. That, however, is not the reason why I rise at this point.
The issue of climate change raised by the right reverend Prelate the Bishop of Liverpool is fundamental to the Government's programme. He has got it right: there is no doubt that the Bills need to be inextricably linked. The question is whether the Bill and the government amendments go far enough. When planning documents must now definitely contribute to mitigation and so on, the right reverend Prelate's reference to the words "taking account of" and "having regard to" being in the Bill simply makes the case.
This is a very important point and I am disappointed that the Government have not picked up this relationship and made it plain on the face of the Bill. This is not a place for something to be implicit—it needs to be explicit. The trilogy of Bills that we are considering in this Session will have a profound effect for a very long time. Anything which, heaven help us, contributes to dilution or to the possibility of excuses for dilatory action in the present situation simply is not tolerable. The principle of the Climate Change Bill imposes a very strong and difficult programme which has to begin now and go on at least until 2050. The depth of change that is required over that period will be very great indeed. It is essential that that process starts, and that it starts from day one. Neither the Bill nor the Government's amendments, which are helpful, imply that necessity.
I offer strong support to the amendments of the right reverend Prelate. I hope that the Minister will find it in his heart to ease his position a little and move towards that of the right reverend Prelate.
My Lords, it is a great pleasure to respond to this group of amendments. I know that my noble friend Lord Howarth is a little disappointed that the amendment in which he has a particular interest was not taken separately. I suppose that one would describe this as a portmanteau group of amendments; none the less, we have had a very important discussion.
I very much agree with the noble Lords, Lord Jenkin and Lord Dixon-Smith, that we cannot consider the right reverend Prelate's amendments in isolation from the Energy Bill and the Climate Change Bill. They come together. I agree with the sentiments of all noble Lords in wanting to ensure that the revised and reformed planning system is as consistent as possible with the Climate Change Bill and with what we are seeking to do in the Energy Bill. The argument between us is where ultimate responsibility lies. The Government firmly believe that ultimate responsibility has to be with the Government themselves and with Ministers. That is the difference in the interpretation of the amendments that I am bringing forward and those of the right reverend Prelate. I do not detect any difference between noble Lords in terms of the importance of making sure that we get this right.
The noble Baroness, Lady Hamwee, wants to strengthen Ministers' hands—I shall come on to the detailed argument later. I, too, want to strengthen Ministers' hands, but in doing so, we have to ensure that ultimate responsibility lies with Ministers. That is the point that I shall be arguing.
I would hazard a guess that it was after this proposal was debated in Committee that the Government announced the changes they wished to make to the Climate Change Bill and accepted the advice of the Committee on Climate Change, chaired by the noble Lord, Lord Turner, to go for the 80 per cent target. In a sense, that sets the new context in which we should be discussing these amendments. I suggest that even if Ministers wanted to run away from the implication of that in planning terms—which they do not—it would not be possible because the hugely challenging 80 per cent target means that it will be an imperative for Ministers to do what is necessary to ensure that we meet those targets, not because the target has been set, but because we know that meeting the 80 per cent target is the only way that we will contain the temperature rise to 2 degrees centigrade, which is absolutely critical, as the noble Lord, Lord Dixon-Smith, clearly pointed out.
I readily acknowledge the thanks which all Members have offered to the right reverend Prelate for pursuing this point. However, we have reservations about his amendment. We believe that any duties in relation to climate change need to fall on Ministers in performing their role of drawing up and designing the national policy statements. As we have made clear, the ministerial role in the new system is to set out policy in national policy statements that should take account of all relevant policy considerations and be the primary policy framework for IPC decision-making. The role of the IPC is then to examine applications for development consent, taking into account the national policy statement, any local impact report from local authorities, any matters prescribed in secondary legislation and any other matters that the IPC thinks are important and relevant to its decision whether to approve. The IPC is required to determine applications in accordance with the national policy statement except to the extent that one of the exceptions set out in Clause 102(4) to (8) applies. Chiefly, that means that the proposal must not be in breach of the law and its adverse impacts must not outweigh its benefits.
There is no question but that the role of the national policy statement is key. Ensuring at the outset that the policy is right and that appropriate weight is given to the various considerations will mean that they are then appropriately examined at each stage of the process. But here comes the reservation. If we were to place duties on the IPC in respect of policy on climate change or any other matter, there is a risk of detracting from ministerial accountability for policy and undermining the principles on which the new regime is built.
My Lords, is the Minister considering the right question when he says that it is a matter for the IPC to consider? Surely the duty needs to fall ultimately on the applicants. That is the issue that we need to get across. If we followed the amendments of the right reverend Prelate, the contribution to mitigation would be shifted across to the applicant, who would have to show how their application made a contribution. That is an extension of what the Minister is saying. It is not enough to discuss this matter just in the context of the planning commission.
My Lords, I well understand the noble Lord's point, but it does not detract from the general thrust of my argument, which is that it is ultimately for Ministers to come to a view on the impact on climate change of a national policy statement. Applications are made within that context. My concern is that we do not detract from ministerial accountability and authority in these matters.
We could have a very good, general debate about how we influence developers, communities and applicants to do the right thing in relation to sustainability and climate change. There are many mechanisms under which we do that, with responsibility in a number of government departments. Local authorities have a big role to play, as the noble Lord suggested in an earlier amendment. But the key point is the relationship between Ministers, the national policy statements and the IPC. All I seek to do, in acknowledging the concerns that the right reverend prelate has by introducing government amendments, is to ensure that we do not confuse those responsibilities.
"Before designating a statement as a national policy statement for the purposes of this Act the Secretary of State must be satisfied".
The substance of the right reverend Prelate's amendment is a responsibility on the Secretary of State to be satisfied that,
"policies in the statement contribute to the mitigation of, and adaptation to, climate change", sustainability, and all those other things. It is the Secretary of State who must be satisfied to that effect. So I do not follow the Minister's deduction that the amendment in some way diverts the responsibility from where it clearly lies in the amendment, which is with the Secretary of State.
My Lords, my reading of the amendments tabled by the right reverend Prelate is that it is a requirement for each national policy statement to contribute directly to the mitigation of climate change. Within the context of the 80 per cent target and the need to ensure that we do everything we can, there may be certain circumstances in which it cannot do that. What I am arguing for is some overall flexibility, with Ministers having accountability.
I stress at once that the concept of sustainable development sits at the heart of planning. This is made explicit in planning policy statement 1, which sets out how the principles of sustainable development apply to planning generally. In 2005, the Government published Securing the Future, a new sustainable development strategy for the UK, which set out five key principles for sustainable development: living within environmental limits; securing a strong, healthy and just society; achieving a sustainable economy; promoting good governance; and using sound science responsibly. The strategy makes it clear that in order for a policy to achieve sustainability, it must integrate all five of those principles, which is necessary if we are to meet the needs of communities while respecting the limits of our environment and resources. We must therefore look at the social, economic and environmental considerations holistically and integrate them in a way that allows us to promote development that meets the needs of the present without compromising the ability of future generations to meet their own needs.
It is important to give the House the Government's understanding of what we mean by sustainable development, which we believe should be the guiding principle for Ministers in preparing national policy statements. That is why Clause 10 places such importance on it.
Issues around climate change—and I speak from my position, wearing my DECC and Defra hats—are very important indeed. The noble Lord, Lord Cameron, made the point that however much we are concerned about financial issues or presidential elections, climate change is the mega-issue that we face. That is why the decision by my right honourable friend the Secretary of State for Energy and Climate Change to go for putting the 80 per cent target on to the statute book was so important.
Despite that, other elements of sustainable development are also important and we must have regard to them. I think that the House might agree that, alongside climate change, we have to take account of the need to secure our long-term energy supply, for example. The noble Lord, Lord Jenkin, has powerfully and passionately been asking the House and the Government to ensure security of energy supply. It is also important that we have regard to employment and economic growth. We cannot ignore people's standard of living and, crucially, other environmental decisions, such as preserving biodiversity.
This is where we come to the nub of the argument, which I anticipated earlier. The amendments tabled by the right reverend Prelate would require that, before the Secretary of State designates a statement or amends a national policy statement, he,
"must be satisfied that (taken as a whole) the policies ... contribute to the mitigation of, and adaptation to, climate change and to the achievement of sustainable development".
Amendment No. 51A would separate climate change from sustainable development and introduce a new clause that would require the Secretary of State to draw up and review national policy statements,
"with the objective of contributing to the mitigation of and adaptation to climate change".
Our problem with this is that the amendments would elevate the consideration of climate change to such a degree that the other considerations could be marginalised. There could be risks for other policies, including energy policy.
We have made clear our intention to undergo the transition to a low-carbon economy. It will be in statute, provided that your Lordships accept it when the Bill comes back on Monday week. That is the context in which all these other considerations come to the fore. It is the difference between where we were in Committee and where we are now on Report.
A basic principle of our climate change policy, as emerges in the Climate Change Bill, is that some individual policies may not necessarily contribute to meeting the targets. We have to accept that. As long as our national effort balances and the overall targets, taken together, are met, that is perfectly acceptable. The problem is not philosophical but practical. We do not want to undermine this prospect by requiring each national policy statement to contribute directly to the mitigation of climate change. We think that that would restrict our freedom of manoeuvre, which is why we have reservations about the amendments tabled by the right reverend Prelate. Ultimately, these decisions have to be made by Ministers. They cannot be made by anyone else.
We believe that the amendments that we have tabled create the kind of regime that will enable the concerns of noble Lords to be covered without in the end affecting ministerial responsibility. Our Amendment No. 37 makes it clear that addressing climate change and achieving good design are key and essential elements of the notion of sustainable development. Our amendments aim to highlight the particular importance of climate change and good design but do so as part of the broader sustainable development duty. They make it clear that climate change should be at the forefront of Ministers' minds when drawing up national policy statements but that that should be done within the broader objective of achieving sustainable development. That is crucial. Clause 10 underpins and frames the Secretary of State's actions. It ensures that those principles are always at the forefront of Ministers' minds when drawing up and reviewing national policy statements, which is where they should be.
If Clause 10 sets out the principle, Clause 5 will underpin the practice. Amendment No. 25 to Clause 5 requires Ministers to include in each national policy statement an explanation of how the policy takes account of government policy relating to the mitigation of, and adaptation to, climate change. In effect, Ministers must describe how they have carried out their duty under Clause 10 by reference to wider government policy on the mitigation of, and adaptation to, climate change. This will, of course, include the Climate Change Bill once it is in place, so ensuring, as I have said, that national policy statements themselves are drawn up in the context of the targets and policies that it puts in place.
These duties should then be seen in the wider context of the processes which the Bill puts in place to ensure that the policy set out in national policy statements is appropriate and robust. First, national policy statements will be subject to an appraisal of sustainability, to ensure that environmental, social and economic objectives, including climate change, are properly factored into their development. This will involve an iterative process of collecting information, defining realistic alternatives, identifying sustainability effects and developing mitigation measures. That will then be fully integrated with the wider national policy statement preparation process, involving statutory consultees during key stages and, where necessary, the draft national policy statement will be revised in light of the appraisal of sustainability.
