Lord Hunt of Kings Heath:

Moved by Lord Hunt of Kings Heath

47: Clause 12, page 18, line 10, leave out subsection (2)Member's explanatory statementThis Amendment removes the requirement for all planning appeals to be considered at a hearing.

My Lords, we come to another interesting Clause. In essence, I am trying to find ways to identify those infrastructure developments that are of critical national importance to see whether there is a way in which we can streamline the process of approvals that they have to go through. Also, in picking up the points from the noble Baronesses, Lady Coffey and Lady Pinnock, about the need for democratic legitimacy, I am seeing whether we can use parliamentary processes to help.

I am moving Amendment 47 and speaking to Amendments 48, 49, 52, 53 and 65. The two substantive amendments are Amendments 52 and 65. I have two on judicial review which, because of the mystique of groupings for the first day, should really be grouped with a number of other JR amendments that we will come to later, so I will be brief in speaking on those.

My Amendment 52, in essence, creates a short, abridged parliamentary process to confirm Ministers’ decisions to give development consent for infrastructure projects as a critical national priority. Apparently, until the late 1990s, we had a system of provisional order confirmation Bills, whereby Parliament could confirm orders made by UK Ministers for various proposals, including infrastructure projects. There are many of these on the statute book so it is, in fact, a tried and tested approach that we could use for some projects where we need to speed up delivery but we need to have parliamentary approval as well.

This kind of approach, using a development consent order confirmation Bill, could take only four to six months to go through Parliament, which is nothing like the complexity of the hybrid Bill. We have seen that with HS2, which ultimately failed to satisfy anybody and built in huge delays. We are where we are with HS2. Having said that, the station being built in Birmingham looks pretty good; we can only hope that, one day, a train is actually able to arrive there.

The point about this amendment is to give Parliament a vote. I have very much accepted this point about the need for Parliament to have a say in some of these matters. In a sense, this is another trade-off; I am saying that some projects need to be dealt with in a special way—nationally, by being taken by Ministers, by going through the necessary procedures to ensure that they are appropriate and in being given legitimacy by parliamentary vote. It would give businesses and developers much greater certainty about investment decisions and, as I have said, ensure that we have a proper democratic say in these very important decisions.

Amendment 53 is related to Amendment 52 and would repeal Section 150 of the Planning Act 2008. I well recall our debates on that regime, because I was a Minister involved in it. The NSIP regime was designed with the intention of being a one-stop shop for major infrastructure projects, in terms of the consents required. However, the effect of Section 150 of the 2008 Act has been to stop development consent orders from being as much of a one-stop shop as they could be, because certain regulators have a veto on whether a DCO can roll consents into it that would otherwise have to be obtained separately from regulators. We have already debated the problem of having multiple regulators involved; they do not seem to be able to work together and co-ordinate their response.

I know that there was a debate on a similarly worded amendment that was proposed in the other place. The Government had some concerns about it but promised guidance on how to wrap up other consents in a DCO. However, the problem with that is that the regulators’ veto remains, which is why I argue that it should be moved.

My Amendment 65 can be seen in parallel: I seek to enable the Secretary of State to designate certain classes of development as critical national developments; establish an expert critical national developments task force to advise on each application; and provide that planning permission and any other regulatory consent for such development is deemed to be granted six months after the application is made, unless the Secretary of State issues a written objection within that period or extends the period. Of course, here, I am anticipating the response of my noble friend, because I noted that she was not very keen on my earlier amendment on timelines because different infrastructure developments have different requirements and probably different timelines. This amendment allows the Government to be able to sort of flex the timeline according to circumstances.

I would argue that, at the moment, Ministers lack a coherent mechanism to prioritise and accelerate delivery of critical infrastructure projects. The DCO regime has not really, in the end, delivered what we hoped it would when we took it through Parliament. I hesitate again to mention Sizewell C, but eight years from application to consent is just hopeless, and I must say that on Heathrow too. I support the third runway at Heathrow, because I think that, as the Government have said, this will take place within carbon budgets, but it is just an example of how decisions here can be stuck for decades, and we really have to move on from that.

The amendment I am proposing here would centralise accountability with the Secretary of State. I would align it to my earlier amendment in relation to parliamentary consent. It would bring consents under a single process, introduce a statutory determination deadline and de-risk major investments.

There is international precedent for it. The Canadian Government have also faced great delays in major national infrastructure from fragmented approval systems, environmental litigation and federal/provincial conflicts. Recently, the Parliament of Canada has produced a law with very much the same principles as my amendment, which allows the Canadian Cabinet to designate nation-building projects, as they are called, via Orders in Council.

I refer to my other three amendments. Amendment 47 seeks to remove the requirement for any planning appeals to be considered at an actual hearing. That, in my view, is a streamlining process.

