House of Lords
Thursday, 16 October 2008.
The House met at eleven o'clock: the LORD SPEAKER on the Woolsack.
Prayers—Read by the Lord Bishop of Southwark.
Introduction: Lord Carter of Barnes
EU: Georgia and Ukraine
My Lords, UK Ministers and officials frequently discuss relations with Georgia and Ukraine with French counterparts in Paris, Brussels and in the region. In addition, there are intensive consultations at EU level. The Foreign Secretary most recently discussed Georgia and Ukraine with his EU counterparts at the European Council yesterday and the Prime Minister is likely to discuss this subject at the European Council today.
My Lords, I thank the Minister for that Answer. Is the position on financial and economic matters and on foreign policy now much more coherent and unified in the European Union as a result of recent ministerial meetings, and in this field with the very successful meeting—so they say, anyway—between President Sarkozy and President Medvedev at Evian on 8 October? Given the perfectly valid enthusiasm of both Georgia and Ukraine to have stronger links with the European Union, can that be achieved without offending Russian sensitivities as regards its own backyard?
My Lords, I agree with the noble Lord’s analysis of recent improvements, but it must be remembered at all times that both Georgia and Ukraine are independent countries which must be allowed to request their own futures in terms of organisations they want to join. There are various difficulties, as is the case with many countries which want to join NATO or the EU. It is very important that these countries should have the ability and the right to make their applications in the normal way and not feel threatened or under pressure not to do so.
My Lords, I have just returned from a visit to Ukraine as a member of the Inter-Parliamentary Union delegation. Is the Minister aware that Ukraine is wildly enthusiastic about joining both the European Community and NATO? The only difference as regards the views expressed in different parts of Ukraine and by different speakers seemed to be which one they considered more important to join first. However, I understand that there is a major problem with Ukraine’s gross domestic product. We should do everything we can to encourage Ukraine in that regard to improve people’s lives. I understand that British firms are improving land use in Ukraine.
My Lords, I am very grateful to the noble Baroness. Ukraine is a huge country; it is the largest country in Europe in land size and it has a population of 46 million, so obviously British trade interests are very much involved. It is interesting to hear how keen the noble Baroness found Ukrainians were to be members of those organisations that we are members of. One of our concerns is that the political crisis in Ukraine makes it more difficult for it to carry on with the excellent work that it is doing on economic and political reform. We very much hope that the political crisis will be resolved by the use of democratic norms, and we are pretty sure that that is what will happen.
My Lords, as another member of the IPU delegation which visited Ukraine in September, I can confirm that the Foreign Secretary’s speech to the Ukraine the previous week was very well received. What view does my noble friend take of the forthcoming elections, where I am afraid that personalities rather than policies hold sway and are unlikely to change the jigsaw of the parties that will come to power? There will be a need to find solutions that take Ukraine forward, and I hope that the United Kingdom will play a vital role.
My Lords, my noble friend tempts me, but I must resist all his blandishments to comment on the political situation in Ukraine. It is for the Ukrainians to resolve their political issues. I made the point in answer to the previous question that the sooner the political crisis comes to an end, the quicker Ukraine can move on with the political and economic reform that it has achieved so far.
My Lords, does the EU civilian so-called peacekeeping mission in Georgia, which I think is mainly French and Italian-staffed, have access to the regions to which it needs to have access, or is it still being barred by the Russians? On a wider basis, is it our Government’s view that South Ossetia and Abkhazia should still be part of Georgia? Do we reject the Russian support for their independence? Is that also the French view? Is there a common EU view on these matters or is there some rather deep division about how one should face the Russian demand for their independence?
My Lords, our view is clearly that we will not support the independence of South Ossetia and Abkhazia. We believe that they are integral parts of Georgia. As I understand it, that is the view of the EU, and the Russian declaration of support for their independence was not at all in line with EU thinking. I understand that the monitors are enjoying freedom of movement.
My Lords, will the Government exercise extreme care in distinguishing between membership of NATO as opposed to membership of the EU? There is a great danger of provoking the Russians if membership of NATO was allowed to go through without consideration of the obligations of the existing members of NATO to defend any incident in the Ukraine or Georgia.
My Lords, as always, my noble and learned friend makes an excellent point. NATO membership and EU membership are two hugely different topics. The British Government are very well aware of the differences between them. In general terms, we are in favour of NATO membership for both countries. That is the general decision that was taken at the Bucharest summit. The issues that arise are when and how.
My Lords, given what has happened in the present conflicts in South Ossetia and Abkhazia, are the Government doing their best with their European Union partners to make sure that the present conflict in Moldova with Transnistria is resolved? Transnistria is a semi-criminal non-state with all sorts of things being smuggled through it, just as South Ossetia has been. The conflict has been badly neglected by west European Governments. Are we now going to move as fast as we can to try to resolve that conflict in eastern Europe?
Walking and Cycling
My Lords, local authorities have prime responsibility for this, but the Government are supporting them through the £577 million local transport plan settlements. We have funded more than 3,200 schools to encourage safe walking, and are funding projects to promote cycling, including cycle training for an extra 500,000 children. We strongly support the Mayor of London’s plan to introduce an equivalent of the Paris Vélib bike rental scheme and are ourselves funding Bristol to do the same.
My Lords, I thank the Minister for that most helpful Answer and I am delighted to hear that the Government, with local authorities, are encouraging walking and cycling in urban areas, especially in light of last year’s Foresight report, which emphasised that tackling two objectives of government policy, namely obesity and climate change, will involve encouraging people to walk and cycle more. The Minister will of course be aware that last year’s report from the Commission for Integrated Transport showed that Britain has a long way to go. We are bottom of the European league table for walking and fourth from the bottom for cycling. We have a lot of catching up to do.
What does the Minister intend to do about local authorities such as Oxfordshire County Council which are removing cycle lanes and footpaths to make more space for cars and buses? Does the noble Lord agree that this is contrary to government policy, and what does he intend to do about it?
My Lords, I am at one with HG Wells, who said:
“Every time I see an adult on a bicycle, I no longer despair for the future of the human race”.
I take that to be a view which the noble Lord shares, and I hope that it is one which Oxfordshire County Council will take close to heart. I cannot comment on its particular plans, but I can tell the noble Lord that my department is never wanting in the advice that it gives to local authorities. We are just about to send them an 86-page document, Cycle Infrastructure Design, which advises on how they can give proper priority to cycling in their areas. Its opening paragraph states:
“Encouraging more people to cycle is increasingly being seen as a vital part of any local authority plan to tackle congestion, improve air quality, promote physical activity and improve accessibility … by bringing together relevant advice in a single document, this guide will make it easier for local authorities to decide what special provision … is required to encourage more people to cycle”.
A huge amount of good advice is given. I will give a copy to the noble Lord, so that he can pass it on to Oxfordshire County Council.
My Lords, while it must be right that we encourage people to go to our national parks to enjoy their leisure, it is equally—probably more—important that they take their leisure by cycling and walking within our urban areas. Is the Minister aware of the pioneering work by the Northwest Regional Development Agency? We have planted many forests, in conjunction with the Forestry Commission, all of which encourages access on foot and on bikes. Is he aware that, for example, in recent years 2 million trees have been planted in the borough of Knowsley, 2 million in the borough of Warrington, 1 million in the borough of Wigan, 1 million in Ellesmere Port and 1 million in St Helens? The agency is truly transforming the lives of the citizens in their area. Will he try to spread the message from the north-west development agency?
My Lords, my noble friend does outstanding work in his role in connection with forests and trees. Indeed, I imagine that every one of those trees was planted with his personal authorisation and consent. He highlights a very positive story.
With regard to cycling, what strikes me most forcefully is that, on the one hand, there is a very high level of cycle ownership. The latest survey for 2007 shows that 42 per cent of individuals aged over five own a bicycle and that 18 per cent of those are over 60. The big problem is that they do not feel safe taking the bicycles on to roads. Therefore, the biggest single obstacle to cycling—that is, people owning a bicycle—we have already overcome; the big challenge for us is to see that children and adults alike feel confident in riding their bicycles on the streets and taking them out into those superb national parks and other areas of rural beauty and extremely healthful living that my noble friend highlighted.
My Lords, I accept that Oxfordshire County Council, among others, is not taking the Government’s advice—and advice is easy to give. However, where the Government have leverage, for example, in relation to the number of secure parking spaces for bicycles at railway stations and they can specify these in the franchises. Will the Minister consider whether, in future, sufficient emphasis is given to that?