Secondly, national policy statements will be subject to public consultation and, as noble Lords have already debated today, subject to parliamentary scrutiny. If, in the process of scrutiny, Parliament were of the view that climate change—or, indeed, design, which we shall come to in a moment—had not been properly taken account of, it could make a resolution or recommendation in respect of that.
I emphasise that Ministers will be bound by the provisions of the Climate Change Bill once enacted, and will need to ensure that, taken together, government policy achieves the targets that it sets out. This is the key point: it is taken together. It must be seen as a collective government effort. Inevitably there will be some—I hate to say it—swings and roundabouts, but there must also be some balancing between the different national policy statements. In some areas, it will probably not be possible to show a contribution on climate change, but there will be a national interest in taking that policy forward. All of this happens within the context of the 80 per cent target enshrined in legislation. That is a critical point.
"satisfied that the adverse impact of the proposed development would outweigh its benefits".
That ties up with what the Minister was saying earlier. Can he confirm that one of the adverse impacts that might offset the benefits of a development would be the fact that it did not contribute to the objectives about climate change? In that case, it seems that what he said earlier—that the overriding requirement of climate change cannot apply automatically to every application—must be right. There must be times when the national need for infrastructure must outweigh that. The Minister is nodding. Perhaps he can confirm that that is what the Bill means.
My Lords, I think that is right. I am sure that is what is meant. Only two weeks ago, noble Lords were asking me about the so-called energy gap. We undoubtedly face a challenge in terms of the number of generating stations which are due to go out of business over the next 10 to 12 years. One way or another, we shall have to tackle that matter. Clearly, such issues must come into play as well. I hope that satisfies the noble Lord.
Good; that is a good start, my Lords. The point about regional matters was very well put. I very much welcomed the comments of the right reverend Prelate and the noble Lord, Lord Taylor, on the government amendment relating to regional spatial strategies, which is a very straightforward amendment.
I again pay tribute to my noble friends Lord Howarth and Lady Whitaker in relation to government Amendments Nos. 23 and 37 on design. Although I was not present when design was debated, my noble friend Lady Andrews has kept me well informed about them. As someone who has worked very closely with CABE over the years, I am very glad that she has allowed me to speak to those government amendments. I believe that the amendments will considerably enhance the Bill.
As regards the amendment in the name of the noble Lord, Lord Reay, it is a great pleasure to debate these matters with him. We had a similar debate only yesterday. I very much understand the issues that he raises. His Amendment No. 37A seeks to amend government Amendment No. 37 by adding "respecting high quality landscape" to the requirement for the Secretary of State to,
"have regard to the desirability of mitigating, and adapting to, climate change", and "achieving good design". I do not know whether this will comfort him but the Government have always made it clear that wind farms should be located in appropriate places, and that local concerns should be listened to. I suspect the noble Lord, Lord Jenkin, thinks that local concerns have been listened to rather too much as regards those matters. None the less, we believe that the appropriate guidance has been given within the formal planning procedure. I understand that PPS22 on renewable energy of the Department for Communities and Local Government highlights the need to take account of environmental impacts in terms of landscape and visual effects. The noble Lord asked about sites of specific special interest. I am happy to write to him to give him further detail on that, but there are existing policies for those areas. There are clear duties on public bodies with regard to the statutory purpose of these areas when exercising or performing any function relating to or affecting land within them. However, as I say, I am happy to write to him to provide more detail.
I think I have made it clear that design and climate change considerations are component elements of sustainable development. I have no doubt that the desirability of preserving high-quality landscape is another. However, we run into what I call the list problem. One has to be careful of setting out a long list of component parts of sustainable development in the Bill. I reassure the noble Lord, Lord Reay, that impact on landscapes is among the impacts that will be assessed through the appraisal of sustainability, and we believe that it is captured by the notion of sustainable development, which we have discussed at length. I reassure noble Lords that I understand the importance of the new planning process being considered very much in the context of the challenge of climate change. There is no greater challenge that this nation or the world faces.
For the reasons that I have expressed, I hope that noble Lords will accept that there is a very germane reason why there still needs to be some flexibility for Ministers. There are some circumstances where climate change is not the only consideration. That is why the amendments that we tabled today probably meet the requirement of the right reverend Prelate. I am happy to have further discussions with the right reverend Prelate about this. I hope that, if he does not agree with me, at least he will accept that we are trying to sing from the same hymn sheet, if I may say that, on the importance of climate change.
My Lords, will the Minister give further consideration before the next stage to the amendment that was tabled by my noble friend Lord Reay? Good design is important, and I supported it in Committee, but landscape and siting are equally important. We were given a very good example at the meeting that the noble Baroness, Lady Andrews, held before Committee stage, of where a developer insisted on putting some structure on top of a cliff when it could have been moved down the hill and a couple of miles into a wood and been hidden. Not only would the design have been better, but the landscape would have been better. To some of us, the siting of major infrastructure is probably more important in some instances than the design. If the noble Lord would look this way and not just in his wing mirrors, and give a little help to this side of the House, it would be appreciated.
My Lords, I have spent the past three weeks giving help to all sides of the House. The noble Earl is a very experienced parliamentarian, and he knows that it is easy for me to say that I am happy to consider the amendment between now and Third Reading. The danger is that noble Lords will think that that is tantamount to saying that I am prepared to give a concession.
I am certainly happy to engage with the noble Lord, Lord Reay, after the debate and discuss it further with him, but I would not want the House to be under any misapprehension, and the Government think that landscape is essentially covered in the general consideration of sustainability as I described it earlier. We are very averse to adding more lists into the Bill, for all the reasons that noble Lords know. The more that you define through a list system, the more you exclude. If the noble Lord accepts that I will engage with him, but that I cannot hold out a promise of a government amendment on Third Reading, I am happy to do so.
My Lords, I thank all noble Lords for their contributions to the debate on this group of amendments. I am particularly grateful to the Minister for clarifying his position. He raised many points that are worthy of more debate, but this is not the time to do it. I reassure him that I recognised the hymn sheet that he was singing from; some of the tunes were familiar and delightful, but I am unpersuaded on one or two things. I agree with the noble Lord that the ultimate responsibility lies with the Secretary of State; but because we have before the House a Bill with new powers and with unique authority being given to the Infrastructure Planning Commission, it is all the more important to send out a message. That message must be at the heart of what the Secretary of State says. The Secretary of State and the national policy statement must be bound into contributing to the mitigation of and adaptation to climate change. For that reason, I should like to test the opinion of the House.
My Lords, I shall speak also to Amendments Nos. 19, 20, 22, 24, 26, 30, 124 and 125—a list which I hope is not as daunting as it sounds.
At the previous stage, I sought to take out the word "suitable", as applying to a location, on the basis that any location could be no more than "potentially suitable". In several places, the Bill uses the words "suitable (or potentially suitable)". However, it does not seem to me that anything can be regarded as more than potentially suitable. I felt that the Minister made my case for me, and I shall refer to some of the things that she said on
"They highlight that the suitability itself might be conditional on external factors. One cannot set out specific criteria for these situations in all cases".
Indeed. Therefore, because of conditionality, the Bill should refer only to "potentially suitable". The suitability of a location must be,
"ultimately dependent on the details of the particular project proposal"— indeed, only potentially suitable.
"The IPC would have to look closely at the details ... It would have to look at the specific application and the precise siting of potential impacts to determine whether the application was appropriate to go in the place identified".—[Hansard, 6/10/08; col. 105.]
I could go on, but I think I have probably made the point. I hope that the Minister can explain what I was missing the first time around and what I am still missing in understanding the desirability of both phrases—that to include "suitable" does not pre-empt other decisions that need to be made. That goes to Amendments Nos. 18, 19, 30, 124 and 125.
Amendment No. 20 would delete the identification of a statutory undertaker as appropriate to carry out a development. In Committee and in a very long letter sent to noble Lords since then, for which I thank her very much—it was daunting, but as one got into it, it was very readable—the Minister's argument was that this would mess up Clause 172, which deals with blight. Under Clause 172 the person who bears responsibility for the blight is the statutory undertaker, if identified in the national policy statement. If one is not identified, then it is the Secretary of State. There is a degree of circularity here. If there is only one undertaker, the Secretary of State should sort out the financial matters with the undertaker and that should not override what I see as a certain lack of propriety in identifying one undertaker if there is more than one candidate. If a single candidate is to carry out a particular development as the statutory undertaker, there is no need to identify it anyway.
We did not discuss Amendment No. 22 in these terms in Committee, but it seeks some clarity in the Bill, which I hope does little more than reflect what we have already been told, which is to insert a provision that an NPS should set out the extent to which it supersedes any other government policy—that is, planning policy statement, planning policy guidance or other documentation providing planning policy. In other words, it makes the hierarchy clear and ensures that those who apply the policies are completely clear about which takes precedence. In the planning world, I think we are all used to the term "emerging policy", which is a useful cop-out for, "We haven't quite settled this, but this is the direction we are going in". I should perhaps say that with apologies to some planners. It would be helpful to have complete clarity.
Amendment No. 24 goes back to suitability. It is an attempt to encompass the assurances that we have been given by the Government. It states:
"The identification of a location as potentially suitable", since I do not accept that any location can be suitable full stop,
"for a specified description of development shall not be conclusive as to the suitability of any site which is the subject of an application for planning permission"— in other words, is outside the IPC regime—
"or for a development consent order", which would be within the IPC regime. We had many assurances that the IPC is independent and that it is required to pay proper attention to all proper planning matters and to pay attention—more than pay attention—to the local impact statement. I have particular concern that if the Secretary of State identifies a location or a site, no discretion will be left for the IPC or the planning authority and the local impact statement would be completely worthless. I believe that that is not what the Government intend, but it would be worth spelling out here or elsewhere precisely how the suitability point bites and where it does not bite. I beg to move.
My Lords, at the outset of my remarks, it is appropriate to say to the noble Baroness that were she to decide to divide the House on this matter, I would not follow her into the Division Lobby, but I nevertheless think that yet again she has raised some significant issues. I hope my noble friend will accept that if we are to make a success of national strategy in planning—nobody is more in favour of that than I am—identification and ownership of the plan, right down to the immediate community level, is terribly important to enable people to identify with what is being planned so that the spirit is there in implementation. If not, we will have a minimalist approach to implementation, which would be very unfortunate. Where work is done by those with responsibility at local regional level, it is important that it is seen to be taken seriously before national decisions are made, otherwise there is resentment and a feeling that things are being forced upon people, and feet will be dragged. Undermining and "Operation Clawback" will begin. That would be very sad.