Amendments 48 and 49 are around judicial reviews. I really welcome Clause 12(1), which would restrict judicial review appeals to the Court of Appeal where the High Court decides the application for permission to apply for judicial review is totally without merit. Now, I have already paid tribute to the noble Lord, Lord Banner, for his review; this clause follows that review. We received a very helpful letter from my noble friend the Minister this morning, which gives details about how the Government are going to follow up; that is very welcome indeed, but I just want to probe whether we can go further.

Amendment 48 relates to the reviews of NPSs at least every five years, which I warmly welcome. I take my noble friend’s point about the issue with NPSs that have not been subject to a review and therefore could be considered to be out of date. I just want to make sure that judicial reviews are not used in a way which unreasonably might block progress, so my amendment would remove the possibility of JR in two circumstances: in between the five-yearly reviews, by repealing Section 13(2) of the Planning Act 2008, and in relation to any revisions to NPSs that are solely non-material or are reflective changes—in other words, reflective of published government policy change legislation or court judgments which the Bill is providing for.

I am a strong believer in the judicial review process. My background is mainly in the health service, and the fact is that NHS bodies are sometimes fast and loose with legislation and guidance, particularly when it comes to the outsourcing of services, changes of use, closures of hospitals and the like. There is no doubt that the judicial review process has been necessary to ensure proper transparency. My problem with judicial review is when it is used, essentially, to try to block progress—hence the amendment.

Amendment 49 would bring legal consistency to the Planning Act so that it is the High Court where applications for JR would be made. It is not a substantive change but it would make sure that, in any future event, civil procedure rules cannot be made to divert planning appeals to any court other than the High Court. There is already precedent in Section 63 of the listed buildings Act, which makes it clear that appeals are to be made to the High Court. I think that could flow across the Planning Act.

I hesitate to talk about judicial review when the noble Lord, Lord Banner, is present, but it would be good to have at least some debate as to whether, in the light of his review, we could go further. I beg to move.

My Lords, Amendment 52 is of prime importance. Our planning system has become sclerotic. According to the Explanatory Notes that accompany the Bill, the time that it takes on average to secure a development consent order, or DCO, for major infrastructure projects has more than doubled in the last decade to more than four years. The development consent system is beset by objections and pleas and by judicial reviews, with several judicial reviews sometimes besetting the same project. The effects of the delay may be to cause an otherwise viable project to become uneconomic or unaffordable. Nowadays, such delays are often envisaged as a means of defeating a project. The conjunction of lawyers and protesters, which has given rise to a veritable industry, is a modern and unprecedented phenomenon.

Recently, I had good cause to consider such developments. I made a trip by car from London to Ilfracombe in Devon. I had intended to travel on the M4 motorway, which is a major arterial route. However, in consequence of its blockage, I was diverted, on the advice of the Google satnav system, on to the A303. In doing so, I remembered that 303 is the calibre of a rifle bullet. I had hoped to travel at the maximum legal speed, if not at the speed of a bullet. I was pleased to be able to do so until I was brought to a halt. I was then constrained to travel at a snail’s pace for a prolonged period, while passing an ancient stone monument on a single-lane road. I saw the ancient megaliths of Stonehenge on the brow of a hill, which were surrounded by a gathering of druids. I was reminded of their campaign, which has prevented the building of the Stonehenge bypass. They regret the presence of the road and resist the building of a bypass that would encroach upon Salisbury Plain. Some might regard their campaign as a worthy attempt to preserve the dignity of an ancient monument. However, there is another side to the story, which concerns the objections of residents in the neighbouring villages to the diversion of traffic on to their streets. They contend that their villages have an equal claim to preservation.

The legal wrangling has been interminable. The first grant of development consent for a bypass, in 2020, was quashed by the High Court in July 2021. It was then given the green light again, by the Department for Transport, which reissued a development consent two years later, in July 2023. The project was put on hold again, because of another series of judicial reviews, which were dismissed by the High Court in February 2024 and by the Court of Appeal in October 2024. Undeterred by those two defeats, the claimants asked the Supreme Court if they could appeal to it. On 29 January this year, the Supreme Court refused permission to appeal, on the grounds that the challenge did not raise an arguable point of law.

However, this decision was immaterial since, within weeks of taking office last July, the Labour Government had scrapped the plans for a two-mile tunnel that would bypass the monument on the grounds that the cost of the project had become unaffordable. The decision to cancel the project was taken some three and a half years after the development consent order had been issued and after a full and detailed examination of all the issues. In this case, it might be said that the campaigners had won not by virtue of the strength of their case but by dint of endless legal chicanery and delay. However, the same recourse is available to many other parties who, for various reasons, wish to stand in the way of important development projects.

Two things are clear in the case of the A303. The first is that an additional and viable route to the West Country is urgently required. The second is that Britain’s system of arterial roads, which date from the 1960s, would never have been built if modern circumstances had then prevailed. The Planning and Infrastructure Bill seeks to remove some of the impediments that afflict the planning system for nationally significant infrastructure projects. However, the judgment of the supporters of Amendment 52 is that the provisions of the Bill do not go far enough and that unless further measures are enacted, the objectives of the Bill are liable to be frustrated at every turn.