My Lords, the noble Lord is absolutely right that having adequate bicycle parking facilities at stations is crucial, and it is part of the Government’s policy. The Strategic Rail Authority’s policy document on cycling published in 2004 aspired to see 95 per cent of rail journeys originate from stations with adequate cycle parking facilities by 2009. Many train operating companies have improved cycle parking facilities at stations and have increased the number of spaces, and my department is paying for cycle parking stands, shelters and some CCTV at more than 100 stations in a project which was completed in 2006. Therefore, we are alive to the need to improve the facilities in the way that the noble Lord has described.
My Lords, a lot has been said about cycling but not as much has been said about walking, although all the evidence shows that the amount of walking that people do is declining. I know what keeps me walking: it is my dog. Perhaps the Government should consider encouraging more people to keep dogs.
Perhaps or perhaps not, my Lords; there are pros and cons. Of course, it is absolutely vital that people feel safe when they are walking but Her Majesty’s Government have not seen it as a priority to teach people how to walk, so we give more emphasis to policy promoting cycling. If I were to publish a walking strategy document, it might be thought to be the ultimate example of the nanny state.
My Lords, those of us who walk daily in Battersea Park are threatened by bicyclists cycling down a pedestrian area which is segregated for children and dogs and for deaf people like me who cannot hear them coming. The park police have some difficulty in bringing these people to a magistrates’ court, but they could give on-the-spot fines. Will the Minister see what he can do to make that possible?
Finance: Short Selling
We welcome the measures that the Financial Services Authority has taken on short selling against the backdrop of the present turbulence in the markets. The FSA will review their effectiveness and the general policy in this area, consulting where appropriate. An extension of these measures will be kept under review in the light of market conditions.The UK authorities will continue to work together to take all necessary steps to ensure the stability of the UK financial system.
My Lords, I thank my noble friend for that reply. Will he use all efforts possible to prevent an early resumption of short-term selling, which led to avarice and greed, the casino society and the destabilisation of certain companies? Will he also join me in congratulating the Prime Minister on his efforts to solve the credit crisis not only in this country and in Europe but throughout the world?
My Lords, I take pleasure in the second part of that question. It shows the importance of an overall strategy, which is being adopted and followed worldwide. Short selling is a relatively small dimension of the crisis in the markets, as I am sure my noble friend appreciates. That is why we have put restrictions on it—120 days—and we will keep the position under review, as I indicated in my original Answer.
My Lords, does my noble friend agree that right now, at a time of instability in the financial sector, the limitation on short selling is a wise and sensible move but that, in the longer term, short selling is quite a useful market pricing mechanism and that it would be a great shame if it were villainised as being the cause of the problems that we now have?
My Lords, I am grateful to my noble friend because she has helped to establish the context in which the issue needs to be analysed. There is no doubt that in the extreme turbulence in the market, short selling played its part in aggravating the problem. She is also quite right that in more normal times short selling is an indicator of the value of a company and therefore plays its part in the genuine valuation of company operations.
My Lords, first, I congratulate the FSA and the Government on bringing in the ban on short selling. I wish they had done it rather sooner, as was called for by my colleague, Vince Cable. Does the Minister agree—from the answer that we have just had, he obviously does not—that short selling, particularly in banks, is very dangerous indeed because it is effectively a bet against the taxpayer? He should understand that the hedge fund hyenas should not be allowed to do that.
Secondly—I disagree with the noble Baroness, Lady Kingsmill—I have been managing pension funds for 30 years; I must have done 20,000 or 30,000 transactions but I have never short sold and I do not believe that that hurt my funds. Is it not time that the Stock Exchange got back to its real purpose, which is to raise money for companies so that they can invest, employ and serve their customers? Frankly, short selling is a wart on the face of capitalism.
My Lords, I certainly agree with the noble Lord that the primary responsibility of the Stock Exchange is to raise capital for companies so that they can develop their operations. I agree that short selling can be—indeed, was—an abuse and a contributory factor in all the major economies to the problems that we have experienced. We will review the position because we do not regard it as a fundamental cause of the crisis; nor do we think that short selling is always and in all circumstances necessarily exploitative or a bad thing.
My Lords, what plans are there for the House to have the opportunity of a full debate on the crisis? Is it not a little curious that there has not been such an opportunity already? Does the Minister agree that, first, it would not be adequate to wait until the debate on the Queen’s Speech and, secondly, that the Government might find helpful the knowledge and views that might be expressed in this House?
My Lords, the Government certainly do find helpful the knowledge and views expressed in this House; they are expressed forcefully on fairly frequent occasions in my immediate recollection. The noble Lord will recognise that in this period there are great pressures on government business, and he will see how demanding that business is over the next six or seven weeks. I appreciate his point about the value of an economics debate and would personally look forward to one, so I shall relay it to the usual channels.
My Lords, I support the suggestion made by my noble friend Lord Marlesford. On the specific question of short selling, is the Minister aware—I suspect that he is—that there may be arguments against short selling and arguments, which were well put by the noble Baroness, in favour of short selling, but that it is all rather academic? In the real globalised world in which we live, a long-term ban on short selling would, quite simply, be unenforceable.
My Lords, the noble Lord is right that the definition of short selling is difficult to establish in legal terms. However, he will appreciate the obvious factor that—I refer to what the noble Lord, Lord Oakeshott said—warts on a face are more dramatic when the patient is ill. It is important that we restore the patient to health.
Children: Physical Punishment
asked Her Majesty’s Government:
What is their response to the recent memorandum by the Council of Europe Commissioner for Human Rights which stated that “laws allowing the definition of ‘justifiable assaults’ and ‘reasonable punishments’ on children are not compliant with international human rights standards”.
My Lords, the Government believe that the laws on physical punishment in England, Wales, Scotland and Northern Ireland are compliant with international human rights standards. Their formal response to the memorandum was published on 9 October 2008. UK government Ministers do not accept that legislation to remove the reasonable punishment defence or the justifiable assault defence in Scotland is necessary or appropriate. Across the UK, considerable importance is already attached to awareness raising and promoting positive parenting.
My Lords, I thank the Minister for her reply, but does she realise that all the Government’s warm words are not credible without legislation? Is she aware of the recent judgment in the Court of Appeal in the case of R v the Secretary of State for Justice, in which the noble and learned Baroness, Lady Hale of Richmond, is quoted as saying that the UN Committee on the Rights of the Child is the “authoritative international view” of what the UN convention requires? That committee has recently for the third time demanded that the UK Government remove reasonable chastisement. So, for how long will the Government go on believing that their view of their human rights obligations is more authoritative than that of four UN committees, the European Committee of Social Rights and their own JCHR?
My Lords, with respect, the Government are absolutely clear about the fundamentals here. We believe that this boils down to an interpretation of what is seen as violence. We do not accept that, for example, mild smacking—smacking for which the defence of reasonable punishment is available—constitutes violence. We firmly believe that our law is compliant with both the UN CRC and the ECHR. In our view, the UN CRC does not require the criminalisation of mild smacking. Conduct that could meet the threshold of cruel, inhuman or degrading treatment under the ECHR is already illegal in this country.
My Lords, I welcome the Minister to her new post. Does she agree that we should not be in the business of criminalising parents who are struggling to do their best but should instead concentrate our resources on the children who most need our protection, particularly in the light of the horrific cases reported in the media in recent days?
My Lords, I thank the noble Baroness for her warm welcome. As we saw again from his performance today, my noble friend Lord Adonis will be a hard act to follow; but I promise that I will do my best. I very much agree with the noble Baroness that we should not be in the business of criminalising parents who are trying to do their best. It is vital that we keep our legislative framework up to date to support not only children but parents, and that we put safeguarding children at the centre of government policy. I believe that we are doing that.
My Lords, I think it is the case that 18 European countries have banned the physical punishment of children and seven have undertaken to do so—my noble friend, whom of course I also welcome to her new position, may have more up-to-date figures. But that makes 25 countries. Why should our children have fewer rights than theirs?
My Lords, whether we use the language of rights or the language of safeguarding and child protection, it is absolutely right that we put the needs and interests of children first. The Government have updated the law on child protection. We had a debate very recently in this House, in 2004, when the Children Act was updated and a new clause, Clause 58, was introduced after much debate. I think that it provides the right framework for protecting children while not interfering unduly in the role of parents, who are, after all, the people who bring up children in this country.