My Lords, my noble friend is right that important issues have been raised by the noble Baroness. I am grateful for the opportunity to respond to them. She focused on the technical aspects of what an NPS is and does, which are set out in Clause 5. Amendments Nos. 18 and 19, together with consequential Amendments Nos. 30, 124 and 125, probe how far an NPS can go in identifying locations as suitable for development by removing the provision that an NPS may identify locations as suitable in the first place.
The noble Baroness made it clear that she believes that the Secretary of State should only be able to identify locations that are potentially suitable, making clear that the IPC will therefore have genuine discretion for an independent decision. I take the point she made. In Amendment No. 24 she wants to ensure that identifying a location as potentially suitable should not bring with it a conclusive decision about its suitability for a particular project.
I will come to her Amendments Nos. 20, 22 and 26 as I go through my speaking note, because I think that they are linked.
Perhaps I may deal with the key issue of "potentially suitable" as opposed to "suitable"—whether we are dealing with semantics or a serious concept. The noble Baroness has argued that, in logic, all locations identified in an NPS can only ever be potentially suitable, because the IPC will still need to consider local impact and the other matters in subsections (4) to (8) of Clause 102. If they outweigh the benefits, the application could be refused.
I do not think that I made a very good fist of explaining that in Committee, and as the noble Baroness read it back to me I became even more convinced of that, so let me take another stab at it. In the first place, although Clause 5 permits an NPS to identify a location as suitable, it certainly does not mean that the IPC will have no discretion to refuse an application for development at that location. As I said, the IPC will need to consider the issues raised as a result of the tests in Clause 102(4) to (8). However, as the noble Baroness will understand, Clause 5 relates solely to the Secretary of State's view expressed in terms of policy on an NPS; it does not relate to any decision of the IPC. Clause 5 permits the Secretary of State to come to a clear view about locations that in his or her view are suitable, but the final decision about whether development can go ahead in a location rests with the IPC. That is governed by Clause 102, not Clause 5.
Let me be clearer than I think I was in Committee about the definition. There is a defensible difference between policy that identifies a location as suitable and that which identifies a location as potentially suitable. The former is, clearly, more certain; the latter suggests that certain conditions still need to be satisfied or obstacles overcome before a location becomes suitable. Perhaps I can explain this in the context of the IPC's decision-making framework. If an NPS says that, in the Secretary of State's view, a location is suitable for a particular type of development, the IPC will be required to decide an application in accordance with the NPS unless one of the exceptions set out in Clause 102 (4) to (8) applies.
The starting point for the IPC in that case would be that the Secretary of State considers the location to be suitable, and weighed against that would be the issues raised by Clause 102(4) to (8). Those issues could include whether special consideration of alternative locations was required if it was a habitat site, how far alternative locations had been considered by the Secretary of State in coming to the view, and whether there were local adverse impacts that the Secretary of State had not taken into account in coming to that view. However, if an NPS says that a site is potentially suitable, the starting point for the IPC would be that there are matters that must be addressed before the site can be considered suitable. The IPC would still need to come to a view on those matters and would then need to weigh the complete package against the issues raised by Clause 102(4) to (8). I think that that is a solid distinction.
The amendments would restrict the Secretary of State's ability to identify suitable sites for NSIPs in a national policy statement and, therefore, his or her ability to take responsibility and accountability for that policy. The noble Baroness will understand that I cannot accept that amendment.
Amendment No. 24 goes to the heart of the matter. I should be absolutely clear that if an NPS were to identify a location as suitable or potentially suitable for development, that would in no way predetermine the outcome of a decision whether to grant development consent.
The IPC will always be required to consider any application in the context of the provisions for the examination of applications set out in Clause 102, and will be able to refuse consent in the circumstances set out in the clause. However, the noble Baroness has made an important point, which I accept, about clarity and certainty. I understand the concerns, and will take the matter away and consider it further to determine whether we can do something to make this clearer. Clause 5 may not be the appropriate place for clarification, because, as I have said, it is important that we maintain the distinction between policy-making and decision-making. We may be able to clarify this to her satisfaction in the decision test. If she withdraws the amendment, I will give the matter more thought.
I will not be able to give the noble Baroness, Lady Hamwee, as much satisfaction on Amendment No. 20, which deals with statutory undertakers. In Committee, noble Lords argued that NPSs should focus on policy issues alone and should not be distracted by the detail of who should carry out development. I went into this in some detail in my letter, and it is hard for me to improve on that. We may simply have to agree to disagree.
There is a pressing reason why this provision is necessary. Clause 5(5)(e) should be read alongside Clause 172, which defines appropriate authority, as she knows, for the purposes of Chapter 2, Part VI, of the Town and Country Planning Act. At the risk of déjà vu, I must repeat that removing the provision to identify statutory undertakers would result in the Secretary of State, rather than the promoter, becoming liable under the blight provisions in Clause 172. The problem is that this could greatly restrict the content of an NPS, as identifying sites as potentially suitable for development would render the Secretary of State liable for compensation for any blight caused. This would not be appropriate, because it is the promoter who will ultimately benefit from any such development, so they, not the taxpayer, should bear the burden of compensation.
Amendment No. 26 would require the NPS to set out how the policy in it relates to the provisions of other policy statements. Noble Lords seek to ensure that NPSs are consistent with one another and have proper regard for the policies that each sets out. Noble Lords also seek to ensure that they reflect the reality of the rest of the planning system and are consistent with it. I certainly agree. Indeed, the Bill is a huge step forward in this regard. For the first time, nationally significant infrastructure will be planned for and decided according to a single consent process, rather than through the minefield of consent regimes that we have now. However, it is neither appropriate nor practical to require NPSs to set out how each relates to every other NPS.
It is clear that in some cases NPSs will have close links with other NPSs. I recall our debate in Committee on the amendments tabled by the noble Lord, Lord Berkeley—who unfortunately is not in his place at the moment—on the transport NPSs. In other cases, however, there will be little common ground. On the other hand, NPSs will be linked to a wide range of policies outside the new regime, and those relationships will often be critical. NPSs will have to justify their policy within the wider orbit of relevant policies on transport, energy, the environment and planning, with the objective of contributing to the achievement of sustainable development. NPSs will need to explain and give evidence of those relationships. However, they will be different in each situation and will therefore be complex, so it would not be practical to place a requirement in the Bill that would constrain them artificially.
Finally, Amendment No. 22 would require each NPS to set out the extent to which it supersedes policy in a planning policy statement or any other statement of government policy. I sympathise with the purpose of the amendment, but if an NPS were to render policy out of date, this should be clear. However, NPSs will usually be narrowly focused. They will set out policy only on certain types of infrastructure above the threshold. The main thrust of this policy will apply above the thresholds set out in the Bill, although obviously as statements of government policy they will influence the TCP system to a degree.
Planning policy statements and White Papers are fundamentally different as they are drawn up for different purposes. For the IPC, the NPS is the primary policy framework. When other planning policy statements and White Papers with their own particular purposes and functions are out of date, they are either revised or replaced with another document with a similar purpose. The problem with the amendment is that there is a blurring of the line between different types of policy statement, which is not very helpful. Under the TCP system, the decision must be made in accordance with the statutory development plan unless material considerations indicate otherwise. The point raised by the noble Baroness is rather complex and I have replied in a rather elaborate way. If she will allow, I should like to write to her on this point, which is important and should be placed on the record.
My Lords, I am grateful for that. I will not press the point on the statutory undertaker, although I still think that Clause 172 should be sorted out instead of being prayed in aid as the excuse for keeping Clause 5 as it is. Clause 5 should not give a particular statutory undertaker an advantage if there are other candidates. Clause 22 is complex. We will have to have confidence that the NPS will make the position clear if there is scope for confusion, but I look forward to what the Minister might write.
As regards Amendment No. 24 and the other amendments to which it is linked, in substance if not in drafting, I absolutely take the point that Clause 102, on the decision-making process, probably is the place to deal with that issue. I am pleased to hear what the Minister has said and I am even more pleased that she will think about it further. To have something in the Bill that says no more than we have heard from the Government but makes absolutely clear the position would be extremely helpful and would give a lot of reassurance to people who have more cynicism about these matters than I should wish to express at this point. On that basis, I beg leave to withdraw the amendment.
"The policy set out in a national policy statement may in particular ... set out the flood risk of identified locations".
When the Housing and Regeneration Bill was debated in this House, I moved similar amendments on flooding. Your Lordships will be relieved that I shall not regurgitate all the arguments. The House is only too well aware of the arguments and the problems. So I shall cut to the chase. Earlier this summer, my noble friend Lord Rotherwick sponsored an excellent debate on flood management. Then the noble Lord, Lord Davies, repeated a Statement on the Pitt report. Following the floods in 2007, there have been a number of Questions on flooding.
Your Lordships will recall that after the floods in 2007, power was disrupted and bottled water had to be shipped into areas because installations were damaged. In this House, a Question was asked about how many similar installations there are in the country in danger of flooding. The noble Lord, Lord Rooker, answered that there were hundreds. Unfortunately, my amendment on flooding in the Housing Bill was not accepted by the Government. In Committee, the Minister used PPS25 in her defence. She said:
"The point about PPS25 is that it gives us, for the first time, a hierarchy of risk, which we identify in terms of where we can build with modification. How do we assess the nature of the risk and what do we have to do ... you cannot not build on flood areas in this country; you must assess the risk. That is where the Environment Agency comes in. PPS25 gives us a much more accurate tool than we have ever had before".—[Official Report, 3/6/08; col. GC40.]
When I pressed my amendment on Report, the noble Lord, Lord Bassam of Brighton, responded for the Government by saying:
"The proper place for considerations such as these is within the planning regime. We will have the opportunity to debate this when the Planning Bill comes to your Lordships' House later this month".—[Hansard, 7/7/08; col. 566.]
So here we are.
I agree with the Minister when she says that:
"You cannot not build on flood areas in this country".—[Official Report, 3/6/08; col. GC40.]
Of course she is right, but where this happens, mitigating action should be undertaken to ensure that development is flood resilient and resistant where necessary. The noble Lord, Lord Rooker, said that there were hundreds of existing installations up and down the country that are in danger from flooding. We must not repeat past mistakes when considering future infrastructure installations. My amendment provides that when the IPC is considering an application, it must assess the flood risk so that any mistakes made in the past are not repeated.
There are two types of flood risk: heavy rain or rivers bursting their banks and, as my noble friend Lord Dixon-Smith said in Committee, flooding due to rising sea levels. He went on to say:
"The thought of a nuclear power station being inundated in half a century's time ... A large load of radioactive material being lapped by the sea, would not be tolerable".—[Hansard, 6/10/08; col. 97.]
Of course he is quite right. As an example my noble friend highlighted Dungeness which is located on the end of a long spit of very low-lying sand, all of which is susceptible to rising sea levels. Would we or should we build the next generation of nuclear power stations on a similar site? Perhaps not, if a flood risk assessment was made.
