Lord Moylan:

Moved by Lord Moylan

53J: Clause 36, page 49, line 35, at end insert—“(1A) In subsection (2) (hearing after objection under section 10) omit “may” and insert “must””Member’s explanatory statementThis Amendment would make it mandatory for the Secretary of State to provide an opportunity for objectors to appear before and be heard by an appointed person.

My Lords, we are now back on the Transport and Works Act. This Clause relates to the holding of an inquiry when the powers of that Act are used. Since it will come up at some point later, it is worth reminding noble Lords, although I am sure they know all this, that for major construction works and infrastructure projects there are three methods available to a promoter for getting permission. One is planning permission from the local authority, and one—since 2008—is to go for a development consent order. When I say that there are three methods, there are really four, because there are also hybrid Bills. But there is also the intermediate thing of getting a Transport and Works Act order under that statute. In doing so, of course, one almost inevitably impinges on the property rights of others, so the possibility of having objectors and holding inquiries to examine those objectors must of necessity arise. That is the part of the Transport and Works Act that we are dealing with.

There are two things going on in the Bill, as far as I can make out. One is that it is currently the case that, if somebody raises an objection, the Secretary of State may hold an inquiry or may appoint somebody to hear the objector. However, they do not have to appoint someone to hear that objector if the Secretary of State considers that the objection is frivolous or trivial. There is a seriousness test, if you like, before the Secretary of State is obliged to respond to the objection by appointing someone to hear it or, indeed, by holding an inquiry.

One of the things happening in the Bill is that that seriousness test is being changed so that it now has to be something considered “serious enough” by the Secretary of State—no longer the very low bar of frivolous or trivial, which are terms quite well understood in legal circles, I believe, and therefore testable objectively, to some extent. Now, it becomes an entirely subjective test on the part of the Secretary of State as to whether it is “serious enough”—enough for what? No definition is offered. This moves the balance of power away from the citizen and in favour of the promoter, who is very often the Government, in a way that deserves inquiry. That is what these amendments are intended to highlight and invite the Government to comment on.

In addition, there is the question of whether the Government have to hold an inquiry or appoint a person. At the moment, in the Transport and Works Act, they “may” do so, but with the rising of the seriousness test—if that is admitted—it seems to me that, if someone passes the seriousness test, it should say “must” hold an inquiry or appoint a person on the part of the Secretary of State. After all, if it is admitted that the objection is serious enough—again, enough for what?—surely it must follow that an inquiry or a hearing should take place. If we are going to have a different balance, I am trying, not unhelpfully, to get the right balance. It would be worth hearing what the Minister has in mind here, and whether there is any give on his part.

Finally, I turn to my Amendment 53L, which relates to what is, as far as I can make out, a new power for inspectors in relation to Transport and Works Act inquiries—not planning inquiries but specifically Transport and Works Act inquiries—to impose costs on those who appear. At least in the planning realm, with which I am more familiar, inspectors can indeed impose costs on one side or the other, and in some cases on both, but only if there is some sort of delinquency on their part that has caused damage and held up the inquiry, such as a failure to provide documents on time or not turning up at hearings, which create costs for the other side.

The inspector can hold a separate costs hearing and can, and does, impose costs. I think we would all agree that that is a sensible measure to try to minimise delinquency on the part of those attending hearings. But a general power to defray the costs of the inquiry could have a chilling effect on objectors. That may be the Government’s intention—it may be that the Government want only the well-heeled to be able to appear before inquiries. If so, it would be as well to say so. But, if not, this new power needs to be either removed or very severely moderated. With that, I beg to move.