My Lords, in their response to the commissioner, the Government made much of the fact that a survey showed that 70 per cent of parents did not want physical punishment banned, but the Government and we as a nation are also very concerned about the level of violence in our society from young people. Is it that surprising, when we know from reliable research that one in four parents disciplines their children by hitting them, that we have such a high level of violence from young people? “Like father, like son” is an old aphorism, but does not the Minister agree that it is apt?
My Lords, the noble Baroness has touched on an interesting point. What we know is that younger parents are less likely to use physical punishment than older parents, so I am not sure that it is, “Like father, like son”. It is essential that we provide support to parents who may find it difficult to manage their anger and to deal with the stresses of parenthood, but I do not want us to go down the route of demonising young people and talking about the violence that young people cause in society in such a way either. It is a very delicate area. It is absolutely right that we have research to guide us. Recent studies have shown that parents do not think that it is appropriate for mild smacking to be made illegal, but smacking as a source of parental control is on the decline.
My Lords, I again welcome the Minister to her post—I have already welcomed her privately but now I do so on the record. Although she may not agree with me, does she at least share my frustration with those who are against equal protection for children under the law who seek to misrepresent our position as meaning that a caring parent who may use physical restraint to stop a child harming itself or another would be criminalised? She knows that that is not the case in the other 25 countries that have equal protection; and it would not be the case here.
My Lords, if we consider the use of Section 58 of the Children Act 2004 alongside the advice from the CPS on charging standards, which take account of the vulnerability of children, we see that in those cases children are protected in the same way as adults. That is a very important point. For the record, parents who cause injuries to children such as grazes, scratches, abrasions, bruising, swelling and superficial cuts now, because of the law as it is, risk being charged with ABH with no defence of reasonable punishment. That is because of the changes in the law that we supported in this House in 2004.
My Lords, I have two announcements. First, my noble friend Lord Hunt of Kings Heath will repeat the Statement on the Department of Energy and Climate Change at a convenient point at about 12.45 pm.
My right honourable friend the Leader of the House of Commons has made a Written Statement today announcing next Session’s proposed recess dates for the other place. As with recent Sessions, I intend to match these dates—subject, of course, to the progress of business.
For the information of the House, these dates are as follows. We will rise for the Christmas Recess at the end of business on Thursday 18 December, returning on Monday 12 January. We will rise for the February half-term on Thursday 12 February, returning on Monday 23 February. We will rise for the Easter Recess on Thursday 2 April, returning on Monday 20 April. We will rise for the Whitsun Recess on Thursday 21 May and return on Monday 1 June. Finally, we plan to rise for the Summer Recess on Tuesday 21 July, returning on Monday 12 October. My office has now made these dates available in the Printed Paper Office. My Lords, enjoy!
Consolidated Fund (Appropriation) (No. 3) Bill
My Lords, I beg to move that this Bill be now read a second time.
Moved, That the Bill be now read a second time.—(Lord Davies of Oldham.)
On Question, Bill read a second time; Committee negatived.
Then, Standing Order 47 having been dispensed with, Bill read a third time, and passed.
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.]
[Amendments Nos. 168A and 168B not moved.]
Clause 35 agreed to.
Schedule 2 [Amendments consequential on development consent regime]:
169: Schedule 2, page 149, line 7, leave out “and has been granted, for its construction” and insert “for its construction by virtue of section 14(1)(f) of that Act, and has been granted.”
On Question, amendment agreed to.
[Amendments Nos. 170 and 171 not moved.]
171A: Schedule 2, page 156, line 34, at end insert—
“Greater London Authority Act 1999 (c. 29)After section 334(2) (the spatial development strategy) insert—
“(2A) The spatial development strategy must be in general conformity with national policy statements.”
Planning and Compulsory Purchase Act 2004 (c. 5)(1) The PCPA 2004 is amended as follows.
(2) After section 1(2) (regional spatial strategy) insert—
“(2A) In subsection (2) the Secretary of State’s policies include national policy statements.”
(3) In section 19(2)(a) (preparation of local plan documents) before “national policies” insert “national policy statements, other”.
(4) In section 24 (conformity with regional strategy)—
(a) before subsection (1)(a) insert—“(za) relevant national policy statements;”;(b) after subsection (1) insert—“(1A) A national policy statement is relevant if—(a) it sets out the amount, type or size of development that is appropriate nationally or for a specified area that includes, or partly includes, the area of the local planning authority; or(b) it identifies a location that is in, or partly in, the area of the local planning authority as suitable, potentially suitable or unsuitable for development.”(5) After section 117(3) (interpretation) insert—
“(3A) Expressions used in this Act and in the Planning Act 2008 have the same meaning in this Act as in that Act.””
The noble Lord said: My Amendment No. 171A is grouped with other amendments in the name of my noble and learned friend Lord Boyd. All the amendments are designed to create a link between national policy statements, which relate to the larger sized projects and are the responsibility of the Bill, and smaller developments that are outwith the scope of the Bill.
On the previous day in Committee, we discussed the various relationships between the minimum size of developments that would be included, as well as energy generators, rail freight interchanges, waste disposal and hazardous waste. There were a number of views about the minimum size of developments. Whatever the minimum size is, will the policies in the national policy statements for all these different types of development filter through into regional spatial strategies and development plans for similar projects that are below the limits that will be set by the Bill? In debates on previous amendments, many noble Lords have mentioned the problem of nimbyism. If one likes the idea of wind farms or hazardous waste disposal schemes and believes that the Bill will make getting development permission easier for these projects, I suspect that we will want the limit to be as low as possible. But many other developments will be well below the limit and could get caught out in what one could usefully describe as local authorities not wishing to have them in their back yards.
I declare an interest as chairman of the Rail Freight Group. I still believe that rail freight terminals have to be in a national network—unlike sewage works—to work. It would be a great shame if the smaller ones, which need to be part of that network, are subject to local authorities which believe in the principle of rail freight—or wind farms or whatever—but do not want them in their back yard.
These amendments try to relate the policies in the national policy statements to the regional spatial strategies, development plans and other similar documents, so that when local authorities or others consider applications for smaller schemes, they take into account the policies in the national policy statement.
The amendments of my noble and learned friend Lord Boyd may be slightly different in detail but the intent is the same. I am sure that his explanation will be much better than mine because he is a real professional in these matters. I beg to move.
Amendments Nos. 408 and 409 in this group are in my name. They would apply to the part of the Bill that amends existing planning legislation and are not directly concerned with the national policy statements or the Infrastructure Planning Commission. Amendment No. 408 would delete Clause 172(3)(a), which omits two sections of the Planning and Compulsory Purchase Act 2004, and Amendment No. 409 applies to Clause 172(4)(c), which would omit two more sections.
My difficulty concerns community involvement. It is not entirely clear why the Government seek to reduce the reporting of community involvement. If the amendments were accepted, those statements of community involvement would be retained and, under Amendment No. 409, would be subject to independent examination.
I have had and will have amendments concerned with the difficulties of disabled people, particularly blind people, relating to the planning system. I will not repeat what I said earlier because the Minister was well aware of those difficulties. However, organisations representing disabled people are upset by the removal of the requirement for local development documents to include a statement of community involvement and would like to see them there.
That was debated in another place. On that occasion, the Minister suggested that the Audit Commission’s comprehensive area assessment process might be an alternative way to deal with that. He gave no details whatever on how that might work and what form the process might take. In those circumstances, it is a little difficult to see that as an alternative to the retention of the existing requirements and statements. Perhaps the noble Baroness will put a bit more flesh and blood on that. If that is an effective way to achieve the same objective, clearly we will have to take account of it. At the moment, it is all rather hanging in the air. No one has a very clear idea of what it would mean and why that would replace the existing statements and requirements.
Amendments Nos. 409A to 409C stand in my name. Like the amendment moved by my noble friend Lord Berkeley, they deal with the relationship between the national policy statement and the local development plan, particularly in relation to renewable energy. The principal purposes of the Bill are to ensure that we speed up the planning process and provide the infrastructure to deal with climate change, which we all face. However, the fact is that after the Bill comes into effect, many onshore renewable energy projects, particularly those concerned with wind and solar generation, will continue to be consented as part of the ordinary planning system by the local planning authority. That is because the Infrastructure Planning Commission will deal only with generating stations producing above 50 megawatts, the same threshold as in the Electricity Act. As I interpret them, national policy statements will deal with all development, and the result is that an NPS can be a material consideration in the determination of a planning application.