I am absolutely certain that the noble Baroness in responding to the amendment will fall back on PPS25 for her defence. First, can she guarantee that the IPC will as a matter of course be required to comply with PPS25 for all applications that come before it? Secondly, is PPS25 robust enough? I am sure that the Minister will argue that it is, but others are not so sure. In his review of flooding, Sir Michael Pitt concluded that there is a need to strengthen and reinforce the provision of PPS25 and the building regulations to ensure that flood resistance and resilience measures are fully built into all new developments where necessary. Sir John Harman, as chairman of the Environment Agency, said in response to the Pitt review that urgent review and consolidation of flood risk management legislation will, however, be needed if your recommendations are to be turned into action. Consideration by Government of a new Water Bill is, in our view, vital to rationalise outdated legislation and to give full effect to your recommendations.
I do not pretend to be an expert on flooding, but here we have two experts who say that the current legislation, and in particular PPS25, is not up to the job. The likelihood of the Government strengthening PPS25 or introducing a water Bill in the near future is remote, hence the need to have a requirement in the Bill to assess the flood risk of identified locations. I beg to move.
My Lords, I support my noble friend's amendment. I referred to flooding at Second Reading and, given the weather and the prospects for flooding in this country, it concerns me that something about it is not on the face of the Bill.
My noble friend is right: the Government will run for cover, will not want to be helpful to us and will say that PPS25 is the answer. It is not the answer. It is not robust enough and will not solve the problems. It will not identify the situation clearly enough for major infrastructure projects.
The Government development in east London, where many houses were built on the flood plain when Mr Prescott was in charge—it was one of his not so good moves—is one example of where the Government have not a grip of what this policy is all about. I hope the Minister will reflect that this is a serious matter for major infrastructure. PPS25 is inadequate and something ought to be on the face of the Bill.
My Lords, I do not recognise the caricature of PPS25 in the way it has been described today. In my experience, not only is PPS25 robust but on at least two occasions it led to an organisation of which I was in charge to pull back from a planning application. Contrary to what was attributed to Sir John Harman, the statutory process of consulting the Environment Agency also provides an important flooding safeguard. Flooding is an enormously important issue, as the noble Earl said, but it is unfair to characterise government action—PPS25, in particular—and the role of the Environment Agency in quite the way that we have heard today.
My Lords, I am grateful to my noble friend for that remark; she put the position more powerfully than I could. I have tried to be as helpful as I can throughout the course of the Bill. I shall continue to try to be helpful, including trying to explain to the noble Earl opposite, who makes a powerful and important case, why he can be reassured by not only PPS25 but other matters as well. I am glad to have another opportunity to reassure the House that the risk of flooding will be addressed when NPSs are being drawn up.
The August before last, I spent a considerable amount of time touring the country. My department deals with flood resilience and I spent a great deal of time looking into the damp and wet basements of people who had been flooded in South Yorkshire, Sheffield and Oxfordshire. We understand the human tragedy when people get flooded and the risks that are posed to some of our infrastructure. Therefore, when I say that the NPSs have to take into account the risk of flooding as part of national policy, I am very serious about it.
On the issue of PPS25, yes, of course the IPC will have to comply with it, as it will have to comply with all aspects of government policy. Sir Michael Pitt agreed with the Government and the Environment Agency that the policy in PPS25 is right and that it should be rigorously applied by local planning authorities. We intend to examine whether there any barriers to delivery which may be hindering local authorities from implementing PPS25. We are working closely with planning authorities, the Environment Agency and other stakeholders to make sure that that policy is in place on the ground. We issued a revised practice guide in June this year; set up regional workshops to deliver the message; we have made it compulsory to consult the Environment Agency on planning applications in flood risk areas; and we have issued a flooding direction which means that local planners cannot approve major schemes against Environment Agency advice without first checking with Ministers.
The NPS has to integrate, reflect and abide by relevant government policy at the time, including having regard to the policy and tests set out in PPS25 on the risk of flooding. It has to be applied where it is relevant.
What is key to what the NPS is able to do and say in areas where there might be issues such as flooding is the appraisal of sustainability. That will assess the various impacts of policy at a strategic level, and that includes flood risk. Where flooding is identified as a key risk, the appraisal will address the issue in detail. Some infrastructure will not be at risk of flooding, such as offshore wind farms—a very helpful example provided by the Box. Clearly it would not be right in all cases to require detailed assessment simply for the sake of it. However, consideration will be given to the risk of flooding for each NPS. It will be taken into account as part of the appraisal process and addressed as appropriate in the NPS.
Once we start identifying bits of policy here and there, we are open to what my noble friend Lord Hunt referred to as the list principle, refracting policy through individual policies. That is not what the NPS is about: it is about integration. Under Clause 5(6), Ministers,
"must give reasons for the policy set out in the statement".
It can also be expected that an explanation of these factors at this point will in some instances include flooding.
Finally, the NPSs will be subject to public consultation and parliamentary scrutiny, both of which are very alive to the issue of flooding. Those factors will make doubly sure that NPSs take full and proper account of all these matters, including the risk of flooding, before they are designated.
I hope that that reassures the noble Earl, Lord Cathcart, who has been a champion of this issue since we began proceedings on the Bill. I understand why he is doing it and hope that he will be reassured.
My Lords, I thank my noble friend Lord Caithness for his support. From the Minister's reaction, I seem to have put my hand into a hornets' nest. I say to the noble Baroness, Lady Ford, that the quotes from Sir Michael Pitt and Sir John Harman came straight from letters. The Minister probably has other such quotes.
This is a big issue, which was highlighted by the terrible events of last summer. We must learn those lessons. We must somehow react to the Pitt recommendations—there are 90 of them. That is a Defra responsibility, but responsibility also falls on the noble Baroness's shoulders for planning and housing. Departments must get together and see how to work through the Pitt recommendations to find the right answers so that when we build housing or the large infrastructures that will be built over the next 10 years, we do not make the same mistakes that have been made in the past.
Having stuck my hand into the hornets' nest, I am reassured by the noble Baroness saying that the national policy statements and the IPC will have to take regard of PPS25 whether it is currently robust enough or not. That is heartening and I shall withdraw the amendment.
My Lords, before the noble Earl withdraws the amendment, I should like to make a clarification to ensure that I have not misled the House. I said that the IPC would comply with aspects of government policy, particularly PPS25. The IPC will have to determine its policy in accordance with the national policy statement. That will not encompass the whole of government policy but will reflect the national policy statement that is relevant. The NPS will take account of government policy when it is relevant and that is what the IPC will take account of. I want to refine my rather bold statement to the relevance of policy.
My Lords, I thank the Minister. I presume that the IPC would have to look at flooding and ask whether requirements had been complied with, whether the operation was resilient and whether flood risk had been mitigated as far as possible. The Minister is nodding. I beg leave to withdraw the amendment.
moved Amendment No. 23:
Clause 5, page 3, line 31, at end insert—
"(5A) If a national policy statement sets out policy in relation to a particular description of development, the statement must set out criteria to be taken into account in the design of that description of development."
On Question, amendment agreed to.
[Amendment No. 24 not moved.]
moved Amendment No. 25:
Clause 5, page 3, line 33, at end insert—
"(6A) The reasons must (in particular) include an explanation of how the policy set out in the statement takes account of Government policy relating to the mitigation of, and adaptation to, climate change."
On Question, amendment agreed to.
[Amendment No. 26 not moved.]
Clause 6 [Review]:
My Lords, one of the problems that we all face in relation to legislative timetables is when to put down amendments. I feel bound to say that I would not have put down this amendment if the plethora of government amendments in this group had been in front of it. It is fair to note that our debate in Committee has provoked the Government into action.
The Bill states that the Secretary of State must review each national policy statement whenever the Secretary of State thinks fit. There may be occasions when the Secretary of State does not think it fit other than for matters of necessity. We tabled our amendment to deal with that, and I have to move it in order for the Minister to get up and explain her amendments. I think that we will find that in doing so she answers the question. I beg to move.
My Lords, when the Minister speaks to her Amendment No. 28, will she explain why it is necessary to include new subsections (1B) and (1C) and say whether they are limiting? I would use the list-principle argument that she used against me on the previous amendment to ask whether the subsections restrict the Secretary of State. When there is a change of government and a new Secretary of State, there is bound to be a change in some of the national policy statements out of pure politics. If we go back to 1997, the new Labour Government would have changed the national policy statements on roads and nuclear power. When a new Secretary of State takes over for an incoming Government, he will review the national policy statement. There might have been a manifesto pledge to build more roads or whatever the infrastructure might be. I am concerned that new subsections (1B) and (1C) are a little limiting in that respect. I would therefore be grateful if the Minister paid particular attention to that. She will not have been surprised to hear what I have said, because I raised much the same point in Committee.
My Lords, I have Amendment No. 40 in this group. It would amend Clause 11, which lists points reflected in the Government's amendments. We have seen the list before. My amendment would change Clause 11(2) to require the Secretary of State to suspend operation if he thought that there had been a significant change in circumstances, that the change had not been anticipated and that, if it had been, policy would have been materially different. This should not be discretionary. One would expect that the Secretary of State must and should suspend the operation. I compare this clause with Clause 6, which is a "must" clause. It says:
"The Secretary of State must review each national policy statement whenever the Secretary of State thinks it appropriate to do so", and then "must do" one of the three things set out below.
I shall probably get an answer saying that "may" is awfully close to "must". I do not suppose that by the time I have done 25 or 35 years in this place, I shall ever quite understand that.
I am pleased to see the Government's amendments. I look forward to hearing what the Minister has to say, but I provisionally give them a welcome.
My Lords, I do not have an amendment down in this group, but I understand that all noble Lords who have something to say on the amendments that are tabled should speak now, and then the Minister will reply.
I am interested in government Amendments Nos. 47 to 51, which relate to Clause 13. I have tried to keep up with all the implications of this Bill and have listened with much interest to the explanations that Ministers have offered as to the Government's intentions for the extent of the Bill. I hope that noble Lords will allow me to express my puzzlement as to why Clause 13 should not apply to Scotland.
I accept that it is the Government's intent that the Bill should have no practical effect in Scotland, because we recognise that the actual process of granting planning permission is a devolved function. But the Bill is fairly clear about which clauses apply to Scotland and which do not. Clauses 1 to 12 appear to apply to Scotland and, as such, whether as an unintended consequence or otherwise, and at some future date as well, at least a national policy statement might consider the Scottish dimension. Given that, it is possible that the Scottish Executive or some other Scottish entity might want to appeal to a court at some future point. Certainly, given the phrasing of the Bill, that could be on proposals for an electric line above ground, under Clause 16(1)(d), or a gas pipeline, as envisaged at Clause 20(2), in which the point at which the construction reaches the Scottish border will have a clear implication for how the engineering works will continue when they are within Scotland.
On the question of cross-border services, will the Minister clarify for me how things stand for railways? In answering my noble friend Lady Carnegy of Lour in Committee on
"the arrangements for Scotland are within the devolution settlement".—[Hansard, 8/10/08; col. 273.]