Amendment 52 would give development consent orders that concern nationally significant infrastructure projects the force of Acts of Parliament. It is intended that, after due consultation and consideration, and if enacted by Parliament, they would become essentially incontestable. The amendment would insert an extensive proposed new Schedule 3A that would declare how the system of parliamentary confirmation would operate in practice. It would provide for a process of consultation and petitioning against the Bill that would preserve the rights of the affected parties. However, once this process had been undergone, and once the DCO had been confirmed by an Act of Parliament, the possibilities of wilful obstruction would be minimised. Neither the Act nor the DCO could be questioned in any court or tribunal. Nevertheless, if circumstances changed, such as would require a modification of the DCO, the amendment would make full allowance for this in accordance with Schedule 6 to the Planning Act 2008. I earnestly hope that the Government will pay some attention to this amendment and perhaps adopt it in some form or other.

My Lords, my noble friend spent a lot of time complaining about the A303. The simple solution is to go by train.

My noble friend is quite right that the planning process takes a very long time. I spent many years trying to do it in relation to building the Channel Tunnel. It is a long time ago now, but we still had to go through the hybrid Bill process, which took quite a long time. My French opposite number kept asking me, “Why the hell are you taking so long to get permission?” I said that we had to go through Parliament and have several debates, Select Committees and things like that. I asked him how they did it so quickly in France, where they were taking six weeks and we were taking three years. He said, “Well, it’s quite simple. It’s a bit like Canada. If you want to go quickly, you don’t consult the frogs if you are draining the pond”. That sums it up.

My worry about these amendments is that the hybrid Bill process needs reviewing. There is a lot of work to be done to make sure that, whatever goes in its place, including my noble friend’s excellent amendments, achieves what it is trying to do, which is to balance the needs of not just the Government and industry but the public who they serve. We need much more information about how that would work before we can form a view.

Something that has not been mentioned much so far in this debate is the question of a business case and viability. It is fine pushing ahead with all these things, such as Sizewell B—or is it C?—because the Government have said they are a good idea, but they have not actually said they are going to fund them. The same could have applied to HS2, but that has gone further and got into a bigger mess. A proper business case needs to be produced for any of these projects, alongside the planning regime, so that we can all form a view about whether it is likely that these projects will go ahead or whether they will fall flat on their face, which would be the worst of all worlds.

I will be interested to hear what my noble friend the Minister says. Maybe there is something in these amendments that is worth looking at, but we have to accept that there are many people in this country who do not like change and who want to do JRs or some other way of opposing what is planned, and we have to respect them as well. I look forward to my noble friend’s comments.

My Lords, it will probably already be apparent that in many respects the noble Lord, Lord Hunt, and I are in agreement about how the Bill can be made more effective, but on this group we are not yet quite aligned. I have a lot of sympathy with the intention behind Amendments 52 and 65 in particular, and I have immense respect for those behind the drafting. I myself wanted to go further when I was undertaking the review of legal challenges to NSIPs, and I think it is important that I explain why I felt I could not, why I still need some convincing that it would be possible or sensible to go further.

When I did the review, I concluded that the evidence demonstrated that the overwhelming Majority of judicial reviews of NSIPs failed. It follows from this that the problem is not with the law, nor is it about “activist judges”, the term often used by some people about judges. It is about the time it takes for bad JRs to meet their doom. That is the problem, and to my mind the remedy for it is to shorten the judicial review process as much as possible. That is what my recommendations focused on, and I am told that Clause 12 in conjunction with the CPR changes—I have not been checking my emails so I still have not seen them—gives effect to those recommendations. That is what the changes would do.

To my mind, therefore, removing judicial review altogether, as things currently stand, would not achieve much more than a truncated JR process. For the really big stuff, the Heathrows and HS2s of this world, the system already allows for the JR process to be fast-tracked. The HS2 and Heathrow cases, both of which I was involved in, went from ground zero to the Supreme Court far quicker than normal cases—not much more than a year, in the HS2 case in particular.

The question then is: what are the downsides of going further, and does the relatively marginal benefit outweigh those downsides? In my view, the answer is no. There is a difficulty with ousters, whether done expressly through an ouster clause, which hardly ever works, or done in a more intelligent fashion than an express ouster, as the Amendment from the noble Lord, Lord Hunt, does, essentially asking Parliament to endorse a DCO and thus giving it the benefit of parliamentary sovereignty. Most DCOs involve the compulsory purchase of land and/or the acquisition of individual rights. There is a real danger, if that approach is undertaken, that there will come a point—whether because someone was denied a hearing because there was a mistake or because someone involved in the decision-making process inadvertently failed to disclose an interest—where something goes wrong in a CPO context. A person whose land, maybe their home, is to be acquired—or there is to be some other fundamental interference with their rights—is, it is said, denied any possibility of correcting an obvious legal error.