There is concern that the planning system has tended to place insufficient weight on national policy on renewable energy, and that is partly because few adopted development plans deal adequately with the issue of development for wind and other forms of renewable power generation. The problem is compounded by the primacy given to the development plan under the Planning and Compulsory Purchase Act 2004, so the amendments aim to ensure that national policy statements that deal with renewable energy generation are given due weight in the planning system both in the preparation of development plan documents and in individual decisions. They seek to amend Clause 172 and thus would amend the relevant sections of the Planning and Compulsory Purchase Act.
I am aware that Clause 173 obliges the development plan documents to include policies designed to secure that the development and use of land in a local planning authority’s area contributes to the mitigation of and adaption to climate change. Nevertheless it seems appropriate that we should ensure that the national policy statement that relates to renewable energy is given primacy and proper weight by local planning authorities when they deal with renewable energy applications before them.
At Question Time earlier, the noble Lord, Lord Adonis, drew attention to the fact that guidance given by the Government is in fact ignored by a number of local authorities. Indeed, the noble Lord, Lord Krebs, quoted the instance of Oxfordshire County Council ignoring government advice on the provision of cycle lanes. If it is so easy to ignore advice, is it not necessary for that advice somehow to be strengthened?
These amendments seek reassurance in different respects. I hope I can reassure noble Lords that what they are seeking is achieved in the Bill. I shall start by referring to Clause 172. It removes the requirement for the statement of community involvement to be set out in local development schemes and for it to be the subject of independent examination. Amendments Nos. 408 and 409, tabled by the noble Lord, Lord Jenkin, would retain the requirement. The noble Lord has argued that this is an attempt to reduce local opportunity to engage in the planning system by removing the opportunity to make representations on the statement of community involvement and to have them independently examined. Perhaps I may clarify the status of SCIs and the reasoning behind the decision and reassure the noble Lord that this is a rather complex clause which may not do what he thinks it does.
When we created the SCI as part of the new planning system introduced in 2004 to ensure that community engagement was central to the new system, we created the notion of a statement of community involvement which set out how the local authority would involve the public in the preparation of local development documents and planning applications. The local development scheme sets out what documents will be produced and when, and has to be agreed with central government. By removing the statement of community involvement from the local development scheme, the clause as a whole means that local authorities will no longer have to get permission from central government if they want to update, or change the timetable for updating, their SCI. The clause also means that central government cannot any longer use the local development scheme to dictate to local authorities when to update the SCI. That brings us more into line with the Government’s approach to local government in general, which is to give greater space to local innovation and to foster civic leadership.
I am happy to put on the record that the change does not remove the requirement to produce, consult on or conform to the statement of community involvement or to keep people involved. That is still in place. Our recent guidance on a local development framework suggests that local authorities should provide real-time information on plans to update the documents.
We are removing the need for independent examinations of the SCIs. Let me explain why. It is a benign move. We have to recognise that time has moved on since the 2004 Act came into force. Nearly all local authorities now have in place statements of community involvement, all of which have been examined by planning inspectors. We have discovered that the requirement for examination creates unnecessary burdens for local authorities while, at the same time, there is evidence that it is no longer serving a useful purpose. The problem that has been uncovered is that these examinations have turned out to be costly and, more significantly, ineffective. Experience to date has indicated that having SCIs examined in public is an expensive and time-consuming process which has not produced any significant results. Very few changes have been made as a result of the examinations in public.
Each examination costs about £600 in inspector costs, which has to be borne by the authority, but the format is unsuccessful because, more often, what is driving objections to the SCI is not to do with planning issues but how much money the local authority is able to commit to engaging with the community on consultation processes. The Planning Inspectorate is not well placed to examine or assess that issue. Section 18 of the PCPA 2004, therefore, will still require local planning authorities to prepare a statement of community involvement. The noble Lord, Lord Jenkin, referred to the debate in the other place, where the Minister was saying that there are better ways of achieving the same goal of ensuring that the community is able and encouraged to participate in that process.
There are some new strategies in place which do not replace the SCIs but simply reinforce them. First, we expect local planning authorities to ensure that their engagement strategies are up to date and fit for purpose. Secondly, there are new assessment regimes which are better suited to the appraisal of local authorities; in particular, as the noble Lord, Lord Jenkin, said, the new comprehensive area assessment. That will look at the level and quality of public engagement by local authorities and local partnerships. It is an important development because it means that we expect the CAA to assess how well local partners understand their communities and how well they have been involved in defining the priority outcomes and assessing whether outcomes have been delivered. It reinforces the process. We are consulting on the CAA at the moment and expect that to be finalised by next year.
Thirdly, a new agency is already in place which amplifies the local voice. The recently published planning policy statement 12, Local Spatial Planning, emphasises the need for local strategic partnerships to take a strategic approach to community involvement and a corporate approach to community engagement through the duty to involve. We spent several hours when debating the Local Government and Public Involvement in Health Bill exploring how we could strengthen the engagement between local authorities and communities. This is all part of that and I think it will strengthen the process. I hope that that will reassure noble Lords. I accept that the clause is quite complex and does not particularly reveal its intent in this respect, so I understand why the bodies referred to have been a bit confused. I hope that this explanation will reassure them as well.
Let me turn to a separate issue, expressed in Amendments Nos. 409A, 409B, 409D and 171A. These seek assurances about the status of national policy statements and whether they will have proper weight in the planning system. My noble and learned friend Lord Boyd referred in particular to the renewable energy national policy statement. I want to be quite economical about this. It is essential that the national policy statement is reflected throughout the planning process and the different levels of planning decision-making. We have explored that in different ways. It is not necessary to include specific reference to either national policies or a renewable energy national policy statement. The Planning and Compulsory Purchase Act 2004 already requires regional planning bodies and local planning authorities to have regard to national policies.
My noble friend Lord Berkeley referred to limits and whether it will all be reflected. We expect that all forms of development will be considered throughout those processes. We are not talking about any discrimination towards different levels or thresholds. I hope that that will reassure my noble friend. I can give the same answer to my noble and learned friend Lord Boyd.
On Amendment No. 171A, I should make it clear that the conformity test is one of general conformity and not absolute conformity. Under the planning system, only where a local development document would cause significant harm to the implementation of the RSS or, in the case of London, the mayor’s spatial development strategy, should it be considered not to be in general conformity. It is therefore not necessary to extend the provision to include the requirement to be in general conformity with national policy statements. I hope that that covers the points of detail raised by both noble Lords.
Where local development plans are out of date, national policy statements will be a material consideration in any decision. They will have to be taken into account. We have made, to date, rather slow progress in developing the new local development frameworks. I am pleased to say that we are making increasingly rapid progress and that more and more local authorities are coming forward with up-to-date plans. By the time the IPC is in full operation, I am hopeful that most local authorities will have up-to-date plans.
I hope that I have answered noble Lords’ questions. I am very happy to write on the details of the amendments if that would reassure them even further.
Before the noble Lord, Lord Berkeley, replies, may I say that I am extremely grateful for the amount of trouble that the noble Baroness has taken to respond to the case I put to her about community involvement? We shall study what she said with some care, but it sounded to me very reassuring. I am most grateful.
Before the noble Lord, Lord Berkeley replies, I should like to congratulate the Minister and the Government on a small outbreak of common sense on the statements of community involvement. The process has been long-winded and bureaucratic, and having to put them to an independent inquiry has been ridiculous.
To have to put amendments to a local inquiry would be ludicrous. The statements exist now, so it is probably not worth abolishing them—although I would. They are often quite thick documents which in most cases have done little or nothing to improve or change the amount of public involvement in the planning process. They have not changed much; that would have happened anyway in the requirements for each of the development plan documents. At least there is a small outbreak of common sense here. From these Benches, we approve of the amendment.