My Lords, I very much support my noble friend in these amendments. This is not just something that is happening in this Bill; it is also going on in the Children’s Wellbeing and Schools Bill, where the Government are looking at the conditions under which a parent is allowed to complain about their treatment by a local authority. There seems to be a general move to restrict individuals’ access to setting something right when they feel they have been hard done by by the state and really making it quite difficult. In the case of the Children’s Wellbeing and Schools Bill, there are no criteria set out for the Secretary of State. The Secretary of State can just throw the thing in the bin without giving reasons, without doing anything. I hope we will manage to change that, but it is a big change in attitude and I am really interested to know what is going on in this Government, in that they want to change the relationship between the state and the citizen in that way.

It seems to me to be really important that we should focus on giving individuals a right to stand against the state when they have something reasonable to say. I can understand, within the allowable margin on these things, wanting to tighten up the current wording, but in all my noble friend’s amendments I think he is pointing out really important changes that need to be made to the Bill and need to be reflected in the Government’s thinking generally. A citizen who has a reasonable complaint about the way they have been treated by the Government should be given a hearing, and taking it away in the way the Bill does is not something we should tolerate.

My Lords, I am very grateful to the noble Lord, Lord Moylan, for setting out so succinctly the choices for the routes by which infrastructure projects might be pursued. The objective of the Bill is to deliver a faster and more certain consenting process for infrastructure, because a failure to build enough infrastructure is constraining economic growth and threatening the economy, climate targets and energy security. There is a strong purpose in this whole suite of amendments. In this case, it is not intended to withdraw the right of individual citizens to take action; it is designed to deal with objections to transport infrastructure projects more proportionately. Sometimes, those objections will necessitate a public inquiry. On other occasions, however, an exchange of correspondence may achieve the same goal but quicker, cheaper and more efficiently. All objections will continue to be decided entirely on the merits of the arguments put forward. It does not mean less scrutiny but it is designed to speed up the Transport and Works Act process.

Currently, if an objection that is better than frivolous or trivial is raised through an application under the Act by a statutory objector—that is, an affected local authority or landowner—a public inquiry or hearing must be held, even if the objection is deemed to lack substance. This can result in a costly and lengthy public inquiry even where objections clearly lack merit. Instead, it is proposed that a public inquiry or hearing be held only when an objection by a statutory objector is considered serious enough to merit such treatment. A streamlined process for considering objections saves time and costs for applicants and objectors, but a proportionate objection process will still remain, ensuring that objections are given due attention and decisions communicated to all parties.

On Amendment 53K—

Before the noble Lord moves to Amendment 53K, what does he understand, and what should noble Lords and members of the public understand, by the term “serious enough”?

We have to get ourselves into a position where it is possible to get schemes to move forward based on a consideration of the objections and whether they can be dealt with by means other than a public inquiry. It is evident from how the processes work at the moment that delays can be and are being incurred. Of course the definition needs to be fleshed out in due course, but the Bill seeks to streamline the whole process by introducing another bar into it. The Government have chosen the definition

“serious enough to merit such treatment” to define what that is.

On Amendment 53K, the Government consider that procedural matters such as providing written reasons for a decision on whether to hold a public inquiry are best dealt with in guidance or secondary legislation. By reducing the current unnecessary bureaucracy or disproportionate process, this Clause will help support a faster transport consenting process.

Amendment 53L would ensure that costs may be imposed on a person only when that person has acted maliciously or unreasonably during a public inquiry process. Clause 37 introduces to the Transport and Works Act a new power enabling an inspector conducting a public inquiry to make decisions on relevant cost claims rather than the Secretary of State, as is currently required. Department for Transport Circular 3/94, which governs how claims for costs during a Transport and Works Act inquiry are handled, makes explicitly clear what constitutes unreasonable behaviour and the circumstances in which it can be applied. Guidance of this type is also used for the Planning Act 2008 regime and appeals under the Town and Country Planning Act 1990. Inspectors conducting inquiries on Transport and Works Act applications will continue to apply the circular when considering costs. The intent of the proposed amendment is achieved through existing means.

I thank the noble Lord for the amendments he has tabled but, for the reasons outlined, ask that he does not press them.