In that scenario, there is a real danger that the untested working assumption that Parliament is sovereign—for there is no written tablet of stone saying that the Supreme Court cannot quash legislation—will be tested, and we will not get the right answer. Pandora’s box would be opened and the Supreme Court would quash the legislation in question, and once opened you would never be able to put it back in the box. The lessons from the USA Supreme Court tell us that it would not stop there. This building would no longer be the most important on Parliament Square; it would be the Supreme Court building. That would clearly be a fundamental constitutional change, and most people would regard it as unwelcome to our democracy.

I also have a degree of discomfort about what is fundamentally an executive process being essentially laundered by Parliament, as opposed to it being a legislative process from start to finish, as the HS2 and Crossrail hybrid Bill processes were. I do not want to rain on the noble Lord’s parade, and that of those behind this. As I said, I see a lot of merit in trying to go further, but once you realise that the adverse delaying effects of JR can be cut down very substantially, the question is: does going further risk the constitutional crisis that it may very well facilitate, bearing in mind the very severe consequences and implications of that?

On Amendment 47, I recommended that the single shot for cases totally without merit be an oral hearing—as opposed to a written procedure, which is what Amendment 47 covers—because we are dealing with something that interferes with people’s property rights and can take away someone’s home. To my mind, given that degree of interference in fundamental rights, the individuals in question ought to have the right to at least one hearing, even if it is a 30-minute JR permission hearing that declares a case to be totally without merit. There ought to be at least one day in court—otherwise, fundamental constitutional principles and the legitimacy of the process could be undermined. There is no doubt that we need to sharpen up planning and infrastructure, but, if at all humanly possible, we need to do it in a way that carries people with us as opposed to alienating people; that is the way to make the system work.

I am yet to be convinced, but I am willing to be convinced. Ultimately, it is not me that the noble Lord needs to convince but the Minister and her colleagues. For the reasons I have given, I have a degree of nervousness about these amendments.

My Lords, I do not have a huge amount to add to the comprehensive introduction provided by the noble Lord, Lord Hunt of Kings Heath, but I want to pick up on a few things related to the nuclear industry.

The noble Lord, Lord Hunt, mentioned the eight years from application to consent for Sizewell C. The Government, of course, have big ambitions for the nuclear rollout. Tomorrow I am chairing a board meeting of Midlands Nuclear—a partnership organisation for nuclear across the Midlands region. We are looking at where we can site nuclear power stations within the Midlands, and at small modular reactors and advanced reactors, all in coherence with the Government’s plans through EN-7—the new national policy statement for a more flexible siting approach for nuclear.

There are big ambitions for nuclear and for the industry, but, given the experience we have had with Hinkley, Sizewell and other large infrastructure, we have to be radical. We have to think of new ideas that are going to help speed infrastructure through the system. That is why the Government should take these suggestions from the noble Lord, Hunt of Kings Heath, very seriously. I note that a lot of the principles in Amendment 52—the noble Lord mentioned the tried and tested process within that—and Amendment 65 are similar to those in a law that is being rolled out in Canada. The Government should consider these amendments very seriously.

My Lords, I was astonished when I saw Amendment 52, but I will start briefly with Amendment 47. As my noble friend Lord Banner pointed out, this is just about being fair to people. As has been mentioned, effectively not allowing people to have hearings and an opportunity to speak when their livelihoods, homes or whatever it is are being ripped away is difficult.

On Amendment 48, I cannot quite recall this in the most recent national policy statements, but in the past, sites where nuclear power stations could be placed were named. A consequence was that this almost predetermined that a nuclear power station would be there. As a consequence of Amendment 48, not allowing a challenge to how the Government have come to that conclusion—although I appreciate that it will have had parliamentary scrutiny—would again be unfair to those communities, because it would signal that, probably within 20 years, they definitely will have a nuclear power station sited in those places. There were certainly named sites in the NPSs done back in 2011.

Amendment 49 is reasonable, and then we get to Amendment 52—wow. The noble Viscount, Lord Hanworth, seemed to be in support of this. I used to live outside Andover, so I know very well the A303 to which he refers and the issues about Stonehenge. I am also conscious that National Highways is formally obliged to put in place diversion routes that have the equivalent of A road status, which often leads to ridiculous diversions—but they are appreciated by people living in villages off these main roads.

I have been extolling the importance of parliamentary scrutiny in regard to this, but Amendment 52 takes it too far. I was surprised by something in particular. Paragraph 4(3)(c) of the proposed new schedule that the noble Lord has prepared basically suggests that, wherever the Bill is presented, there will be a Joint Committee and, as long as that House says it is okay, it does not even go to the other House for consideration—the stages are all assumed to be there. Dare I say it? If it had said the House of Lords, I might be in agreement with him—not really. We know that, frankly, a Government can ram through anything when they have a Majority in the Commons.

