House of Lords
Tuesday, 14 October 2008.
The House met at half-past two: the LORD SPEAKER on the Woolsack.
Prayers—Read by the Lord Bishop of Southwark.
Disabled People: Social Care
My Lords, a Green Paper on the future of care and support will be published early next year. The public debate is informing several key strands of policy discussions, one of which is about the portability of care packages and addresses the question of local flexibility versus national consistency. It would not be appropriate at this stage to pre-empt the outcome of the debate or the policy analysis by making specific commitments about the Green Paper.
My Lords, I thank my noble friend for that reply. If we accept the principle that she has just explained, that we can make no specific commitment while a Green Paper is being considered—not even debated, but considered—the Government and both Houses of Parliament will be paralysed for years, as these things take time. Having pledged ourselves not to do that, the Government cannot act, and nor can this House or the other place. It would obviously be unacceptable to tie the Government’s and Parliament’s hands like that.
The present system is that anyone can move house if they wish to have a better job, or whatever, but if disabled people want to move house, the new local authority will probably refuse to allow the payment if it disagrees with the previous local authority. Given that that is the case, there is nothing we can do about disabled people that would change the whole system. My noble friend wants to help disabled people, as she made very clear in Committee on the Health and Social Care Bill. Does she not agree that the way to help them is to provide them with a change of system in place of the existing one?
My Lords, my noble friend is completely right. The whole House knows that he is a leading and very successful campaigner in this arena. My noble friend knows, as he acknowledged, that the Government have not stood still while waiting for the publication of the Green Paper. We have had a 45 per cent increase in local council services and extended the right to personal budgets so that people can have control over their own care.
The issue of portability of care to allow disabled people to move from one part of the country to another is a fundamental component of the system being addressed in the Green Paper review. It can be addressed only as part of the wider review, because of its implications for local and national accountability, democracy and the control of budgets. However, that does not mitigate the need for local authorities to have a duty to ensure that, when a disabled person moves into their area, a proper assessment is made of their needs and that those needs are addressed.
My Lords, has the department received a report from the Commission for Social Care Inspection on the eligibility criteria for fair access to care services? Will the process to which the Minister refers include children as well as adults in receipt of packages of care?
My Lords, Fair Access to Care Services is, as noble Lords will know, a system to help local authorities to set the criteria for the provision of care services. The Government recognise—indeed, noble Lords have brought it to our attention—that some councils have tightened their eligibility criteria for adult social care. I am afraid that I will have to write to the noble Baroness about whether children are included in that. We are concerned that it means that some people have been denied the care that they need. The Care Services Minister asked the Commission for Social Care Inspection to undertake a review and we are expecting to publish its report at the end of this month.
My Lords, does my noble friend agree that this issue is a major barrier to disabled people's employment and educational opportunities? If the Government want to increase social mobility, it must be resolved quickly. What interim measures will the Government take given the time that it will take to implement longer-term reform through the Green Paper on adult social care and subsequent legislation?
My Lords, my noble friend is absolutely right. During the recent passage of the Health and Social Care Act we recognised that it is important to allow disabled people to have the same rights—to move house, to go to university or whatever it is that they need to do. Some of the measures that the Government have already taken include providing extra resources at local level and ensuring that local councils properly assess people who have moved into their areas. But the long-term issue, which we need to address, is that in 20 years’ time, 1.7 million more people will need care. That has to be addressed on the basis of the Green Paper and a very wide discussion.
My Lords, as the previous speaker raised the matter of employment, has the Minister taken into account the position of those disabled people who have remitting disabilities who go in and out of needing full-time care? They face great difficulties in getting help when the time comes for them to return to full-time care because of the great delays that occur. Is something being done to deal with that problem?
My Lords, the noble Baroness raises an important point. The consultation process involves the public and stakeholders—indeed, I am attending a public consultation this weekend—and precisely that issue has been raised. It is part of our consideration in the preparation of the Green Paper.
My Lords, the noble Lord, with his record, knows that that is the case. Along with other noble Lords he has helped to ensure that. For example, the noble Baroness, Lady Campbell of Surbiton, who is not in her place, provided us with short articles that helped to inform the themes that we are discussing in the process of creating this Green Paper, as did the noble Lord.
My Lords, my daughter had a care package in Hull last year. She then lost both legs and moved to Staffordshire. She is still fighting to get as good a care package as she had in Hull. Will the Green Paper address that problem? Certainly, nobody who loses their legs should have a worse care package.
My Lords, my noble friend, who gave me notice of her question, is completely right and I undertake to look into that case. It is exactly the kind of situation that the Green Paper, which will examine what future planning and provision we need to make, is designed to address.
Armed Forces: Pensions
My Lords, we are abolishing the PAT, as its functions will be transferring into the first-tier tribunal established under the Tribunals, Courts and Enforcement Act 2007. It is proposed that the jurisdiction will move in its entirety into the war pensions and Armed Forces compensation chamber, a stand-alone chamber in the new tribunal. Members of the existing tribunal will be transferred into the chamber in the first-tier tribunal to continue their work in the same way as at present.
My Lords, I thank the Minister. During negotiations with the Ministry of Justice, Bridget Prentice, the Minister, while proposing the setting up of the Armed Forces chamber, strongly wished it to be recorded that the functions of the PAT England and Wales should be transferred to the social entitlement chamber. This was widely rejected by the PAT membership, the experts and by the service charities—those who support the appellants. Given this, and the fact that PATs in Scotland and Northern Ireland continue unchanged, why have the Government decided that they should not retain the major part of the PAT, which, since 1919, has been the statutory independent body serving those who appeal against awards for injury and trauma?
My Lords, I declare an interest as a member of the Lutterworth and District branch of the Royal British Legion. I pay tribute to both the noble and gallant Lord and my noble friend Lord Morris of Manchester, in particular, for they way in which they have approached this subject up to now.
I say to the noble and gallant Lord that the Government’s position is solidly that the tribunal should move into the first-tier tribunal, but that it will be in a stand-alone chamber: the war pensions and Armed Forces compensation chamber. That is, as I understand it, what the noble and gallant Lord was arguing with some force over the past months. That will give it its own rules, procedures and expertise. Its membership will of course always include someone who has been in the services, as at present.
My Lords, perhaps I should declare an interest as member of the Bridgwater branch of the Royal British Legion; it had not occurred to me previously that it was necessary to do so. The Minister may be aware that many noble Lords have, I suspect, received an urgent letter from the Army Benevolent Fund, expressing its concern about the continuing stream of casualties coming out of Afghanistan, in particular, and the challenges that they will face in their aftercare after their initial treatment has been met. Many of these cases will end up in front of what would have been the much-respected Pensions Appeal Tribunal.
I know that the Minister, with his previous experience in the Ministry of Defence, will wish to approach these issues with great sympathy and understanding, but I do not think that this could be a worse time at which to change the previously well respected arrangements. I ask the Government to think again on this issue.
My Lords, we are not changing the arrangements. The PAT will be exactly the same tribunal, but it will be inside the first-tier tribunal. It will have the same make-up each time. It will have its own rules and procedures. It will not be part of a social entitlement chamber. It will continue to do its excellent work. The Government have made a number of concessions on this, owing to the strong representations that have been made. It is quite wrong to suggest that the PAT will be in any way lessened or less effective when it becomes part of the first-tier tribunal.
My Lords, for parliamentarians there is surely no more compelling duty than to act justly to the men and women who, alone in this country, contract with the state to lay down their lives in its service. Is my noble friend aware that this is the motivation of those, most notably the noble and gallant Lord, who have worked so hard radically to improve the statutory instruments as first proposed? Is he aware that they were drafted and in print even before the period for consulting the war disabled and bereaved had expired?
That we have come so far since then is due not least to the constancy of my noble friend Lady Royall in working to facilitate a just outcome. To that end, can we be assured now by my noble friend Lord Bach that the department will be resolving the still outstanding points with all possible dispatch?
My Lords, I am grateful to my noble friend for what he said, in particular in relation to my noble friend the Leader of the House, who has, indeed, played an important role in these discussions. I agree with him completely that nothing can be more important than properly looking after and compensating those who are prepared to sacrifice their lives for the rest of us and for our freedoms. I can give him the assurance that he seeks; we are striving to find a way whereby the great services that the PAT has performed for ex-servicemen continue to the satisfaction of both the ex-servicemen themselves and the bodies, including the Royal British Legion, that represent them.
No, my Lords, the users will benefit. Moving to a unified tribunal means that users will be able to appeal both against the entitlement to an award and against the assessment of an award. In the present PAT there is a right of appeal only against entitlement. Challenges to assessment have to be made by way of judicial review. That is one way in which users—they are, after all, the people who matter—will gain by this change.
My Lords, as the noble Lord knows, the PATs in Scotland and Northern Ireland have always been legally and administratively different from the PAT in England and Wales. We accept that there is concern that the new arrangements may somehow change that balance. The appeal rights will be the same in all jurisdictions. Because of the concern the tribunal service proposes to establish an advisory steering group within three months of the jurisdiction being transferred to the unified system. This will not only help to ensure the identity of the jurisdiction is retained; it will also enhance and strengthen it. We hope that members of that group will come from the PATs in Scotland and Northern Ireland and from the new unified tribunal.
Bank of England
My Lords, I congratulate my noble friend Lord Barnett on his birthday. I wish him a very happy day and express the hope that his supplementary will make me happy, too. The Chancellor of the Exchequer regularly has meetings with the Governor of the Bank of England to discuss a wide range of issues.
My Lords, I thank my noble friend for his kind wishes and his not unexpected reply. Has he seen the report in the Times, which occasionally gets it right, that there is tension between the governor and the Treasury? That is perhaps not surprising given his recent views. Is it not hard to believe that the governor is still talking about—or has been talking about—increasing interest rates? I do not know whether he consulted his committee in deciding recently to cut them, which we were happy to see. I hope that my noble friend agrees that we are living in unprecedented times when the Chancellor of the Exchequer and the Prime Minister are telling major international banks what to do. Will my noble friend ask the Treasury to tell the governor what to do; namely, to cut interest rates in a big way? That is urgently needed. If he will not do that, will he at least have discussions on the matter?
My Lords, I knew that I would be grateful to my noble friend. Of course these are difficult times and each of the key actors on the scene of saving the financial system and assisting certain banks has a different viewpoint on the contribution needed in the longer-run economic perspective. My noble friend will appreciate that the Government do and will respect the independence of the Bank of England. It is for the Monetary Policy Committee to reach its judgments. In reaching those judgments, it will take into account the fact that certain aspects that contributed to the recent rise in inflation, particularly world oil prices and world food prices, look as if they have somewhat reduced.
My Lords, I shall press the Minister further on that point. In the real economy, the biggest single thing that will reduce the depth of the recession is a major cut in interest rates, because that affects both consumers and businesses. Will the Chancellor not only make that case to the governor but remind him that the Bank of England Act enjoins the Monetary Policy Committee to take account of levels of economic activity and unemployment when taking its decisions?
My Lords, as ever, the noble Lord is well informed. He is absolutely accurate about that aspect of the Bank of England Act. He will recognise that interest rates were cut by half a per cent only a short while ago. That is an index of the concern about the difficult times ahead for the British and the world economies. He will appreciate the extent to which there was co-ordinated action across central banks for the reduction in interest rates. That is the way in which we see the international position improving.
My Lords, we completely support the Government in maintaining the independence of the Monetary Policy Committee and we completely resist any calls from the Liberal Democrats to suspend its independence. That is extremely important. May I take the Minister back to a question that he did not answer yesterday? He was asked what the impact would be on money supply and inflation of yesterday’s funding of the banks in the bail-out. Today, we have heard that CPI inflation is now at 5.2 per cent, which is more than two and a half times the Bank of England’s target. Will the Minister, who did not answer the question yesterday, at least say whether the Bank of England’s job is now harder or more difficult following yesterday’s government action?
My Lords, these are exceptional times and the Governor of the Bank of England is facing difficulties with regard to his part in the management of the economy. Who could doubt that in these exceptional circumstances? These are circumstances that I had hoped were exceptional enough for us to have a constructive question from the Opposition for a change, rather than constant criticism. Let me make it absolutely clear that, as I have indicated, certain aspects with regard to international inflation are moderating to a degree. When the noble Baroness berates the present rate of inflation, she will know that it is still comfortably below the average of the years in which the Opposition were last in power.
My Lords, we are indebted to my noble friend Lord Barnett for tabling this Question, which enables me to get something off my chest. We are living through the worst economic crisis in living memory. I looked at the forthcoming business to see when we were going to have a whole day’s debate on the subject, but I looked in vain. We have been badly let down by the usual channels, which I regard as an absolute disgrace. Will my noble friend have a word with our share of the usual channels, to draw that to his attention? Will he point out to him that, if we have such a debate, he will have a rare and rather pleasant experience, as he will hear a number of speakers from this side cogently and strongly supporting the Government?
My Lords, I look forward to that debate with the keenest anticipation. I should have thought that three Statements in the past seven parliamentary days plus the opportunity for questions almost every day have at least kept us up to pace with the changes occurring with regard to the rescue of the financial system, but I am only too happy to indicate to the usual channels that there is considerable pressure for a debate on these issues, in which a great deal of constructive work will no doubt come from all parts of the House, including, I hope, from the Official Opposition.
Russia and Georgia
My Lords, in our view, Russian forces have withdrawn from the zones adjacent to South Ossetia and Abkhazia and are no longer in the rest of Georgia. There has been some discussion about the checkpoint at Perevi, which, some believe, may lie a short distance beyond the de facto border and into the rest of Georgia. However, the EU monitoring mission initially judged that this checkpoint lies on the de facto border line. We do not believe that the checkpoint is strategically significant.
My Lords, I thank the Minister for his reply. Has he dealt with the possibility of a grey area to the east of South Ossetia and is there an obligation on Russia and Georgia to withdraw to the positions which they occupied on 7 August? Finally, will the Government do their level best to ensure that there is the fullest co-ordination between the various observer and peacekeeping groups which are under UN, EU and OSCE mandates?
My Lords, the noble Lord is right to raise that last issue. Co-ordination among the EU, OSCE and UN missions is crucial to avoid duplication or mishaps. We have spoken to all parties to emphasise the particular importance of effective co-ordination on the ground. UK personnel in those missions have played a valuable role in helping to ensure that proper co-ordination takes place.
My Lords, does the apparent Russian withdrawal include withdrawal from the area to the south of South Ossetia, Akhalgori, where there is a mixed population and where the Russians appeared to have been until yesterday? On a broader issue, we have heard the American Defense Secretary saying that we should be committed to a NATO membership action plan for Georgia. Is that Her Majesty's Government’s policy, and will we be able to deliver NATO’s full obligations in the Caucasus if we go that way?
My Lords, on that last point, there is a long way to go before we get to that stage. On the noble Lord’s first question, although we welcome the Russian withdrawal from the buffer zone—which is a significant step towards the commitments that the Russians made—withdrawal to the positions held by Russian forces prior to 7 August has not taken place. Therefore, the conditions of 12 August and 8 September under the Medvedev-Sarkozy agreements have not yet been fully met.
My Lords, my noble friend may not be aware that I visited Abkhazia in August last year. It became clear to me that the Abkhazians, who are culturally and linguistically different from the Georgians, would be very unlikely to allow the Georgians, who left Abkhazia, or were chased out, in 1993, back to their homes unless Georgia recognised their independence. Is it not time to recognise that the independence of Abkhazia and South Ossetia, like that of Kosovo, is a fait accompli and that the Georgians should be discouraged from unrealistic aspirations to regain those territories? This would not be appeasement but realism and would point the way to a lasting peace in the region.
My Lords, I am afraid that I cannot agree with my noble friend in the slightest. The differences between Kosovo and Abkhazia and South Ossetia could not be greater. As one commentator put it, the international community’s response in Kosovo was an attempt to respond to the evils of ethnic cleansing. Frankly, we believe that Russia’s recognition of the separatist regimes of Georgia risks entrenching ethnic division and makes the return of refugees even more difficult to achieve. If there were to be independence on these terms, it would be a violation of Georgia, which is of course a democratic country.
My Lords, does the Minister not agree that the failure of the Russians to fulfil the agreement of 8 September, which he has confirmed they have not done by not withdrawing to the positions they held in early August, must be a germane factor for the European Union in deciding whether to resume negotiations on a policy co-operation agreement? Will he accept my support for what appears to have been the Foreign Secretary’s position in the Council yesterday, saying that the time was not yet ready for that?
My Lords, I am grateful for the noble Lord’s support for the Foreign Secretary’s attitude. He reads the Foreign Secretary’s mind and the Government’s policy on this well. As the House will know, meetings on a new agreement between the EU and Russia were postponed on 1 September by the European Council in response to Russia’s actions in Georgia, and that postponement still holds.
My Lords, we have reached the 30th minute.
My Lords, my noble friend Lord West of Spithead will now repeat the Statement on the Counter-Terrorism Bill made by the Home Secretary in the Commons last night. I should also advise the House that we are likely to sit late tonight in order to make necessary progress on the Committee stage of the Planning Bill. As ever, I am sure that I record the wishes of the House in expressing especial gratitude for the forbearance of all staff of the House who will be affected tonight.
My Lords, with the leave of the House, I shall repeat a Statement made yesterday evening by my right honourable friend the Home Secretary in the other place. The Statement is as follows:
“Mr Speaker, I come to the House this evening to set out the Government’s position on the Counter-Terrorism Bill. The provisions in this Bill have always been about protecting the British people from the serious threat we face from terrorism. My approach has always been to strike the right balance between protecting national security and safeguarding the liberty of the individual. That balance is a precious and delicate one, and it has meant—quite rightly—that our proposals on pre-charge detention have been the subject of intense parliamentary scrutiny, but, for me, there is no greater individual liberty than the liberty of individuals not to be blown up on British streets or in British skies.
“We face a terrorist threat that is at the severe end of severe, and we have proposed in this Counter-Terrorism Bill a way in which the police and prosecutors could apply to a judge to enable them to continue an investigation of a terrorist suspect in the most difficult, most complex and most challenging of circumstances.
“This House has voted in favour of a reserve power, which could be used only when there is a grave and exceptional terrorist threat, and which would be accompanied by high judicial and parliamentary safeguards. But, despite the considered view of all leading counter-terrorism police professionals that these powers will be necessary and should be there, ready for use if needed; despite the opinion of the independent reviewer of terrorism legislation, the noble Lord, Lord Carlile; and despite the decision of right honourable and honourable Members of this House, the other place has tonight voted to remove from the Counter-Terrorism Bill the protections that the Government believe should be in place—not to amend; not to strengthen; simply to remove.
“My priority remains the protection of the British people. I do not believe, as some honourable Members clearly do, that it is enough simply to cross our fingers and hope for the best. That is not good enough. When it comes to national security, there are certain risks that I am not prepared to take. I am not prepared to risk leaving the British people without the protections they need. So, instead of reintroducing the proposals for a reserve power in this House, my right honourable friend the Prime Minister and I have taken action to ensure that we have those protections in place, ready to be used if necessary. I have prepared a new Bill to enable the police and prosecutors to do their work, should the worst happen and a terrorist plot overtakes us and threatens our current investigatory capabilities.
“Some may take the security of Britain lightly; I do not. The Counter-Terrorism (Temporary Provisions) Bill now stands ready to be introduced if and when the need arises. This would enable the Director of Public Prosecutions to apply to the courts to detain and question a terrorist suspect for up to a maximum of 42 days. Individuals could be detained only when this is authorised by a judge. The Bill’s powers would automatically sunset after 60 days.
“I will place a copy of the new Bill in the Library of the House, and I will continue to press forward with the other important and necessary measures in the current Bill—tougher sentencing for terrorists, stronger powers to seize terrorists’ assets, stronger powers to allow the police to remove material that they think is terrorist-related during searches, the power to take DNA and fingerprints from people on control orders, and the ability to question terrorist suspects after charge. Those measures are right and they are necessary. I want to see them in force as soon as possible. I will continue to make the case for them as the Bill progresses.
“We cannot defeat terrorism through legislation alone, but where legislation can help to protect the innocent from those who would inflict atrocity upon us, I am steadfast in my determination to do right by the British people. I deeply regret that some have been prepared to ignore the terrorist threat for fear of taking a tough but necessary decision. Let no one kid themselves that this issue can be made to go away. These are hard questions—tough questions—but however much opposition Members may wish to duck them, Britain still needs to be protected. Britain still needs to be prepared to deal with the worst. I hope that when it becomes necessary to introduce this Bill, as I believe it may, we can count on their support. I commend this Statement to the House”.
My Lords, that concludes the Statement.
My Lords, I thank the Minister for repeating the Statement. We are glad that the Government have dropped the proposal to extend pre-charge detention from the Counter-Terrorism Bill. It is the right decision, given the size and nature of the opposition to this unwise proposal. The Government are also wise to drop for the time being the greater part of the proposed provisions on inquests—although the objections from this side of the House are not just about the unsuitability of the Counter-Terrorism Bill as a vehicle for those provisions, they are also about substance. But that is the extent of my gratitude, because, let me be frank, the Government are now playing the blame game.
The Government reason as follows. Parliament will not do the Government’s bidding on 42 days on the Government’s timetable, so they will now introduce a Bill “when needed”—which presumably means in the wake of an atrocity or an attempted atrocity. They will then attempt to force Parliament to do their bidding in time of crisis, through legislation that will not contain the parliamentary safeguards which we were previously told were so valuable, and they will try to blame the opponents to 42 days for being obliged to do that.
Members of your Lordships’ House were not born yesterday. This is intimidation. It is coupled with aspersions cast on the integrity of those whose judgments differ from that of the Government. They imply that we are lily-livered, not tough on terrorism and that we do not understand the threat. I reiterate that we on these Benches take the terrorist threat to this country every bit as seriously as do the Government. It is unwise of the Government to assert that the very fact of office renders their judgment superior. It most certainly does not—indeed, it can distort judgment.
This way of behaving is also unworthy of a Government who claim to put priority on consensus on national security. No one is forcing the Government to substitute a future back-pocket Bill for the back-pocket powers that they were seeking yesterday, nor to exploit fear to get their way. Let us be clear: this is the Government’s choice, and it is a bad choice. If they wish to have a new Bill, they should go through the normal process. This is important, because there are dangers in taking a new Bill through in haste during a crisis. It could very well be counterproductive. Imagine for a moment the following scenario. The extended period of detention is applied to a single suspect, who then goes to trial. Would not the defence counsel argue that the circumstances of the investigation undermined a fair trial since the jury would be tempted to assume the suspect’s greater guilt? I reiterate our calls for an orderly legislative process.
We know the Government’s game, but what is the case? If this measure is so necessary, why did the Government utterly fail to convince your Lordships’ House? Why were they not able to provide evidence to substantiate it? Why, on several recent occasions, has the Minister told us that we are safer than we were a year ago?