I am grateful to my noble friend the Minister for her response. I take great comfort from her statement that it is essential that an NPS is reflected throughout the planning system and I shall study what she said with great interest. My only concern was raised also by the noble Lord, Lord Bradshaw: will local authorities always take notice of it? The Minister said that she wanted local authorities to have greater space for innovation, but greater space to perform a nimby act is another worry. However, on the whole, I feel comforted and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
172: Schedule 2, page 156, line 39, at end insert—
“Crossrail Act 2008 (c. 18)66 (1) Section 48 of the Crossrail Act 2008 (application of Act to extensions) is amended as follows.
(2) Before subsection (1) insert—
“(A1) Development consent under the Planning Act 2008 is not required for—
(a) an extension of Crossrail, or(b) the provision, otherwise than as part of an extension of Crossrail, of a railway facility for use for the purposes of or in connection with Crossrail.”(3) In subsection (1) for paragraphs (a) and (b) substitute “a matter mentioned in subsection (A1)(a) or (b).”
(4) In subsection (2) for “(1)” substitute “(A1)”.
(5) In subsection (5) for “(1)” substitute “(A1)”.”
On Question, amendment agreed to.
Schedule 2, as amended, agreed to.
Clause 36 [Applications for orders granting development consent]:
[Amendments Nos. 173 to 175 not moved.]
176: Clause 36, page 23, line 6, at end insert “, and
( ) be accompanied by evidence that the applicant has taken all reasonable steps to secure conformity with the local development framework policies of the affected local planning authority and, where applicants have departed from local policy, an explanation for any such departure.”
The noble Lord said: This group of amendments follows on naturally from the discussion that we have just had. Amendment No. 176 would ensure that, where a planning application was being considered by the planning commission, the applicant had worked to make sure that the application was reasonably consistent with the local development framework. That is essential if applications are to receive general acceptance. The part of the Bill that we are talking about sets down conditions with which an application must comply and the amendment adds one more. Its purpose is not to try to make the process more complicated and difficult for the applicant. However, it should be, where and as far as is possible, acceptable to the people who are going to be affected by the application. It is to build that part of the process that we have tabled Amendment No. 176.
Amendment No. 185 also follows that principle by requiring consultation with local residents. I accept that that may prove difficult practically—“residents affected” can be deemed to run quite wide—but they should have their views taken into consideration. One can raise questions whether the local planning authority is sufficiently representative or, in more rural areas, as the noble Lord, Lord Cameron, would say, whether the local parish councils might be able to do it, but there may still be large bodies of people who feel that their views have not been taken into account, and we thought that we ought to raise these points.
The relationship between national projects and policies and the current system is a difficult matter. It seems that we are making the current system more complex to comply with the speed that is required for the system being introduced. It is the old question of swings and roundabouts. These are important matters; it is a large group of amendments that indicates wide concern around the Committee. I beg to move.
I would like to speak to my Amendment No. 191, which is in this group. It relates to our discussions last Tuesday. I am mystified, because we have as policy, firmly entrenched and working very well, the principle that the national park authorities are responsible—if they are responsible for anything—for planning. Yet anyone proposing to undertake action as referred to in this clause is not required by law to consult the national park authorities. My best interpretation, as I said last Tuesday, is that this is an extraordinary oversight. My worst interpretation is that it is quite sinister and is actually the beginning of a deliberate policy to undermine the authority of the national park authorities. It is as serious as that.
I simply cannot believe that my noble friend, with her deep commitment to the parks—which I know from first hand, from meetings with her at the department and elsewhere—could possibly be going along with a policy of that kind. Therefore, I want to believe that my first interpretation was right and that this is an oversight, which must be corrected.
I also emphasise that I very much support the concept of strengthening national planning. At the moment, we are in a mess. Just to take the contentious issue of windmills, for example, we have one tactical skirmish after another, wasting masses of time. We need a national policy, but the right national policy. It needs to insist on strategic considerations, but also on the importance of the social dimensions of planning, so that we do not end up with the least articulate and most deprived communities having all the energy developments dumped on them—the waste, infill, pylons and windmills.
We must also have in mind, as I have emphasised on several occasions, the whole quality of our society and why we need energy—why we need a strong economy to preserve a United Kingdom worth living in. What the national parks are about is essential if we are not to slip into becoming a bland, suburbanised society throughout the country as a whole. I feel passionately about this, as my noble friend knows and I therefore hope that she can reassure us.
I welcome the whole tenor of this group of amendments and I very much welcome the amendment about the handicapped. The noble Lord, Lord Jenkin of Roding, is doing a tremendous service to the Committee by keeping that priority constantly before us. That is splendid and it matters and I hope my noble friend can reassure us.
I would like to make one correction about what I said on Tuesday in the context of the other debate. I sometimes get a little caught up in the past—I suppose we all do at our age—and I referred to being a vice-president of the Council for National Parks. In the past few weeks, we have had Charity Commission approval to change our title to the Campaign for National Parks.
I, too, support the noble Lord, Lord Judd, in his appeal to include national park authorities as local authorities. In a way, they themselves are national infrastructure projects of huge importance. It is correct that, as great contributors to the quality of life in this nation, they should be consulted on projects.
My Amendments Nos. 189 and 192 are about whether parish councils should be consulted by the applicant. I was very disappointed by the Minister’s response to my submission on these amendments on Tuesday, so, I fear, I must make them again more strongly. Parish councils are part of local government; they are elected; they raise a precept; they are statutory consultees on planning applications. They are a local authority, so it seems strange that they should not be included in the definition of a local authority. They are also a tier of local government to which this Government have given considerably enhanced credibility in recent years, trying to raise their prowess, abilities and standing, particularly in the light of the desire in certain cases for unitary authorities—in that context, in some larger counties, parish councils will play a very prominent part.
Parish councils are often at odds with their district or county council. The noble Baroness, Lady Andrews, said on Tuesday that district councils would decide whether parish councils should be consulted. That is a very strange concept. To put it into an urban context, let us assume that an applicant has decided to build a reservoir at Wembley to enhance the water supply for Westminster. Actually, let us not take Wembley, which is only 10 miles away; let us say Slough, which is much more applicable as a large district or county council. It is like saying that Westminster Council will decide whether the citizens of Slough should have a say in the matter when they are the ones who will be flooded and have their landscape changed to give water to the council. Such a situation is inconceivable, but it is an exact replica of what is proposed here: district councils, which are often 20 miles away from a parish council, are to decide whether locals should be able to respond to an application.
Perhaps, as proposed in my amendment on Tuesday, including parish councils as consultees on site-specific national policy statements is a step too far, but, given all the emphasis that the Government have placed on parish councils in recent years, I hope that the noble Baroness will be able to accommodate my amendments in respect of consultation by the applicant or indeed the IPC.
My Amendment No. 203 is about the applicant’s response to consultation and publicity. I still have slight doubts about this process. Is it right that a pre-consultation process should be run by the applicant, who will undoubtedly be driven by making profits from the project and so could easily be influenced by the wish to maximise returns? It would be beneficial to the applicant to cut corners or to minimise the mitigation measures sought by locals. I wonder whether this process will get off to a good start by having the body that would make money out of creating a nuisance ask locals and others what they think about the creation of that nuisance. While I cannot think of any other way to do it, Clause 48 needs tightening. Applicants should have to spell out not only all the responses they get, but what they have done to accommodate them or, ultimately, why they were unable to resolve the problems.
I support Amendment No. 188 of the noble Lord, Lord Taylor, who spoke to this group of amendments on Tuesday. The management of our seas, the marine environment that surrounds our sceptred isle, is as important as the management of our land itself. It is not to be undertaken without expertise or a holistic approach. While we have 50 years’ experience of planning land development, it is a sad reflection of the “out of sight, out of mind” approach to our oceans and seascape that there has in the past been relatively little thought given to planning considerations for our oceans. With the marine Bill around the corner, I raise my voice in support for a seamless approach to the overall management of our seas and seabeds.
I also put my name to Amendment No. 197, on the time for individuals’ responses to the applicant’s consultation. It is currently 28 days, and the amendment would make it 56 days. First, I support the principle of a deadline; it is important that we are trying to expedite these projects as quickly as possible. However, 28 days is not enough. There is a lot of work to be done by a consultee. Sometimes it takes 28 days to get a response from a lawyer, and there will be professionals involved. In fact, in my experience of responding to planning applications, or submitting my own, a lot of people are involved. Sometimes there are engineers, landscape consultants, experts in badgers or bats, highway engineers and so on. It is important that you consult with your neighbourhood to put in a co-ordinated response, and 28 days is too short—even if none of the aforementioned people or professionals is not on holiday for 14 of them. I think that 56 days is pushing it, but the desire is to try to speed these application processes up. I commend that amendment to the Committee.