Let us cut to the chase of what is really going on here. I was in Suffolk for all that time. The DCO for Sizewell C was tabled in May 2020 and the approval given in July 2022, but I am aware of a lot of pre-consultation. It was not all necessarily due to consultation problems; it was more to do with quite a lot of changes in aspects of policy—the coalition Government, ultimately a change of Prime Minister, Brexit and all the other things—which were factors, as well as adjusting the financing. Of course, EDF has pretty much pulled out of Sizewell C. That has added to the complication that we are talking about. There are a number of groups that I will name together against Sizewell C, and they just kept filing JR after JR, which was ridiculous. But there is a point to be made here: ultimately, it is judges who decide whether a process has merit. I do not know whether more needs to be done in discussions with the judiciary. At what threshold does it decide something has merit?

I have seen judgments on a variety of projects where the Government or the decision-maker is technically found to be at fault but the remedy is just that it should go ahead anyway, even if there has been a technical issue.

For what it is worth, I am generally supportive of my noble friend Lord Banner’s proposals. I have to say that, if Amendment 52 were ever put to a Division, I would be in a different Lobby from the good former Minister, the noble Lord, Lord Hunt.

My Lords, briefly, I feel that the discussion of this potentially extraordinarily far-reaching group of amendments has a different perspective from that of those I often work with—the environmental groups, human rights groups and groups representing disadvantaged communities that are bringing judicial reviews. The perspective I approach this from is how incredibly expensive and difficult judicial reviews are and how often they fail, even when, according to measures of common sense at least, they should have succeeded. That is very much where I come from.

The Committee does not just have to listen to me on this. We saw, particularly after the judicial review over the Prorogation of Parliament, a great deal of debate about judicial review. The noble and learned Lord, Lord Reed of Allermuir, the President of the Supreme Court, was quoted in the Law Society Gazette of March 2020:

“Judges are very well aware of the risk of challenges being brought in what are political rather than legal grounds. They are repelling them and are careful to avoid straying into what are genuine political matters. When this is a matter that is to be considered it should not start from the premise that judges are eager to pronounce on political issues. The true position is actually quite the opposite”.

We have a system of judicial review that very often does not work to defend the powerless in our society, and that of course includes nature as well as people. Yet it is there as a final backstop, and sometimes it works—sometimes it does protect those people—and so it is crucial that we maintain it.

I commend the noble Lord, Lord Hunt, for his ingenuity. This single Amendment has possibly the largest legal consequences I have ever seen, as I think the noble Lord, Lord Banner, set out for us very clearly and with vastly more expertise than I can offer.

I say to the noble Lord, Lord Banner, that if we are thinking about trying to speed up judicial review, which in principle is not something that I have any problem with, one thing that undoubtedly slows it down is inequality of arms. Small community groups and environmental groups face a massive inequality of arms; it is very hard for them to go fast, because they just do not have the resources. They have to wait until the crowdfunder has raised some more money before they can keep going. Perhaps dealing with that inequality of arms would be good for the efficiency of decision-making in our society.

None the less, it is fairly self-evident, but, for the avoidance of doubt, I will say that I am strongly opposed to the approach being taken in this group of amendments.

My Lords, the noble Lord, Lord Hunt, has brought before us his own Bill. It is worthy to stand alone and provoke a significant discussion about how different procedures could deal with large-scale infrastructure applications. I am not in a position to know whether it would work or not. It is an attempt to provide an alternative, and I am looking forward to the Minister, with all the civil servants behind her, being able to explain why it will or will not work.

I always start from a different starting point, which is that, first, we are a small island. Comparing us with Canada and its vast expanse, or even with France, which is significantly geographically larger than the United Kingdom with a similar population, makes for poor comparisons.

That is the first of the challenges anyone in this country has with large-scale infrastructure. The second is this. No case was made to people about the benefits to them from either of the large-scale infrastructure projects that have been mentioned, HS2 and the A303. HS2 was never about shaving 10 minutes off a journey between London and Birmingham or 20 minutes off a journey to Leeds—though it will never get there. It was never about that. It was about congestion on the railways, but that case was never made. So it is no surprise when the public do not respond to the project in that way. Why are we going through the destruction of our villages and favoured landscapes for the sake of 20 minutes? That was the argument. You have to make the case and the case is not being made. It was the same with the A303 and various other major projects. That seems to me to be a difficulty.

I take issue with the noble Lord, Lord Ravensdale, using the word “radical”. That word is always used by developers when they want something that the rest of us do not want. We might want its outcome, but we do not like what it is going to do to our environment. I think we have to try harder.

As for the noble Viscount, Lord Hanworth, calling planning “sclerotic”, this element of infrastructure planning is very difficult, but let us not label the whole of the planning process as sclerotic. Local planning authorities do not hold up development; the statistics demonstrate that. The issue is with infrastructure planning. That is why the noble Lord, Lord Hunt, has brought forward his alternative procedure for it. Whether or not that would work, I will leave to others with more detailed backing from the civil servants to decide.