The Government now talk of what will be “demonstrated need” for the legislation in situations of “exceptional terrorist threat”. Need arises only when the powers available are inadequate to meet the situation. This has been the pretence all along in the Government’s attempt to look tough on terrorism—the pretence that they do not have the power which they need and that the country is somehow bereft of protection. That is not the case. The Terrorism Act 2000 gives the Government the right to extend normal pre-charge detention, powers which the Government have not needed to use in full and which have not been shown to be inadequate. Let us also not forget that the threshold for bringing charges in terrorism cases is lower than in other criminal cases.
If those powers are not enough, the Government have other powers and aids. The Civil Contingencies Act 2004 provides for the declaration of a state of emergency. It provides the Government with powers to detain suspects for questioning in the sorts of scenarios that they envisage—following, to use Mr McNulty’s words, “three 9/11s”. But the Government seem curiously reluctant to use this emergency power. We have made it clear that if the Act is not perfect, we are more than willing to co-operate with the Government to amend it. We have also made clear our support for the use of intercept evidence, which will lead to more guilty pleas and fewer abortive trials. So why have the Government been so leisurely on this issue since the Chilcot report? For starters, there is an amendment to the Counter-Terrorism Bill which the Government could accept.
In short, there are several measures in the legal field that the Government could take, and that we would be willing to support, that would strengthen our ability to combat terrorism without short-circuiting the system in the way now proposed. Disagreeing with the Government on 42 days does not constitute being soft on terrorism. The Government should not store things in their back pocket. If they are now putting forward a wholly new proposal, when do they intend to submit it for pre-legislative scrutiny?
My Lords, I regret the timing of this Statement; we in the usual channels did not agree with it. It could have taken place last night, as it did in the other place. More importantly, it might have been better if the Government had given themselves a cooling-off period to digest some of the very powerful arguments deployed against this measure in this House yesterday and the people who made them. The response has the stamp of petulance and its speed gives a hint of news management—burying the climbdown among the financial news dominating the headlines.
My greatest concern is the threat implied in the Statement that the next time a bomb goes off or a terrorist outrage is committed, the legislation will be bounced through Parliament. That ignores the lesson that we have learnt over the past 40 years under various terrorist threats: emergency legislation often gets it wrong.
As the noble Baroness implied, there is also an attempt to muzzle Parliament by the suggestion that anyone who questions any particular measure is soft on terrorism. There was far too much of that in what the Home Secretary had to say in another place last night. It is an insult to the experience and integrity of men and women in both Houses who take a different point of view. It also ignores the ratchet effect, whereby every terrorist outrage provokes more draconian responses until we end up losing the very civil liberties that we are supposed to be defending.
Does the Minister agree that, as the noble Baroness said, we have an armoury of measures already on the statute book that could and should be deployed against terrorism? Is it not an insult to both Houses to make a Statement overriding the view of this House, particularly where the legislation lacked a majority from the Government's supporters in another place? As the noble Baroness said, in dealing with terrorism, the Executive should follow two important principles. It should follow an orderly process and it should look, as far as possible, for cross-party consensus. Pursuing 42 days in the way that the Government are doing ignores both of those principles.
Both the Statement and the laying of the Bill last night raise important constitutional issues about the relevance and importance of the views of the Houses of Parliament to the Executive. The Government are wandering out onto very dangerous ice, and I urge them to think again.
My Lords, first, as I mentioned last night, there is absolutely no way that I think that anyone in this House is anything other than extremely loyal to the nation and the population of this nation. We may have different ways of going about things, but that is absolutely correct. I have to say, as a rather rough and ready sailor, that if I felt that someone did not feel that the safety of this nation and our people was one of their prime concerns, I would jolly well talk to them about it. That is not the way that I make assessments about the issue, because I am sure that all of us feel that desire; we all want to look after our people; but perhaps we have different ways of thinking about how that should be done. That is quite acceptable and it is a very good thing at times to go into that debate.
Noble Lords made very clear last night their views on the clause and provisions in the current Counter-Terrorism Bill. I was saved from being in the Guinness book of records only by the fact that the number was a British top figure rather than a world top figure, but it was a fairly substantial vote. Notwithstanding that, as I said yesterday, I still firmly believe—and all those whom I call the real experts believe—that there will be a case where we will have a number of people in custody and more than 28 days will be required.
Therefore, it is very important for us to think about how we handle that. I was asked yesterday on the Floor of the House, “Does this mean that you would let the fact that this has happened cause risks to this country? How will you handle it?”. As I said yesterday, of course we would handle that in some way. We would face that and get through it. I also pointed out, however, that there would probably be rapid and therefore bad legislation, because, I am afraid, Parliament’s record when something like this happens is that people stumble through legislation that is often far too draconian and dangerous.
The noble Lord, Lord Carlile, said that he was pleased with the 42 days. He felt that this should be final and that there would be no opportunity to do this when bombs were suddenly going off and people were being killed. There is a tendency for that to happen. Putting the Bill on to the statute book means that there will be no opportunity for overreaction, so I see no difficulty with it sitting there. It will have to be argued through the House. The prime safeguards—the judicial ones—are in there, as they were in the CT Bill that we put through.
The noble Baroness, Lady Neville-Jones, made specific points about coroners. All those issues are being slipped into the draft coroners Bill, which makes absolute sense. We need to approach all of them in the context of that Bill, where they can be looked at in the round. That is a far better way of dealing with them. She also said that we are forcing Parliament to go down a certain route. As I say, we are avoiding the possibility of something draconian and probably oppressive happening when one of these incidents occurs and we need more than 28 days, which I am sure will happen. I said yesterday that any Government in power would regret the fact that there was no back-pocket measure. Anyone in power will be pleased that there is something that they can push in at short notice that will not be too draconian.
The noble Baroness also touched on consultation and how much we try to deal with people. I have been told by a number of people that we have had greater consultation than there has ever been on a Home Office Bill. This went on and on for months and a number of concessions were given. People have joked and accused me falsely of U-turns. A very different option was on the table last year, so we had a massive consultation. I am afraid that it did not succeed, but we still have this worry and fear—I am sure this will happen—that we will need more than 28 days at some stage.
I have been accused of saying that we are safer. Some of the measures that we have put into place in the past 15 months have made us safer, but that does not mean that we are safe. The threat is huge. It dipped slightly and is now rising again within the context of “severe”. There are large complex plots. We unravelled one, which caused damage to al-Qaeda, and the plots faded slightly. However, another great plot is building up again, which we are monitoring. We have done a great deal to protect ourselves and to look after our water supplies, our resilience, underground trains, our preparedness and communications. We have done all the things that we need to do, but the threat is building—the complex plots are building.
The Civil Contingencies Act was mentioned. We well know from all the experts that that Act is not the appropriate way of covering this threat. Intercept is not a silver bullet. We are proceeding with the intercept work and implementing the Chilcot provisions with all haste on a cross-party basis, so I do not think that we can be faulted on that.
All I will say in the final analysis is that having this measure in place is useful and will stop us passing something too draconian. What we need to do now, and what I would like to do, is to put this behind us and try to avoid being party political, because there are provisions in the Bill that are extremely important. I have tried in my entire time in this post to focus on the really important things for the nation and not to be political because, rather as in some other areas, that is the most important thing.
My Lords, I should like to pick up on a comment made by the noble Lord, Lord McNally, and refer the Minister to two short comments in the Statement made yesterday in another place by the Home Secretary. She said:
“Some may take the security of Britain lightly. I do not”,
“I deeply regret that some have been prepared to ignore the terrorist threat for fear of taking a tough but necessary decision”.—[Official Report, Commons, 13/10/08; col. 621.]
Bearing in mind that many noble Lords who spoke or voted yesterday have had a long and, at times, very dangerous association with the terrorist threat, can the Minister reassure the House, by disassociating himself from those statements, and, if not, why not?
My Lords, that is perfectly in order. Does my noble friend agree that what we saw last night was a large number of Tory backwoodsmen, who very seldom attend this House, turn out in a deliberate attack to embarrass the Government? If they had sat through the debate, particularly the speeches made by the noble Lords, Lord Carlile and Lord Tebbit, and had listened to the arguments, they would have voted differently. As the noble Lord, Lord Tebbit, said, many Conservatives opposite will rue the day.
My Lords, I share my noble friend’s view that some of us may rue the day that we do not have a back-pocket measure. Late last night, I sat at home looking at Hansard. I looked at the balance of how the argument went and I thought that it was good and fairly well balanced. In fact, I thought that we had done rather better, so I was horrified at the total score at the end. I would not attack the noble Baroness, Lady Neville-Jones, on the same basis. I was impressed that she said that it was her Government. At times in the media I have had the feeling that she is the Minister for Security, so I was not surprised by that statement.
My Lords, do the Government consider following the advice of the noble Baroness, Lady Manningham-Buller, and do they seek to establish cross-party consensus beyond a political divide? To that end, might they even consider setting up a Select Committee, inviting Members of this House who have practical experience in the gathering of terrorist intelligence to serve?
My Lords, the noble Lord makes an interesting point. The thrust of his feeling that counterterrorism should be removed as far as possible from political aspects is right. I do not believe that setting up a Select Committee would be right. The mechanisms in place already allow the sort of debate required.
My Lords, is the Minister aware that the remarks made by the Home Secretary are singularly unhelpful if she is trying to establish a bipartisan approach to this issue? Perhaps I may reinforce what the noble Lord, Lord Dear, said. Some of us who obviously have had involvement in terrorism take enormous offence when remarks such as those that the Home Secretary made last night in the House are made. I hope that he will emphasise that very strongly. Would he answer the question asked by my noble friend Lady Neville-Jones? Will there be pre-legislative scrutiny of this measure?
My Lords, I take the point made by the noble Lord, Lord King. I understand that. I hope that I have never in anything I have said given an indication that I think other than that people are acting with the interests of this nation and our country at heart. I am sure that my right honourable friend will be aware of what has gone on in terms of debate in this House. On pre-legislative scrutiny, the draft Bill is in the Library. When an incident happens, it will have to go through the normal process in both Houses.
My Lords, I commend my noble friend on the way he is handling this, not least because I was one of the people who for a number of years opposed very strongly the old Prevention of Terrorism Act, which was far harsher than the Bill as it enabled politicians to exclude a person from one part of the UK to another without judicial oversight as well as many other things that are not allowed under the Bill. At the time both the Conservative and the Liberal parties accused me of being soft on terrorism, said that the IRA would be delighted, and so on. The way to deal with this may be simply to say that this is a rather belated apology from the Front Benches of the Conservative and Liberal parties to me for what was said in the 1980s.
My Lords, does the noble Lord agree that while some people may have turned up to vote last night who do not come every day, the most noticeable thing yesterday was the very large number of those who claim to be government supporters who did not come and vote for their Government?
My Lords, I am not sure that I totally agree with that. I was rather pleased by the number who did vote with the Government, but there were one or two notable exceptions. Some of those did surprise me; in one case, for example, the person had been a strong supporter of 90 days. That was somewhat surprising.
My Lords, the Statement is full of implications concerning the lack of patriotism among Members of this House. I regret that the noble Lord, Lord West of Spithead, whose integrity we are absolutely sure of, has not used this opportunity to dissociate himself from the Home Secretary’s comments, as the noble Lord, Lord Dear, asked him to do.
My question concerns the detail of the Bill, and I do not believe that the noble Lord has responded to any of the questions put to him in this regard. Given that it is still within the ambit of pre-charge detention, what does the Minister expect to happen if there is, say, another alleged hijack attempt such as that carried out in 2006 and those of us from the Muslim community are contacted, as we always are, with information from the Home Office confirming that arrests are taking place? Does he expect us to come into this Chamber, to be told nothing, and then blindfold and with hands tied, have to vote for this Bill? Will he consider the implications of this measure for the Muslim community at a time of crisis when the possibility of civil disorder will arise—particularly in the light of comments about patriotism that have been made—resulting in even greater friction in the community and certainly to the drying-up of any intelligence or information that might lead to a successful trial?
My Lords, I hope that the noble Baroness will accept, as I have said a number of times, that I would not impugn at all the motives of any noble Lord in this Chamber. In my 15 months here I have not met or talked to anyone who is anything other than caring of our nation and our people. That is absolutely the way I feel about it. I hope that the noble Baroness does not think I feel anything else, because I do not.
We have to be careful of incidents—they are hypothetical and we have to think them through. What will happen is that when the DPP and the police feel that we desperately need more than 28 days, the Bill will be brought before the other place and this House and will be debated. I am sure that everyone will consider it fully, even though it will be pushed through. I do not believe that it will be as draconian as it might be, and certainly not as dangerous as if, say, someone were either to let off or be in the process of trying to detonate a dirty bomb while some people were still exposed to it. In that sense at least, the Bill is constrained. That is how I see its introduction.
My Lords, I see that the Government intend to press ahead with their proposals on post-charge questioning. Is the noble Lord aware that if post-charge questioning were made subject to judicial authorisation, those proposals would have a far easier passage through this House?
My Lords, a few moments ago the Minister rather disarmingly said that he was just an old sea dog. Can he say from his experience that when a boat has been holed below the waterline, is taking on water and is limping into port, the crew and the captain will take comfort from the fact that the next thing they are going to be asked to support is a boat that has not been built and can be launched only in a typhoon?
My Lords, if the Minister feels that he has done well when 50 per cent of his noble friends have not supported him in a Division, I would hate to follow him into a real battle. Has he considered that the draft emergency Bill might have to be introduced during a summer recess and that Parliament would have to be recalled? In those circumstances, it would be imperative for it to receive pre-legislative scrutiny. Otherwise the prospect of passing the Bill in a summer recess after Parliament had been recalled in an emergency would be absurd.
My Lords, the noble Lord is right that Parliament would be recalled. He needs to beware of saying that no one would follow me into battle because they have done on a couple of occasions and I had no difficulty with that. On pre-trial scrutiny, clearly I have got the wrong end of the stick and I should like to come back on it.
My Lords, there seems to be a total genuineness among people of all parties, both in this House and the other place. It seems to me—I hope I am not looking at it too naively—that everyone is essentially asking the same question: how do you cater for an exceptional case which does not fit within the rubric of the 28-day detention rule? I think that is a fair way of putting it. The fallacy is that the answer must be to make it 42 days. The exceptional case may be as little likely to fit into 42 days as it is into 28 days. In other words, those of us who are arguing for a baulk on extended detention time are looking down the wrong path. The point was mentioned by the Minister last night when he said that there could be lengthy periods of detention if we develop that side-by-side with sophisticated communication advances. The only alternative—this could well be the basis of a cross-party agreement—is to look down a totally different path, the judicial path. Once a case nears the 28-day limit, it should be left to the discretion of a senior judge, or a panel of senior judges, to allow any period of time, in appropriate tranches, even if that came to 50 days or 100 days. The difference would be that the citizen would not be in the hands of the calendar with all the checks and balances that we have now; but would be at the mercy of the courts.
My Lords, the noble Lord raises an interesting point. I can assure him that I will be looking very closely at any other ways of ensuring that, if we get to a position of people at 28 days, we are able to gather the evidence necessary to make a charge or to say they have to be released. There may or may not be other ways of doing this but, at the moment, we believe there will be a case that goes beyond 28 days and that the police and DPP will ask us to do it. This effectively emergency measure has been provided and will be put in place when that occurs. If we find before then some other way of doing this, I will jump at it. This is one of the things I was trying to look at over the past eight months but, whether it was threshold tests, CCA or putting money in to do these things quicker, there was not a way I could see of doing it. That is why we have arrived at where we have got to.
My Lords, will my noble friend listen carefully to what the noble Lord, Lord Elystan-Morgan, has said? In his intervention there were the seeds of a possibility and I beg my noble friend not to dismiss it lightly. It is incumbent on this House to act speedily and effectively to the terrorist threat. I do not think any of us has the right answer at the moment. We have the possibility of acting effectively and speedily, but that requires the consent of both sides. Put aside what happened last night. I do not think that the Opposition have come to the right conclusion and I am not sure that the Government have. Think again.
My Lords, I thank my noble friend for his interjection. I certainly will not dismiss lightly the point made by the noble Lord, Lord Elystan-Morgan; as I hope I made clear before, I will think about it. As regards putting things behind us, I could not agree more. I should like to put this firmly aside, get the important things that still remain in the Counter-Terrorism Bill on the statute book and press on with trying to make the country safer.
My Lords, the noble Lord has effectively dissociated himself from the insults that were thrown at this House by the Home Secretary yesterday and about those who oppose the Government’s plans. He heard the debate. Will he convey to the Home Secretary and those advising her that the main objection to the proposal that she put forward was that people would be kept for up to 28 days when there was not even a reasonable suspicion that they had committed an offence? If after 28 days those who were investigating did not have in their mind a reasonable suspicion that the person detained had committed a terrorist offence, then it would be just internment by another name. To extend the time limit to 42 days is ridiculous as well.
The last I heard, there were 14 computer analysts employed by the Home Office. Let us assume that the figure has doubled to 28. How long would it take them to decrypt and look at the 400 computers that were involved in Operation Overt, to which I referred yesterday? Could they do it between 28 days and 42 days? Obviously they could not. The whole scheme has been nonsense. It is ridiculous to have another Bill of this sort coming forward in which these mistakes and misunderstandings are maintained.
My Lords, I am afraid that I have to take the noble Lord to task. It is nonsense to suggest that we go into a pub, pick up eight people and say, “Let’s get these chaps and keep them in detention while we try and find some evidence”. The Security Service, GCHQ, SIS and SO15 have been involved. These people have been monitored, tracked, listened to and spotted; we have seen who they are talking to. If, after a great debate between the Security Service, SO15, the police and the Home Office, we feel that they are a real risk to this country, we finally say, “Let’s act now”. The police might not want to because they do not have the real evidence even though they know that those people are about to do something. We have to say—and I think this is absolutely right—“No, act now, because we do not want large numbers of our population to die”.
I will not give way, my Lords. These are not people dragged in off the street—it is a very different situation. This makes me slightly annoyed because we do not do that. We put a huge effort into this; we do not scoop up little innocent chaps at a football match and throw them into detention. That is not what they are.
My Lords, I must make this point to do with computers. I have looked at the number of people involved, and there are choke points which make it impossible—it would not matter if we had 10,000 analysts. There are also the problems of going into other jurisdictions. If you go to Pakistan, they are not always 100 per cent helpful and there are countries which will not help. These things all take time, so it as not as straightforward as has been said.
My Lords, I support the Minister in his analysis. It may help the House, in thinking about this issue, to differentiate between intelligence from whatever source, whether it comes from overseas or is from a human source regarding what one person said to another. It is not admissible in evidence because it is hearsay. It is being developed to try to make it evidence on which to charge people. During the 28 days, intelligence that has been collected has been seen by the CPS and is shared with the police who will consider what of that intelligence amounts to evidence on which people can be charged. This is a proper process.
There has been too much confusion in Committee between intelligence, which is in most cases imprecise, incomplete and insufficient when it comes to charging people, and evidence which, quite rightly, meets a high standard before it can be used. That transition is what happens in a period of reasonable suspicion.
My Lords, I thank the noble Baroness, Lady Manningham-Buller, for that interjection. She put far more eloquently than I did, because I became slightly stroppy, exactly what I was trying to say. It is not as straightforward as that.
I slightly misled the House earlier. The coroner provisions will be in the fourth Session Bill, which will deal with coroner issues. It is not called the Coroners Bill.
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved accordingly, and, on Question, Motion agreed to.
House in Committee accordingly.
[The LORD SPEAKER in the Chair.]
Clause 5 [National policy statements]:
41: Clause 5, page 3, line 9, at end insert—
“( ) The policy set out in a national policy statement may not—
(a) identify any location or site as suitable (or potentially suitable) or unsuitable for a specified description of development;(b) identify any individual statutory undertaker or undertakers as appropriate persons to carry out a specified description of development.”
The noble Lord said: This is so small a group of amendments that it is barely even an hors d’oeuvre for this session of the Committee. However, the two amendments in it raise an important point. They would remove the capacity, spelled out in the Bill, for national policy statements to be site specific. They are probing amendments, because there may be cases where it is appropriate to designate sites—I would be the first to acknowledge that. However, we need to do that with our eyes open.
The first and obvious question is how far, if we designate the sites, we are in effect pre-empting the whole planning process. If we are going to need seven nuclear power stations or reactors and we designate seven sites, is that designation not tantamount to granting permission? Perhaps that is what is intended. Of course, if the Minister can tell me that it is intended that 10 sites will be designated so that the commission has a choice, I will accept that the process is open and satisfactory, but there may be other people who would have concerns should that happen. Even worse would be the case where we knew that there was a demand for 10 sites but only seven were designated, which would leave people dissatisfied.
That is one aspect of the problem. We need also to be aware that any development of a power station is a long-term matter, not just in the process of development but in relation to the life of the power station. Circumstances may well change. I have tabled another amendment, with which the Minister’s noble friend will probably deal later, addressing heat recovery from power stations, but I will introduce the issue now because it is significant.
The electricity generating industry consumes more than 1,100 terawatts of energy to supply customers with somewhat more than 400 terawatts. The figures may have moved up or down since I last looked, but there is no variation in those proportions. Much of that difference is lost in the form of waste heat. We expect society generally to become more energy efficient. We see combined heat and power establishments able to work at an energy efficiency in excess of 80 per cent. If you buy a modern condensing boiler, it, too, will have a thermal efficiency of more than 80 per cent. The fact is that our generating industry is working at somewhere around the 40 per cent mark, if it can get that far. Can we afford to run industry at that level of energy inefficiency?
I know that the generators will be shocked when I say that, because the possibilities of using that waste heat have considerable expense attached to them. One obvious way in which to use the heat would be to supply it to communities, but the sort of sites that might be designated for nuclear power stations, in particular, might not be suitable for that because they are all inevitably in rather remote places. Another relevant planning implication is that we may be able to find an industrial use for that heat. However, that has further planning implications outside and outwith the site designation, because it may mean the creation of an industrial estate of some considerable size, given the volumes of energy that we are talking about, in an area where that would not perhaps be judged suitable because of the nature of the countryside and the remoteness of the area.
There are wide implications behind this decision on site specificity—if I can get my tongue around that word. We need to go into this with our eyes wide open, so it is worth discussing. I beg to move.
I oppose these amendments. Indeed, my concern is that the national policy statements might not be specific enough in certain respects. As I understand it, the Government have said that both nuclear and aviation will be site specific. I think that that is right. If the national policy statement designates an area for expansion of an airport, for example, or for a new airport, there are a lot of other components to it, particularly transport into the hub that is the new or expanded airport, with railway, road and other services. If the national policy statement is to be the bedrock of our policy and national infrastructure, a certain degree of specificity—I have the same problem as the noble Lord, Lord Dixon-Smith, in saying that word—and site specification is necessary.