I shall not move Amendment No. 199A, because I had misinterpreted the issue. I did not realise that it was about responding to the applicant’s proposals to consult rather than the applicant’s consultation itself.
I am grateful to the noble Lord, Lord Cameron. I like to feel that if we got replies from Ministers to our letters within 28 days, that would be a considerable advance. I shall say a word about that in a moment.
I have a number of amendments in this group but, before I come to them, I shall respond to the kind words of the noble Lord, Lord Judd. I am happy to take advice from the various disabled groups. They came to me because, as I said in an earlier intervention, I used to serve on the council of the Guide Dogs for the Blind Association. I cannot compete with some other Members of the Committee in the amount of time and effort that they give, but I was grateful for the noble Lord’s words.
In return, I say this about national parks: the Committee will be aware that, as I mentioned the other day, the Managing Radioactive Waste Safely programme is in the process of seeking volunteer communities that would be prepared to host a deep underground repository for the disposal of the most hazardous nuclear waste. In return they are invited to put forward proposals to compensate the local community for undertaking this enormously important task.
West Cumbria may well wish to put forward such a proposal given its long experience of dealing with nuclear matters. One of the proposals that local authority might be wise to consider is far better road communication to that part of west Cumbria. Anybody who has done that journey knows that it is very difficult and time- consuming. It is inconceivable that a dual carriageway linking west Cumbria to the M6 north and south could avoid passing through the national park. Indeed, that is why this might be a difficult proposal. Would such a road have to be constructed in a tunnel under the national park, which would be hugely expensive? However, as the noble Lord, Lord Judd, said, the suggestion that the national park should not be consulted about such a proposal is bizarre.
The noble Lord will understand why I am intervening. I emphasise again my relationship with the Friends of the Lake District. There is no reason why such a road should go through the national park. I am saddened that some years back the A66 was chosen as the trunk route through the national park to the west coast because it has completely ruined the whole essence of that fine mountain, Blencathra, which now has traffic running right in front of it. However, if the route went north, avoiding the park, in my view there would be great economic arguments in favour of it because it would bring together the west coast, Carlisle and Newcastle, which make an interrelated growth area for the region.
I was perhaps unwise to embark on this, and I shall say no more about it. The noble Lord has clearly given much thought to the matter. However, to my mind it would be bizarre if the national park were not consulted.
I shall deal briefly with the six amendments in my name in this group. Four of them concern the problems that confront disabled people when dealing with the planning system. Amendment No. 183 suggests that the register of applications should be available,
“in formats accessible to disabled people”.
Clearly, this applies particularly to the visually handicapped, and seems to me a sensible thing to do. There should already be an obligation to do this under the Disability Discrimination Act, but I am advised that a large number of authorities and others do not do it.
As regards Amendment No. 186, it seems to me obvious that applicants should consult organisations which represent handicapped people. That ought to be in the Bill. Amendment No. 197, to which the noble Lord, Lord Cameron of Dillington, referred, also concerns disability, and seeks to double the period for response to an application. Documents that are produced in a format which disabled people and blind people can use often arrive days or even weeks after the original consultation. Are the 28 days to apply to those documents? The Government would be wise to consider a longer period here. The amendment suggests 56 days.
Amendment No. 201 suggests that, as well as advertising in the press, the statement should be advertised in a talking newspaper in the area, if one is available. This seems to me an obvious point. The other two amendments on disability in my name in this group, Amendments Nos. 193A and 225A, raise a very different point, but one which has given rise to a good deal of concern. The purpose of these amendments is to delete certain subsections in Clauses 43 and 55 respectively to limit the span of consultation to what is reasonable and achievable. These clauses concern people who have an interest in land or who the applicant thinks may have a compensation claim under Section 10 of the Compulsory Purchase Act 1965 or Section 1 of the Land Compensation Act 1973. Both Section 1 and Section 10 claims are in principle capable of being made whether or not any land or interest is being compulsorily acquired from the claimant, and so both sections give rise to compensation claims potentially being made in respect of land which is not on the site of the proposed development but could well be affected by it.
A Section 10 claim is a claim for injurious affection for property depreciation exceeding £50 caused by the construction, as opposed to the use, of the relevant infrastructure. A Section 1 claim is a claim caused by the use of the relevant infrastructure. The problem is the near impossibility of identifying with certainty all the land interests in respect of which relevant claims could or might be made. For linear infrastructure, for example a pipeline or overhead electricity line, a judgment would have to be made as to how far away a property would have to be before it could be safely excluded from the notification requirements. This could involve tens of thousands of properties having to be notified if the proposed infrastructure was 50 kilometres long. We have had much discussion about airports. If Heathrow airport is expanded with the addition of a third runway, the number of people who will be affected must run certainly into hundreds of thousands, and possibly into millions. The relevant clauses seem to suggest that they would all have to be notified, which does not seem to me feasible. The notification process requires a written notice to be sent to each of the property owners affected. I should have thought it would be completely impossible to accomplish that with 100 per cent accuracy. If it were not 100 per cent accurate, somebody would claim in court that they should have had a notification but had not received one, and therefore the whole process would have to be quashed.
I do not know quite what is intended here. It seems to me that, as the Bill stands, there is no limit to the area of notification. That seems to take one into the realms of pure impossibility. That is what lawyers tell me and that seems to me a credible interpretation. However, it may not be what the Government intend. I hope that the noble Baroness will explain this or agree to bring forward amendments at a later stage which might allay the anxieties which have been expressed.
I support the amendment proposed by the noble Lord, Lord Judd. I do not want to take more than a few seconds of the Committee’s time; the noble Lord has said all that needs to be said. With the greatest respect to the Minister, her reply to the equivalent amendment on Tuesday was really quite inadequate. The national parks are the planning experts in their area, much more so than any local authority. They are indirectly appointed by local authorities and by the Secretary of State. I am not asking her to revisit the matter today, but I hope that she will have a rather more sympathetic approach on Report.
I support the amendment proposed by my noble friend. I shall speak to Amendment No. 188. I am grateful to the noble Lord, Lord Cameron of Dillington, for his support for the amendment.
Last Tuesday, we debated the impact of the forthcoming marine Bill on this legislation. Here, we are considering the pre-application phase and the role of local authorities in the pre-application phase. I favour that approach, which certainly has considerable advantages, in the sense that it is capable of getting out some of the difficulties in the early stages of planning procedure.
The marine Bill will bring into place the Marine Management Organisation, about which the Minister who was replying for the Government said:
“We expect the IPC to draw on the expertise of the MMO. The MMO can add additional conditions to an order granting development consent if new information comes to light and can even revoke consents if necessary. The MMO will be responsible for the monitoring and enforcement of IPC consents, and the Planning Bill guidance will detail the nature of the advice that will need to be given by the MMO to the IPC. My understanding is that there will also be a memorandum of understanding to formalise the arrangement. MMO enforcement officers will use Marine Bill powers to enforce the system”.—[Official Report, 14/10/08; col. 694.]
Clearly, the MMO will be a considerable arbiter in all matters concerning marine planning, and yet there is no requirement in the pre-application phase to involve the MMO or, in advance of its arrival on the scene, the Marine and Fisheries Agency—that is why the reference in the amendment is to “the relevant marine body”. I hope that the noble Baroness will be able to respond favourably to my amendment, which would greatly enhance the process in terms of marine applications or applications affecting the marine environment by having the body as a formal consultee at an earlier stage, rather than bringing it in to have a row with the new authority afterwards.
I support the amendment tabled by the noble Lord, Lord Taylor. Regarding the statutory consultees in the marine sphere, should the relevant general lighthouse authority also be included as a mandatory consultee? In particular with the development of offshore wind farms, the authority is responsible for assessing the risks of the development to the safety of navigation and considering how best to mitigate those risks regarding the positioning of the development, the marking of it, if necessary, by day or by night and whether it needs to be buoyed. It is important that it should be consulted, because safety of navigation is vital and will become more so as we see the proliferation of offshore wind farms as proposed by the Government.
Department of Energy and Climate Change
My Lords, with the leave of the House, I shall now make a Statement on the new Department of Energy and Climate Change.