The issue with planning applications, big or small, is always that if you do not involve the public and tell them what it is for, what it will do and what the downsides are, you set yourself up for a big fight, and that is what happens. As for the judicial review, what do I know about it except that it seems to go on for ever and achieve nothing—and costs a lot of money as well. If you resort to the legal process to resolve applications which should be decided between elected people and the community, you are never going to get an answer. I look forward to the reply and a judgment on this one.

My Lords, I will speak briefly on this group of amendments, all tabled by the noble Lord, Lord Hunt of King’s Heath. The amendments in this group all relate to the role of appeals and the judicial processes involved in national policy statements. As many noble Lords have said, the current system for critical national infrastructure does not work. We need to get a move on, but we also need to protect the environment and nature. I quite liked the comments of the noble Viscount, Lord Hanworth. He alluded to the absurdity that Stone Age man could build Stonehenge quicker than 21st-century man can build a bypass round it. This just does not make sense.

It is no secret that the court system is facing a severe backlog. This is a point we have made from this Dispatch Box on numerous occasions during the passage of the Renters’ Rights Bill. As we argued then, there is simply not enough capacity for courts to hear endless challenges. Continual judicial reviews of decisions made by planning bodies clog up the courts, causing significant delays to the planning and building process. If we are to have an effective programme of infrastructure development and housebuilding that will boost economic growth, we must ensure not only that vexatious legal delays are kept to a minimum but that the threat of these—which, as we have heard, cause delays and lorry-loads of paperwork—is avoided.

Amendment 52 seems to present a paradox. On the one hand, the noble Lord, Lord Hunt, is understandably seeking to speed up the planning process through his Amendment 48, which is, we believe, a somewhat reasonable proposal, although we do have concerns regarding the risk of the Secretary of State having even greater Henry VIII powers.

However, in his Amendment 52, the noble Lord proposes that each order determining an application to be a critical national priority must be presented to Parliament in a full public Bill. Paragraph 3 of the proposed new schedule in this amendment then details a petitioning process, a counterpetitioning process and a reporting process. The other parts of this very long amendment provide a highly detailed process of how that Bill would progress through a Joint Committee and then complete its passage. I share the view of the noble Baroness, Lady Pinnock, that it might receive better scrutiny in the Lords.

We agree with parliamentary scrutiny of national policy statements and of different infrastructure developments. However, we do not think that presenting a Bill to Parliament, with all the associated procedures, would be a proportionate proposal. As my noble friend Lord Banner, raised, one also needs to consider the role of the judicial system and whether and how these proposals could be challenged, and their impact.

I cannot support the noble Lord’s Amendment 65. It proposes to establish a critical national development task force. Since coming into office, this Government have established a vast array of new public bodies, quangos, reviews, action plans, strategies and task forces. None has delivered meaningful results. Rather than simply offload crucial decisions that should be undertaken by Ministers to other bodies, the Secretary of State does not need to establish yet another task force to advise. Such a scenario would lead only to more deliberation and delay, where this Bill is intended to speed up the planning process. This amendment is therefore neither necessary nor appropriate.

My Lords, it has been a very interesting debate on a critical issue and aspect of the Bill. My noble friend Lord Hunt of Kings Heath deserves a lot of credit for some interesting thinking around how we might unblock some of the serious issues that have been holding up the planning system. I thank all noble Lords who have spoken in this section of the debate: the noble Viscount, Lord Hanworth, the noble Lords, Lord Berkeley, Lord Ravensdale, Lord Jamieson and Lord Banner, whom I also thank for his work in this area, and the noble Baronesses, Lady Bennett, Lady Coffey and Lady Pinnock.

The noble Viscount, Lord Hanworth, spoke about the sclerotic planning system. We all know it is sclerotic. The noble Baroness, Lady Pinnock, argued that that is not because of local government; I have a lot of sympathy with what she says, having spent a lot of time with local government. However, there is no doubt the system is blocked up. There are many reasons for that and I set out in one of my earlier speeches that that is why we require a whole package of measures to unblock the system. We require some new thinking as well, and that is why I am very grateful to my noble friend Lord Hunt.

These amendments seek to amend the various routes of appeal and rights to judicial review for both NSIPs and national policy statements, and a new designation of development called critical national infrastructure.

Amendment 47 seeks to remove the requirement for the determination of permission in judicial review cases concerning nationally significant infrastructure projects to be made at an oral hearing. At present, individuals and organisations seeking to challenge these projects have up to three attempts to gain permission from the court: a paper stage, an option to renew at an oral hearing, and, if unsuccessful, an appeal to the Court of Appeal. Each of these attempts can extend the duration of the claim by several weeks—which I think is the positive thing that the noble Baroness, Lady Pinnock, was talking about earlier—but in some cases, by several months. This is why we are making provision in Clause 12 to streamline this process.

As noted by the noble Lord, Lord Banner, and many stakeholders who responded to the call for evidence on this matter, the paper permission stage is not efficient with regard to challenges relating to nationally significant infrastructure projects. The Majority of claims are refused permission at the paper stage; of these, most go on to renew their case at an oral hearing.