The measure is important for two other reasons. It gives a degree of certainty not only to the nation but to communities affected by the national policy statement that identifies that location. In addition, it gives greater accountability to Parliament, because whatever system is used for parliamentary oversight on whether the national policy statement needs the formal approval of Parliament, nevertheless the policy statement will be debated. The identification of sites for infrastructure can be debated in Parliament in a way in which it has never been before, giving a much greater degree of specification, accountability and planning.
My worry is that national policy statements may not be specific enough. I hope that those statements that for various reasons are not site specific are couched in language that is as clear as possible, so as to remove any possible ambiguity. We are all familiar with policy statements that give a nod and a wink in different directions. It is vital that the Infrastructure Planning Commission has as clear guidance as possible on what the Government and Parliament wish for their future infrastructure needs.
We touched on this subject on the first day of Committee in the context of the role of the Infrastructure Planning Commission. On that occasion, I said why I thought—and I agree very much with the views of the noble and learned Lord, Lord Boyd—that in some cases site-specific indications would inevitably be in the national policy statement. I will not repeat what I said on that occasion, which I hope is of some relief to the Minister, who is asking us to make a little more progress. I have some sympathy with that, as I do not want to sit here all night. However, my noble friend raised some perfectly valid points and I look forward to hearing the Minister’s reply.
I suspect that, like other Members of the Committee, I am finding it difficult to fathom the game plan of the opposition Front Bench in general on the Bill and on these clauses in particular. Two weeks ago, the leader of the Conservative Party announced a commitment to a big expansion of the high-speed rail network in this country. Surely he must be thinking that, should he ever come to power, it would be extremely valuable to have this Bill on the statute book, as he will not get those plans through with a tinkered-with version of the status quo. Likewise, I do not understand the objection to these clauses. The amendments were introduced by the noble Lord, Lord Dixon-Smith, with his customary moderation and courtesy, but the truth is that, if passed, they would be very damaging to the Bill.
First and foremost, the purpose of this part of the Bill is to reduce uncertainty and unnecessary delay in the planning system. One of the key causes of such delay arises from location—I use “location” rather than “site” because I do not think that “site” appears anywhere in this legislation, although it appears in the amendment. A developer can spend years and millions of pounds pursuing a particular proposal only to find at a very late stage that the location is deemed unsuitable.
Even worse, a developer can find himself caught in what I call the Nirex Fork. In developing its so-called Rock Characterisation Facility, Nirex initially canvassed a range of sites throughout the country, including one in the constituency of the Secretary of State for Energy at the time, which was probably a mistake. Quite naturally, there was uproar throughout the land. As only one of the sites would ever be chosen, much of the uproar was entirely unnecessary. Nirex then tried a different tack, which was to choose a suitable site and to make the case for it. It was rebuffed on the grounds that it had failed to establish whether the site was indeed the best location.
We also need to avoid the mistake made by British Rail in developing the route for the Channel Tunnel Rail Link. It put forward a whole series of options coursing across Kent, none of which was used in the end. The process caused major issues of blight and distress and claims for compensation.
The noble and learned Lord, Lord Boyd, pointed out that there was a specific request in the other place that in some cases aviation and nuclear power NPSs should be location specific. But there is a misconception that a location-specific NPS would fix the outcome of the examination. That is not the case, because it would identify sites as unsuitable or potentially suitable for development, but would not go so far as to be site or project specific. These proposals need to be taken away as part of a wider rethink of what the Opposition want to get out of the Bill.
I, too, join the debate on location and site specificity at the start of the Bill. I take the point about the distinction between a site and a location. Nevertheless, appealing to tidy minds as it is to provide the possibility in every NPS of specific locations, that raises the question of the powers of the Infrastructure Planning Commission. That is where I have problems.
The noble and learned Lord, Lord Boyd, mentioned transport in connection with development of an airport. I declare an interest now, as we will come on to airports in more detail later: I live not far from Heathrow, under one of its flight paths, and am affected by ground traffic to the airport, both rail and road. The number of times that the level crossing near my home is down because of the amount of rail transport is extremely frustrating. These things have a knock-on effect a long way down the line.
I still find it almost impossible to understand how the Infrastructure Planning Commission, faced with a national policy statement that says that there will be expansion of an airport—not necessarily Heathrow—and properly going into the implications at ground level, will be able to say no to that application in the real world. Perhaps, however, the problems come at least as much in the powers of the IPC as they do in describing the scope of the NPS.
I am grateful to the noble Lord, Lord Dixon-Smith, for giving us an opportunity to have this debate. It is an extremely important issue. I am also grateful to the noble Lord, Lord Jenkin, for flagging up our Front Bench’s concerns that we make progress. He did so beautifully; far better than I could have done by wagging my finger.
Discussing the two amendments in this group is important to clarify the nature of the debate on the degree of specificity needed within the NPS. Amendment No. 41 of the noble Lord, Lord Dixon-Smith, and the noble Earl, Lord Cathcart, and their Amendment No. 45 with the noble Lord, Lord Jenkin, would alter Clause 5 to remove the discretion of the Secretary of State to identify a particular location or site as suitable, potentially suitable, or unsuitable. They would also remove the discretion to identify an individual statutory undertaker as appropriate to carry out a specified description of development.
I understand that these are probing amendments and hope that I can address all the questions that have been raised. I am conscious that we are bedevilled by terminology and debating a rather elusive concept. We were helped greatly by the panel discussion we had last week, with different promoters and the CBI, about the interpretation of locations in terms of different demands and possibilities for different types of infrastructure. The noble Lord, Lord Turnbull, and the noble Baroness, Lady Hamwee, have already drawn attention to the difference between “location specific” and “site specific”.
NPSs are locationally specific and will indicate, as appropriate to the particular infrastructure they are concerned with, places which are suitable or potentially suitable locations for development. However, they will not identify specific sites. It will be for the developer to bring forward the site application, and for the IPC to determine whether that site meets the criteria. It will be left to the IPC to consider the detail of specific sites, layout, access and, of course, to weigh up the adverse impacts of the proposed project. I shall come to the important question of the noble Baroness, Lady Hamwee, on this a little later.
The case for some NPSs to address issues of suitable locations is simply logical. Although I take the point made by my noble and learned friend Lord Boyd, when planning for infrastructure it makes no sense to leave a policy vacuum and to leave the policy in the abstract. Certainly, although NPSs will differ in the detail they can offer about where certain infrastructure may or can go, they will be able to identify places which are unsuitable. I take the point made by the noble Lord, Lord Turnbull, about the way in which we have approached this issue in the past and the chaos and blight that have been caused by some of the ways in which it has been approached.
In their amendments noble Lords argue that it is inappropriate for NPSs to identify a location because this would amount to implied planning permission. It is not planning permission or implied planning permission because planning permission permits development of a certain description to go ahead in a particular location. Even outline planning permission establishes a principle that development can take place in a particular location. To specify a potential location does not establish any such principle, it simply means that a location may be suitable for a certain type of development.
In previous debates we have rehearsed at length the fact that NPSs will provide the primary reference point for the IPC, the strategic framework which draws together and integrates policy. By determining clear and predictable criteria they will also critically provide a clear and predictable framework for investment decisions. For all the reasons that the noble Lord, Lord Turnbull, pointed out, this is what we are all aiming to address. Some NPSs will be more locationally specific than others. Ministers have already given assurances in the other place that NPSs for nuclear and air transport—the two most contentious forms of development covered by the Bill—will be locationally specific. It is at this point of the deliberation that the national debate and the debate on area effects is bound to be most intense. While these national policy statements will exist to address the national need, they will also make it clear that they will be driven by logic dictated by geography, geology and demography, which will mean that certain places are more suitable for some developments than others. Making the reasons for that decision clear is very important as it will mean that the political judgment within which the IPC will in turn take the final decisions over the site has been set by Ministers and is subject to scrutiny by Parliament and to public consultation. However, it will be difficult and may not be appropriate to specify locations in all NPSs. The possible range of locations can be very wide for wind farms or gas-fired power stations. The NPS would not only not want to specify location, it would be impossible to cover all the options. This is where the broad areas might be indicated, but local considerations have to come fully into play.
There are other considerations as well. For other types of infrastructure there may be real issues of market flexibility and the ability of the market to respond to demand. Ports would fit into this band. Geography would be bound to narrow choices, but at the same time there needs to be scope and flexibility for market choice as well. If we specified locations which would imply a choice, we would intervene significantly in the marketplace. That could constrain competition, threaten our competitiveness and undermine the security of our energy supply.
As the noble Lord, Lord Turnbull, said, the crucial thing is clarity. In these instances where an NPS cannot be locationally specific we look to provide in the NPS as much guidance as possible to give as much certainty as is possible within all the constraints. Where an NPS does not identify locations as suitable, it will be up to it to provide criteria about suitable locations, which could be based on key physical, environmental and economic conditions, and the impact that might follow from those criteria, and to assess what would be suitable for development of specific types of projects. The NPS will also address the weight given to criteria.
Before identifying particular locations as potentially suitable, however, the Secretary of State must go through a careful process of considering the relevant evidence, involving appraisal of sustainability. He or she must also consult on the proposal, crucially with people in the local area, so that people are informed about the policy, understand the local implications, and have a chance to have their views taken account of before an NPS is designated. Clause 7(5) therefore provides that, where locations are identified, the Secretary of State must ensure that appropriate steps are taken to publicise the proposal, and Clause 8 requires him to consult local authorities in the affected areas about that publicity.
The noble Baroness, Lady Hamwee, asked whether, when a location-specific NPS has undergone the process, the IPC has any real scope to reject an application. The clear answer is yes, it does. The IPC must balance the national tests with local tests and see how the criteria weigh up. Several tests must be applied and, if the application fails any of these tests, the IPC can refuse consent or, importantly, ensure that mitigating measures are put in place in the final order.
First, the application must be consistent with the NPS. Secondly, the application must not contravene any obligation under international or UK law. For example, applications must be consistent with European directives on air quality and noise, the habitats directive, and so on. Thirdly, the application must be in accordance with any matters prescribed in secondary legislation under Clause 101(2)(c). For example, particular types of development might give rise to special considerations by virtue of existing legislation, such as alterations to a listed building.
Finally, the IPC must be satisfied that the benefits of the proposal outweigh the impacts. In determining that, the IPC would have specific regard to the local impacts report from affected local authorities that we made provision for in the other place. It is a question of the IPC listening very carefully and weighing technical, social, environmental and economic evidence about the national interest being served in principle by a piece of infrastructure and the local impact. The IPC must mediate between those two sets of considerations. There will be benefits to most local infrastructure projects, and there will be aspects that need mitigation and which will be problematic. It is the job of the IPC to ensure that that debate is properly held at that point. If the application fails any of those tests, the Bill is clear that the application can be turned down.
On the second amendment, both the amendments would prevent the identification of a particular statutory undertaker as appropriate to carry out a development. We debated this matter on Monday, and I do not wish to detain the Committee unduly with this issue. I simply reiterate that we wish to retain the ability to identify certain developers, such as the Highways Agency or Network Rail, where that would be appropriate, and avoid the unwanted consequence that responsibility for any blight caused by the NPS would fall on the Secretary of State, rather than on the statutory undertaker who would provide the infrastructure and would therefore be expected to purchase the land in due course.
It is an important area of the Bill. I hope that noble Lords are reassured by my response. This was a useful debate, and I hope that the noble Lord will feel able to withdraw his amendment.
I shall just comment on one or two points. The noble and learned Lord, Lord Boyd of Duncansby, in raising the question of aviation, said that the solution has to be related to existing airports. I should not have to remind him that there is at least one person not too far from here who thinks that the solution to the aviation question, particularly so far as the south-east of England is concerned, lies in an area where there is no airport sited at present. There are other reasons why that may become a very real possibility. In this instance, site-specificity may not be as appropriate as the case that he mentioned.
I acknowledge the enormous experience and knowledge of government of the noble Lord, Lord Turnbull, but his choice of Nirex as an issue was not a particularly good one. I was involved in a peripheral way through local government, but I had no direct connection with Nirex. The noble Lord is right—it raised a lot of hairs and caused a lot of reaction. When finally a specific site was found, Nirex still managed to get its plan rejected. Here we are, 30 years later, still getting precisely nowhere. Therefore, an argument can be made both ways.
I accept that the purpose of the Bill is to reduce delay; heaven knows, I have lived with the planning system for most of my life through my experience in public life. I would be the first to acknowledge the need to reduce delay, but we need to do what we do with our eyes wide open. I am grateful to the noble Baroness for her conscientiousness and for the fullness of her reply, with which I am pleased. It was sufficient justification for this discussion. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
42: Clause 5, page 3, line 9, at end insert—
“( ) A statement issued before 1st January 2006 may not be designated as a national policy statement for the purposes of this Act.”
The noble Lord said: I can deal with this amendment briefly. It concerns an anxiety expressed by local government, and it is right that the matter should be aired in the Committee. Our suggestion that the Government should not designate as a national policy statement a statement made before the date specified in the amendment would avoid any temptation for them to avoid all the processes required when putting forward a new national policy statement. We have suggested that statements made before that date two years ago must be presented as new national policy statements and, therefore, they would be subject to a full review, to include sustainability appraisal and full consultation, before they can be designated.
Perhaps the noble Baroness can allay my anxieties, but the Bill seems to allow the Secretary of State to designate existing policy statements, however old they may be, as national policy statements without the need for further appraisal. That cannot be right. I have seen statements on planning applications which were in an entirely different form from what we are now led to believe will be the form of a national policy statement under the Bill. I hope that the noble Baroness can express her views.
Other amendments relating to Clause 12 are grouped with this one. I will leave it to the noble Lords who have tabled then to speak to them and shall not attempt to introduce other arguments at this stage. I am merely concerned about the use or, I suspect, the misuse of very old, existing policy statements. I beg to move.
At Second Reading the Minister said that,
“national policy statements will be planning documents of the highest order”
“Individuals and local authorities will be able to have their say on how the assumptions and difficult choices made at national level could have implications in their local areas”.
“We will ensure that where the draft NPS is locationally specific, local peoples’ views are taken fully into account in the final NPS”.
She also said that,
“we want there to be a proper national debate about the need for key infrastructure … to boost opportunities for public participation”.—[Official Report, 15/7/08; cols. 1161-63.]
The Minister went on to explain the clear procedures that must be followed before policy becomes a national policy statement. That is all excellent stuff, provided that it is applied to all national policy statements.
It seems quite extraordinary that under Clause 12 a Secretary of State can just dust down an old policy, regardless of how old it is or whether any or all of the correct procedures and legislation have been complied with. Doing this may well undermine the very credibility of that national policy statement.
We have tabled Amendment No. 95, which would remove Clause 12(3), because we do not believe it is good enough that the Secretary of State should be allowed merely to take account of pre-commencement consultation, regardless of when it was carried out and how thorough it was. There needs to be up-to-date and relevant consultation.
As the Bill stands, there seem to be no checks or balances to ensure that correct procedures have been carried out and that legal requirements have been complied with for all, not just some, national policy statements. That is why various amendments are tabled to Clause 9 calling for affirmative resolution, the approval of both Houses and a Joint Committee of both Houses of Parliament once consultation and publicity requirements detailed in Clause 7 have been complied with. Those amendments would ensure that the correct procedures had taken place for all, and not just some, national policy statements. Once approved by both Houses, an NPS would have the force of law and therefore be very difficult to contest in the courts, but we will deal with those amendments later in Committee. In the mean time, the Minister may be able to clarify something when she responds. If the Secretary of State designates an old policy as a national policy statement, will it still have to go through the parliamentary requirements as laid down by Clause 9?
At Second Reading, the noble Lord, Lord Greaves, said that,
“if people are dissatisfied with the system and it is in disrepute, they will go to judicial review and the courts and the system will be clogged up”.—[Official Report, 15/7/08; col. 1229.]
I agree with him. If the Government persist with the imperfections in Clause 12, they will create a rod for their own back and, instead of speeding up the planning process, the flawed NPS will be subject to endless legal challenges: judicial review, the UK courts, the European courts because directives have not been complied with, and the European Court of Human Rights because there was not, in the Minister’s words, a national debate and people’s views were not taken into account.
We understand that the Government intend to adopt the 2003 air transport White Paper as the national policy statement in respect of aviation policy. I should probably declare an interest: I have flown this year; I flew last year; and I shall probably want to fly again next year. I have no particular axe to grind and I understand the arguments for expansion, but that policy is now five years old. If it were adopted as a national policy statement, there would be endless legal challenges, and I shall briefly give a few examples.
First, if such a policy were being considered today, the proposals would first need to be subjected to a strategic environmental assessment to comply with EU directives which became law in this country by regulations in 2004—hence our Amendment No. 93. The aviation national policy statement would need to comply with those directives or risk legal challenge.
Secondly, the Freedom of Information Act came into force in January 2005 but it was not until July this year that the Information Commissioner reported. The report was peppered with criticisms of the Department for Transport’s constant obstruction and prevarication in dealing with requests for information. Would that lead to legal proceedings? Perhaps it would.
Thirdly, the Aarhus convention was ratified in 2005. The full title is the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. It lists airport development as one of the activities on which the public must have proper access to information, defined participation rights in the decision-making process and proper recourse in law. In so far as the UK Government had not ratified the Aarhus convention at the time of the air transport White Paper but have now done so, they have significantly greater obligations in these respects than they did in 2003. Legal proceedings? Maybe.
Fourthly, on the pre-aviation transport policy consultations, the Secretary of State, Hazel Blears, at Second Reading in the other place, said:
“National policy statements will be subject to debate across the country”.—[Official Report, Commons, 10/12/07; col. 29.]
She also said that,
“there will be a transparent debate in public”.—[Official Report, Commons, 10/12/07; col. 36.]
The consultation on aviation in 2002 was not national but confined to areas around the airports. Even so, nearly 500,000 responses were received, and over 90 per cent were opposed to the Department for Transport’s proposals. It is questionable whether the consultation complied with the Minister’s statement that the Government would ensure that, when the draft national policy statement was locally specific, local people’s views would be taken into account in the final statement.
Fifthly, on climate change, I know that the Minister has agreed to look at that issue again, which is welcome, but if the 2003 aviation and transport White Paper is adopted as a national policy statement, air transport policy as it stands might ride roughshod over the requirement to comply with climate change provisions. As aviation is the fastest growing contributor to carbon emissions it can be argued that the current aviation policy is at odds with the climate change provisions.
Sixthly, the current aviation policy impacts directly on people’s human and property rights. If people feel that their basic human rights have been trampled on, there may be proceedings in the European Court of Human Rights. There is doubt that the process set out in Clause 12 will be compliant with the ECHR.
Seventhly, the European habitats directive protects some of our most important habitats. If people feel that that is not being considered there may be legal challenges. Currently no recognition is given to the fact that this process must comply with that directive.
Eighthly, earlier in Committee the noble Lord, Lord Howarth, tabled an amendment on the need for national policy statements to appraise our built heritage, scheduled ancient monuments and important landscapes. In replying to that excellent debate, the Minister said that PPSs 15 and 16 would critically feed into the NPS and that under Clause 58 local authorities,
“will be invited to submit a local impact report once an application has been accepted”.—[Official Report, 8/10/08; col. 267.]
That will not happen if the 2003 aviation policy is adopted as a national policy statement because the applications have already been made. We heard in that debate how at Stansted more than a dozen listed buildings will be demolished and that at Heathrow, according to John McDonnell, a Labour Member in another place, 10,000 of his constituents face losing their homes, including listed buildings and three primary schools. That is another highly emotive area of conflict and dissatisfaction.
Those are just some of the problems and pitfalls that I foresee if the Minister persists in using old policies as national policy statements. I have used aviation as my template but the argument could apply equally to other national policy statements. For national policy statements to work they need to be robust, have genuinely ticked all the boxes and not be open to legal challenges. Clause 12 should be deleted or amended to state that such policy statements should not be adopted as national policy statements until they fully comply with all the requirements for appraisal and consultation as set out in the Bill. It is not just opposition parties that are against dusting down old policies and adopting them as national policy statements. There was opposition from the Minister’s party in another place. At Second Reading, John McDonnell said:
“Any attempt to incorporate the aviation White Paper into a policy statement would be an abuse of power”.—[Official Report, 10/12/07; col. 89.]
Paul Truswell said that that was,
“something I do not feel I could possibly support”.—[Official Report, 10/12/07; col. 66.]
The current aviation policy does not affect me. My opinion does not really matter, but the policy affects tens of thousands of members of the public and organisations that feel aggrieved. It matters to them. I have tried to point out the pitfalls should the Secretary of State be allowed to adopt an old policy document as a national policy statement. As the noble Lord, Lord Greaves, said, the system will get clogged up in the courts and the objective of speeding up the planning process will fail unless the Minister ensures that all national policy statements are planning documents of the highest order.
I rise to speak to the stand-part debate on Clause 12. I start by repeating my mantra that these national policy statements are hugely important. They are a big step forward and are different from anything that has gone before. If they properly pass all the tests of democracy, they will be the key to making the IPC an effective and respected body. They will make the Bill work. National policy statements decided at a national parliamentary level with national consultation are a new development for our planning system, and they are a good idea. Whatever process was gone through for previous documents—PPGs, PPSs or White Papers—they were not examined by the Commons and the Lords or by the public in the knowledge that they were going to rule the decisions of the IPC on a range of bad-neighbour projects. Therefore, all national policy statements must start from scratch after the Bill has passed. It would be underhand for it to be otherwise. The Government will, of course, wish to start the NPS process from the basis of previous or existing statements, or even a White Paper—no one in his right mind expects them to start with a totally blank sheet of paper—and they probably want to get started now, before the Bill is passed. That is fine, but the process of debate and consultation must be as though they were starting from scratch. In that case, Clause 12 is redundant. I cannot see the point of it, unless the Government have some sort of ulterior motive.
Six of the amendments in this group are tabled in my name. I shall start with Amendment No. 91, which stands on its own. The Minister and I have exchanged e-mails about it. It relates to Clause 12(1)(b), which states that,
“the statement sets out national policy by reference to one or more statements”.
If Clause 12 stands part, I propose that rather than referring to other statements, they should be included in whole or in part in the national policy statement. To allow reference to them could lead to a lack of clarity and certainty. There would be a temptation to be just a little bit sloppy and to abbreviate a bit too much. It is hugely important that the NPS should be clear for consultation purposes and when it is being implemented by the IPC.
My other amendments propose that, rather than making use of a statement issued before commencement, the relevant period is between January next year and commencement—I do not know whether the Minister can tell us when commencement is likely to be—to ensure fresh consultation, appraisal, parliamentary scrutiny and so on in line with the intentions of the Bill. Like others, I am very concerned about the prospect of a pretty elderly White Paper, the air transport White Paper 2003, being converted without national consultation, with the sustainability and climate change debate having moved on.
