I beg to move amendment No. 17, in
clause 27, page 17, leave out lines 42 to 44.
This debate will be rather shorter than the previous one. I simply seek from the Government a statement on their policy on consultation. The Minister will know that we raised the issue earlier when I praised his Department's brave stand in resisting the Cabinet Office guidance and ploughing its own furrow.
The Bill gives the allocating authority—the Secretary of State in the case of England—the power not to consult if it concludes that those who might otherwise be affected will not, in a specific case, be affected by regulations that the Government want to amend. That seems quite reasonable, and I do not wish to demur from it. However, I have concerns. First, the analysis of whether an interest will be affected is rather subjective. The allocating authority may genuinely conclude that individuals are not affected, but those individuals may conclude that they are affected. We would find out the truth only once the regulation had been changed. That is not a happy state of affairs, and it is not how consultation should work.
There is also a potential legal problem. The Minister will be only too aware that there have been various legal judgments relating to consultation, not least that concerning the airports paper in which Gatwick was not included as a possible location for a new runway. The Government had to rerun that entire exercise. I am not sure whether that was right, but that was the judgment that was reached.
Clearly there is a legal aspect to consultation. I do not want to see a situation in which every single person is consulted about every single matter, and on the face of it the clause is quite reasonable, but I have two concerns about it. The first is that the legal framework in case law requires more consultation than the Government may be used to carrying out. Secondly, the interpretation of who is affected may mean that those who are genuinely affected are not consulted and find out about a change after it has been made.
As the hon. Gentleman said, the amendment relates to the requirement for allocating authorities to consult before making regulations. It would require them to consult bodies and persons representative of the interests of disposal authorities or of the operation of landfills in its area, even if those interests were not affected by the regulations. However, as the hon. Gentleman pointed out, that may not automatically be clear.
Nevertheless, it is possible to envisage cases in which the interests of disposal authorities or landfill operators may not be affected by the regulations covered in this part of the Bill. For example, there would be no need to consult landfill operators on regulations made under clause 25, because those would alter penalties that did not affect them. Equally, there
would be no need to consult disposal authorities on regulations made under clause 13 about the powers to inspect records held by landfill operators. However, I assure the hon. Gentleman that we intend to carry out comprehensive consultation on all regulations.
If I may be permitted to say to, I sometimes think that one of the Government's problems is consultation-itis. We consult not once but two or even three times. I therefore think it odd to be chastised for not allowing for adequate consultation. It would be a waste of time and resources to require allocating authorities to consult interest groups if the interests of those groups were not affected. There will be the fullest consultation, but it is common sense to restrict it to those groups that are directly affected. That is the basic position, and I hope that the hon. Gentleman will accept it and withdraw the amendment.
Of course I accept that is reasonable to consult only those who are affected. The amendment was probing, but the Minister has not answered two of the points that I raised: perhaps I did not express myself clearly.
The test of whether an individual or a body is affected is subjective, and I am slightly unhappy with the wording. The individual using the test to decide who to consult might get it wrong. The Minister gave a clear indication of when consultation would be ludicrous, and I accept that, but I am concerned about the grey areas—perhaps a minority of cases—where it will not be clear who should be consulted.
I suggested that the Minister may want to reflect on the proposed consultation in light of recent court judgments. I am not in favour of more consultation, for the reasons given by the Minister. However, I recognise that out in the big wide world are people who take legal action, defending their case on the basis that they were not consulted. That can slow things down, as happened with the Gatwick airport consultation. I am not arguing for more consultation; I am trying to make the system work properly. I shall happily withdraw the amendment, but those were my questions.
As the hon. Gentleman has said the magic words, I am sure that the Whip will not want me to speak for long.
I thought that I had answered the point. As in any consultation, an assessment has to be made of who are the relevant interests. Whoever is arranging a consultation has to exercise judgment, and we cannot regulate that through legislation. Ministers or officials may occasionally get it wrong, and people may sometimes be left out. The Gatwick case was rather significant; it went to the High Court, and the judge ruled against the Government. However, it was an unusual and rather special case.
Officials who consult about regulations—it is nearly always officials who conduct such consultation—go over the top, and send papers to everyone who might conceivably have an interest. I often ask for lists of consultees, and I am amazed that many of them
include 50 or 60 organisations, rather than the expected 20. If anything, Governments err on the side of excess, rather than the reverse.
I do not see how one can take account of a subjective test in drawing up legislation or make a general rule in legislation to avoid possible subjectivity at the margins. I take the hon. Gentleman's point and understand his arguments, but he is unduly concerned. I hope that I have given him some reassurance.