Removing the paper stage will allow any disputed question of permission to go straight to an oral hearing. This will help reduce the overall time it takes for a claim to reach a final decision, limiting the period of uncertainty for developers and local communities. This provision does not mean that all future applications will require a permission hearing as cases can still proceed directly to a substantive hearing if the question of granting permission is not disputed by the parties.

The other provision in Clause 12 will ensure that where a judge in an oral hearing at the High Court deems the case totally without merit—I presume that is a legal phrase because it has capital letters in my notes—it will not be possible to ask the Court of Appeal to reconsider. These changes are necessary to prevent meritless claims from holding up projects by exhausting the appeals process and will ensure that legitimate challenges are heard more quickly.

Amendment 48 seeks to amend the Planning Act 2008 to make certain decisions relating to national policy statements exempt from legal challenge. By seeking to remove the right to apply for a judicial review of the Secretary of State’s decision not to carry out a review of the relevant national policy statement, the first part of this amendment would undermine the requirement introduced in Clause 1.

Regarding the second part of this amendment, I recognise my noble friend’s intention to facilitate routine changes to national policy statements by making immaterial changes exempt from legal challenge. However, the public’s ability to challenge the lawfulness of government decisions is fundamental to the rule of law, and it is for the court to determine whether a decision has been taken lawfully.

It is for the court to decide whether a legal challenge ought to be considered, and there is already a mechanism for the court to deal with challenges concerning matters which are not likely to have a material impact. Section 31 of the Senior Courts Act 1981 requires the High Court to refuse permission for judicial review if it considers it

“highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”

Amendment 49 seeks to clarify that legal challenges relating to development consent orders made under Section 118 of the Planning Act 2008 must be brought to the High Court. Section 118 stipulates that proceedings must be brought by a claim of judicial review. Details of the judicial review process are set out in Part 54 of the Civil Procedure Rules and in the relevant practice directions. Further guidance can be found in the Administrative Court’s Judicial Review Guide. It is made clear in the relevant rules, practice directions and guidance documents that applications for judicial review are to be made to the High Court. I trust that this reassures my noble friend that there is sufficient clarity about the process and that legislative change is not required in this regard.

I thank my noble friend for his Amendments 52 and 65, which I will consider together. As he knows, I agree entirely with the intent behind them. As noble Lords will have heard throughout this debate, it is one of this Government’s central objectives to speed up the consenting process for all major infrastructure projects. The reforms we are making to the NSIP regime through the Bill will help us go further in speeding up the consenting process for all the infrastructure this country needs.

As we have already debated, the current pre-application process is producing counterproductive outcomes and extending pre-application timeframes. That is why we are removing the statutory pre-application consultation requirements. We will issue guidance through the Bill to assist applicants, setting out what the Secretary of State considers to be best practice in terms of the steps they might take in relation to a proposed application, in readiness for submitting an actual application.

Doing so will give applicants flexibility in how they consult and engage key bodies, local authorities and individuals about their proposed development, leading to more meaningful and effective pre-application engagement and shorter pre-application timeframes. Through the Bill, we will also enable the Secretary of State to direct certain development out of the NSIP regime, where such development could be considered by an alternative regime that may be more appropriate. This has the potential to expedite the consenting process and deliver infrastructure more quickly.

I appreciate that my noble friend is motivated by a desire to ensure that highly critical and urgent infrastructure projects can progress more quickly. We all want to deliver these schemes as quickly as possible, but we need to make sure we can do so without unnecessary disruption and with sufficient certainty for both applicants and decision-makers. We need to weigh up whether the radical overhaul he proposes is the best way forward, given the changes that we are already making.

As my noble friend knows, a critical national priority status can already be applied to projects and sectors delivering essential infrastructure. Projects with this status are given priority in the planning process, and the CNP policy affects how certain residual impacts are considered in the planning balance. We are starting to see the positive impacts of CNP status on recent NSIP projects; for example, through the energy national policy statements, CNP status is applied to renewable and low-carbon energy projects. With the mandating of regular NPS updates, it will be easier than ever before to consider whether more or different projects should benefit from this status.

My noble friend offers two ways in which a critical status could be applied to projects, and I will speak about both in turn. He suggests introducing a specialist task force to provide independent advice to the Secretary of State. This is, in essence, the role that the independent examining authority fulfils under the NSIP regime. Under the Planning Act 2008, a panel of experts is appointed to examine each NSIP application and make recommendations to the Secretary of State on whether a project should be given consent. As setting up a specialist task force would likely draw from the same pool of planning and infrastructure experts, such a proposal risks disruption to the NSIP regime and slowing down the consenting of infrastructure.