I spent some time following the progress of the Scotland Act, and noble Lords will be aware that under Section E2 of Schedule 5 the provision and regulation of services was in the first instance reserved to Westminster. Later, on
"The order amends Section E2 of Schedule 5 to the Scotland Act. It transfers to the Scottish Parliament legislative competence over powers for the promotion and construction of railways in Scotland ... In future, permissions for railway projects that are wholly within Scotland will be granted at Holyrood and only cross-border developments will continue to be dealt with at Westminster".—[Hansard, 13/6/02; cols. 449-450.]
It appears to me that there is a role for this Parliament in considering cross-border railway developments, although the noble Baroness may not want to include that in the Bill at this point of time. However, given that Clauses 1 to 12 have Scottish implications, someone might at some future date try to incorporate the issue into legislation. Perhaps the Minister could throw some light on the Government's attitude to this.
My Lords, I had not intended to speak but, given the comments made by the noble Duke, the Duke of Montrose, I thought that I should make one or two points in relation to Scotland. I should perhaps declare an interest as a member of the Commission on Scottish Devolution.
It is right to say that the Bill has tangential effects on Scotland. In effect, however, it extends to England and Wales and not beyond, except for particular instances involving a pipeline or something of that nature. I am not entirely sure what amendment we are speaking to, but the noble Duke raised the issue of Clause 13. I believe that, were there to be an issue in that context, it would be open to an interested person in Scotland to raise proceedings in the courts in England and Wales to challenge the national policy statement. However, the circumstances in which that might happen seem pretty remote and unusual, simply because national policy statements will not extend to Scotland. Of course, Scotland has its own national policy framework—the spatial plan—which is in some ways identical to the national policy statements but in other ways very different. I do not know whether that helps to resolve some of the issues that the noble Duke has raised, but I thought that I should give my understanding of the position, which I hope is shared by the Front Bench.
I will come to the points about Scotland, but let me first speak generally about the amendments. This area of reviewing national policy statements was the subject of great debate in Committee, when it became clear to us that noble Lords wanted more clarity about the criteria that the Secretary of State should take into account when deciding when to review the statements. In Committee, the noble Lords, Lord Dixon-Smith and Lord Jenkin, and the noble Baroness, Lady Hamwee, urged that the Secretary of State should review national policy statements at frequent intervals.
I think that there is general agreement that it is essential that the decisions of the IPC should be taken on the basis of policies that remain valid and not on the basis of NPSs that are, to use a word used in Committee, "stale". To do otherwise would be to undermine the credibility of the process. However, I have some problems with the amendments tabled by the noble Lord. As he kindly said, my amendments address the substance of his concern. Clearly, what we did not want was non-stop review of NPSs and the instability that that would cause. It is worth thinking back to the contribution in Committee of the noble Lord, Lord Bridges, who is not in his place at the moment. He said that we should be attempting,
"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".—[Hansard, 14/10/08; col. 629.]
That is absolutely right. The aim of national policy statements must be to set out a policy that meets the national need for infrastructure into the medium-term to long-term future. There is a benefit to having some continuity in such policy statements, while at the same time keeping flexibility to react when circumstances change. A review of the policy should be triggered by unforeseen changes, not simply by the passage of time. Some things will hold good. As we debated in Committee, there are different stages of change and some areas of policy are likely to change more dramatically and frequently than others. That is why the test of when an NPS needs to be reviewed is nothing to do with the age of the document, but with whether the assumptions underlying that policy remain true and whether it is therefore still fit for purpose. You cannot fit an arbitrary time and date around that.
It is also right that the Secretary of State, as the responsible Minister, should carry that responsibility into judging whether circumstances have or have not changed since the national policy statement was published. We agree with noble Lords that there should be more clarity at this point in the Bill about the criteria which the Secretary of State should take into account when deciding when to review national policy statements. That is simply what we have sought to do through the amendments.
Amendment No. 28 makes that clear. The Secretary of State must consider whether there has been a significant change in any circumstances on which the policy is based since the policy was last reviewed; whether these circumstances were already anticipated in the previous review; and whether, if the change had been anticipated, any of the policy in the statement would have been materially different. To answer the argument in the amendment of noble Lord, Lord Dixon-Smith, the Secretary of State should certainly frequently consider whether these criteria are met, but it is only when the criteria are met that the Secretary of State should review the content of the policy itself. As I explained in Committee, the criteria are the same as those set out in Clause 11, which are the right ones to determine when a national policy statement should be reviewed.
Government Amendments Nos. 28, 29, 38, 39 and 41 seek to clarify that when the Secretary of State wishes to conduct a review of the national policy statement, it could be a complete or a partial review. Amendments Nos. 47 to 51 and 111 to 117 make consequential changes throughout the rest of the Bill, providing an added measure of flexibility so that the Secretary of State can take a proportionate approach to reviewing NPSs. They also make it easier for the Secretary of State to respond quickly if necessary to changing circumstances and to review a national policy statement. If appropriate, the Secretary of State will only need to consider whether circumstances have changed significantly in respect of the part which is to be reviewed; that is obviously much more flexible and sensible. To take a hypothetical example, if further scientific data change our assumptions about the rate of flooding or coastal erosion, the Secretary of State might want to review parts of the relevant national policy statements but not all of them or parts that are unaffected by the change.
Amendments Nos. 111 to 117 are consequential, although they affect individual applications in Part 7. We have also addressed criticism that it was unclear which criteria would be applied to decide whether a review was justified.
I hope that I have reassured noble Lords that we are committed to ensuring that national policy statements must be based on an accurate understanding of present and future circumstances and whether the assumptions underlying that policy remain true. If those circumstances change, we want to ensure that the policy can be reviewed too.
The noble Earl, Lord Caithness, asked me whether new subsections (1B) and (1C) in Amendment No. 28 limit what we intend to do. I was not entirely certain which (1B) and (1C) he was talking about, because he will notice that there are two of each in this clause. However, new subsection (1B) relates to the review of a whole national policy statement and new subsection (1C) relates to a review of part of the national policy statement. The two issues are dealt with separately to avoid an extremely long and complicated provision. If the noble Earl was asking about the broader disposition of the clause, it does not limit what can be interpreted as "changing circumstances". It is a broad definition that allows the Secretary of State to operate with discretion, allowing for flexibility, judgment and changing evidence. We could not anticipate a limit as it is not within our scope or that of the Bill.
The noble Earl has raised a serious political point, because incoming Governments have different values and different priorities. However, as I tried to make clear when we discussed this previously, demography does not change and neither does the need for power and energy. Our demands on water supplies and waste resources do not change. We will need predictable amounts of resource for the homes we must build. An incoming Government wanting to change the disposition of policy will have a national policy statement grounded in evidence. If they believe that a different political decision must be made, they are free to do so and that is a change of circumstance. Clearly, however, we cannot allow for that in the language of the Bill. All we can do is to try to anticipate situations where circumstances have changed. Therefore, the Secretary of State must be free to make a judgment on that basis and to review the NPS.
I cannot improve on my noble and learned friend's intervention relating to Scotland. I was slightly surprised suddenly to find myself confronted with detailed questions about cross-border issues. The noble Duke said that the Bill reflects the devolution settlement. I shall come back to him after I have read what he said about cross-border issues in relation to previous legislation with which he has been involved. However, I can say something about Clause 13 and judicial review. The special provisions in Clause 13 apply only to England and Wales. I understand that Scots law does not admit time limits on JR, but this means that NPSs can still be challenged in Scotland using normal judicial review rules. I hope that makes sense. I have it on advice, but when I read what he said I shall see whether we can clarify anything in writing.
I hope that the noble Baroness can clarify something for me. If there is to be a review in whole or in part, as described in the amendment, one may have to suspend the operation of an NPS. I wholly agree that that should be discretionary and not obligatory. If there is no suspension, clearly the existing NPS continues in force and the planning commission has to continue to make its decisions on the basis of the NPS as it is. However, if it is decided to suspend its operation, does that mean there is then a complete vacuum for the IPC and all applicants until one has gone through the entire procedure after the review to approve the revised NPS? Does the noble Baroness have any idea how long that process might take?
My Lords, I do not know how long it would take. If the NPS is suspended, the IPC will refer decisions to the Secretary of State. I will let the noble Lord have a note about that, because two sets of circumstances might determine the choices. However, if an NPS has to be suspended, provision is made for decisions to be taken by the Secretary of State.
My Lords, I should be grateful if the noble Baroness will do that. The note that she kindly sent on this does not actually deal with that aspect. Therefore, an additional note would be very helpful. I apologise for intervening again.
Not at all, my Lords. I almost forgot to address Amendment No. 40. I have some sympathy with the noble Baroness's arguments. It would clearly be inappropriate to have applications decided on the basis of a policy that is no longer valid. It is our intention that where the Secretary of State believes that circumstances have changed such that it is no longer appropriate for decisions to be made in accordance with the NPS, she will suspend it. However, we do not think it is necessary to suspend the NPS in every case where a review is being conducted, not least because, as I said, there is flexibility now about whether you review part or whole of the NPS. It would not invalidate the whole statement if one was looking, for example, only at scientific data about the risk of coastal erosion. One would have to make a judgment about the extent to which the whole NPS would be affected.
I am not going to say what the noble Baroness thought I was going to say about her amendment. The amendment would have an unfortunate consequence, because changing the word from "may" to "must" would remove the Secretary of State's ability to judge what the appropriate response might be to a change in circumstances. The whole burden of the clarification and review is to ensure that everyone understands that it is the Secretary of State's judgment that counts and that there is the necessary flexibility to anticipate and interpret what is happening.
If we move to the word "must" it is likely that the question of whether circumstances had changed would move from being something on which the Secretary of State can make a judgment to being a question of fact which would ultimately have to be judged by a court. Inevitably, that would lead to an increased risk of legal challenges. I hope that with that assurance the noble Baroness will feel able not to move her amendment. I can give her another assurance: we certainly intend that the Secretary of State would suspend the NPS if there were any risk of unsafe decisions being made on applications on that basis.
My Lords, I implied at the beginning of the debate that we were in a chicken-and-egg situation. If we had not had our earlier debates, we would not have had the amendments. If we had had the amendments earlier, we would not have had these discussions. I am very grateful to the noble Baroness for what she has said. She has gone a long way towards what we wanted. In this respect, the Bill is now in a satisfactory process. I pay tribute to her work. I beg leave to withdraw the amendment.
moved Amendments Nos. 28 and 29:
Clause 6, page 3, line 42, at end insert—
"(1A) A review may relate to all or part of a national policy statement.
(1B) In deciding when to review a national policy statement the Secretary of State must consider whether—
(a) since the time when the statement was first published or (if later) last reviewed, there has been a significant change in any circumstances on the basis of which any of the policy set out in the statement was decided,(b) the change was not anticipated at that time, and(c) if the change had been anticipated at that time, any of the policy set out in the statement would have been materially different.