My Lords, I think many noble Lords—I am one of them—have general sympathy with the Government’s ambition to remove unnecessary obstacles to the approval of infrastructure projects, which is why one has tried to be as indulgent as possible in bringing forward amendments to their clauses. But in this case, it simply will not stand. It is an entirely circular definition to say that an inquiry will be held if the objection is serious enough to merit an inquiry. It is entirely self-defining; it tells us nothing whatever. It does not tell us anything objective about the seriousness required, as one of my amendments would set out. The Government will have to come back to this because, as it stands, it is completely unsustainable.

My Lords, before my noble friend withdraws his Amendment, I have a question for the Minister. He said the definition needs to be fleshed out in due course. Under what powers in what Act will that fleshing out be done?

I thank the noble Lord for his interjection. I will write to him after this Committee and set out some more detail.

I beg leave to withdraw my Amendment.

Amendment 53J withdrawn.

Amendment 53K not moved.

Clause 36 agreed.

Clause 37: Costs of inquiries

Amendment 53L not moved.

Clause 37 agreed.

Debate on whether Clause 38 should stand part of the Bill.

My purpose here is not to enter a radical objection to Clause 38 but, rather, to raise a debate and to hear what the Minister has to say on the points that I would like to make. This clause allows the Secretary of State to set a deadline for inquiries to be conducted and concluded. As I understand the clause, the deadline is flexible in that the Secretary of State can subsequently amend it and extend it to make it longer. With the purpose of trying to speed up consents, that may appear, on the face of it, to be a very sensible measure. However, I want to draw a lesson from history here.

Let us go back to the Planning Act 2008, which introduced the development consent order. One of the features of the development consent order was that the inquiry phase was to be limited; it was to be six months by statute, unless it was extended. Exactly the same approach was used all the way back in 2008 in relation to DCOs. Has that resulted in DCOs being shorter processes? It has not. It has, in effect, required all the work preparatory to the inquiry to be front-loaded, carried out and presented to the inspectors before they will agree to open the inquiry; the clock does not start running until they open it, so the six-month limit does not apply.

In effect, this approach has failed in relation to DCOs. It could be argued that it has made DCOs a slower method of acquiring permission than a Transport and Works Act order currently is. To get to the point at which the inspectors are willing to start the inquiry, one has to produce every conceivable document that they might require, which sometimes results in hundreds of thousands of pages having to be produced. Under the older system—using Planning Act powers under which documents could be pulled in later on—although the overall process lasted quite a long time, it did not require as much paper as is currently required by the DCO process.

I offer that lesson from history—not even history, because we live with DCOs today—as a cautionary tale. I wonder to what extent the Minister has taken account of that. Are the Government not in fact doing something here that is seductively attractive and will achieve something that we would like to see but will, in practice, slow up the whole process? I beg to move.

The noble Lord, Lord Moylan, makes an interesting point. I will not replicate the intention of Clause 38 because that is already pretty clear to the House. However, I am not sure that he is entirely correct in saying that what he describes as a DCO is a wholly bad thing because, in practice, it is sometimes a very good thing that the parties sort themselves out before the inspector starts the inquiry, rather than prolonging the inquiry by sorting themselves out while the inspector is sitting.

It is true that the DCO has the time limit that the noble Lord describes, whereas the Transport and Works Act does not. The Government’s view is that that leads to uncertainty in the consenting process and that introducing statutory timeframes will provide increased certainty to stakeholders, which has been valued in other transport consenting regimes. It will introduce greater accountability to the decision-makers. It should speed up the consenting process and should allow applicants to be better prepared post consent. I therefore kindly ask the noble Lord not to oppose Clause 38 standing part of the Bill.

I do not intend to oppose Clause 38 standing part of the Bill.

Clause 38 agreed.

Clause 39 agreed.

Clause 40: Fees for certain services

Amendment 53M not moved.

Clause 40 agreed.

Clause 41: Disapplication of heritage regimes