I appreciate the assurances given by the Minister, John Healey, when this was debated in the Commons, but this is an instance where we do not need to be caught up in the “I would not have started from here” syndrome. Like others, I believe that it would be overhasty for Clause 12 to apply. Specifically, on Clause 12(3), which would allow the Secretary of State to take account of pre-commencement consultation, does the Minister believe that on any matter that may be the subject of an NPS there has been consultation adequate for the Bill and for the ministerial assurances that we have had, especially given the way that consultation and designation processes have developed during the course of debate on the Bill?
I sum up Clause 12 as undermining the statements and assurances that the Government have made. It seems to be saying, “PS. But we will get on with it come what may”. I am sure that is not what is in the Minister's mind, but it is hard not to read it that way, despite the good faith that has been expressed.
I have two quick points to make. I confess that I do not know enough about the 2003 air transport policy to know whether it would fulfil the criteria for a national policy statement, but, as I read Clause 12, it concerns power to designate a statement as a national policy statement, even if it had been issued,
“before the commencement day, or ... sets out national policy by reference to one or more statements issued ... before the commencement day”,
and allows pre-commencement consultation and publicity to be taken into account. Clause 5(2) defines national policy statements, and Clause 5(4) states:
“A statement may be designated as a national policy statement for the purposes of this Act only if the consultation and publicity requirements set out in section 7, and the parliamentary requirements set out in section 9, have been complied with in relation to it”.
So it is quite clear that the safeguards are there.
Whether the air transport policy fulfils those conditions is another matter, which we can debate at a different time, but I am alarmed at the prospect of Clause 12 being removed altogether. For example, I am aware that at least the preparatory steps for consultation and publicity for the nuclear national policy statement have begun. BERR is undertaking the strategic siting assessment consultation at present. If Clause 12(3) were to be removed, there is a least an argument that the Secretary of State would be unable to take into account that consultation and publicity process, which is already being undertaken. Is that the intention of the Conservative Front Bench? It would be alarming if we were to go back to year zero, as it were, now, given the challenges that we face. We need to improve our infrastructure rather rapidly.
Despite the safeguards to which the noble and learned Lord, Lord Boyd, referred, which are to some extent contained in other clauses, I confess that the whole of Clause 12 fills me with alarm. I share the concerns of the noble Lord, Lord Cameron, and the noble Earl, Lord Cathcart. It is rather extraordinary that the Government, at all stages of the Bill in both Houses, have said that this is a new, improved and greatly enhanced system that we are going to engage in in future. Yet we could treat previous examples as though they had gone through this process.
I shall take an extreme example. Reference has been made, not least by the noble Earl and my noble friend Lady Hamwee, to airport location. I date right back to the Roskill commission on the third London airport, when I was planning adviser to the Royal Institute of British Architects. Everyone in the country felt that the commission had got it wrong because it was not location-specific; it looked at a whole range of locations. Thirty years ago, the commission produced a minority report by the eminent Professor Colin Buchanan that there should be a third London airport, sited at Maplin Sands. Thirty years later, the Mayor of London is suggesting that again.
I declare an interest, which is in the register, as a consultant to the Thames Estuary Airport Company.
I must correct the noble Lord. The mayor’s proposal is not a revival of the Maplin Sands project; it is for the construction of an entirely new island in the Thames estuary, where there is no airport at all at the moment. This project has gained a good deal of support. However, the mayor is not reviving Maplin, and we should make that clear.
The noble Lord makes my point for me. What comes around goes around. I accept that it may not be precisely the same site—my geography is reasonable—but the point is made that the arguments that we were engaged in 30 years ago can come around again. That is the only point that I seek to make. Surely no one in your Lordships’ House is suggesting that that statement of policy or that consultation was appropriate to this, so we must narrow down very precisely what the Government have in mind or we could be ranging back.
In the debate on the previous clause, the noble Lord, Lord Turnbull, quite rightly identified the dilemma of, on the one hand, trying to be specific and clear and avoid blight and, on the other hand, enabling communities in a democratic society to take proper decisions about where they prefer a particular development. That is what the Bill is all about. The Minister has very precisely indicated at all stages of the Bill, as have her colleagues in the other place, that this is a new and improved way of dealing with these problems. That is great, but if it is, how can the Government possibly maintain that there can be any element of retrospectivity going back to previous policy statements and previous consultations, because that would suggest that nothing will be improved under the present Bill and that there is no better methodology?
Clause 12 is really most peculiar. In both principle and practice it seems to introduce an element of retrospective legislation, which this House, above all other parts of the democratic structures of our country, has always set its face firmly against. I hope that the Minister will be able to explain in her response to this short debate why the clause is felt to be necessary.
I shall most certainly try to do that, but I do not think that I can improve hugely on my noble friend’s explanation, which was excellent. I did not expect the clause to command so much contention. It is completely benign. There is nothing sinister about it whatever, but the description offered by the noble Lord, Lord Tyler, was the exactly the opposite of what we intend to do. He is right about the NPS being a new way of doing things—it is necessarily so—but he did not understand exactly what the clause seeks to achieve. I am happy to try to make that clear, because I would hate to think that there was ambiguity about this.
In brief, Clause 12 allows for a statement of policy that is issued before the commencement date to be designated as a national policy statement for the purpose of the Bill. The clause also allows the Secretary of State to take consultation and scrutiny carried out before the commencement day into account in deciding if the tests set out in Clauses 7 and 9 have been met. It also allows Ministers to treat an appraisal of sustainability that has been carried out before the commencement day as meeting the requirements of Clause 5(3).
I have listened very closely to what Members of the Committee have said on the clause and the amendments about the timing. The noble Lord, Lord Jenkin, started by saying that he wanted to be sure that there was no temptation to avoid the processes which the Bill requires in terms of the high standards of consultation, sustainability and so on. As I address those amendments, I shall seek to ensure that he has that assurance. I will also address the amendments in the group tabled by the noble Baroness, Lady Hamwee.
I understand the fears expressed by Members of the Committee that somehow here we have an intention to bring existing statements of policy being grandfathered into the new regime and bypassing the high standards that the Bill sets out for NPSs, which are key to the new regime. They must be robust, legitimate and credible. I should like to make it clear that the Bill provides clear safeguards which will ensure that all NPSs are subject to the tests set out in the Bill. I hope that that will satisfy the Committee that the clause is very important.
The production of national policy statements where these do not already exist has got to be a thorough process, but, in all logic, it cannot be a wholly new policy process. Government policies on strategic infrastructure have developed and will develop over time at a different pace in different areas. In some cases, we will need to build on a range of work to develop policy which could contribute to a national policy statement, or a policy statement may have been issued, which appears to be a potential national policy statement, before the commencement date of this Bill.
We are not talking about designating something that was written a long time ago and is out of date. The answer to the first question raised by the noble Lord, Lord Jenkin, coming from the Local Government Association, is that we certainly are not talking about designating an old policy statement and simply treating it as if it were new or did not have to satisfy any tests. I think that that was the assumption that the noble Lord, Lord Tyler, was making; namely, that somehow we would simply take previous White Papers or whatever and designate them as if they had gone through the process. That cannot happen.
We are talking about ensuring that Ministers can take on board all the good work, the analysis, the evidence and the judgments that have gone into making current policy sound. It would not make sense to throw this away. We cannot start from scratch when we are looking at the balance of our energy needs, the distribution of our railway networks or where we need water in relation to building housing. We have a great deal of intelligence and evidence to suggest how we should go forward. But the national policy statements, for the first time, set out a clear direction of travel as to why we need infrastructure and, in some cases, where we need it. That is what is new. It is the processes of consultation, which are spelled out in great detail. Each state of the process from national policy statements through to the decision and sustainability will be the essential test of whether this national policy statement will stand up to public and parliamentary scrutiny.
It is not sensible to throw that work away. We cannot start from scratch. It would be completely ridiculous to do that. Giving the Secretary of State this power to designate pre-existing statements of policy will enable us to take account of earlier work. At the same time, we recognise that the legal significance of national policy statements as the framework for IPC decisions in the proposed system means that it is vital that they all meet the requirements for national policy statements. It is not a question of dusting off anything.
Accordingly, the obligation to carry out an appraisal of the sustainability of the policy set out in a national policy statement in Clause 5(3)) continues to apply in relation to pre-existing statements that are designated under this clause. Ministers would also have to ensure that the standards for consultation and scrutiny set out in Clauses 7 and 9 had been met. I can confirm that the clause allows Ministers to take into account consultation carried out before the commencement of the Bill, and indeed in response to a question put by the noble Baroness, the consultation on, for example, the air transport White Paper was very thorough. However, we have to apply different tests for national policy statements. As we come to debate consultation later, we will talk about the ways in which the new updated code for consultation might affect it.
We made clear during debates in the other place that there is no question of bypassing the quality controls set out in the Bill for new statements of policy. I am happy to put that on the record again today. Before a pre-existing policy statement is designated as an NPS, Ministers will ensure that the standards for consultation, appraisal of sustainability, which we debated last week, and parliamentary scrutiny, which we are to debate in a while, have been met. In response to the noble Earl, designating a policy statement will mean going through the parliamentary scrutiny process.
If NPSs are to be effective, whether they are based on new or existing policy, they must be robust and authoritative. Therefore I should say to the noble Lord, Lord Jenkin, that there is no incentive for us to try to cut corners. We need to demonstrate that we have done everything we intend in this Bill to make policy statements sound in their policy and credible in terms of public perception and understanding. This part of the Bill does not set out in detail how consultation should be undertaken because NPSs will vary greatly and therefore the consultation will also be different. However, this will not allow the standards for good consultation to be bypassed. We have made it clear that consultation will be thorough and effective, and will be in accordance with the recently updated code of practice on consultation. There may be difficult issues to address and tough choices to make in relation to NPSs, but our task is to expose these through consultation and inform the public so that we take them with us. Indeed, that was the exact phrase used the other day by some of the experts who came to advise us on the Bill. We want a serious national debate on serious national issues.
The noble Lord raised the question of the aviation White Paper. Perhaps I may reply to some of his questions in this context because it is a good example. As I have said, before a pre-existing policy statement was designated as an NPS, Ministers would have to ensure that the standards for consultation and appraisal of sustainability set out in the Bill had been met. We are already committed to produce a further progress report on the air transport White Paper between 2009 and 2011, which will provide a good opportunity to designate the ATWP in conjunction with that report. But let me reassure the noble Lord that there can be no suggestion that the ATWP will be designated as an NPS wholesale without undergoing the process set out in the Bill.
The Government have stated their intention to produce an NPS for airports that will integrate the air transport White Paper in a way which meets the policy and the statutory requirements set out in the Bill. It will therefore be subject to an appraisal of sustainability, consultation and parliamentary scrutiny. We will be scrupulous in ensuring that it meets the standards set in the Bill, and if necessary further work in those areas will be carried out as part of the progress report. Further, Parliament will obviously scrutinise what Ministers have done before any NPS, including the aviation NPS, is designated, and will doubtless make sure that if there are any problems, Ministers would take them into account before final designation. If, ultimately, people still felt that the Government had not met the standards in the Bill, we would be liable to challenge in the courts.
Amendment No. 93 in the name of the noble Lord, Lord Dixon-Smith, and the noble Earl, Lord Cathcart, would alter Clause 12 to require that where a Secretary of State wished to designate a pre-existing policy statement as a national policy statement an assessment would be carried out in accordance with the SEA directive We discussed that issue briefly last week and I would not wish to detain the Committee unnecessarily by repeating those arguments here. We will ensure that pre-existing statements of policy will have to meet the same standards for appraisal of sustainability as new statements of policy before they can be designated.
As the noble Baroness, Lady Hamwee, said, Amendment No. 91 would prevent Ministers from designating policy in a national policy statement by reference. The amendment would require instead that all policies be incorporated into the text of the NPS and that if there was a reference it would have to be clear—not elliptical, not sloppy and not ambiguous. I take her point. Where Ministers designate policy by reference, they will do so clearly. It is necessary that we do so because, if national policy statements are to be effective, they will have to be comprehensive in order to demonstrate that they have taken on board the range of relevant policies. To ensure that that is possible across the suite of NPSs, we have to have flexibility to make external references without incorporating every detail—otherwise we would end up with an NPS of considerable size. We intend that statements will be taken into account, but we have to do it by reference.
I take the stricture about the necessity for clarity—this is already being scrupulously addressed—and for the business of cross-reference to be clear. I take the point that the noble Baroness is making, but incorporation will not solve the problem. However, I have listened to what she has said.
This has been an important debate. I hope that I have reassured noble Lords that the clause is necessary as a statement of what we have to do in order to be sensible and consistent with policy work that has gone on previously and to ensure that we can make best use of our resources, our intelligence and our forecasting. I hope that the noble Lord will feel able to withdraw his amendment.
I have lit a fuse that has gone off all round the Committee. The anxieties about Clause 12 are very real and, with the greatest respect to the Minister, I am far from satisfied that she has answered all the queries. I heard what she said, for instance, about the aviation White Paper, but I am completely unclear as to what further processes the Government envisage if they intend to build on the aviation White Paper as the core of a new national policy statement.
I was wise not to try to speak to all the amendments in this group because everyone who has spoken—and I am extremely grateful to all those who did—has raised considerable anxieties. I heard clearly what the noble Baroness said and I note that there is no temptation to cut corners and no question of bypassing the requirements of the Bill, but I am not at all clear, from what she said, how that is going to be achieved. The aviation White Paper is one example and a number of others were mentioned.
I do not want to prolong the debate. This has turned out to be an important issue. We all support the concept of the national policy statements. We have a number of queries about the details and the procedure but I think that all parts of the Committee consider it a positive and encouraging step forward. I want to see the Bill on the statute book with that in it, but the suggestion that the Government can go back and rake over old policy statements and, as it were, tart them up so that they appear to comply with the requirements of the Bill is immensely worrying. The noble Baroness should not be surprised if a number of noble Lords in various parts of the Committee, having studied her remarks carefully—as I shall certainly do—will want to come back at a later stage to try to get greater clarity and, if necessary, perhaps strike Clause 12 from the Bill. But that is for the future. For now, of course, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 43 to 55 not moved.]
Clause 5 agreed to.
Clause 6 [Review]:
56: Clause 6, page 3, line 32, at end insert—
“( ) The Secretary of State shall consider continuously whether each national policy statement should be reviewed.”
The noble Lord said: Clause 6(1) states:
“The Secretary of State must review each national policy statement whenever the Secretary of State thinks it appropriate to do so”.
One of the things that I regret is that as I have grown older I have become somewhat more cynical, which has led me to think about that provision. What happens if, when a review of the national policy statement is clearly appropriate, the Secretary of State none the less thinks that it is inappropriate? There could be all sorts of reasons for such a decision: the country could be heading towards an election, for example.
The only certainty about the future is that we do not know. A policy statement will be made on the basis of the most up-to-date knowledge available at the time that it is promulgated; it will be consulted on and be as good as it can be made to be. I would be the first to acknowledge that. But in many of the fields that we are discussing in relation to national policy statements, things will change. I would not begin to predict the changes in transport, power generation or anything else—that is not the purpose of the amendment. However, we know that there will be change. We also know that that change will probably arise in an inconvenient way and at an inconvenient time. Amendment No. 56, therefore, is devised to make the review of a national policy statement a matter for the Secretary of State to keep under continuous review.
I am not sure that I like the wording of my amendment any better than the wording of Clause 6(1). However, we need to think seriously about this, as the wording in the Bill is not wholly unsatisfactory. If my amendment is not wholly satisfactory, I apologise; if somebody can come up with a better form of wording, I should be very happy to see it in the Bill. But I do not think that the subsection should be left as it stands. I beg to move.
I thought that “continuously” was a bit hard on the Secretary of State. My Amendment No. 58 refers to,
“not less frequently than every five years”.
That is my bid for certainty. Amendment No. 61 would enable a parliamentary challenge to the Secretary of State’s decision that an amendment to an NPS is not material.
Included in the group are my Amendments Nos. 88 and 89 to Clause 11. I become more reluctant, as the years go on, to enter into the may/shall debate, but it seemed to me on this point that if the Secretary of State had gone through all the processes and come to the conclusions that Clause 11(1) predicates, rather than saying that she “may” suspend the operation of an NPS, the Bill should say that she should do so, because it is so extreme. That is my first proposed change to Clause 11(2).
Amendment No. 89 would enable the Secretary of State to suspend the operation of the part of the NPS that was affected. She should not be at liberty to change some unrelated part. I am sure that that is not intended, but the provision reads as if it might be a possibility.
I share the anxiety of the noble Baroness, Lady Hamwee, about the word “continuously” in the amendment moved by my noble friend on the Front Bench. I am not sure how that would work. My amendment and that of the noble Baroness would require a clear, fixed period after which there must be a review. The wording of our amendments would mean that, after five years, there would need to be a review. That is a maximum; it is entirely open. If there is a major change of circumstance, a national policy statement could be reviewed earlier than that. However, simply to leave it at large to the Secretary of State to decide when to review, which is what the Bill says, is quite unacceptable. We all recognise that we are in a world of rapid change. We are also in a world in which there are often great public, even political, sensitivities—that is the subject matter of the Bill. However, if there is a duty on the Secretary of State not to leave a review longer than five years, it will be clear what he or she then has to do. It is better to be specific on these issues than simply to leave the matter at large.
No case should ever go to the IPC on the basis of a stale NPS. That is the abuse that we want to stop. There may be an NPS where the project has taken place and there are no further applications. It is not necessary to review an NPS in which there is no prospect of any cases being brought in that area. However, where cases are being brought, I agree that there should be a presumption, created somehow or other, that the NPS should be reviewed and that one cannot go to the next stage on the basis of something that is old.
I intervene briefly and with some hesitation, because I am disturbed equally by the existing text and the proposed amendment. They alight on the point of central difficulty in the Bill; namely, how we have a solid, sensible policy, carefully worked out at the centre, which will apply, almost invariably, to a particularly difficult and sensitive part of the country. I am not convinced that we can put down in words a solution to the problem. It will require great sensitivity on the part of the Ministers concerned and a realisation that, however far you think that you are looking ahead in making a decision about a new airport or nuclear power station, something may come along and you may have to change your policy. We should ideally try to find a form of words that commits the Government of the day to a serious policy and to making every effort to get everybody to agree with it, but which admits to the possibility that, in exceptional circumstances and after careful consideration, you might have to change it. That is a difficult task, but I do not see it in the Bill.
I think that everybody would agree that there has to be a review process and an obligation to undertake it. I question whether putting in timescales is the right way to go about it, because that might suggest that the Secretary of State does not have to review until the five-year period, or whatever period is stipulated, is up. Equally, to say that the policy statement should be continuously reviewed may impose an undue obligation or undue pressure on the Secretary of State.
I draw the Committee’s attention to Clause 13(2), which relates to legal challenges. It states:
“A court may entertain proceedings for questioning a decision of the Secretary of State not to review a national policy statement only if”,
certain conditions are fulfilled. The clear implication is that, if a request was made to the Secretary of State that circumstances had changed and that there was now material on which he should review the national policy statement, and he then, having taken account of that, refused to do so, the court could entertain a challenge to that. There will always be a trigger; when people put new information before the Secretary of State, he or she will have in his or her mind the clear stick of a possible judicial review.
These are difficult issues. I appreciate that we are all trying to get to the same point. The threat of judicial review on the Secretary of State’s refusal to review a national policy statement provides an obligation on him to do so when there is new material.
Does the noble and learned Lord share my feeling—he referred to Clause 13—that with the whole of these provisions one is leaving too much to the courts via judicial review? As I said the other day, this has got a bit out of hand. The figures show a hundredfold increase in judicial review cases in recent years on what went before. I find the readiness of the courts to engage in policy making, usurping the function of the Executive and legislature, a disturbing development.
It should be possible for Parliament, when considering the Bill and particularly this question of the review, to reduce the prospects of an appeal via judicial review by being sufficiently specific. I recognise that the clause from which the noble Lord quoted seemed to envisage a whole lot of judicial review, but I would have thought that we would want to reduce the possibilities of that. Apart from anything else, it introduces a whole new dimension of uncertainty. As the Minister has frequently said—and I entirely agree with her—one purpose of this legislation is to try to reduce uncertainty, so that investors and those who will spend huge sums of money on building up the infrastructure have a much clearer idea of where they stand.
That was a long intervention, for which I apologise, but does the noble and learned Lord, Lord Boyd, with his great experience in this, feel that there is substance in what I am saying—that we should try to be more specific to reduce the opportunities for judicial review?
Whatever our respective views on judicial review, its growth is a genie that is out of the bottle. I suspect that we would have great difficulty putting it back in completely. The Bill attempts to limit and confine the areas on which there might be judicial review, which I think is the purpose behind Clause 13. I suspect that, even if that clause was not there, the Secretary of State would always have the prospect of a judicial review of a decision not to review a national policy statement if material was placed before him that was relevant to his policy. I pointed to the clause to show the Committee that beyond any doubt there is a right of judicial review in those circumstances; it is prescribed in certain respects but, in any event, it would be there anyway.
I am most grateful for that. I apologise for detaining the Committee a moment or two longer. We may come to this matter on Clause 13, but there is a real concern here. The noble Lord, Lord Turnbull, will know from being in the Civil Service that there is a document called The Judge Over Your Shoulder. It was so important for senior officials to realise that that was the environment in which they had to operate that it was quite recently republished. I find this a disturbing prospect because it gives rise to a significant degree of uncertainty about how the whole system will operate. It is a sort of unexploded bomb that can blow up the best-devised plans and processes and make everyone have to start again.
It is strange that in this clause the Secretary of State “must review”, but then you find that it is when he “thinks it appropriate”. How does that work? How does the compulsion operate? It is not the clearest possible formulation of the Secretary of State’s position. Perhaps the provision should read,
“whenever it is appropriate to do so”,
without the Secretary of State's opinion being necessarily the determining factor. For example, it should be possible to indicate some factors that would point to a review such as those referred to by the noble Lord, Lord Turnbull. Are there applications in the area of the particular policy statement in question that raise issues about whether the policy statement is really up to date?
I have some views, of course, on the point made by my noble friend Lord Jenkin of Roding about judicial review. The best way to limit judicial review is to make it clear what the intentions of Parliament are in relation to these matters. Clause 13, which we will come to, is intended to assist in that process.
It would help me, if not other noble Lords, if the noble Lord, Lord Jenkin, could advise us on the following point. Clause 6 states that the Secretary of State, having reviewed a national policy statement, might “amend”, “withdraw” or,
“leave the statement as it is”,
and the need for public consultation in subsection (4) applies only if an amendment is proposed. If I have read this clause correctly, there is no obligation to have a public consultation on a review of a national policy statement.