(1C) In deciding when to review part of a national policy statement ("the relevant part") the Secretary of State must consider whether—
(a) since the time when the relevant part was first published or (if later) last reviewed, there has been a significant change in any circumstances on the basis of which any of the policy set out in the relevant part was decided,(b) the change was not anticipated at that time, and(c) if the change had been anticipated at that time, any of the policy set out in the relevant part would have been materially different."
Clause 6, page 4, line 1, after "of" insert "all or part of"
On Question, amendments agreed to.
[Amendment No. 29A not moved.]
Clause 7 [Consultation and publicity]:
[Amendment No. 30 not moved.]
Clause 8 [Consultation on publicity requirements]:
My Lords, I shall speak to government Amendments Nos. 31, 32, 73, 74, 98 and 99.
In Committee, my noble friend Lord Judd tabled amendments which sought to add national park authorities to the list of local authorities specified in the Bill as statutory consultees at the various relevant stages. The amendments received considerable support, particularly as national park authorities have local planning authority status. We have given this matter careful thought, and we have been persuaded by the powerful arguments made by my noble friend and others.
Amendments Nos. 31, 32, 73, 74, 98 and 99 would therefore add national park authorities and the Broads Authority to the list of local authorities for the purposes of Clauses 8, 43 and 100. Let me outline briefly in more detail what that will mean. The Bill provides a central role for local authorities at all three stages of the new regime. First, relevant local authorities will be statutory consultees on publicity requirements where the national policy statement identifies specific locations for development.
Secondly, the relevant local authority will be a statutory consultee at the project development stage for all nationally significant infrastructure projects. Promoters will also need to consult the local authority when drawing up their plans to consult the local community about a proposed application, and local authorities will be able to make representations to the IPC if they believe that pre-application consultation has not been adequate, to which the IPC must have regard.
Thirdly, relevant local authorities will be statutory consultees at the examination stage. They will have an important role in ensuring that the IPC takes proper account of relevant local and regional factors and considerations. In particular, they will be invited to prepare a local impact report, which the IPC will have to have regard to in its decisions.
We have listened to the arguments made about national park authorities, and we agree that it is sensible to expand the list of local authorities specified in the Bill to include them. We believe that this would strengthen the Bill, and I hope that noble Lords will be able to support the amendments.
Let me also address Amendments Nos. 33, 75, 100 and 155, tabled by my noble friend Lord Berkeley. I believe that my noble and learned friend Lord Boyd will speak on his behalf. The amendments seek to add integrated transport authorities to the same three lists of local authorities that I mentioned earlier. I am aware that the Local Transport Bill, which recently completed Third Reading in another place, will establish new integrated transport authorities. Amendment No. 155 will expand the existing duty on local transport authorities to develop transport policies which must cover all aspects of transport, rather than the currently more limited requirement relating only to transport facilities and services. However, aside from the fact that we cannot amend the Planning Bill to refer to provisions of another Bill which has not yet been enacted, it would not be right to accept my noble friend's amendments.
As I have already said, the Bill recognises the important role of local authorities, and local planning authorities in particular, in understanding the nature and circumstances of the communities that they represent and, therefore, in advising the Secretary of State and promoters on how to consult them effectively. Local planning authorities will have expert knowledge of planning issues in the areas for which they are responsible. It is because of this that those authorities are prescribed as statutory consultees in the Bill.
A wide range of other bodies will be engaged at the three key stages, which we will specify in secondary legislation. We expect that this will, where relevant, specify major statutory bodies, including those with local authority status, such as parish councils, fire and rescue authorities, police authorities, and so on. Like those bodies, the role of integrated transport authorities, once they are established, will be a matter for secondary legislation. It would not be appropriate to include the list in the Bill, because it would be unwieldy and would quickly become outdated and inaccurate.
I hope that I have adequately addressed the issues and, therefore, I urge my noble friend not to press Amendments Nos. 100 and 155. I beg to move.
My Lords, I hardly need to be urged to thank my noble friend for the amendment. It is good that it is before us and I warmly welcome it. I should put on record my appreciation to all those in other parts of the House, and on this side, who spoke positively and warmly in support of what I sought to achieve. We should also put on record our appreciation of all those outside the House who made strong representations to the Minister.
This is a good moment to take note of the fact that my noble friend Lady Andrews is an outstanding example of a Minister who listens. The way in which she facilitated meetings between me, the noble Lord, Lord Chorley, her officials and herself was very helpful and reassuring. Therefore, I have no qualifications whatever in saying thank you and in recommending the amendment to the House.
Perhaps I may add a postscript. As I said in Committee, a courageous and tough battle was fought by those who established and won the case for the national parks in the post-war years. They are a treasure and a special asset for the whole nation. There should not be any doubt at any time that in everything that the Government are doing they must uphold what those who fought so courageously achieved. We must not allow the parks to drift into the position of being afterthoughts in governmental and administrative matters.
We must also avoid a situation by which, through incremental steps, the national parks slip from being a special asset and become genteel suburban areas or theme parks. That is not what they are about. While they are, of course, places where people work and local communities matter, the government amendment puts a tremendous responsibility on the national park authorities to give constant, imaginative and visionary leadership on this matter and at no time must they leave anyone in doubt that they see themselves as the Praetorian guard of what the parks are there to achieve.
I thank my noble friend for the amendment and I hope that no one will have any doubts about supporting it.
My Lords, I shall speak briefly to the amendments in the name of my noble friend Lord Berkeley, who wishes me to apologise to the House on his behalf for the fact that he cannot be here.
These matters have been dealt with by my noble friend. The Integrated Transport Authorities are a product of the Local Transport Bill, which is currently going through Parliament and renames the Passenger Transport Authorities as ITAs. It is a step-change in the powers of sub-regional transport authorities. The ITAs, among other things, will have a duty to develop local transport policies and there will no longer be a joint duty with district councils. It will have greater powers over buses, an ability to bring forward road-charging schemes and general well-being powers.
Including ITAs in the list would, in my submission, have been fully consistent with the reasons given in Committee by the Minister, the noble Baroness, Lady Andrews, for the special treatment of local authorities. Like local authorities, they have unique knowledge and expertise in relation to consultation and in relation to the nature and circumstances of the communities that they represent. They would be well qualified to advise the Secretary of State and would have a strategic overview of the area in question.
However, I am happy that the Government listened to these arguments before I even spoke and that they have given an undertaking that they will be considered for secondary legislation. Accordingly, when it comes to it, I shall not press the amendments.
My Lords, I gave a silent welcome to some of the Government's earlier amendments, such as Amendments Nos. 23 and 25, but I now step up a gear and give a spoken welcome to Amendment No. 32, which brings the national parks authorities and the Broads Authority in from the cold. We asked for this and we certainly welcome it very much.
My Lords, we now come to a small but none the less significant group of amendments. I have Amendments Nos. 34 and 35 in this group, and the Government have Amendment No. 36, which the Minister will no doubt explain in due course.
We are talking about a preferable form of procedure for dealing with the approval of national policy statements. Our Amendment No. 34 adds to Clause 9(2),
"for the approval ... of both Houses", so that the Bill would read:
"This section sets out the parliamentary requirements referred to in sections 5(4) and 6(4) ... The Secretary of State must lay the proposal before Parliament for the approval ... of both Houses".
That is quite clear and easy to understand. Amendment No. 35, if accepted, would deal with the consequential change and would remove subsections (4) to (7) of Clause 9. That is fairly simple. I acknowledge that the Government's amendment would remove the rather unfortunate use in subsection (4)(b) of the words "House of Commons" and would insert in their place "either House of Parliament", but it would leave the approval process in a rather less clearly defined manner for Parliament. Our amendment requires both Houses of Parliament to give approval. The Bill as amended by the Government would read:
"Subsection (5) applies if, during a relevant period"— which is defined in subsection (6) and we need not bother about that—
"(a) either House of Parliament makes a resolution with regard to the proposal, or
"(b) a committee of either House of Parliament makes recommendations with regard to the proposal".
This is a matter of degree. I think our wording is simpler, clearer and easier to understand. I know that the noble Baroness will argue that that is not the case. For the life of me, I do not really see, if either House of Parliament can make a resolution with regard to the proposal or a committee of either House makes recommendations with regard to the proposal, why that is approval. I accept that subsection (5) states:
"The Secretary of State must lay before Parliament a statement setting out the Secretary of State's response to the resolution or recommendations".
The difficulty is whether that is approval. What happens if the Secretary of State disagrees with the resolution that is passed?
We are not left with a clear understanding. We are back on the issue which we have debated on so many occasions, the integrity of the decision-making process. That is vital to the success and, more importantly, credibility of the Bill. I submit that our amendment, which is shorter and simpler, would leave the Bill in a much easier position for ordinary members of the public to understand. What is more, if ordinary members of the public understand that both Houses of Parliament have approved the national policy statement, they will find it easier to accept that policy statement, as Parliament has given its seal of approval in a positive fashion, and they will be much less likely to wish to challenge it.
My Lords, I admit that that would cause a great deal of difficulty, and I have not gone through that. I suspect the noble Baroness will take us through it. My noble friend Lord Jenkin of Roding may have an answer as he has greater experience than I have. I would have thought that a national policy statement that was approved by only one House and not the other would, in the wording which I am putting forward, not be a national policy statement. A national policy statement would clearly require the approval of both Houses. If that were the situation, the Government would have to go back to work and put something together which could get the approval of both Houses.
My Lords, sometimes that might be the nature of progress. On many occasions, this House has been presumptuous enough to believe that it knows better than the House of Commons, and that has led to quite interesting situations.
I recognise my difficulty, but we have to face that. If we are dealing with parliamentary approval, that has to be done. There will have to be a mechanism for resolving that: it would simply be to go back to work. We cannot deal with that situation until we face it. I think our amendments are clearer and more understandable. I do not wish to duck the issues and the complexities. Life was never meant to be easy. I beg to move.
My Lords, I, too, put my name to Amendments Nos. 34 and 35 because I believe that Clause 9 is at the heart of the Bill. As the noble Lord, Lord Hunt, said only a moment ago, the role of national policy statements is key. If we get this clause right, the Bill will work and the IPC will have the authority to act resolutely and speedily. If we get it wrong, then delays through judicial inquiries and other challenges will ensue as surely as night follows day. In Committee, the noble Lord, Lord Jenkin, said that no one can argue with—there is no argument against—the authority of Parliament. I disagree with the noble Lord, Lord Dixon-Smith. I would have thought that in this case the Commons would have supremacy over the Lords on national policy statements.