Also in this amendment, my noble friend suggests granting deemed consent for critical national development. This is an interesting proposal, but it faces a number of challenges. First, deemed consent cannot be used to consent development that is required to be assessed under the environmental impact assessment and habitats regulations regimes. Most major infrastructure projects are EIA developments and must undergo a full EIA process, including the submission of an environmental statement and an assessment by the relevant authorities. Secondly, further questions would arise around the Government’s compliance with international law, notably the Aarhus convention. This requires signatories to enable concerns about the impacts of a project to be incorporated into the decision-making process. This is what the Planning Act 2008 already enables, through the examination stage and consideration of relevant representations. Failure to account for this is likely to increase the risk of legal challenge and make planning decisions more vulnerable to being overturned by the courts.

I now turn to my noble friend’s amendment that would introduce a power for the Secretary of State to designate certain classes of development as a critical national priority. Once designated, these projects would follow the normal process for a DCO but then be subject to additional parliamentary approval. A public Bill would be introduced, which given that it affects private interest, would then engage the petitioning process. Once petitions are resolved, the Bill would be fast-tracked through both Houses to Royal Assent. The objective of this process would be to protect the DCO from judicial reviews.

This proposal is, without doubt, interesting and thought-provoking. As we have already debated today, the Government are using the Bill to tackle meritless legal challenges that delay projects and increase costs. We have also demonstrated that we are willing to go further, if necessary, to speed up the planning system and get Britain building.

The amendment touches on complex issues around the role of the courts versus Parliament—as the noble Lord, Lord Banner, indicated—in managing the conflicts that arise between private and public interests on large-scale infrastructure projects. It has enabled us to debate novel solutions to the challenges we face in building the infrastructure we need. The measures in the Bill already make targeted and impactful interventions to the consenting system to ensure greater certainty to investors and applicants, which will speed up the delivery of national infrastructure priorities, including those of critical urgency. For those reasons, and because of the discussions we have already had, I hope that my noble friend will not press his amendments.

On the amendment which seeks to repeal Section 150 of the Planning Act 2008, with the aim of reducing post-consent delays to construction, I thank my noble friend for raising this matter. It is indeed something the Government have been considering. When applicants submit their DCO for a nationally significant infrastructure project, Section 150 enables them to include other prescribed necessary secondary consents as well. The intent behind this section was to ensure that the NSIP process could be a one-stop shop, with applicants securing all the permissions they need to build via a single process. This could save them precious time and avoid them having to seek these consents separately after they have secured development consent.

However, Section 150 is drafted so that for certain prescribed consents this may be done only with the permission of the relevant regulatory body. Repealing Section 150 means that securing permission from the relevant consenting body, such as the Environment Agency, would no longer be necessary.

The Government’s working paper on streamlining infrastructure consenting recognises that Section 150 is definitely not working as intended and that there are significant delays to securing permits once a DCO is granted. Therefore, although we agree strongly with the intent behind this amendment, we do not agree that this is the best way of delivering on that. Indeed, only 16% of people who responded to our working paper voiced support for repealing Section 150.

Providing the relevant consenting body with the ability to veto such a request is an important safeguard. It is vital to ensure that permitting decisions are made only when a sufficient amount of information is available. That is often not the case when a DCO application is submitted, which could result in the relevant Secretary of State delaying a decision on the DCO or introducing conditions to be fulfilled at a later date.

For environmental permits, there is an additional risk of regression on environmental standards and putting local communities at risk. Instead, we believe it is better to speed up consenting and construction through Defra’s proposed reforms on permitting requirements, environment agency improvements and providing clearer guidance on Section 150. Defra’s proposed reforms will empower regulators to make risk-based decisions on which activities could be exempt from needing environmental permits altogether.

Easing permitting requirements for low-risk activities will help speed up consenting and construction by lessening the consenting burden on developers. Operational and service improvements will also improve the consenting process for both applicants and the Environment Agency. These reforms will deliver for growth and ensure that we can build critical infrastructure without delay.

We agree with the sentiment behind the amendment, but I hope noble Lords will feel assured that we are taking action to tackle the issue head on. For those reasons, I kindly ask the noble Lord to withdraw his amendment.

My Lords, I am sure that the whole Committee would wish to thank my noble friend the Minister for her very comprehensive response, which has been replicated throughout today’s proceedings. I am very grateful to her for the attention that she has paid.

I cannot say that this set of amendments has enjoyed uniform support among your Lordships, but I hope they have provoked a debate. I welcome the Bill. It is definitely going in the right direction, but there are still some concerns that I and a number of colleagues have about whether it is really going to cut the cake in the end, hence we are looking at the issues about judicial review. I am grateful to the noble Lord, Lord Banner, for his comments. I take his point about compulsory purchase and property rights in particular.

We need to come to an end. I will of course consider this very carefully. We still need to look at whether there are some supercharging approaches we can take to the really important infrastructure developments we need, with the benefit of parliamentary scrutiny and legitimacy. Having said that, I beg leave to withdraw my Amendment.

Amendment 47 withdrawn.

Amendments 48 and 49 not moved.

Clause 12 agreed.

House resumed.

House adjourned at 7.04 pm.