It would be helpful if the Minister could clarify that because, if the Secretary of State was under an obligation to review every five years or continuously, and if that meant that as part of the review process the full panoply of public consultation had to take place, you could be in a never-ending process of consultation. We are dealing with major infrastructure issues, and the last thing that the infrastructure industries would want is continued uncertainty about whether there is confidence to look ahead for years. We are dealing with areas that are looking for more confidence about long-term frameworks.
My question to the noble Lord, Lord Jenkin, and to my noble friend the Minister is: when a review of the national policy statement is under way would that be accompanied by the whole process of consultation? If so, I for one would be loath to see in the Bill a review either continuously or every five years. That will mean that even before the five years was up a whole process of consultation would be going on. There will be no stability at all, because in the minds of the industries concerned, a review must mean that the policy can change. If the presumption is that policy can change every five years, decisions would have to be reviewed with all the necessary consultation. People who like to see change would argue strongly for it and Parliament would have to debate it. That could be a real problem. It would be helpful to me at least to see how these amendments tune in with the whole question of consultation and review.
I shall not reply at length to the question of the noble Lord, Lord Woolmer; I am quite happy to leave that to the Minister. However, I am delighted that my noble and learned friend Lord Mackay is directing his considerable intellect to this question. He may be able to help us on how best to devise a form of words that reflects what most people seem to want. There should be a process of regular review whenever necessary.
However, on the amendment—like the amendment of the noble Baroness, Lady Hamwee—if a review produces changes which do not materially affect the main thrust of the thing, there should not necessarily be the whole panoply of consultation and parliamentary consideration. As a result of this debate, I do not think the clause has it right now. However, perhaps we shall hear from the Minister; she may be able to reassure us.
I am grateful to Members of the Committee for struggling to help me with the clause. I have listened to all the advice that has come across the Committee about how we can make it better. My first task is to explain what we think that it will do, and why it takes the form that it does.
The noble Lord, Lord Jenkin, began by saying that we all really want to get to the same simple place: to ensure that decisions should not be made on outdated policy. Our debate has largely been about that, because we all agree with it. I will argue that there is provision for necessary flexibility of review within a stable environment in the Bill, which is what we want. By putting forward different sorts of timescales, the amendments challenge that. The suggestion of the noble Lord, Lord Dixon-Smith, about “continuously” has been pretty comprehensively dealt with. It is in fact a recipe for general instability. We certainly do not want a continuous revisiting of any NPS in those terms.
Reading Clause 6 alongside Clauses 11 and 106, we find that they set out the circumstances in which a review might be appropriate: when there is a significant change in circumstances on the basis of which any policy set out in the NPS was decided, and where, were the policy different, it will make material difference to decision making. We are looking at circumstances which change the basis on which policy is decided.
I am grateful to the noble and learned Lord, Lord Mackay, for his intervention. The problem with trying to find a trigger and describe a set of circumstances is that national policy statements will vary significantly with different types of infrastructure. In some cases, the policy framework over the next 10 to 30 years may change rapidly and significantly. I am not enough of an engineer or a scientist to be able to say which technologies; maybe the noble Lord, Lord Jenkin, can. However, different technologies such as clean technologies will certainly come on-stream. We hope that carbon capture will come on-stream. There may be things that move faster than that, which we cannot currently predict.
Other aspects of technology and heavy engineering may change more slowly and incrementally. This is why it is difficult to pin down in the Bill exactly what we would look for in terms of a change of circumstance, so the flexibility for the Secretary of State to respond to circumstances with the information at his or her disposal is crucial. That is why a rigid review of five to six years is inappropriate. A continuous review creates its own problems, but a rigid review might miss the point altogether. This takes us into the question of ministerial accountability. I shall come to that in a moment. We have had previous long discussions about why national policy statements now offer an opportunity for the Secretary of State to be visibly accountable for setting policy in a way that Ministers are not at present. That policy will then determine the way in which planning decisions are made. Being able to judge the circumstances on the basis of evidence that the time is right to update a statement is a challenge but is the right and proper responsibility of the Minister. We seek to create a stable and certain environment for infrastructure development to allow investment decisions to be made and to allow opportunities for the NPSs to serve exactly the purpose for which they are intended—to be an up-to-date and robust statement of what is necessary.
Amendments Nos. 57 and 58 would put a timetable around the process and would impose artificial and unhelpful constraints. I understand the points that have been made across the Committee. As I said, it is important that we have the right process for reviewing national policy statements. I believe that the provisions that already exist provide this and strike the right balance.
The Bill provides a strong safeguard to ensure that changes in circumstances are taken into account. Each Secretary of State charged with maintaining an NPS which is up to date and as helpful as possible to securing resources and investment is not likely to default on a serious duty to ensure that they are up to date. What would be the point of the Secretary of State neglecting that duty when the whole rationale of this measure is to ensure that we have a relevant policy which is right for the present and the future? But if there is a perception that the Secretary of State is neglecting that duty and has not reviewed a national policy statement when a review should have taken place, the decision not to review can be challenged in the courts, as my noble and learned friend Lord Boyd said. I take the point made by the noble Lord, Lord Jenkin. Certainly, none of us wants to encourage judicial review, far from it. Nevertheless, the appropriate safeguard is there.
However, Clause 106 offers additional protection. The purpose of the flexibility to update policy is driven by the need to ensure that necessary infrastructure is not frustrated because the NPS is out of date. This clause provides for occasions where a significant change in circumstances, although not at that point reflected in a national policy statement, was likely to affect the decision on an application. In this instance, the Secretary of State has a limited power to intervene in such applications. This gives him flexibility to retrieve an application when there is no time to review an NPS. Therefore, we have two safeguards. We have protected the process from becoming out of date and we have rejected a straitjacket on decisions. The opposition amendments would place an unnecessary burden on government and create an unhelpful environment, not least for investors.
Amendments Nos. 88 and 89 concern the “shall/may” debate, which has cropped up rather late in the day. However, we are all glad to see it. These amendments would require suspension of all or part of an NPS where there had been a significant change in circumstances on the basis of which the policy was set out. The concern here is to ensure that the IPC only ever takes a decision on a case where there is an up-to-date NPS setting the framework for that decision. I offer the Committee reassurance here. As I have said, Clause 6 on reviews is understood alongside Clauses 11 and 106, which set out the circumstances in which a review might be appropriate; that is, when there is a significant change in the circumstances on the basis of which any of the policy was decided.
If there had been a significant change in circumstances which meant that the NPS no longer provided an adequate framework for the IPC to take a decision on a case, I can assure the noble Baroness that the Secretary of State would not permit it to take the decision. The Secretary of State would tell the IPC to suspend its examination of the case pending conclusion of the review of the NPS, using the power in Clause 105, or, if the case was urgent, she would use the ministerial power of intervention set out in Clauses 106 and 108. In that case, the IPC could examine the case but make a recommendation to the Secretary of State, who would take the decision herself.
Why does the Secretary of State need this flexibility? Why is it “may” and not “shall”? The substance of the argument is to maintain consistency of accountability. In maintaining that discretion, the Secretary of State retains accountability; otherwise, “shall” becomes a set of external facts on which judgment is made. Therefore, the Secretary of State needs that flexibility and accountability.
As I said before, Ministers are responsible for policy, and it is they who should decide when a policy statement should be reviewed, and whether the circumstances were such that some or all of an NPS should be suspended.
It may be helpful to explain what Clause 6 seeks to achieve before I deal with Amendment No. 61. Clause 6 requires the Secretary of State to review a national policy statement whenever he or she thinks it appropriate to do so. If the Secretary of State decided to amend an NPS as a consequence of the review, we would expect this amendment to be subject to the same requirements for appraisal of sustainability, consultation and publicity as a newly designated NPS. To answer my noble friend’s question, the Bill does not preclude consultation while you are reviewing NPSs. There is a process for consultation on the review.
Is my noble friend saying that if a review of the policy statement takes place, that in itself does not require the full panoply of consultation, but if the review leads to a proposal for amendment the consultation will take place? Is that what she is saying?
I am grateful to the Minister for giving way. What happens if the proposed change is politically driven? For example, the current Secretary of State may decide, after full consultation, that there will be a third runway at Heathrow. However, the Conservative policy is not to have a third runway at Heathrow. Nevertheless, there is an existing national policy statement for a major piece of infrastructure. I refer also to the decision taken on the M40 in 1997, which was changed by the Labour Party. Following the point made by the noble Lord, Lord Woolmer, does one have to go through a further publicity exercise when a subsequent Secretary of State takes a totally different view on the previous consultation and wants to do something different?
National policy statements set out the criteria on which decisions are made. The criteria are based on evidence, intelligence and foresight and are subject to public scrutiny and parliamentary process. On that basis, I suggest that it is difficult for a politically driven judgment to be made, because so much will have been settled in policy. However, if for the reasons that we have discussed the NPS has to be changed to reflect changing technologies, forecasts or whatever, and that requires not a third runway but another option, clearly that process would require public consultation.
I plough on. To return to the noble Baroness’s amendment, if the Secretary of State thinks that the proposed amendment does not materially affect the policy as set out in the national policy statement, subsection (5) of Clause 6 disapplies the requirement for the sustainability appraisal, consultation and publicity. That is the converse of the statement that I have just made. The noble Baroness’s amendment would require the Secretary of State to lay an order designating the proposed amendment as not materially affecting the policy. That would bring the order within the parliamentary procedure for statutory instruments. Such a safeguard is not proportionate, because some revisions to NPSs—the noble Lord, Lord Jenkin, pointed this out—may simply reflect smaller administrative changes. Requiring a parliamentary process in those circumstances would not be appropriate. I assure the Committee that any material policy change will be subject to the full procedure.
Given my assurance that I will write to noble Lords and pursue some of the questions that they have raised about the change of circumstances and public consultation on the changes, I hope that the noble Lord will be able to withdraw his amendment.
I had not supposed that my rather naive amendment would provoke such an intense and appropriate debate. I am grateful to all those who have contributed. Like the noble Lord, Lord Woolmer of Leeds, I agree that we cannot have continuous uncertainty. That was not the intention of the amendment. It is certain that progress in scientific development and change will not comply with any timescale that we are stupid enough to write into the Bill, so there must be a mechanism.
I am grateful to the noble Baroness for drawing our attention to Clause 106, which deals with a “significant change in circumstances”. Surely if the system was working properly the significant change in circumstances would have provoked the review anyway, before it got to the commission, and the Secretary of State would have had to intervene in what I would call an active planning application.
There are difficulties in what the noble Baroness has said. A moment ago, my noble friend Lord Caithness intervened to ask what might happen if there was a politically driven consultation. I remind the noble Baroness, although I am sure that she needs no reminding, that this became an issue during consideration of the housing legislation, when there was a question of whether housing should go to the housing association or stay with the local authority in particular circumstances. At that point, it was deemed that, if a local election had been clearly won on the basis of a clear proposition that the housing should be determined in a particular way, that was a sufficiently adequate public consultation. I find myself wondering whether that in fact answers my noble friend’s question, but I suspect in the case of the Bill that it does not. That means that we shall have to treat the answer—
I say to my noble friend that I do not want it on the record that I was talking about a politically driven decision. It is a decision taken by a politician, which is very different. I remember when I was a Minister having exactly this argument with Mr Wedgwood Benn, who, there having been an inquiry, took a totally different view from mine and wanted me to change my mind. It is not politically driven; one party takes a view of what the national policy should be and, when that party is elected, it can change the national policy statement without a whole other inquiry and public consultation, because it had that during the election campaign.
I am grateful to my noble friend, but he has reinforced the statement that I made some time ago that all these major decisions really ought to be taken finally at the political level, because they are essentially political decisions. That is what the Bill has been trying to escape from but, in the end, it cannot do it.
I am particularly grateful to my noble and learned friend for his intervention, because it seems to me that we have to think carefully about this. Certainly, his advice was very helpful. I hope that when the noble Baroness takes the trouble to write, she will perhaps be able to provide a little bit of certainty after a debate that, if I may say so, has increased our uncertainty rather than resolved it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 57 to 61 not moved.]
Clause 6 agreed to.
Clause 7 [Consultation and publicity]:
62: Clause 7, page 4, line 13, at end insert—
“( ) The Secretary of State shall provide for early public participation, when all options are open and effective public participation can take place, within a transparent and fair framework.”
The noble Earl said: The amendments in this group are to help to make Clause 7, on the consultation and publicity process, more comprehensive. We define the steps that ought to be taken much more closely than does the Bill. The Barker report found that most people will not support any new energy infrastructure when specific projects are proposed near where they live. That is a fundamental conflict between the urgent need to build new infrastructure and the need to empower local communities. It is vital that all those involved in and affected by national infrastructure policy and subsequent planning decisions feel empowered and able from an early stage to have satisfactory input into the process that leads to decisions on proposed developments.
Recently, when the Minister chaired a meeting for noble Lords with representation from the CBI, energy, ports, wind and town planning, we were told twice that the national policy statement for nuclear had already been started. We have heard that again today from the noble and learned Lord, Lord Boyd. That was news to me. Had I missed something? When and how would I be consulted? No doubt it is still in the early days, but it raises the whole question of how consultation will take place and what publicity is required. How will organisations and members of the public become aware that this process is taking place?
The details of what consultation should take place are not spelt out in Clause 7(2), which currently provides only that consultation and publicity should be as may be decided by the Secretary of State as,
“appropriate in relation to the proposal”.
Clause 7(4) says:
“The Secretary of State must consult such persons, and such descriptions of persons, as may be prescribed”.
That sounds a little feeble and needs fleshing out in the Bill. Clause 7(5) says that “appropriate steps” must be taken to publicise the proposal, if the proposed policy,
“identifies one or more locations as suitable (or potentially suitable) for a specified description of development”.
Presumably, those are steps that are effective in publicising a proposal in the area concerned, but the Bill does not say that.
Before I start talking about the amendments, I must say that they may not be exhaustive. I hope that they will provoke debate and will be seen as a constructive attempt to improve this clause by fleshing out the requirements.
Amendment No. 62 says:
“The Secretary of State shall provide for early public participation, when all options are open”—
that is, not yet decided—
“and effective public participation can take place, within a transparent and fair framework”.
Amendments Nos. 63 and 64 leave out the existing subsections (4) and (5) and put in their place:
“The consultation period shall not be less than 12 weeks … The publicity arrangements shall include advertisement in one or more national newspapers and the … Gazette, placing the proposal and relevant supporting material on the Secretary of State’s website and giving notice to Parliament”.
Amendment No. 65 states:
“If the national policy statement relates, in whole or part, to England, the Secretary of State shall consult Natural England, the Historic Buildings and Monuments Commission for England, the Environment Agency and the Local Government Association”.
The remainder of the amendment deals with who should be consulted in Scotland and in Wales. These consultees may not be the only ones required; there may be others. Currently, the Government intend that consultation with statutory agencies such as the Environment Agency should be a matter for secondary, not primary, legislation. We believe that statutory agencies should without question be consultees and should be specifically referred to in the Bill.
Amendment No. 67 states:
“The publicity provided for under subsection (5) shall include advertisement in a newspaper circulating in the locality, the display of one or more site notices at the location and placing copies of the proposal and relevant supporting material for inspection by the public at one or more places in or convenient to the location”.
Amendment No. 68 states:
“If subsection (5) applies, any authority required to be consulted under section 8 shall also be consulted on the proposal … If subsection (5) applies, the Secretary of State shall consult any parish or town council (if in England) or any community council (if in Wales) whose area includes the location or is within 10 miles of the location”.
I remind your Lordships that we are considering large infrastructure projects whose impact might be felt over a large radius; that is the reason for the words,
“within 10 miles of the location”.
Amendment No. 69 deals with subsection (6), which states:
“The Secretary of State must have regard to the responses to the consultation and publicity in deciding whether to proceed with the proposal”.
We wish to add the words, “with or without modifications”. Amendment No. 70 would add to that:
“The Secretary of State shall give reasons for designating a statement as a national policy statement, including his reasons for not following any representations made”.
We have tabled that amendment because there is no point in having a consultation process if objections are ignored without any reasons being given.
Our final amendment in the group, Amendment No. 71 to Clause 8, is an attempt to simplify the meaning of “local authority”. If that were taken to mean the “local planning authority”, the question of which authority was relevant for any given development would be straightforward.
I hope that the Minister will take these amendments away for consideration and/or come back to the House with improvements to Clauses 7 and 8. I beg to move.
I wish to say a few words about my Amendment No. 65A. The question of health hazards from power line electromagnetic fields has been a subject of media attention for many years. The problem has been discussed in your Lordships’ House on many occasions in the past 25 years, most recently during our consideration of the Housing and Regeneration Bill in July.
The first major western study—by two American researchers, Nancy Wertheimer and Ed Leeper—was published in 1979 and linked electromagnetic fields from power lines and domestic wiring to an increase in childhood cancer. Since then, the evidence has become stronger and, following Swedish studies in 1993, which showed a consistent doubling of childhood leukaemia risk, the National Grid has been forced to defend itself, including against inquiries from the public and the press and even against threats of legal action.
In 2005, a study by the Department of Health—the Draper report—found that children living from birth within 200 metres of high-voltage power lines had a 70 per cent increased risk of developing childhood leukaemia. The statistical association is clear, but more research is needed to find the biological mechanism that links electric and magnetic fields from power lines with childhood leukaemia.
I assure the Committee that high-voltage overhead transmission lines will be the subject of a national policy statement. My amendment is similar to that tabled by Richard Benyon in the other place. It would place a requirement on the Secretary of State to consult on potential health risks arising from national planning policy during the drafting of national policy statements. There is concern that the proposed system will allow much less consultation and representation from members of the public, as the IPC will be given only six months from the initial meeting to take evidence and another three months to deliberate. The IPC can decide what subjects are relevant to the discussion at the evidence sessions and can explicitly exclude subjects that are deemed to be covered by a national policy statement, which could include health.
I know that the Minister will probably repeat the comments that she made during our consideration of the Housing and Regeneration Bill. It is important for everyone that the matter is carefully looked at and that more research is carried out. It is particularly important for children who live in those regions.
I shall speak to Amendment No. 74. I declare an interest as the honorary president of the Friends of the Lake District, which represents the CPRE in Cumbria. I am also a vice-president of the Council for National Parks. Those interests will apply to some of our further deliberations. I very much appreciated the courteous and full letters from my noble friend Lady Andrews in response to some of the anxieties that I have raised with her. I am sure that other noble Lords have shared that experience.
I am glad that the Government have included the concept of consultation. When that is put in a Bill, all sorts of arguments can arise about who is included or excluded. It is terribly important to throw the net as widely as possible. That is not just a good principle in a democracy; it is also a way of winning, as far as possible, public identification with what is finally undertaken.
Other specific organisations are charged with heavy responsibilities that have a real bearing on the Bill; among those, of course, are the national parks. In my experience, Ministers repeatedly have emphasised in glowing terms how important they believe the national parks to be and how much the tasks that their authorities undertake are respected by the Government.
To provide a flavour of that kind of expression, I shall quote from a speech given by my right honourable friend Hilary Benn to the Association of National Park Authorities conference on 17 September. He was speaking as Secretary of State for Environment, Food and Rural Affairs. It was a splendid speech and I wrote to him to say so, because it absolutely captured what the national parks are all about and the role that they play. It was almost poetic at points and it was moving, because of his personal identification with the issue. When referring to the creation of the parks, he said:
“It was through this people’s charter that we conserved some of the most important and iconic landscapes in our country and enabled people to see and to enjoy them. And now you”—
he was speaking to the authorities—
“are the guardians of this charter. And the real reason I wanted to be here today was to say thank you—to all of you—for the hugely important work that you, and all those who’ve come before you, do. And because of what you do, today our National Parks are more important than ever. They cover 8% of England, and important parts of Scotland and Wales too. Over 90% of people”—
I presume that he is referring to public opinion polls—
“say that the Parks are important to them. 96% think that experiencing the Parks should form part of the education of every child in the UK. I agree”.
Perhaps I may quote once more from that speech:
“Home to some 200,000 people, including 12,000 farmers—vibrant communities, thriving businesses. And we must ensure that the homes and local services are there to meet people’s needs. That’s why we are committed to delivering over 10,000 affordable homes in communities of less than 3,000 inhabitants before 2011. We spent this morning at Hawkshead discussing how that could be done in one particular village. Far from being a barrier to development, National Park status can bring a significant boost to the local economy, attracting new visitors, businesses and investment. We must continue to work together to realise that potential”.
I need not say more. Here is the strength of feeling of a Secretary of State and Government about the role of the organisations that are charged with planning responsibilities. In those circumstances, I believe that it must simply be a drafting oversight that national parks are not included in this clause where my amendments suggest they should be. Having said that, I am certain that, in the light of her right honourable friend’s commitment, my noble friend will feel able to go away and look at this principle and come back with some kind of positive response.
I have two amendments in this group but before I come to them perhaps I may say to my noble friend Lord Colwyn that in Grand Committee on the Energy Bill we had a very good debate in the Moses Room on the exact problem that he has raised tonight of the apparent impact of electromagnetic radiation from power lines and the strange association with childhood leukaemia. However, as he rightly said, the problem at present is that there appears to be no scientific evidence of causation. We are waiting for a government report on this, which perhaps the noble Lord, Lord Hunt of Kings Heath, could comment on. I do not intend to return to this matter at the Report stage of the Energy Bill—although of course other people may do so—because there is no point until we have the response to the report setting out the Government’s evidence on it. Nevertheless, it is a strange phenomenon.
I turn to the two amendments to which I have put my name. Amendment No. 66 is simply about ensuring that disabled people are able to access any consultation. As I have mentioned before, for 10 years I was on the council of the Guide Dogs for the Blind Association. There is a constant complaint from people who suffer from a sight disability that they are not taken into account on these matters and that they have the greatest difficulty in accessing the information that is necessary for them to have an input. The GDBA has drawn my attention to a number of focus groups on the issue of consultations and it has given me some rather poignant quotations from people who were consulted. One blind person said:
“Everything was ‘we are doing this, we are going to do that’. We argued against it—but they took no notice”.
“I went to one meeting and they didn’t listen to us—they just didn’t listen. It is always statistics and more statistics”.
We can all express some sympathy with that. One guide dog owner said:
“It knocks your confidence when you go to meetings and get ignored”,
and so on. Therefore, it seems to me that in this day and age there is a clear duty on any public authority engaging in consultation to ensure that the form that the consultation takes is accessible, and can be responded to, by people who suffer from, in this case, a sensory disability, although that applies to some extent to other disabled people as well.