The new department brings together the Government’s work on three long-term challenges that face our country: ensuring that we have energy that is affordable, secure, and sustainable; bringing about the transition to a low-carbon Britain; and achieving an international agreement on climate change at Copenhagen in December 2009. These are our goals, and the new department is a recognition that when two-thirds of our emissions come from the use of energy, energy policy and climate change policy should not be considered separately but together.
In tough economic times, some people will ask whether we should retreat from our climate change objectives. In our view, it would be quite wrong to row back, and those who say that we should do so misunderstand the relationship between the economic and environmental tasks that we face. Of course there are trade-offs, but there are also common solutions to both; for example, energy-saving measures for households which cut bills and emissions, such as those announced in September by my right honourable friend the Prime Minister, or investment in new environmental industries, which both improve our energy security and reduce our dependence on polluting fuels. What we know from the Stern report in 2006 is that the costs of not acting on climate change are greater than the costs of acting. Only if Britain plays its part will a global deal to cut carbon emissions be possible. So, far from retreating from our objectives, we should reaffirm our resolve.
Over the summer, the Secretary of State for Environment, Food and Rural Affairs asked the independent Committee on Climate Change to review the long-term target for Britain’s emissions. Based on a Royal Commission report in 2000, the target had been set at a 60 per cent reduction in CO2 emissions. Since then, independent reports have added further to our knowledge. Arctic sea ice has melted faster than expected, global emissions have grown faster and the impacts of each degree of climate change are known to be worse.
Last week, the noble Lord, Lord Turner, wrote to me with the committee’s conclusions, and they have been placed in the Library of the House. His report found that to hold global warming to two degrees above pre-industrial levels, commonly accepted as the threshold for the most dangerous changes in the climate, global emissions must fall by 50 per cent to 60 per cent by 2050. The noble Lord concluded that for Britain to play its proper part, the UK should cut our emissions not by 60 per cent but by 80 per cent. He concluded that the target should apply not just to CO2 but to all six of the Kyoto greenhouse gases. He concludes that, while there are uncertainties about how to allocate emissions from international flights and shipping, they, too, should play their part in reducing emissions.
The Government accept all of the recommendations of the Committee on Climate Change. We will amend the Climate Change Bill to cut 80 per cent of greenhouse gas emissions by 2050, and that target will be binding in law. I hope that all sides of the House will support that. Indeed, I want to create as much of a consensus as we can on climate change.
However, we all know that signing up to an 80 per cent cut by 2050 is the easy part. The hard part is meeting it and meeting the milestones that will show that we are on track. For us in Britain, those will be shaped by the recommendation of the Committee on Climate Change, which will advise us in December on the first 15 years of carbon budgets—national limits to our total emissions. We will report next year on how we will meet them.
We are also determined to ensure that the signal and the commitment come not just from Britain but, as the Prime Minister has been making clear in recent days, from Europe, too. That means an agreement by the end of this year on the strengthening of the EU Emissions Trading Scheme and on the targets for 2020 that Europe should reduce greenhouse gases by 20 per cent unilaterally and by 30 per cent as part of a global deal, and that the EU should confirm its renewable energy target.
Earlier this year we published our draft renewable energy strategy. What is clear to me is not only the scale of that challenge but also the urgency of getting on with delivery. The renewables obligation has tripled supply in the last five years, and we are making further changes in its structure, in planning policy and in access to the grid. However, having heard the debate on this issue, including from many colleagues in this House, I believe that complementing the renewables obligation for large-scale projects with guaranteed prices for small-scale electricity generation and a feed-in tariff has the potential to play an important role, as it does in other countries.
So, having listened to the views expressed, including those in the other place, we plan to table an amendment to the Energy Bill to make that happen. I also believe that renewable power can play a bigger role not just in electricity but in heating, too. Heating produces almost half of Britain’s carbon emissions, and cleaner sources of heat can help us meet our target in 2050 and the milestones on the way. I am clear that we need to make rapid progress on this, too, and I will make further announcements soon.
I said at the start that our objective was a climate change policy that was fair and an energy policy that was sustainable. Today’s structure of the energy market was designed in a world of abundant supply, British energy self-sufficiency, low commodity prices and an emerging debate, though not a settled consensus, on climate change. Today, all those assumptions have changed. There is international competition for resources, a need for new investment in supply, structurally higher energy prices and an urgency about carbon emissions. To respond to this new world, we need a market that secures future supply, including with investment in nuclear power and carbon capture and storage; more to incentivise cuts in carbon emissions; and more to help homes and businesses. These are big issues that we need to address for the future. Today, however, I want to signal a direction of travel on affordability.
Last week, the energy regulator Ofgem highlighted what it believed to be unjustified higher charges for 4 million electricity customers in areas not connected to the gas main. It also believes that, even taking account of higher costs facing companies from customers with pre-payment meters, many homes that use them are being overcharged. Unfair pricing which hits the most vulnerable hardest is completely unacceptable. I made that clear to the representatives of the big six energy companies when I met them yesterday. I also told them that the Government expect rapid action or explanation to remedy any abuses. I will meet them again in a month to hear what they have done. We and Ofgem are determined to see these issues addressed. Ofgem is consulting on its findings until 1 December as part of a due process. If the companies do not act in a satisfactory way, we will consult on legislation to prevent unfair pricing differentials.
For us, markets can provide enormous benefits in dynamism and efficiency, but they will work properly only if they are regulated effectively in the public interest, including with a strong independent regulator. There is more to do to help consumers, and we will not hesitate to act. A climate change and energy policy that is fair and sustainable, and meeting our obligations to today’s and future generations—that is the work that we are beginning in my new department, and I commend this Statement to the House.
My Lords, that concludes the Statement.
My Lords, I thank the noble Lord, Lord Hunt of Kings Heath, for his Statement, and I welcome him to his new position as Minister of State. This is his sixth department—I added them up this morning—but energy and climate change will undoubtedly be the most exciting. I hope that, between us, we might just manage to keep the lights on and save the world.
I am pleased to note that the Minister’s first Dispatch Box Statement contains so much that is welcome to us. I have a great hope that the new department will continue to listen and to be persuaded by our arguments on climate change policy. Unfortunately, I note that the new department has not managed to escape the usual government practice of prioritising the press over Parliament. I know that we on these Benches make that point frequently, but I live in hope that repetition will eventually have its effect.
In an article in the Guardian this morning, the new Energy and Climate Change Secretary complained that the green lobby groups have,
“an assumption of bad faith”.
Does the Minister not feel that this unfortunate assumption may have arisen because the Government’s standard operating procedure is to announce policies in a way which has more regard for newspaper headlines than effective legislation?
Nevertheless, I was very happy to read this morning, and to hear this afternoon, that the Government have decided to accept the climate change committee’s target of an 80 per cent cut in carbon emissions. Can the Minister confirm that this target will continue to be kept under review and, if necessary, adjusted in the light of further scientific information?
I am also extremely pleased to hear that the Government have finally accepted the necessity of a guaranteed price for small-scale electricity generation. Peers from these and other Benches, including those behind the Minister, have for some time been pushing for that to be included in the Energy Bill. I look forward to examining the government amendment in the hope that it will satisfactorily replace the amendment that I have already tabled.
The Minister has just made some reassuring noises about the Government’s concern about continuing fuel poverty. However, his promise to talk to six energy companies is rather less than we on these Benches would like to hear. Does he not think that the Conservative Party policy to expand the role of the Post Office card account, whereby lower income people who do not have bank accounts could take advantage of preferential rates available via direct debit payments, would do much more to benefit these people?
The Statement contained some very welcome assurances, but there are many more issues, and many more decisions that the Government will need to take. The Government would have us believe that the creation of a new department is a sign of their commitment to taking the necessary steps towards making meaningful progress on climate change and energy. A restatement of their commitment is certainly necessary after a decade of delay and dithering in this area. I therefore look forward to hearing much more from the Minister in the very near future about specific proposals in the many areas that need addressing urgently. I hope that this reorganisation will indeed signal progress rather than just mask continuing indecision.
My Lords, from these Benches, I very much welcome the Minister to this portfolio and we very much look forward to what I know is his strong commitment and his ability to persuade not just the rest of the House but the rest of the Government about the importance of this area. He is clearly already making good progress.