With the authority of Parliament, which is required, there is nothing more to be said, but the Government have to decide whether Parliament is allowed to question the power of the Executive and make the Bill work, or whether these national policy statements are to be merely equivalent to White Papers or planning policy statements emerging from departmental think tanks and continually challenged by the courts. I do not think that should be the case. As we have all said many times before, national policy statements are new animals. They will be the essence of the new system. They must have the full authority of Parliament for the IPC to be able to do its work expeditiously and thus effectively.
My Lords, as I indicated in relation to Amendment No. 1, I attach a great deal of importance to the role of the Secretary of State and the parliamentary requirements for the national policy statements. The Bill requires the Secretary of State to lay these statements before Parliament and either House can pass a resolution that must be replied to. The Minister has tabled Amendment No. 36, which rediscovers the committees of your Lordships' House and permits a committee of this House to make recommendations to which the Secretary of State must reply. This amendment is very welcome. However, it does not go as far as the amendment tabled by the noble Lord, Lord Dixon-Smith, which requires approval of national policy statements by affirmative resolution of both Houses. Having being so many years in this House, I have become an even more enthusiastic parliamentarian, and I would wish to see an affirmative resolution as the basis for the parliamentary approval of these national policy statements.
In response to the point made on the Labour Benches, I do not mind at all if the affirmative resolution is by the House of Commons only and we do not have the facility to give one, but we have the right to make recommendations, as proposed by the Minister in Amendment No. 36.
My Lords, I spoke strongly in favour of the sense of this amendment in Committee. I have been rereading the debate, including the powerful speech in opposition to this by the noble Lord, Lord Woolmer of Leeds. I understood the body language of noble Lords opposite to mean that they were encouraging him to speak again.
The answer to the noble Lord, Lord Howarth, is simple. Of course, the will of the elected House must prevail, and that has frequently happened. It happens in cases where a statutory instrument requires affirmative votes in both Houses. If one House turns it down, it fails, but it is, of course, brought back, at which point the House, if it is the upper House, yields to the lower House. We have the advantage of the admirable report by the noble Lord, Lord Cunningham of Felling, who spelt out, in the context of the reform of Parliament, that the supremacy of the elected House is not in question. It would not be in question here. What we are talking about is—
My Lords, I am grateful to the noble Lord for giving way. If my memory is correct, we had a similar problem with the Gambling Act, where a statutory instrument that defined the areas in which the casinos would be located had gone through the Commons. It came here and, contrary to usual practice, this House voted it down, and it was lost from the Government's programme.
My Lords, what has happened to casinos since then? Well, who was right? If the Government had been confident of their policy about casinos, of course they would have brought the order back, but the original policy is in tatters and the idea of a giant casino has disappeared from view. If I may say so, the noble Lord has not chosen a very good example.
The noble Lord, Lord Woolmer of Leeds, was cross because the noble Lord, Lord Oxburgh—who, I am sorry to say, has left the Chamber—referred rather unwisely to the moral authority of Parliament. That is not a phrase that I would ever have used. I served for 23 years in the other place and have now just about topped up 23 years here, so I have seen both sides clearly. Parliament has authority and the legitimacy of a parliamentary vote.
At the risk of being tedious, I repeat what I said on a previous occasion. When I was Secretary of State for the Environment, I faced a challenge from local authorities, led by the extreme left—some by the Militant Tendency. No doubt noble Lords will remember those occasions. Those authorities were challenging the Government; they were challenging the authority of the Secretary of State; they were demanding that I withdraw the rate support grants, remove the capping on rates and a number of other things. At the end of a long meeting attended by 35 of them, led by Mr Blunkett, I said, "I can't do those things. They have been approved by Parliament. Are you challenging Parliament?". Of course, the whole thing faded away. They realised that Parliament had decided; it had cast its votes in support of the rate support grant settlement; it had approved legislation on rate capping and that was that.
What do we have here? We have national policy statements on which there is a considerable process of consultation with Parliament—the amendment tabled by the noble Baroness now makes it clear that that includes both Houses. Last time, the noble Lord, Lord Turnbull, said that there was a tendency at the other end of the building to conflate Parliament with the House of Commons, but of course we are part of Parliament as well, so we should certainly have that power. Then the thing is approved. What happens then? If one looks at the chart produced by the CBI, we finish up with judicial review, because it will then be a decision by the Secretary of State. If a decision is taken by Parliament—provided that the procedures have been properly gone through and there is no conflict with European law, and so on, and it has been properly voted on—it is inconceivable that any one would take to judicial review a national policy statement.
One has to remember that the growth of judicial review in the past 20 years has been enormous. I have here the figures provided by Professor Anthony King in his book on the British constitution. Under the heading, "The Judges Come Out", he cited the figures. He says that,
"the number of applications for judicial review has soared in recent decades. In 1981 a total of 356 non-criminal applications for judicial review were made; in 2005 the total of such applications was 5,131".
This country should not be ruled by the judges. The judges have a distinct role in ensuring that the law is upheld, but if Parliament makes law, it should not be challenged by the judges. If the Secretary of State takes decisions, they are and frequently have been challenged in the courts. The noble Lord, Lord Hunt of Kings Heath, will no doubt have been warned of the danger of a challenge by environmental groups on nuclear policy. These decisions were taken not by Parliament but by Ministers, and what happened? The courts held that the process had been flawed, and Ministers had to start all over again. This is what I am frightened of if we leave the national policy statements as ministerial statements without the full sanction of a parliamentary vote.
The House decided this morning that the planning commission is to be the deciding body, and my noble friend's amendment was decisively rejected. However, as a number of noble Lords have said—it was said this morning by the noble Lord, Lord Williamson of Horton, and in a previous debate by the noble Lord, Lord Turnbull—if one wants to looks for democratic legitimacy, one should look to the national policy statements and not to the commission.
My Lords, I interrupt the noble Lord with great timidity. When I was briefed as a civil servant on how to avoid judicial review, which we were extensively briefed on because of the high numbers that he quotes, we were told very clearly that it was nothing to do with the authority of who took the decision; it was entirely about the process. He talks in a throwaway manner about the proper procedures being gone through, but that is the essence of the judicial review as we, the victims of it, were taught to recognise it, so I am not at all convinced that it is the authority of the organisation taking the decision that matters.
My Lords, the noble Baroness has never been a Member of the House of Commons, which is the main decision-maker. We have our own role, which has been repeatedly described, but the House of Commons is where the law is made and the final decisions are taken, with our help, support and advice. It is quite different from a decision taken by a Secretary of State. If the noble Baroness cannot understand the question of the authority of a vote in Parliament, we will have to differ. A vote in Parliament carries authority. I have already said that I do not accept that it is moral authority; it is legal authority. Parliament is where it all happens.
I totally support the national policy statement, which is an admirable new institution and a splendid innovation in the planning process. As I made clear this morning, I was certainly prepared to recognise the planning commission and its role. However, the danger is that the whole thing will collapse in a series of judicial reviews as the ultimate way in which those who wish to challenge the policy will go. If the statements are sanctioned by a vote in Parliament, my guess is that it will be exceedingly difficult for anyone to challenge that in the courts.
My Lords, it may be my fault, but I fail to understand the noble Lord's point about the approval of the House of Commons. The Bill sets out in clear detail the way in which the national policy statements must be arrived at. I understand the noble Lord to say that if there was a flaw in the procedure, that could not be challenged in court if it had been approved by the House of Commons. I do not understand that. I understand the noble Lord's concerns about judicial review, but I do not see the argument that this will avoid judicial review.
My Lords, if I did not make myself clear, it is because I feel very strongly on these matters. Perhaps I should have taken more time to prepare my remarks, but yesterday I was dealing with the Energy Bill and one does not have time to do everything. The point is that a court would challenge even an Act of Parliament if it turned out to be, for instance, contrary to European law. That is why we have a statement at the beginning of every Bill stating that it is compliant with the European Convention on Human Rights. Similarly, there have been cases, but they were special cases. The courts will not seek to challenge a decision of Parliament which was enshrined in a vote of both Houses. Judges would be exceedingly slow to do that, whereas they have shown themselves to be readily—I have quoted the figures—willing to challenge decisions by Ministers. If this is left as a ministerial decision rather than a parliamentary vote, my guess is that it will run into difficulty with the courts in a way that it would not if it had been approved by affirmative resolution in both Houses.
My Lords, the noble Lord, Lord Dixon-Smith, said that his version was shorter and simpler, which may be the case—but I have to say not, to me, sweeter. I agree with noble Lords about the importance of the national policy statement. I depart from most speakers at that point. I hope that this is not interpreted as too much crawling to the Minister, but I have been impressed by the Government's thoughtfulness in this area. Their proposed procedure has been extended considerably from the original proposals. It is about scrutiny. Good scrutiny—I do not like the word but it is an iterative process, a dialogue is created—requires a response to comments from the original proposer. In other words, it requires feedback. It is quite a complicated and long procedure. The Government have provided for both Houses of Parliament, if both Houses should wish, to take a thoughtful, detailed, forensic approach to what will be complex and, in some cases, controversial proposals.
My concern about taking out most of that, which is in the second of the noble Lord's amendments, and putting the national policy statements almost immediately to a parliamentary vote would polarise and politicise something which needs a much more careful approach. We all know that the Government would whip their people, as would the Opposition, and the Opposition would not be likely to be able to dig in and sort out the detail and the various points of principle in a way that I hope parliamentary committees are able to do; I hope too that that is not hope against experience. The noble Lord, Lord Cameron, referred to the need for Parliament to question and challenge the Executive. I agree with him absolutely, and the approach proposed by the Government in fact provides more opportunities for such question and challenge. The affirmative resolution procedure is precisely the way to ensure that the Executive get their way, possibly quite rapidly, unless there is a narrow majority or a lot of rebels. The Government's model gives an opportunity—I use the word carefully because I hope that it will be taken up—for reflecting Parliament's views and for adjustments to be made, and is therefore a very important opportunity.
This is something to which my noble friends and I have given a lot of thought because we understand that a number of Members of the House of Commons might well prefer to see a rather more straightforward line. I appreciate the passions that this issue arouses and I am well aware, through my experience in a different sphere of government over the past eight years, that scrutiny may not always be as good as its advocates wish. We have to make it as good as its advocates wish. I say sorry to the noble Lord, Lord Dixon-Smith, but we are with the Government on this.
My Lords, as this is the first time I have spoken as opposed to intervening at this stage, I declare a business interest in a partnership that works with major developers on large schemes. The noble Lord, Lord Jenkin, will not be surprised that I oppose the amendment, and I hasten to say to him that I am not cross or angry or any other pejorative term in relation to moral authority; I simply feel that it is not the appropriate phrase to use and I am glad that he agrees.