Amendment No. 84 is addressed to a somewhat different and rather wider point. It would insert a new clause concerning access for disabled people. We have discussed sustainability and Clause 9 requires the Secretary of State to promote sustainable development in drawing up planning policy statements. The organisations representing disabled people ask whether there should not be the same obligation relating to access for disabled people. The new clause is therefore designed to promote that. However, clearly, if there is to be a major infrastructure development where public access is required, it is much better that that should be firmly built in at the beginning rather than be an add-on later, which is always less satisfactory and more expensive.
Therefore, I think that those organisations are asking the Secretary of State to draw up the national policy statement with the objective of contributing to the achievement of an environment accessible to disabled people. I do not think that that is asking a great deal but it would make a considerable difference to the responses that may come forward and, I suspect, to those who will promote projects under the aegis of a national policy statement. It should be as much a core issue as sustainability or design. We have debated both of those issues and this gives us an opportunity to make the same point in relation to disabled people. I hope that the Minister will be able to give a favourable response.
My Amendment No. 72 would merely place in the Bill the requirement for a local consultee, which in my view it would be inconceivable to leave out of any genuine consultation process. I suspect that the omission of parish councils stems from the usual city-based, departmental process, where the parish councils often do not mean a lot to the people involved—an absence of rural proofing, one might say. If you live in a rural village or market town, the views and decisions of the parish council mean a lot to you. Local newspapers will often report their decisions and debates in much more detail than those of the district or county council, which are of course more remote. Indeed, many parish council decisions probably affect local people’s lives more than these rather more remote councils.
I am sure that the Government will look in favour on this amendment because in recent years and months they have deserved credit for enhancing the role of parish councils by aiding their training and opportunities, assisting with parish plans, encouraging quality parishes and easing the passage of the Sustainable Communities Act, and indeed through the Communities in Control: Real People, Real Power White Paper, published earlier this summer. Therefore, it seems inconceivable that they could do all that for parishes and then commit the sin of omission by ostensibly excluding parish councils from a consultation process on something that could dramatically affect their lives.
It is probably not immediately obvious to those who live in close-knit metropolitan areas that it is quite likely that an outlying parish in an urban-centric district council, such as mine in south Somerset, will take a different view from that of its district council. Sometimes, particularly on planning decisions, the district council takes a totally divergent view from that of the parish involved. Thus the parish council must be allowed to have its own say in the process. Even surrounding parishes should be included because Clause 8(3) already refers to contiguous parishes in this instance.
Even if, as is quite likely, a parish takes a rather dim view of these bad neighbour developments and in the national interest has to be overruled, it is important to recognise that it will inevitably have a far better idea of which local mitigation measures will work effectively to reduce the damage to local people’s lives. Parish council views may be very different from those of the district or county council official who is often based in a town 20 or 30 miles away.
I hope that it will please the Minister, who wants to speed everything up, that in speaking to Amendment No. 72, I shall also speak to Amendment No. 189. Amendment No. 72 refers to national policy statements that are site specific, so the parish is involved. Amendment No. 189, which is in a later grouping, refers to the developer’s pre-application procedure, but it is obviously very important that any applicant consults with parish councils and gives them an opportunity to submit their views. Amendment No. 292 to Clause 99, which is in yet another grouping, governs in various places the procedures of the IPC, such as in Clauses 58(2)(a) and 54(2)(b). My remarks will refer to those three amendments.
I hope that the amendments merely correct an oversight by the Bill team and that the Government will see their way to accepting them. It is inconceivable that the views of the parish council would not be sought by Parliament when discussing a site-specific NPS or by the developer and the IPC. It is extraordinary that the Government who are so keen on parish councils should not put that in the Bill. I hope that they will accept that simple amendment.
This is an important group of amendments about consultation and publicity arrangements on national policy statements. A little amendment, Amendment No. 73, which is in my name and that of my noble friend, is tucked away in this group. We have also added our names to Amendments Nos. 66 and 84, which were tabled by the noble Lord, Lord Jenkin of Roding, on the ability of disabled people to take part in the consultations and developments. I shall say no more about those because the noble Lord introduced them in an excellent way and we agree with everything that he said.
I also added my name to Amendment No. 74, tabled by the noble Lord, Lord Judd, on national parks. I was asked to do so at a time when we thought we might reach this amendment on Monday last week. The noble Lord obviously shared the Minister’s optimism about the progress of this Committee. But I shall say something about it shortly.
I want to give the support of the Liberal Democrats to the general collection of amendments tabled by the Conservatives and spoken to by the noble Earl, Lord Cathcart. The only reason we did not table similar amendments is because they pre-empted us and there was no need to duplicate them. There is a view, which we hold, that the Bill is too general and too vague on how public consultation and publicity on national policy statements will work.
I shall repeat what the noble Earl quoted from the Bill because it is crucial. Clause 7(2) says that such consultation and publicity will be carried out,
“as the Secretary of State thinks appropriate”.
That is not good enough for something as important as this. Perhaps the general principle should be set down as Amendment No. 62 proposes, or perhaps the bare minimum of what the Secretary of State has to do to publicise and consult should be set down. We would also like an explanation of what consultation means because it is not very clear. Clause 7(4) states:
“The Secretary of State must consult such persons … as may be prescribed”.
I have hunted through the Bill and cannot find who will prescribe and what the process will be. Perhaps I have just not found it in this long Bill, but consultation is a two-way process. There is the question of who has a right to be told automatically and directly, which is the outgoing part of consultation, and there is the incoming part of consultation. If only prescribed persons are consulted, does that mean that anyone who happens to be interested because he will be affected can be ignored because he is not a prescribed person? That is crucial. I am assuming that if someone living next door to me sends some comments on a development in which he is interested, at the very least his letter will be read by somebody. Will that be the case if he is not a prescribed person?
The other question is whether the representations that are made will be published by the Government. Organisations such as Friends of the Earth or those wanting to build nuclear power stations will make representations and it will not matter whether the Government publish what they say as they will publish it themselves so that interested people can find out. But my neighbour may not have that facility or know how to do that, so will the Government publish the representations that they receive?
That leads to the question raised by the noble Lord, Lord Dixon-Smith. Will the Government have to give reasons for the decisions they are making and, by implication, reasons for rejecting some of the representations that are made to them? Clearly on issues such as building nuclear power stations, new motorways, or whatever, some of the representations will be rejected as they will get different views in large quantities.
These are questions on the principles of Amendment No. 62 referring to consultation that is,
“within a transparent and fair framework”.
Those are important words. Will it be a transparent framework in which organisations or individuals can take part, or will it be a restricted consultation with people who the Government think have some rights because of their status as campaigning organisations, representatives of developers, or whatever?
Amendment No. 62 may or may not be the right one to put into legislation but the principles are fundamental. Amendment No. 64 refers to the consultation period. Twelve weeks may or may not be right but we need to know how the consultation will work. It is crucial to have some indication in the Bill of minimum arrangements. Amendment No. 65 lists a number of quangos and other organisations that ought to be consulted. I have some doubts about whether that is the right approach simply because if the names of such organisations are to be included, it should be made clear that they are a minimum. It may be that in other areas the list of organisations that the Government have to consult is set out in regulations rather than in primary legislation, and that may be the way forward here. It helps everybody concerned to know whom the Government have to consult. It seems extraordinary that this legislation does not specify that the Scottish Executive and the Welsh Assembly are statutory consultees. I assume that that is the case in view of the amendment tabled by the noble Lord, Lord Dixon-Smith. They clearly ought to be.
Amendment No. 67 is interesting because it requires adequate local publicity when there are site-specific issues or issues that are likely to affect a particular area or type of area. One assumes that that will take place, but the Bill does not say so.
Amendment No. 72 was tabled by the noble Lord, Lord Cameron, to include parish councils and community councils in Wales. Amendment No. 68 is a different version tabled by the noble Lord, Lord Dixon-Smith. Parish councils have got to be included. The Government may say that these are national level policy statements and parish councils have nothing to do with them. In many cases, that may be the case. Most parish councils will not be interested in most national policy statements. However, particularly when they are site specific or are likely to have site-specific implications, it is vital that parish councils are involved. Parish councils have a right to be consulted on all planning applications. The later amendment tabled by the noble Lord, Lord Cameron, refers to applications to the Infrastructure Planning Commission. If parish councils were not included in that, it would be a reduction of their present rights. At the moment, no matter what the application is, whether it is for the extension of a kitchen or for a nuclear power station, the parish council is consulted by the local planning authority as of right. It is important that that right should remain. It should apply to community councils in Wales, which are simply parish councils by another name in a different country.
My noble friend Lady Hamwee and I tabled Amendment No. 73. It includes community councils in Scotland. They are rather different bodies. They are not set up on the same statutory basis as parish and community councils in England and Wales, but the principle remains that they should be consulted.
Amendment No. 74 was tabled by the noble Lord, Lord Judd. It refers to national park authorities. Nobody can wax more lyrical than the noble Lord about the benefit and glory of national parks. I am not going to try to match him, but I want to underline that national parks are planning authorities in their own right. All other planning authorities in their own right—all those that I can think of anyhow—are listed in the Bill. National parks are not, despite the fact that they are planning authorities and determine planning applications, just as if they were a district council or a London borough council. I think it is probably an oversight that they are not in the Bill. Like the noble Lord, Lord Judd, I would like an assurance from the Minister that that is the case. It would be quite wrong to omit them from this consultation.
I shall take the opportunity of the noble Lord’s important remarks to make another point that naturally follows from them. If legislation gives national parks this special planning responsibility, and people volunteer their services to do a serious job of work on that responsibility, and great care is taken in their selection so far as national representatives are concerned, is it not a slap in the face that they are not explicitly to be one of the bodies to be consulted in this process?
I support this general collection of amendments, as the noble Lord, Lord Greaves described it. The motivation is similar in almost all of them. In the Bill, we are engaged in a process of accelerating and improving the planning procedures for massive projects that will affect an enormous number of people. I am in favour of that. However, when the public fully comprehend what we are doing, they will ask two questions: who is going to be consulted and by what means will people discover what is proposed? Those are the points that will come to the top of the pile when people begin to discover what is happening. I support these amendments about the process of consultation and the publicity for it.
I specifically support Amendment No. 74, which was tabled by the noble Lords, Lord Judd and Lord Greaves. As they say on television, it is location, location, location that matters. Even if a project is excellent, if it is proposed to be in a national park, it is obvious that the national park, as the planning authority and the guardian of that part of our countryside, needs to be properly consulted. I hope that the Minister will be in a benevolent mood, as she often is, in relation to Amendment No. 74 in particular, but if she wants to favour all the others as well, I will be happy.
I support Amendment No. 72, which is tabled in the name of the noble Lord, Lord Cameron. I do not think that parish councils should be squeezed out of the consultation process. They easily could be, and a formal reminder that they have a right to be consulted would be a very good thing.
I also support Amendment No. 74, tabled by the noble Lords, Lord Judd and Lord Greaves. The Bill does not recognise that protection of the landscape should be a factor in decisions about where nationally significant infrastructure projects are sited and what sort of projects should be sited in what sort of areas. I hope that, following the debates we had last week, at the next stage there will be a reference in the Bill to landscape. This amendment would reinforce that message.
In many cases, there are plans to extend national parks, which can be pre-empted by developments that take place beyond the current frontier of the national park. That is another reason why the views of national park authorities should be sought. A national park authority is a local authority for the purposes of the Bill and it should be treated as such.
I want to add a few questions to those raised by the noble Lord, Lord Greaves, about consultation. This matter has puzzled me since I started to read the Bill, and it has puzzled me all afternoon. As my noble friend Lord Cameron said, it is clear that when an application is being considered for a particular project, Chapter 2 of Part 5 provides for another set of consultations. They will be specific to the project concerned. At this stage, we are talking about the national scene, and I see that Clause 7(5) deals with policy statements where there is a specific description or site for the proposal. This applies to nuclear power stations and airports, but not to the rest. I should be grateful if the Minister would explain what the subject matter of the consultation will be in these other cases.
The noble Lord, Lord Turnbull, gave us an example earlier of the railway line to connect London to the Channel Tunnel. A number of routes were put forward; in the end, none of them was chosen; so it came in the form of a parliamentary Bill. I have heard it said that there may be a new railway line from London to the north. If so, it would clearly go in some sort of a corridor, because that is the way that these things are done. The prospect of consultation on a corridor going from London to the border and beyond is something that concerns me considerably. What are the people consulted to be asked about? Will there be alternative routes? Will it be possible for consultees to put forward alternative routes? How is this to work?
Of course there must be consultation, but it will be very difficult for consultees to know what they are supposed to say if they do not know what the project consists of. At the moment, except for the two cases that I mentioned, I see no indication set out in the Bill of the subject matter for the consultation. If the noble Baroness could enlighten me on that, I would find it a great deal easier to understand what we are all talking about.
I shall speak principally to Amendment No. 74 to Amendment No. 65. I shall start with Amendment No. 74 in the names of the noble Lords, Lord Judd and Lord Greaves, regarding national parks, which has been referred to by several speakers. I am delighted to support them on the amendment. The noble Lord, Lord Judd, is president of the Friends of the Lake District. I am merely one of his vice-presidents. As he said, he is a vice-president of the Council for National Parks. I am also a vice-president. I think that those are the only interests that I have to declare.
The point has been made—so I will not elaborate on it—that national parks are planning authorities in their own right and that therefore it should be axiomatic that they should be consultees on the same basis as the various local planning authorities listed under Clause 8. I should like to think that this is a question of, “Homer nodded”. Nevertheless, it is a curious fact that the Council of the Scilly Isles is a consultee but none of the eight or nine English national parks is a consultee.
It is possible that most of the proposals that will be directly relevant to national parks will have to do with wind farms. There may be road, railway or electricity grid schemes, and so on, but I suspect that wind farms will be one of the most contentious areas. I suspect that the issues will be not so much about wind farms proper but about wind farms adjacent to national parks. Therefore, it is rather important that, when we bring national parks in as consultees, the area of consultation should be wider than the specific boundary of the national park. Clause 8 (2) states:
“A local authority is within this subsection if any of the locations concerned is in the authority’s area”.
What is adjacent to the area is also important.
Turning to Amendment No. 65, although my main concern has been to include national parks in the Clause 8 consultation process, it is equally important to say, although the noble Lord, Lord Greaves, did not emphasise it, that the other relevant agencies listed in that amendment should also be included in Clause 7. I assume, incidentally, that in including Natural England, the other important landscape categories of areas of outstanding national beauty and SSSIs would be covered in the consultation process. That is important. Time goes on and I will close on that note.
I shall speak briefly on a similar point arising from Amendment No. 62, which states:
“The Secretary of State shall provide for early public participation”,
on important matters concerning environmental questions. I shall refer to something that went wrong—it is not, I think, the fault of the current department involved in environmental matters, but it is an object lesson in how not to do it.
Soon after I retired, when I was doing some voluntary work for the National Trust, I was invited to take part in a serious discussion about the future of Stonehenge and, in particular, of the road works surrounding it. I went to one of the first conferences held in the new conference centre just over the road. It was a very serious conference addressed by experts on all aspects involved and we produced a very thorough report that was unanimously accepted by the Government of the day—although clearly public finance for some of the work that we proposed was difficult. The key to that was the future of the A303—a principal highway of the south-west that runs along the site and, in effect, poisons the whole of it. The suggestion made in our report was that serious consideration should be given to undergrounding the A303 so that it would not run on the surface at all. That was accepted in principle by the Government, although whether and when it would be built was not decided.
Three months ago, I received a postcard from the department concerned—I suppose that it was Defra—informing me: “No. Can’t do that. No money available”. If a public consultation of that kind takes place engaging a major department of state and the report is in principle accepted, it should not be thrown on the rubbish heap. Those of us who took part in those voluntary activities will not take part if such things go on.
I will not keep the Committee too long, but I ally myself with the points made by the noble Lord, Lord Chorley: national parks should be consulted not only in respect of developments within them but of those developments in the vicinity of the national park, where the development will have some impact on it. I declare an interest: I am involved with Dartmoor National Park. I hope that the Minister can give us some comfort on these matters this evening.
Noble Lords will forgive me if I feel a schizophrenic because, on the one hand, I am told that I am rather benign and, on the other, I am represented as a tyrant who just wants to bash through the Bill as fast as possible. When we come to consultation, this Committee is extremely alive to all the implications. That is why we have had such a good debate.
I hope that noble Lords will forgive me if I go fairly swiftly through the amendments, because they cluster around several consistent issues about how serious we are about consultation: how open it will be, will the right people be consulted, will they be properly listened to and will they know that they have been listened to? Those are all the right questions.
I have said many times during the course of our three days of debate so far that, because the national policy statements are unique, because they set out to do things differently, they must do consultation differently as well. It must be a serious process. The noble Lord, Lord Bridges, has just given a fine example where consultation sounds to have been rather token. We are not in the business of having just token consultation on the national policy statements. This will be a national debate about infrastructure that will serve the purposes of our communities for many years to come, and it must be seen to be real. Strengthening public participation is important at all three key stages of the process. I am grateful to the noble Lord, Lord Cameron, for his additional amendments to this list.
Because consultation has been thorough, noble Lords will expect me to explain why we have given such prominence to the code of practice in the Bill. I reassure them that the consultation on national policy statements will reflect the full seriousness of this. It was striking in our meeting with all the promoters and the CBI that everyone spoke about the necessary evidence that public involvement had been tangible and demonstrated the ownership of change. Local communities were critical to that. They made their voices heard and felt that they had been listened to.
A considerable number of amendments have been tabled. Amendment No. 62 would require the Secretary of State to carry out consultation on national policy statements at an early stage, when options remain open. That is precisely what we want to do. The amendment appears to be intended to implement the UK’s obligations on consultation under the Aarhus convention on public participation in decision-making. The noble Lord, Lord Greaves, called for open and thorough participation and, as he knows, the convention governs access to information, public participation, and access to justice in environmental matters. It is based on the principle that sustainable development can be achieved only through the involvement of all stakeholders. The rights that it grants include the opportunity to have an “early and effective opportunity” to comment on the environmental effects of proposals. We have ratified this convention and must therefore ensure that our domestic legislation is compatible with it. We are content that the procedures set out in the Bill, and those to be established by secondary legislation under the Bill, are compatible with this very important convention.
Let me reassure noble Lords that at all three stages—at the formative, development stage of the draft NPS; at the pre-application stage when people in the local community make their views felt about how they will be affected; and during the IPC’s examination when the site and the implications are discussed in detail—the public voice will be fully heard and the public fully involved. Those basic principles accord with the principles that apply to the conduct of consultations. Under domestic law, they are already written into the Bill and will be followed in the processes that are set out.
Amendment No. 64 would impose a minimum period of 12 weeks and minimum publicity requirements that proposals for national policy statements should be publicised in one or more national newspapers, in the London Gazette, on the Secretary of State’s website and by giving notice to Parliament. We share that interest, but we do not think that it would be appropriate to set out in the Bill detailed procedures and processes for national policy statement consultations. Let me explain why, because much of our debate this evening has focused on this. Very detailed requirements in the Bill would tie the hands of those who are conducting and participating in consultations. I know of no Act that has gone through this Parliament that has set out forms of consultation in detail, for the very reasons that consultation is local and each NPS will be different. We want to give the Secretary of State in each case the opportunity to consider how best to achieve the detailed consultation required by the Bill. I have given an assurance that that consultation will accord with the code of practice, which has been updated.
The code of practice on consultation does not set out deliberate methods, but it does require positive and proactive consultation. Government consultations often centre on written consultation over 12 weeks. That has been the standard. The code of practice encourages departments to consider the most appropriate means to gather views, but those means change constantly. Departments are increasingly using additional innovative means such as web-based consultation, discussion forums, facilitated meetings around the country, road shows, citizens’ juries and market research. We are doing things very differently, and we want the most fertile and the loudest public debate possible on national policy statements.
National policy statements will vary significantly, reflecting the differences between different types of infrastructure. We cannot set out a one-size-fits-all approach. Consultation also needs to be proportionate and flexible so that the Secretary of State may decide what consultation and publicity is appropriate for a particular national policy statement. However, given that we all agree that these NPSs will be the key statements of the criteria that govern where infrastructure might be located, we are acutely aware that the process for enabling local voices to be heard at the national stage as well as the local stage is critical.
The noble Viscount, Lord Colville, talked about national policy statements that are not as location-specific as those on airports and nuclear power stations. Clause 5 describes the criteria that will be identified in the NPSs. In the consultation on the planned NPS on wind power, for example, people will come forward with views, experiences, information, evidence, and reactions to the criteria. Those judgments may in some cases refer to local experience, but there will be an active debate on the purpose of wind power, on the capacity that we need from it, and on all aspects of what we can gain from investment in it. I do not think for a moment that location-specific NPSs will be any more vigorously debated than the others will be.
On Amendment No. 63, Clause 7 sets out that the provisions for consultation and publicity are subject to subsections (4) and (5), which allow for statutory consultees to be specified and require local publicity where an NPS is location-specific. The amendment would make the consultation and publicity provisions subject to the entire clause except subsection (6). This would in effect extend it to subsection (1), which simply describes what the clause does, and to subsection (3), which defines what a proposal is. The amendment would therefore have no practical effect.
I turn now to Amendment No. 65 and a whole range of issues relating to national statutory consultees. The noble Lord, Lord Chorley, made a very powerful contribution on this. The amendment would add to the Bill a requirement to consult Natural England, the Historic Buildings and Monuments Commission for England, the Environment Agency and the Local Government Association, as well as equivalent organisations in Wales and Scotland where relevant. Again, we have tried to put into the Bill the capacity to list people to be prescribed without fixing the list in primary legislation, which is always too rigid to be useful.
Subsection (4) gives the Secretary of State the ability to make regulations prescribing a list of persons and descriptions of persons who must be consulted. We will consider who should be specified as statutory consultees, and will specify them in regulations in due course, but we have already confirmed that we intend to include Ministers in Scotland, Wales and Northern Ireland in the case of national policy statements that extend to these respective areas. I reassure noble Lords that we will also take account of views that we have received in response to the consultation on the planning White Paper. We will, of course, also take account of the views of Members of this House that have been expressed this evening.
Again, there is no fixed list of people in the Bill because the bodies which it will be appropriate to consult will vary from national policy statement to national policy statement. Some will be common to all—we can imagine those; others will be relevant to particular types of infrastructure. We need to retain the flexibility to make the right choice. The clause permits the Secretary of State to designate statutory consultees by order and when necessary. As I think I have said previously, we intend major statutory environmental and heritage bodies to be represented.
Amendments Nos. 67 and 68 seek to specify more closely how consultation with a local community would work when a national policy statement refers to geographically specific parts of the country through requiring local advertising and site notices, and consultation with local authorities, including parish councils or community councils if in Wales.
Amendments Nos. 71 to 74 seek to change the list of authorities. I quite understand why Members of the Committee are making the case that they are. I am very grateful to my noble friend Lord Judd for his generous words and for the extraordinary role he plays in promoting the interests of our national parks. He is one of our greatest guardians. I wish to reassure the Committee that, in considering the most effective and the best way forward, we have been guided by the need fully to involve local authorities as the elected bodies and the most expert bodies in consulting their communities; for example, through developing statements of community involvement.
Local authorities have unique knowledge and expertise in this field, which is why they have been placed in the situation that they have. The Bill recognises the important role of local authorities in understanding the nature and circumstances of the communities they represent, and therefore in advising the Secretary of State on how to consult them effectively. Departments will listen to their advice and make sure that the most appropriate methods are followed. In relation to what the noble Lord, Lord Cameron, said, this is not a metro-centric response. We believe that this is the most sound and realistic route to ensuring that local communities are consulted. But I say to all the Members of the Committee, including the noble Lords, Lord Reay and Lord Cameron, who made powerful arguments for parish councils and national park authorities, that the local authority can recommend that these bodies are consulted if it feels that that is appropriate. They are not being left out, but we are giving the prime consideration to the local authority as an elected body, which knows how to do those things most effectively.
It is also important that this role is not restricted to local planning authorities, as per Amendment No. 71. In a two-tier authority, the upper tier will be able to give important direction as to how the local area should be consulted, in particular since it will, by its nature, have a more strategic overview of the area in question.
Amendment No. 69 would require the Secretary of State to have regard to the responses to consultation and publicity in deciding whether to proceed with a proposal “with or without modifications”. I do not think that that adds anything to the Bill. Clause 7(6) already requires the Secretary of State to have regard to responses to consultation in deciding whether to proceed with the proposal. Any definition would include deciding whether to proceed with the NPS, with or without modifications.
The noble Lord, Lord Jenkin, spoke very powerfully on provisions for publicity suitable for people with disabilities. His Amendments Nos. 66 and 84 would require that specific provision was made for people with disabilities where a national policy statement was local-specific and insert a new clause requiring the Secretary of State to draw up NPSs with the objective of contributing to the achievement of an environment accessible to disabled people. He knows that we completely support that ambition. It is vital that all parts of the public and the community should be able to participate and make their voices heard as to how an NPS would affect them, bringing their own experience, intelligence and foresight to the debate.
The particular requirements of people with disabilities are addressed through the provisions in disability discrimination legislation. The development of national policy statements would be subject to this legislation, so it is not necessary to put the detailed provisions in the Bill. But let me reassure Members of the Committee that where it is necessary to publicise the proposals in a national policy statement locally, for all the reasons I have said—not least, involving the local authorities—we are determined that this should be as thorough and effective as possible, and we will consider how we meet the needs of people with disabilities to make sure that they have full access and full ability to respond.
Amendment No. 70 would require the Secretary of State to give reasons for designating a national policy statement, including reasons for not following representations made. Clause 5(6) says that a national policy statement must give reasons for the policy set out in the statement. It is normal practice, as set out in the code of practice on consultation, for the Government to respond to consultation by summarising the responses received and explaining how they have influenced the proposals. I think that this will meet the purpose of the amendment.
On Amendment No. 65A in the name of the noble Lord, Lord Colwyn, I am afraid that I cannot add anything to what I said in the Housing and Regeneration Bill. I made a very full statement about the consultation we have had with the Health Protection Agency, the referral to SAGE and so on. Ministers have always said that they are currently considering the need for practical precautionary measures for the reasons, which he knows well, to reduce exposure to ELF EMF. We expect to set out our response to SAGE later this year. As soon as we do, I will make sure that the noble Lord is informed, certainly as regards the interests of the people on whose behalf he has been speaking this evening.
I am sorry to have spoken for so long. There was a long list of amendments. I may not have done justice to them all, but I hope that I have done sufficient to enable the noble Lord to withdraw his amendment.
I thank my noble friend for her generous remarks. Her very full response is characteristic of her commitment to taking us all on board. While the argument about democratically elected bodies being in the Bill is strong—a part of me of course responds to that—we do have a problem. The Government give specific responsibility to the park authorities to have the powers of planning for the area for which they are responsible. It may be that local authorities in the area of the national parks do not see things quite in the same way as the people who have been given the authority for doing the planning in that area. There is a gap. How does one get a full, thorough and proper consultation if the people who have been given the responsibility are not enabled, as of right, to put their arguments before those who are drawing up the national plans?
I am always astonished at the noble Baroness’s ability to find good reasons for opposing what I think are unassailable arguments, and for doing so in great detail and with great commitment. But I do not think that she has given any good arguments as to why national parks should not be in this list. Her main argument is that they are not elected authorities, which raises the issue of parishes. When we talked about parishes on, I think, the Local Government Bill, the Government revealed that they did not have a list or database of all the parishes in the country, which could cause a problem. Would it be possible to use the planning authorities, the development control authorities, as an intermediary for consulting parishes on these matters? In a formal way, the development control authorities consult parishes on planning applications probably weekly. They certainly do so in the ones that I know. They are all consulted on every planning application. They know them and how to do it. It would be possible to use the planning authorities, the district councils, the borough councils, et cetera to consult their parishes. Perhaps the Minister would go away and think about that and make it formal in some way.
I shall be extremely brief. I did not speak on any of the amendments earlier, but, in a funny way, the Bill was a consultation on the process that we are going through. The Minister said that district councils have the ability to consult parish councils. Sutton Mandeville parish council is extremely active. When we were visited by a lady from the county council, after we had had the debate on the unitary authority in this House in which the noble Baroness and I took part, it was clear that no one on the parish council and no one attending the parish meeting on that occasion had been given any briefing at all either by the county council or by the parish council on the implications. It so happened that our particular district council was quite different in its make-up and behaviour from any of the other councils, so we were joining a body that was in fact quite different from us. No one in the parish had any idea of that happening until it was a done deed.
I want to say one more word about national parks. I chaired the Dartmoor National Park public consultation for the emerging local plan. It was done extremely well by the officials and members of the national park. It was a conscientious consultation that took place in the park itself and, in my view, was an exemplary public exercise.
I shall be brief. When I introduced this group of amendments I said that I hoped it would provoke discussion, and I believe it has. We have had a good debate and generally there has been support from all sides of the Committee, and certainly Members want to know more about how the consultation will work and how the publicity surrounding it will be handled. The Minister has given a very full response, but I have to say that I found it to be rather like a curate’s egg, good in parts but with other bits that were not so good. It was so full that the best thing at this point is to read it and see where we go from there. At this stage, however, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 63 to 70 not moved.]
Clause 7 agreed to.
Clause 8 [Consultation on publicity requirements]:
[Amendments Nos. 71 to 74 not moved.]
Clause 8 agreed to.
Clause 9 [Parliamentary requirements]:
75: Clause 9, page 5, line 11, at end insert “for the approval of both Houses”
The noble Lord said: I have Amendments Nos. 75 and 77 in this group, but Amendment No. 77 will have no relevance unless Amendment No. 75 is passed. It would remove some unnecessary subsections if Amendment No. 75 were agreed. I have said time and again in discussing this Bill that the big decisions are political decisions, and that they must be taken by politicians. We are dealing with the question of how national policy statements are finally approved. If we go down the route of the Bill, which suggests that this should be done by the Secretary of State, we shall run straight into the courts, and there are plenty of people lining up to do just that. However, if we bring the final decision to Parliament itself, that possibly fatal flaw is removed. It is fatal because it will introduce a system of delay which we can do nothing about. We can do many things with the time we give ourselves here in Parliament to discuss items of business and come to a conclusion, but we cannot limit in any way the time that the courts might choose to take. As other Members of the Committee have acknowledged elsewhere, we need to recognise that these amendments are in the interests of trying to speed up the process.
My noble friend Lord Jenkin of Roding has Amendment No. 78 in this group which sets out the process in greater detail and with more care than we have put into drafting ours. Our amendment is designed to open the subject, but I would go so far as to suggest that my noble friend has provided the solution. However, that is for him to explain in a few moments. I beg to move.
I am grateful to my noble friend for his trailer, if I may so describe it, because I think that the amendment I have tabled in this group is one of the most important that we shall discuss during the Committee stage of this Bill. Those who attended the Second Reading debate will recall that I made the point at col. 1178 that the whole process should have the “credibility and authority” of an affirmative vote in both Houses. The noble Lord, Lord Oxburgh—I am sorry that he is not able to be in his place this evening—in his Second Reading speech used what I thought was a telling phrase when he referred to the “moral legitimacy” that national policy statements would otherwise lack. Indeed, he went on to say:
“It would make them much more difficult to challenge by special interest groups, and even those who oppose the plan would know that it was not simply a bureaucratic diktat, but had been examined and approved by Parliament”.—[Official Report, 15/7/08; col. 1214.]
That is what this amendment is mainly all about. The noble Lord, Lord Mogg, with whom I was discussing the matter earlier today, gave his warm support to this proposition, as did a number of other noble Lords, while the noble Lord, Lord Turnbull, when we were discussing the Infrastructure Planning Commission on the first day in Committee, said:
“If one wants to close an apparent democratic deficit one should look to the way in which the NPS is handled in Parliament, rather than turning the IPC into an advisory body”.—[Official Report, 6/10/08; col. 20.]
Amendment No. 78 seeks to enshrine this in the Bill. It requires affirmative votes in Parliament instead of it just having a consultative role, and it should involve both Houses. The same points are made in Amendments Nos. 82 and 83, which no doubt noble Lords will wish to speak to. Amendment No. 78 goes on to provide that if there is no approval, formal recommendations could be made by what I suggest should be a Joint Committee. Here I make one point: the actual details of parliamentary committees are really not for Parliament itself but for discussion through the usual channels. I quite understand that—the same problem arose, as the noble Lord, Lord Turnbull, will recall, on the statistics Bill. If no formal recommendations are made, the Government may table revised proposals unless both Houses reject the recommendations. That is the shape I am suggesting we might establish in this Bill.
Parliamentary procedures and conventions have developed over the centuries and there is a whole range of ways in which Parliament can be asked to handle government proposals. Clearly the main means of doing this is for the Government to produce a Bill which goes through its stages in both Houses, is amendable at almost all stages and then becomes law with Royal Assent. That is not an appropriate procedure for a national planning statement. At the opposite end there are statutory provisions which simply require the Government to lay a proposal before Parliament with no subsequent procedure laid down. That might be appropriate for a report with recommendations but, again, it would be wholly inappropriate in this case. In between the extremes of legislation on the one hand and merely tabling a proposal on the other is a range of statutory instruments—negative, affirmative and so-called super-affirmative procedures. These become law. Yes, they are debated and, if necessary, can be voted on in both Houses, but there are no amendments and we have become accustomed, in almost every case, to having them confined to one-off, short debates lasting little more than an hour.
A quite different approach involves Select Committees. There you can have wide inquiries, sometimes on proposals put up by the Government’s pre-legislative committees. I was privileged to serve on such a committee on the human fertilisation and, as it was then, the human tissues draft Bills. These are wide inquiries which can hear evidence and make reports containing recommendations, but they do not become part of the law and are not binding on Governments or anyone else. The only obligation is that a Minister is required to give a reply.
Those are the existing procedures—I hope I have covered the main ones—but what do the Government propose here? They propose the publication of the statement, the consultation of Parliament, the entitlement of Parliament to propose amendments and, in the House of Commons only, under Clause 9 there are certain parliamentary requirements. It envisages a resolution of either House or, again, a committee of the House of Commons which can make recommendations. But, rather like the Select Committee reports, the only duty on the Government is to respond. The proposal in the Bill is that the establishing of a national policy statement remains entirely with the Secretary of State to decide on its form and content; it remains, to use the phrase of the noble Lord, Lord Oxburgh, a “ministerial diktat”. Moreover, it applies only to another place to make recommendations, and even then Ministers are under no obligation to follow them.
I do not regard this as an acceptable or appropriate way of handling these hugely important policy statements. It is essential that they must have the positive approval of Parliament before they can be applied by the Infrastructure Planning Commission. I see no reason why both Houses should not be fully involved in this process; after all, our roles are, in many ways, complementary. It is quite right that local and constituency interests should be of primary concern to Members of Parliament—who, of course, are also concerned about the national implications—but Members of this House, while always respecting the constituency interests of Members of another place, can sometimes bring a wider application of the law to bear on matters of national interest.
At the end of Second Reading the Minister explained why she does not accept this. She said:
“However, requiring parliamentary approval of national policy statements, rather than ministerial accountability for them, would create an entirely different proposition and take us into unknown country”.—[Official Report, 15/7/08; col. 1236.]
I find that rather a strange statement. She then went on to quote her honourable friend—the right honourable John Healey, as he now is—who said in another place:
“Given that the policy statements are policy documents, they are closer to planning policy statements … which are not subject to parliamentary approval, than to legislation. I do not see a ready-made model or suitable precedent for a binding vote on such statements of policy. Unlike with legislation, we could be taken”—
this has been echoed by the noble Baroness—
“into unprecedented and problematic territory if the two Houses were to take a different view of the policy that might be contained in a national policy statement”.—[Official Report, Commons, 2/6/08; col. 574.]
On the question of what would happen if the two Houses disagree, this House—particularly following the report of the noble Lord, Lord Cunningham of Felling—has always recognised the supremacy of another place. We have asked that we should be entitled to have our say and our vote and then, if another place disagrees, we gracefully yield to it. That statement by Mr Healey was not right because the convention is that this House will always recognise the supremacy of another place.
But is this taking the matter into unknown territory? That is a very strange proposition. One example of where this has happened in the past relates to two sections in the Constitutional Reform Act 2005—not so very long ago—legislation brought forward by the present Administration. It contains a provision which gives a power to the Lord Chancellor to issue guidance to the Judicial Appointments Committee as to its procedures for the selection of judges. Section 66 states:
“Before issuing any guidance the Lord Chancellor must … consult the Lord Chief Justice”,
“lay a draft of the proposed guidance before each House of Parliament … If the draft is approved by a resolution of each House of Parliament within the 40-day period the Lord Chancellor must issue the guidance in the form of the draft”.
First, that applies to both Houses, not only to the House of Commons; secondly, it requires affirmative approval; and, thirdly, it is not a statutory instrument by any stretch of the imagination—it is a policy proposal put forward by the Government. It is an example of a government proposal being voted on by both Houses of Parliament. If the proposal is thought to be of sufficient importance—clearly that one was and I argue that this one is—it should require the approval of both Houses.
These national policy statements will be hugely important proposals. The planning policy statements already have the force of law, as the noble Baroness made clear in one of our debates. She said that,
“planning policy statements are not optional; they are the law”.—[Official Report, 8/10/08; col. 266.]
This should apply even more firmly to the national policy statements, which are largely intended to take the place of the planning policy statements. As such, Parliament should have a positive, affirmative vote in each House.
Clause 9 is at the heart of the Bill—or at least those parts of it that seek to speed up infrastructure projects. The national policy statements really make it work and allow the IPC to proceed to do its business with due democratic authority. It is right that national policy statements should be decided at national parliamentary level, which, as I said earlier, is a new development for our planning system. We must ensure that we utilise the full voice and expertise of Parliament as a whole.
I know that this is not the time or the place to debate the future make-up or role of this House—that has been done ad nauseam and will probably continue to be done at other times—but in that debate it has always seemed to me that the one question that cannot be asked enough is how we ensure that we continue to have a House of experts, as we have in this House, not only inputting into the legislative process but contributing in a variety of different spheres and ways to the future well-being of our nation.
National policy statements are a prime example of where real, experienced expertise will be imperative, whether we are talking about nuclear power stations, ordinary power stations, highways, airports, railways, water storage or other engineering projects, not to mention simple, straightforward planning expertise—if planning expertise can be simple. We in this House have our share of the nation’s experts. Experts know how to ask the right questions; they know how to set the right parameters. Above all, they have credibility and integrity, which means that they are slightly less likely to succumb without question to the Whip, as happens in the other place.
I do not think that a Joint Committee of both Houses quite achieves what I am looking for in this clause. It is, as the noble Lord, Lord Jenkin, said, up to this House how it handles these numerous NPSs and their rolling reviews. If Amendment No. 80 is successful, I suggest that a simple scrutiny committee, with the power to co-opt the necessary expertise from within the House, will suffice. The committee should have the power to make the necessary recommendations to, and enter into negotiations with, the Secretary of State and eventually either release the NPS from scrutiny, or otherwise. The key question is what happens when we come to “otherwise” and there is a deadlock between the Secretary of State and the scrutiny committee. Bearing in mind my inexperience when it comes to parliamentary procedures, I would favour Amendment No. 82 in the name of the noble Lord, Lord Berkeley, or Amendment No. 83 in the name of the noble Baroness, Lady Hamwee. Each House as a whole would vote on the national policy statement and have the ability to accept or reject it—always, as the noble Lord, Lord Jenkin, has said, bearing in mind the supremacy of the other place.
I have been impressed by how the Government have developed the thinking and the debate on this area of the Bill. Clearly some issues remain—the fact that I have tabled four amendments in this group indicates that I would like to take some matters further. I have read the Commons Hansard and learnt what has happened behind the scenes—not just who does it but how it is done—and the Government’s thoughtfulness has impressed me, even if I do not necessarily share their conclusions.
The issues in this group fall into two distinct parts. One concerns the scrutiny of the proposed policy statement. I tabled an amendment proposing that it should be scrutinised by a Joint Committee of both Houses, in which case there would need to be discussions with the other end. Impressed though I have been, it is a pity that discussions at the other end have continued apace without, as far as I can discern, any reference back to this House.
Not to involve Members of this House is both daft and wrong. It is daft because of the expertise and the time that some Members here could devote to this matter; it is wrong because we are a part of Parliament. To get the scrutiny right is almost more important than the final vote, as it gives the opportunity for detailed consideration of very complex issues. When we come to vote on a proposed NPS, we will inevitably polarise and tend to simplify some of the arguments, because we will have one vote. I know that I am affected—some might say infected—by eight years of doing a scrutiny job, but I believe that it is important for that process to be as good as possible.
There are issues of capacity; Parliament needs a variety of mechanisms, and this is a part of the consultation. It is not a passive process, as my noble friend said in an earlier debate. I guess that we will be told that it is a continuous and iterative process, but the sequence is important.
If there are issues of locations, one can see the enormous controversy that there could be and the possible risk of legal challenge if the consultation is not carried out correctly. Any committee will probably have huge numbers of representations and requests to be heard, which is why I would like to see Members of this House involved.
On the final vote, I cannot imagine explaining to the many millions of people who are concerned about the development of Heathrow that this House has no role in shaping the final formal policy statement. It seems completely counterintuitive. I understand the concerns that the Minister will have about not setting the two Houses against each other, which is why getting the scrutiny right is particularly important. However, we cannot forget about the politics, because the NPSs are political statements. The noble Lord, Lord Jenkin, is absolutely right to direct us to the final approval.
I have a couple of amendments in this group. The variety of ideas in the group and the contributions tonight indicate a lot of concern about how this will work. I agree with the noble Baroness, Lady Hamwee, that the Government have done a great job in getting this far with an extremely tricky issue. She asked how we would scrutinise and approve a national policy statement for Heathrow, or other airports, which would include a site-specific third runway. Would that mean that the whole House approved the creation of a third runway? It is an interesting question which we must debate.
The House would be well advised to scrutinise these NPSs separately. We will have to find a way of doing it, as there will be quite a lot to get through given that each sector has an NPS and they have to be updated. We will have to find a way of doing it. As suggested in my Amendment No. 82, when we scrutinise a statement we should be able to approve it or not, along with the other place.
This raises some interesting issues. I do not have a solution and I am not sure that anyone else has come up with one, but we have had a good debate about it. I would like the opportunity for a small scrutiny committee, which could co-opt Peers with particular expertise in different fields, to be able to do this, but how it would do it and how long it would take need discussing in the next week or two.
I agree that there are two basic issues here. The first is: one House or two? Certain features of our parliamentary work are reserved for the other place—for example, the Finance Bill—but I cannot see that planning is one of them. I am beginning to think that the other place has got into the habit of conflating the word “Commons” and the word “Parliament”, when they are two different things. We should rightly press for the inclusion of this House on grounds both of constitutional principle and of the expertise that is here and should be fully involved in all stages.
The second issue is whether the Secretary of State’s conclusions should simply be laid or be voted on and endorsed. When we were discussing Clause 1 last week, I strongly supported the division between the NPS and the Infrastructure Planning Commission, arguing that it is appropriate to delegate to the IPC the final decision where it operates within a democratically approved framework. Does the Secretary of State laying the conclusions represent a democratically approved framework? This has been argued at Second Reading here and in the other place. John Healey, explaining to Jacqui Lait why he did not agree with her amendment, said:
“When she spoke to her amendments, she was right to say that the House will not own the policy. The policy is properly the responsibility of the Government and elected Ministers”.—[Official Report, Commons, 2/6/08; col. 602.]
When does policy become policy? Is the mere act of laying enough to turn an idea into policy?
I gave a number of examples last week of where there was a framework and a delegated body took the decisions. One of them was the courts, where the definition of a crime and a penalty is enshrined in the hundreds of criminal justice Bills that we have seen go through this Chamber. Another is tax, which is enshrined in the Finance Bill every year. The Competition Commission was created by legislation in the normal way. A partial exception to this is the Monetary Policy Committee, where the framework was part of legislation but the one decision about the inflation target is reserved for the Chancellor of the Exchequer. I do not think, with due respect to the Minister, that we are in unknown territory; we are within the scope of known and existing practices.
Which one do we want to plump for in this case? For two reasons, I think that we should plump for the practice that requires that the final conclusions be endorsed by Parliament. First, as a number of noble Lords have mentioned, the more the policy is clear, the more difficult it is for it to be challenged in the courts, which people think is a good thing, or for objectors to try to unpick something at a very late stage. Secondly, it would make a success of the IPC, in which I strongly believe. It will be more successful if it operates in a clear framework. The noble Lord, Lord Jenkin, gave an example last week of the rate-capping dispute with local councils, where the authority of the Minister was strengthened by having the backing of Parliament. The IPC will need that authority. Moreover, it gives the IPC the answer to the question, “What right have you to decide this?”. The answer is: “Because both Houses of Parliament settled the policy within which we are operating”. Revisiting this matter will enhance the way in which Parliament works as well as increase the chances of success of the project as a whole.
I support the amendments. I raised the point at Second Reading and was quite vitriolic in saying to the Minister that to bring a Bill of this nature before this Chamber without it having any input to the final decision was wrong. Amendment No. 75 in the name of my noble friend Lord Dixon-Smith is the right one: the decision should be for the approval of both Houses. That is justified by what the noble Lord, Lord Turnbull, said. It gives much more credibility to the IPC and the national policy statements.