The Government are the Executive, and Parliament is the legislator and scrutiniser of the Executive. The example was given of something becoming law, but the law is different from policy; statutory instruments are secondary legislation, not policy. Parliament has a crucial role in that it can amend, reject or pass legislation. If this House wants to ensure that a detail of policy about energy, transport or infrastructure is embodied in legislation, it should ensure that the relevant amendment is made to legislation. As the noble Baroness, Lady Hamwee, said—I agree with every word she said—the job of this House is to scrutinise. The Government do not and cannot develop and implement policies with no regard to the views of parliamentarians, and the Bill as set out provides very carefully for extensive consultation with both Houses. The noble Baroness pointed out that this has come at the end of a lengthy period of consultation. Authority, moral or otherwise, comes from the careful process of consultation, genuine listening and weighing up.
In the end, however, the electorate expect the Government to pursue policies, and it is Governments who are held to account by the electorate. Examples were given at the previous stage and I will not go into too much detail now because of time, but the idea that both Houses are well suited to develop, approve and pass policies is, I think, a very dangerous one indeed. I have given before the example of the completely different situation we saw in the United States when the financial package was up before both Houses on Capitol Hill—the Congress and the Senate—and the pork-barrel wheeling and dealing that went on in order to get legislation through. Many of the people involved were not concerned about issues of substance but only about what they could get for their constituencies.
This is what would happen if policies were passed by the Commons and, heaven forbid, we intruded into them in the Lords. Lobby and interest groups will approach people they believe they can exert pressure on and, instead of carefully balanced judgment and careful reflection of consultation, there will be the arm-twisting of MPs, depending on their majorities, and MPs will demand their pound of flesh for their support. It would be worse if a general election resulted in a finely balanced House of Commons. The power that would go to small groups which gave support to the Government would have no connection with the merits of the policy statement, but they would use it as leverage to get the support of the Government of the day. I hope very much that we are not tempted to go down those lines.
The proposal that this House should have the power to vote down policies would politicise it in a deeply regrettable way. This House, thank goodness, does not now have a built-in majority for any party, and I hope that that always remains the case. If we went down those lines it would call into question the willingness of Governments of the day to accede to that kind of balance in this Chamber because they would not like to see their measures voted down by an unelected House. It would be very dangerous indeed. I hope that, on careful reflection, the opposition spokesman will not push the amendment to a vote.
My Lords, we have had a powerful and enjoyable debate. I am grateful to everyone who has taken part.
In Committee, I undertook to think further about the points raised by noble Lords because I was deeply impressed by the quality of the argument, and I have tabled Amendment No. 36 in response. I do not want to reiterate the thinking behind it except to say that we have put in place a genuinely novel form of parliamentary scrutiny. It is the product of hard work and integrity between the Minister and the chairs of the Select Committees in the other place. We now have a stronger role for Parliament in scrutinising draft national policy statements.
Most recently, this has been set out in a report of the Liaison Committee. The process shows the House of Commons at its best and doing its job of scrutinising policy. Because of the time, I shall not read through how it will happen but, when the committee has finished its work, parliamentary scrutiny will continue for four to six weeks beyond the close of public consultation to enable the committee to take any additional account that might be necessary of the significant issues raised during that consultation. Ministers have undertaken to ensure that briefing and information on those issues is made available to the committees to enable them to do this. Then Ministers will consider what change is needed to the draft NPSs in the light of the views of the committees and in respect of any resolution of either House and public consultation. A statement will then be laid before Parliament setting out the Government's response. The draft proposals will be revised, as appropriate, before the laying of the final version of the NPS.
This is a novel and robust scrutiny process for the NPSs. It will ensure that a committee is able to scrutinise proposed policy in detail, to call witnesses as necessary and to take account of consultation responses. It will ensure that where, on the basis of this consideration, the committee thinks that there are issues which Parliament as a whole needs to consider, it can recommend that there should be a debate in both Houses on the draft NPS. It will ensure that Ministers have to explain to Parliament how they have addressed any recommendations of the committee and resolutions of either House. Parliament will have spoken, and Ministers will have listened. I believe that in doing so, they will indeed have demonstrated what has been discussed across this House as the nature of parliamentary authority. They will also have demonstrated the power of scrutiny.
I have gone into that background because I want to make the contrast between parliamentary scrutiny and parliamentary approval, which is what the debate has turned on. Parliamentary approval of policy is an altogether different proposition, and noble Lords on all sides have demonstrated that brilliantly in the past half hour. I cannot accept Amendments Nos. 34 and 35. They require parliamentary approval of national policy statements and I believe that that is seriously inappropriate.
National policy statements are documents that set out government policy. They are not secondary legislation; they are not primary legislation; they do not seek to change the law. They are similar in nature to White Papers and planning policy statements. Just as the Government do not seek parliamentary approval before they set out their policy—
My Lords, does the noble Baroness remember saying in an earlier debate on this subject that planning policy statements are the law? I can give her the quotation if she wants it, but that is what she said, and national policy statements will also be the law.
Yes, they will indeed, my Lords. They will have legal effect, but they are not legislation in the way that I am using the term.
There are several fundamental reasons why I believe that parliamentary approval for national policy statements is inappropriate. This is a perverse proposition as it would undermine one of our key aims for the Bill, which is to ensure and make clear ministerial accountability for policy. While we have created a new dimension for parliamentary scrutiny, to give Parliament the final responsibility for determining the policy is to move in the other direction completely. Secondly, to take a wider view—a view that my noble friends have powerfully argued—it would also represent a significant and destabilising shift in the historic and fundamental relationship between the Executive and the legislature. It alters the balance; it undermines the clear and understood separation of roles that have been established over many years. I am grateful to the noble Baroness, Lady Hamwee, not only for her speech but for her support.
The noble Lord, Lord Jenkin, referred to Parliament as the place where law is made. Indeed, as I said, the problem is that national policy statements are not primary or secondary legislation. Other noble Lords have pointed to a paradox: we have created a very thorough process for parliamentary scrutiny of extremely complex and technical issues. The right place for that is the Select Committees, as the noble Baroness said. Where the committees recommend that both Houses will have had a debate, the outcome will also have to be taken into account by government.
What is it that a binding vote will do other than introduce a real uncertainty that, despite scrutiny and public consultation, the policy might still be overturned on a vote of both Houses? My noble friend Lord Woolmer was extremely eloquent on this point. Uncertainty is the enemy of everything we are trying to achieve, with the support of so many noble Lords.
Noble Lords argued in Committee that there may be a precedent for parliamentary approval in similar circumstances, such as guidance from the Lord Chancellor to the Judicial Appointments Commission under the Constitutional Reform Act. We have no parallels with the NPSs; these are wholly new policy statements.
If we took the step proposed by the amendments, it would be extremely unclear where we would end up. Indeed, I thought that the noble Lord, Lord Dixon-Smith, made that perfectly clear. We do not want to begin walking a path that leads to calls for votes on the next White Paper on health or education. I say that in all seriousness to noble Lords opposite, given their ambitions for government.
The noble Lord opposite also demolished his own argument. Noble Lords do not need reminding that if both Houses were to have a binding vote on whether to accept an NPS, practical difficulties would occur if they took opposing views. It is difficult to see how such a situation could be resolved, given that we would not be voting on primary or delegated legislation. It would be unprecedented and unbounded territory. There is already division on the Conservative Benches about how it would work out. The noble Lord has said that the unelected House might have the right to overturn the elected House in this respect, which is extremely dangerous territory.
This question was considered and debated at length on Report in the other place. An amendment to make NPSs subject to parliamentary approval was defeated by a clear majority of 54 votes. While the role of Select Committees and enhanced scrutiny was warmly welcomed, amendments for a binding parliamentary vote were soundly defeated. The elected House has already rejected the idea of a binding vote. It is surely wrong for this House to overturn that. This House has many responsibilities, but they do not include telling the other House how to conduct its business.
The noble Lord's Amendment No. 35 would remove subsections (4) to (7) of Clause 9. The procedures for parliamentary scrutiny so carefully worked out in another place would thereby come to nothing. I repeat that it is simply not appropriate for this House to dictate to the other House how to conduct its business.
For all these reasons, it would not be right to accept Amendments Nos. 34 and 35. They would bring chaos and uncertainty to the system, and undermine some of the fundamental principles of the workings of government.
We have a better way, which we propose in our amendment and which more properly enables this House to make its unique and greatest contribution. Noble Lords have spoken about the importance of a committee of this House being able to examine the draft NPSs in detail, particularly in light of the expertise that exists here. That case has been persuasively and eloquently put, and I believe in it passionately.
I have therefore tabled government Amendment No. 36, which would amend Clause 9(4)(b) so that the Secretary of State would be required to lay before Parliament a statement setting out her response to a committee of either House. That would give this House a strong and clear role in the parliamentary scrutiny process. It would give a committee of this House a role similar to that of committees in the other place. Without prejudice to any decisions that Parliament or the authorities of this House might make about the exact arrangements, it would mean, in essence, that an NPS could be examined by committees in each House.
I believe that this meets what many noble Lords were after. It improves and strengthens parliamentary scrutiny of draft NPSs. It recognises the unique contribution and strengths of this House. It will mean that our expertise will be applied in a way that fits with the traditional role of this House—we are, after all, a scrutinising Chamber. It will mean also that it will be applied in a way that fits the nature of what will be complex, technical documents, ensuring that we make a contribution to those documents and policies in the most effective way. I hope that noble Lords will agree with me.
My Lords, this has been an extremely interesting, helpful and clarifying debate, because we have made real progress since Committee. If one or two fast balls from the government Benches have hit me in the ribs, it is fair enough—it is partly the nature of what we do.
It would be superfluous at this hour to prolong the discussion or be rude enough to press the issue to a vote. I am grateful to my noble friend Lord Jenkin of Roding for making the case so strongly. If he had not done so, we would not have had from the Minister the clear explanation of what is intended and how she hopes the process will ultimately work.
The proof of the pudding will as always be in the eating. I have to hope that the Minister's expectations are proved correct and that our pessimism is proved incorrect. I beg leave to withdraw the amendment.
moved Amendment No. 37:
Clause 10, page 5, line 41, at end insert—
"(3) For the purposes of subsection (2) the Secretary of State must (in particular) have regard to the desirability of—
(a) mitigating, and adapting to, climate change;(b) achieving good design."
[Amendment No. 37A, as an amendment to Amendment No. 37, not moved.]
On Question, Amendment No. 37 agreed to.
Clause 11 [Suspension pending review]:
moved Amendments Nos. 38 and 39:
Clause 11, page 6, line 2, after "that" insert "the condition in subsection (1A) or (1B) is met.
(1A) The condition is that—"
Clause 11, page 6, line 9, at end insert—
"(1B) The condition is that—
(a) since the time when part of a national policy statement ("the relevant part") was first published or (if later) last reviewed, there has been a significant change in any circumstances on the basis of which any of the policy set out in the relevant part was decided,(b) the change was not anticipated at that time, and(c) if the change had been anticipated at that time, any of the policy set out in the relevant part would have been materially different."
On Question, amendments agreed to.
[Amendment No. 40 not moved.]
Moved accordingly, and, on Question, Motion agreed to.
House adjourned at 7 pm.
In col. 211 of the Official Report for