I hope that mine is not the only voice to speak against the amendments. The Minister will reject them. As I see it, the Government are the Executive. The argument that moral authority would come about only if both Houses approved something is fallacious, for two reasons. First, the moral authority—I always look with great care when people call in aid “moral authority” when arguing for something—or legitimacy of national policy statements will come about from the framework in which they have to be formulated, the consultation and the care and rigour with which the outcome of those consultations is considered and responded to. At the end of the day, the national policy statement will be a very carefully assessed and balanced judgment of some fairly complex issues about which there are a lot of strong feelings. but a judgment has to be made.
As with anything that the Government of the day do, they have moral authority if people feel, on balance, that consultation and taking account of public opinion and stakeholders in all kinds of decisions are done with care and that a judgment is overwhelmingly good. If the public start to feel that the Government are not listening carefully to what they say, or that they listen but have faulty judgment, any Government and Secretary of State lose that moral authority. Secretaries of State suffer the penalty of being sacked, and Governments are ultimately sacked by the electorate. The Government of the day, through the Secretary of State, will have the moral authority, provided all those things are done carefully. If they do not, they will suffer the eventual wrath of the electorate.
Let us turn to the moral authority of Parliament. I shall turn in a moment to the question of both Houses or one House. Let us assume that the Government have set down draft proposals, have consulted carefully and widely over some months, have listened to what has been said, have responded carefully—perhaps even iteratively so by having more consultation—and then have reached balanced and careful judgments. Let us say that the proposals go to the House of Commons, where a committee might consider them. That committee will then form its own judgment, which might be quite different. Indeed, it might be—dare one say?—even more politically motivated than a Government. There is no necessity for that committee to have the same regard to all due processes.
Noble Lords who have spoken on this have said that the mere act of giving parliamentary approval is the moral authority, whether or not Parliament takes a decision on the same careful, balanced judgment of facts. There could be a hung Parliament—the House of Commons could be hung, and there could be horse-trading. Look at how on Capitol Hill in the United States they dealt with the big loan bail-out: they added $200 billion on to the Bill just through pork-barrel politics to get the overall figure. Anybody who wants to talk about the moral authority of elected Houses in reaching careful judgments should remind himself of the picture on Capitol Hill only a few weeks ago.
Even if a committee was careful, it could not possibly spend the same amount of time that the Secretary of State spent in many months of careful consultation. Even if a Select Committee or committee sought to be careful, whatever its recommendations to the House of Commons, the vote there might have no regard whatever to what the committee recommended or the process that it went through. It would be a straightforward vote.
I am reminded of the vote in the other place on whether the second Chamber should be elected or not. We all know that there was a vote for an 80 per cent elected Chamber but all those who really opposed an elected House got together and voted for a 100 per cent elected Chamber because they thought that it would sink the whole enterprise. The official position of the House of Commons is that it is in favour of a 100 per cent elected Chamber, exactly because they did not want that to happen. So let us not use words like “moral authority”. It simply is not accurate. The Government have their job while the House of Commons has another in holding the Government to account.
This is not the elected House and it should not duplicate everything that the House of Commons does. We should be very careful before we go down that route. We are here to scrutinise legislation; with the agreement of the Commons, we have done a lot more on European Union legislation than the Commons—but that might change over time. This House is given a role under Clause 9, which says that either House may make,
“a resolution with regard to the proposal”.
The House can genuinely debate something and, if it is so minded, can pass a resolution; but we have to be very careful what kind of resolution we pass, because of the sheer complexity of the issues. What are we going to do, when all this public consultation and care has gone into the proposal? We are entirely entitled to debate and pass resolutions, but to have our own committee or sit on a Joint Committee with the other place would be simply wrong; this House would be seeking to go beyond its role and function. Of course, if there was a wholly elected second Chamber and the conventions started to change, you could well find that an elected House took a different view—but we are not an elected House.
I hope that the Committee on reflection does not press the amendment to a vote and that it feels that on balance it has been a debate worth having but not a point to push.
I am extremely grateful for this very thoughtful debate on a matter of absolutely central interest to this Chamber. I am very grateful to my noble friend for setting out better than I could much of the case that I will make. I am particularly grateful to him for raising the notion of moral authority going beyond this narrow definition of a vote in either House and referring to the whole integrity of the process that we are trying to establish for national policy statements. I want to address the issues raised on the relationship between parliamentary scrutiny and approval. I am very aware of business waiting, so I shall try to be concise.
We stated very clearly that we are committed to a stronger role for Parliament in scrutinising the national policy statements; we have formalised the process to allow for that. I am very grateful to noble Lords for recognising what went into the construction of that process. I shall describe it briefly, because it is unique and innovative.
Although national policy statements are going to be important and innovative, they are ultimately documents of policy. They set out government policy and ministerial accountability. They are not primary or secondary legislation but a new sort of parliamentary instrument. The nearest analogy that we can make is that they are similar in many ways to planning documents or White Papers, and certainly they are not subject to parliamentary approval. Although both the noble Lords, Lord Jenkin and Lord Turnbull, chided me for saying that we were in new territory, I do not resile from that. The examples that they give are genuinely different; they are specific and partial within the context of some rather broad legislation.
National policy statements are different; they are broad and the first of their kind, much wider in scope and more significant in depth. They bring into question the relationship between the role of government in making policy as a whole and the role of Parliament in scrutinising things. We blur the distinction between the role of Parliament and the Executive at our peril, and I think that this is a step much too far. I commend what my honourable friend said in the other House about why we do not believe a vote of approval is necessary or appropriate.
I shall backtrack and explain the journey that we have made in this Bill towards parliamentary accountability and scrutiny, because it is unique. When the Planning Bill was first introduced, we made a commitment to provide a stronger role for Parliament. The other place was encouraged to consider setting up a Select Committee as part of that process, possibly drawn from the expertise of the four relevant departmental committees, but it was always acknowledged that it was for the House itself to decide what procedures were appropriate for each NPS. Together with the chairs of the Select Committees, over a considerable amount of time, Ministers have worked out a possible process for Commons committee examination of national policy statements, either by one of the relevant existing departmental Select Committees or a single new committee drawn from their membership.
The committee would examine the draft national policy statement in a timeframe largely parallel to that for public consultation, and it would report to the House with recommendations, including whether the issues merited debate on the Floor of either House. The Government would make time available for debate in each House, if the committee recommended it. The period for parliamentary scrutiny would continue for four to six weeks beyond the close of public consultation, to enable the Select Committee to take any additional account that might be necessary of the significant issues likely to be raised during public consultations. Ministers have undertaken to ensure that briefing and information on those issues is made available to the Select Committees to enable them to do this. That is a credible, rigorous and unique process.
Ministers would then consider what change was needed to the draft NPS in the light of the views of the Commons committee, and, significantly, in respect of any resolution of either House and public consultation. They would lay a Statement setting out their response before Parliament and revise the draft proposals as appropriate before laying the final version of the NPS. This House will be fully involved. If we are searching for moral authority, we find it in the equivalence of both Houses.
The procedure has taken time and effort to agree, because it has been so carefully worked out. It is a thorough and robust scrutiny process. It recognises the nature and expertise of the departmental Select Committees in the other place and their long history in holding departments to account. It acknowledges that regard must be had to the views of either House, speaking, as it were, collectively. The noble Lord said that the Government had only a duty to respond, but that is a powerful obligation to place on them.
This procedure will allow Parliament to look at each detail of policy and make recommendations that Ministers will have to take into account before laying the final policy statement. That will help to ensure that the provisions are the right ones, and take into account the full range of issues that should be captured. It will also ensure that NPSs are widely seen as authoritative statements of policy, appropriate for the roles that have been set for them. In terms of this House, our expertise and commitment are recognised in the fact that time will be made for a debate and for any resolution of this House.
Before dealing with particular amendments, let me first address the other amendments in the group, relating to timing and sequencing. In Amendment No. 81, the noble Baroness, Lady Hamwee, would like the “relevant period” for scrutiny to be not less than six months. We all want there to be sufficient time, but we also all want a process that is genuinely speedy and focused. We know that NPSs vary considerably, and in many cases Parliament may be scrutinising a minor amendment following a review. The sort of timetable the noble Baroness proposes is not strictly appropriate. It is too rigid and we need greater flexibility.
Amendment No. 76 argues that the scrutiny process would be improved by requiring that parliamentary scrutiny take place once public consultation has concluded. That would add unnecessary length and resource costs. We have allowed a hangover period of four to six weeks for the Select Committee to take additional account of what has been raised in public consultation. That should be sufficient. We do not want to extend the period. We want to be able to make substantial revisions in the light of the views of the public and statutory consultees and we have allowed properly for that.
I now turn to the amendments on the parliamentary committee and scrutiny by the committee. Amendment No. 79 in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Jenkin, would require the Secretary of State to respond to recommendations of a Joint Committee of both Houses. The noble Lord has already made the essential point. It raised particular issues. There is a serious question about whether it is appropriate at all to place such a requirement in the Bill. As we all know, the decision to set up a Joint Committee is a matter for both Houses. It presumes the agreement of both Houses, but one cannot always take that for granted.
On Amendment No. 80 in the name of the noble Lord, Lord Cameron, he will know that, although Clause 9 does not specifically mention committee scrutiny in this House, nothing in the Bill prevents this House from deciding to set up a committee to look at and report in any form on one or all NPSs. Indeed, a proposal along these lines may have some merit. However, I have listened to the arguments. I do not need to be persuaded of the expertise of this House, not least standing at the Dispatch Box in the context of this Bill. I also know that we deploy our expertise and experience with care and proportion. There is merit in looking at ways in which this could be brought to bear most effectively in the consideration of draft NPSs. If the House will allow, therefore, I propose to take this amendment away to give it further thought. With that assurance, I hope that noble Lords will be able to withdraw their amendments.
I had thought that this would be the big debate of the evening, but surprisingly we have run out in less time than the previous debate on consultation. However, in terms of importance and significance, this is the debate that matters most this evening.
I am grateful to my noble friend Lord Jenkin for setting out the background to this, particularly the parliamentary precedents that quite clearly indicate that what we are looking for is within existing practice in other areas. I do not intend to pick up the points made by everybody in the Committee because that would be a bit hard at this hour of the evening. In any event, I rather think that the meat came towards the end. We need to take very seriously what the noble Lord, Lord Turnbull, had to say. He said that what we are suggesting is within existing practice and would strengthen the position of the Infrastructure Planning Commission. Coming from a man with his background, that is a significant statement.
The noble Lord, Lord Woolmer, got into an interesting position. I found his discussion rather depressing. He clearly has no confidence in Ministers’ capacity to persuade Members of either House to accept the position that they adopt. I found that slightly peculiar. Of course, he had an interesting time trying to question the moral authority of Parliament, but I accept that the Government go through a long procedure in order to reach a conclusion. However, if having gone through that procedure, which is known, they are unable to persuade Parliament that they have come to the right conclusion, the decision is flawed.
Finally, the Minister said that national policy statements are government policy statements and that they are therefore to be inviolate. However, she opened up the dreadful prospect of a national policy statement that lasts as long as a Parliament and no longer. We have to be above that in these decisions. There is no question in my mind that, if we want this Bill to succeed, we cannot have a situation where these are simply statements of the Government of the day. That will not do.
That is enough for me for now. We will go away and consider very carefully what the Minister has said. I am grateful for her explanation, even though I disagree with it. She should not be surprised if we wish to bring this back with rather more determination on another occasion. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 76 to 83 not moved.]
Clause 9 agreed to.
[Amendment No. 84 not moved.]
Clause 10 [Sustainable development]:
[Amendments Nos. 85 to 87 not moved.]
Clause 10 agreed to.
European Parliament (House of Lords Disqualification) Regulations 2008
rose to move that an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 24 June, be annulled (SI 2008/1647).
The noble Lord said: My Lords, I am not an ardent Euroenthusiast, but nor am I an extreme Eurosceptic. I am not in favour of a United Kingdom withdrawal from the European Union, for example, and I could perhaps be persuaded to look again at the single European currency, although I confess that I think that many European institutions, especially the Commission, need reform. However, those are matters for another day. I mention them only to make it clear that my Motion tonight is not a ritual exercise in Eurobashing. I have a number of questions about the regulations to which my Prayer refers, which I hope that the noble Lord, Lord Bach, will be able to reply to in due course. I am grateful to him for coming to the Dispatch Box this evening; incidentally, I warmly congratulate him on his new appointment.
The purpose of the regulations is to disallow life Peers in your Lordships’ House from sitting or voting if they become Members of the European Parliament. They apparently emanate from a decision of the European Council of Ministers, and we are obliged to pass them into law—an obligation that we long ago accepted, wisely or not. However, since when was an assembly or parliament in another state entitled to say who should be Members of your Lordships’ House? I suppose that it is open to the European Parliament to receive a Member of your Lordships’ House but, to put it the other way around, to interfere with our national selection of who should be Member of this House seems an altogether different matter. They can say who they want in their parliament, and surely we should say who we want in ours.
The Merits of Statutory Instruments Committee has been unusually scathing about these regulations. Your Lordships will have seen its report, which says:
“Under these Regulations, MEPs will join aliens, bankrupts, those under 21 and those convicted of treason as the groups disqualified for membership of the House”.
It goes on to say that, in a little while, judges will apparently be disqualified for some other reason. What a very distinguished group that will be.
One of the idiosyncrasies of the regulations, referring as they do to life Members of your Lordships’ House, is the exclusion of hereditary Members. It would seem that, while all the life Peers in this House will, when the regulations come into force, not be able to sit in this House if they become Members of the European Parliament, I and the rest of the hereditary Peers will not be so excluded. Incidentally, nor will the Bishops; how many Bishops are planning to stand for the European Parliament, I could not say, but they will not be excluded from doing so if they so choose.
I do not necessarily disagree with the proposition that membership of two assemblies or parliaments is not a particularly good thing. However, that is surely a matter for the candidates who seek such election and, above all, those who are asked to elect them, or otherwise, when they come before the electorate. Membership of the House of Lords with Membership of the European Parliament is perhaps a difficult juggling act. I know that there are currently at least two or three Members of your Lordships’ House who are also Members of the European Parliament; I can see one or two of them around me as I speak. I offer no view as to whether that is a good thing or a bad thing. It is a matter for the noble Lord or noble Baroness concerned and those by whom they seek to be elected.
I end with two questions. First, on hereditary Peers, am I right in thinking from my reading of the regulations that hereditary Peers are indeed not treated in the same way as life Peers?. If that is the case, why not? Secondly, the recent appointment of the noble Baroness, Lady Ashton of Upholland, as a commissioner has been widely applauded; not least, if I may so, by me. However, under present arrangements, will she remain an active Member of the House, or will she take Leave of Absence? There is one—
My Lords, I did not mean to interrupt the noble Lord. I can answer this question now: my noble friend is due to take leave of absence almost as we speak.
My Lords, I am interested to hear that. There is one precedent. I think I am right in saying that the late Lord Cockfield was also a commissioner and a Member of this House. I confess that I cannot remember whether he took Leave of Absence or not. If the noble Baroness has decided to, and the late Lord Cockfield did likewise, that is entirely appropriate.
However, there are a few “i”s undotted and “t”s uncrossed in these regulations. The Government will presumably in due course produce a response to the Merits Committee, which has, as I say, been so scathing. They will no doubt have to consider carefully in preparing their response to that criticism. It is perhaps a little unfortunate that that careful consideration did not come before the regulations were placed rather than afterwards, but the Minister will no doubt explain that. In the mean time, I beg to move.
Moved, That a Humble Address be presented to Her Majesty praying that the Regulations, laid before the House of 24 June, be annulled (SI 2008/1647). 24th Report from the Merits Committee—(Lord Trefgarne.)
My Lords, I, too, begin by welcoming the noble Lord, Lord Bach, to his position. That exhausts the positive comments I shall make this evening.
I support my noble friend Lord Trefgarne in praying against the regulations. The Government have got themselves into a mess by agreeing to something that they should not have agreed to, and have now sought to correct the situation as it affects this House by bringing forward regulations that are palpably deficient.
When the 2004 regulations giving effect to the ban on the dual mandate were going through the House, I was the only person to rise, albeit briefly, and question the justification for them. The ban on the dual mandate is, to my mind, an infringement of the freedom of choice of electors. It is for electors to decide who they wish to represent them. If they wish to send the same person as their representative to Westminster and to Brussels, then it is a matter for them. It may be that the person is not able to do both jobs, but that is a matter for electors, not for the Council of Ministers. If the electors of Northern Ireland, for example, did not wish Ian Paisley to sit in the House of Commons and the European Parliament, the remedy was in their hands.
I therefore object to the ban—but we now have it. However, as we have heard, it creates a problem that is peculiar to this House. The Government have sought to address the problem through these regulations. However, as my noble friend has explained—and is abundantly clear from the report of the Merits Committee—they are deficient.
They are deficient in three respects. First, as we have heard, they apply only to life Peers. I looked at the Explanatory Memorandum to find a justification for confining the regulations to life Peers. The only justification appears to be in paragraph 7, which refers to life Peers and states in parenthesis,
“who are unable to resign their peerage”.
The hereditary Peers sitting in the House are unable to resign their peerages. Why, then, the discrimination? It appears that the regulations may have been drafted by someone who is unaware of the provisions of the Peerage Act 1963 as they affect hereditary Peers.
Secondly, the regulations inject a subsection which appears to be superfluous. Paragraph 4(1)(a) disqualifies a life Peer who is elected as an MEP from sitting or voting in the House of Lords. Paragraph 4(1)(b) then extends the disqualification to sitting or voting in a committee of the House of Lords, or a Joint Committee of both Houses of Parliament. Perhaps the Minister could explain how, if one is disqualified from sitting in the House of Lords, one could be considered for serving on a committee of the House.
Thirdly, as we have heard, the regulations are deficient in respect of the Writ of Summons. If one is elected as an MEP a year or so after the start of a new Parliament, one is already in receipt of a writ and paragraph 4(2) can only take effect two or three years later when a new Parliament is summoned.
In short, there are few parts of the regulations which are not deficient. Regulation 5 appears to raise no problems, but Regulations 3 and 4 are fundamentally flawed. I trust that the Minister will therefore withdraw the regulations and come back with one that, following consultation with the relevant authorities as recommended by the Merits Committee, is drafted in such a way as to pass muster.
My Lords, I would like to address a couple of points raised by this Prayer. First, is it reasonably justified for the European Parliament to have taken the view, and to have persuaded the member states of that view, that the dual mandate is incompatible with an effective European Parliament? Other noble Lords, such as the noble Lord, Lord Kingsland, know far more about the European Parliament than I do, but I believe that it is entirely justified. The work of the European Parliament has increased a great deal over recent years and is still increasing. It is basically a full-time job. It is right that the member states have recognised that by saying that the dual mandate is no longer acceptable. I am sure that constitutional arguments on that point can be raised by the noble Lord, Lord Norton, but I merely ask whether it is reasonable for the European Parliament and the collectivity of the European Governments to conclude that they want full-time Members of the European Parliament. I answer that with a certain and resounding yes. Probably no parliament has suffered more from dual, treble or quadruple mandates than the European Parliament did in its early years, with people coming in for a very brief time, then going away again and treating it with little respect. Therefore, I think that the move to ban the dual mandate was absolutely right.
Then there is the question of its impact on Members of this House. On that I merely say that I think the case has been rather misrepresented. The regulations do not exclude somebody from this House permanently, as it were; they merely exclude them temporarily while they are Members of the European Parliament. They do not prevent them becoming a Member of this House again when the fixed period leave of absence, which after all is only a very minor change to the existing rule on leave of absence, comes to an end. Therefore, I consider that it is entirely reasonable for the Government to have acted in this way.
I do not want to enter into all the details of the drafting. The two large issues are: is the European Parliament right in thinking that it needs to have full-time Members and is it reasonable that a Member of this House who wants to become a Member of the European Parliament should be able to do so while conforming to the rules laid down by the European Parliament? I answer yes to both those questions and no to the Motion that has been moved.
My Lords, I do not expect that the argument advanced by the noble Lord, Lord Hannay, about people abandoning Europe before their term of office is completed will be advanced from the Front Bench today for obvious reasons. Frankly, I am rather puzzled. I am very grateful to my noble friend Lord Trefgarne for raising this matter. I do not propose to repeat any of the arguments that he and my noble friend Lord Norton of Louth have advanced. However, it seems to me that there is a very important constitutional issue here. When I heard the noble Lord, Lord Mandelson—of Foy and wherever else it is—being sworn into this House this very week, I did not hear any exclusion from Her Majesty in respect of membership of the European Parliament or any other matter. That is quite extraordinary. Is this principle to be applied by the Government? Do the Government now feel that people should not be able to be Members of this House for life and to carry out their duties in this House for life if they are members of other assemblies?
I am amazed that the noble Lord, Lord Foulkes, is not participating in these proceedings. Are we to be told that the European Parliament uniquely is different from the Scottish Parliament? Why is it possible for a Member of this House to vote and speak in this House and be a Member of the Scottish Parliament but not the European Parliament? What of the promise set out in the writ that each of us received as life Peers? This is another example of this Government messing around with our constitution, creating anomalies and long-term difficulties which have not been thought through. The Government are, of all people, the victim of ill-thought-out constitutional change north of the border. On that specific point, I ask the Minister, do the Government now have a general principle that Members of this House cannot speak and vote if they are members of other legislative bodies?
My Lords, there are problems as regards the argument expounded by the noble Lord, Lord Forsyth. The problem has its roots in the failure of this House to reform itself. Once we came up with the compromise nearly a decade ago, we were bound to be left with rough edges and compromises. I always look to one of my great political heroes, George Woodcock, who said that good trade unionism was a series of grubby compromises. Once we had baulked at really reforming this House, we were going to be faced with a series of grubby compromises.
However, the noble Lord, Lord Norton of Louth, is trying to take us back to a decision the House has already taken. We have taken a decision on dual mandate. I am sure that some of the contradictions exist as regards other assemblies that both he and the noble Lord, Lord Forsyth, pointed out. However, the fact is that that matter has not been decided as regards dual mandate from other assemblies. Dual mandate as regards the House of Lords has been agreed by Parliament, and now we are looking at the consequences of that.
I am well aware that members of my flock come within the ambit of this. However, I can say with my hand on my heart that, wherever this applied I would think that it was a sensible way forward. As has been pointed out, it allows other members to make that decision in the future.
I also read the report by the Merits of Statutory Instruments Committee. I am growing fonder and fonder of the Merits of Statutory Instruments Committee, because its ability to bite the ankles of Ministers gives me great pleasure. I look forward to the Minister’s response to the report. The noble Lord talked about dotting the “i”s and crossing the “t”s; the “i”s and “t”s have been left alone. As I said before, that is perhaps part of the problem of dealing with this House, in which the noble Lord, Lord Norton of Louth, has been chief on stalling on proper reform. Therefore, we will have to make do and mend as we go along.