We absolutely welcome this Statement. It goes further than I could have hoped and would have expected. That is a very positive sign indeed. We also congratulate the noble Lord, Lord Turner, on his work in the climate change committee and in many ways regret that he will be moving on, although his appointment to the FSA is clearly good.
On the movement from a 60 per cent to an 80 per cent target, the Statement shows how Britain can indeed lead the global debate around the need for action on climate change, but I remind the Minister that the way that that 80 per cent is defined allows all sorts of ways in which this country can get around that target internally. No doubt, we will have that debate when the Climate Change Bill comes back to the House.
Including other greenhouse gases in those targets is logical and ties in with the Kyoto process. We on these Benches were arguing for that within the Climate Change Bill. The Government will have a 10 per cent better start in terms of the 1990 figures than they would have had if they took account of carbon dioxide only. I hope that that will help us to meet the targets.
Aviation and air was an area that I was particularly interested in. The Statement, says that,
“they, too, should play their part in reducing emissions”.
We would all agree with that, but I ask the Minister to clarify whether those emissions will be within the 80 per cent target or not. That is what we need to understand.
The feed-in tariff has been particularly successful in generating renewable energy, particularly within Europe. Another reason that we welcome it is that it has one other effect, which is that it allows much greater participation by smaller organisations and individuals, households and families, who can involve themselves in, and benefit from, the generation of renewable energy.
However, there is still a huge challenge in the area of fuel poverty. Clearly, we welcome the fact that oil energy prices have come down to a more sensible level over the past couple of months, and I hope that the same will also apply to gas, but at the same time we do not want those energy prices to be too low. However, there will be great challenges to households. Reining in the number of people who move back into fuel poverty will require the Government to take decisive and strong action—perhaps more than is suggested in the Statement—and we look forward to a further report from the Government on how this action will move forward.
Again, we on these Benches congratulate the Government on taking the bull by the horns in terms of the Turner recommendations, and we very much welcome this as the Minister’s first Statement in his new role.
My Lords, first, I warmly welcome the comments of both noble Lords on the Statement. They set a very good foundation for the consensual way in which my right honourable friend the Secretary of State has today intimated he wishes to proceed. Given that we are talking about matters which fall to be dealt with immediately and have huge long-term impacts, I am sure that a consensual approach is the right way to go forward.
I very much agree with the noble Lord, Lord Teverson, that the noble Lord, Lord Turner, has done an extraordinary piece of work. The balance of national interest is a nice judgment, and he will be very much missed from the Committee on Climate Change. I also wish to point out the outstanding work that he did in relation to pensions, of which of course I had experience as a pensions Minister. Indeed, the noble Baroness pointed out that with my current role I have now been round Whitehall quite a few times. I hope that that adds to what I bring to the job, as I think that experience within different government departments is helpful.
One thing that I have learnt already is that, while much of the action has to take place internationally in the agreements that we reach, in relation to the energy industry and those who are concerned about the impact of climate change, there is also a job to be done within government in ensuring that there is commitment to this agenda and that it is driven by all departments. Again, I thank the noble Lord, Lord Teverson. I have a personal interest in this matter, although I bring no expertise. I remember being appointed the Department of Health’s green Minister in 1999. I attended meetings of green Ministers then and have continued to take an interest in the role that other sectors and other government departments can play in this hugely important agenda.
“Keeping the lights on and saving the world” is a very apt description of what we are trying to do and I do not think I can better it. I shall bear it in mind when we come to debate the Energy Bill, the Climate Change Bill and no doubt the Marine Bill in a future Session of Parliament. I appreciate the welcome given to the decision to go for an 80 per cent target and the welcome for the feed-in tariffs. I suspect that we will still wish to hear what noble Lords have to say on Report before coming to a final decision about what amendment to put forward, so our debate—if it is not next week, it will be the week after—will be very important to us in that respect. Although I have not participated in the Energy Bill, I know that there have been very good and serious debates, and it is clear from my right honourable friend’s Statement that considerable attention has been paid to them by my department. In a sense, that is my answer to the noble Baroness, Lady Wilcox, who had a go at us for the way in which some details have come out. I understand her point.
Fuel poverty is a very important matter. Although we have seen considerable progress and a reduction in the number of fuel-poor households, rising energy prices have had an undue impact on that number. As I said, my right honourable friend the Prime Minister announced a series of measures to provide some support in this area, together with support in terms of energy efficiency in individuals’ homes. I recognise that there is a long way to go but, in signalling his intent to the industry, I think that my right honourable friend has shown his determination to keep a very close eye on what is happening.
The noble Lord, Lord Teverson, welcomed the decision to move from a 60 to an 80 per cent target. Certainly, it puts us in a stronger position to lead the debate internationally, where I am sure this country has a huge role to play. He said that the definition is all and that there was a risk that, if the definition was not right, there would be ways of getting round the target. I assure him that that is certainly not our intent. This is a very important Statement in respect of the Government’s determination to deal with these matters effectively, and we will want to ensure that a robust mechanism is put in place.
I know that international aviation and shipping emissions have been the subject of considerable debate. I reiterate that our commitment to a long-term climate strategy includes aviation and shipping. The interim advice of the Committee on Climate Change included a recommendation that the scope of the Climate Change Bill should not be extended to international aviation and shipping. I think that that was very much to do with the problem of agreeing measurements, and therefore our approach is to exclude international aviation and shipping from the Climate Change Bill. However, I come back to the point that both noble Lords raised: of course we must keep the target under review in the light of emerging circumstances. I also understand that from 2012 international aviation is to be embraced within the European Emissions Trading Scheme. I hope that noble Lords will take that as an indication that it is not our intention simply to put aviation to one side; it is a very important factor in all of this. I thank both noble Lords for their very constructive comments on the Statement.
My Lords, I warmly congratulate my noble friend on his appointment to what is a crucial new post. I also warmly welcome the Prime Minister’s decision to create this new department, bringing together energy policy and policy on climate change, which, as we all recognise, are inextricably linked. We must hope that this decision will bring greater clarity, focus and coherence to these important areas of policy for our nation, for the economy and, not least, for individual consumers of energy. Is it not clear that the decision in the 1980s to abolish the Department of Energy resulted in damaging our ability as a nation to meet the new challenges that we now unavoidably have to face? In that regard, as the creation of new nuclear-power-generated capacity is absolutely essential in meeting what have now moved from challenging targets to heroic targets for the elimination of greenhouse gases, can my noble friend give the House any indication of the estimated timescale for bringing new nuclear-generated capacity online?
My Lords, I thank my noble friend for that instructive comment. I recall the days of the Department of Energy and certainly agree that it is important to have appropriate focus within government on energy questions. I would not wish to undermine the work that has been done on energy in BERR, but the new department allows us to give considerable focus to these pressing matters on energy policy alongside the challenge of climate change.
My noble friend rightly referred to the importance of nuclear energy, and I know that noble Lords generally share that view. Clearly it is a low carbon-emitting energy source and has an important role to play in the future, as has been signalled by the Government. Of course, the takeover of British Energy by EDF is a signal of positive future investment in the nuclear energy programme. I understand that we are on track for electricity to go into the grid from a new build by 2017. Clearly that will be an important signal and contribution to energy supply in the future.
My Lords, I have three questions but I preface them by saying that bringing together the energy aspects of Defra and of BERR into this new department is wholly to be applauded. I say that as the first Minister who ever had the title Minister for Energy. We have waited a long time for it. I was surprised that the Prime Minister did not do it on appointment in his first reshuffle, but it is happening now.
My three questions are simple. First, there is some doubt about this outside the House, but the Nuclear Decommissioning Authority is hugely important with an enormous budget stretching over many years. While the news release about the responsibilities of Ministers refers expressly to offshore decommissioning, it does not talk about nuclear decommissioning. Will the Minister give an assurance that the Nuclear Decommissioning Authority will be one of the agencies that comes under the new department?
My second question, which will not altogether surprise him and to which we will no doubt return in the Bill, concerns fuel poverty. Huge emphasis has been placed on the need for much better targeting from the point of view of social tariffs and the CERT obligation. We have had only a tiny change—for pension credit in the Pensions Bill—so far, involving a very small group of people who could be within fuel poverty. Can the Minister say anything more about the targeting and whether that will be improved?
My third question is again perhaps a more technical one. When the Office of Nuclear Development was set up within BERR, one of the points made to me was that it would be largely concerned with the supply chain for nuclear development. Most of the industries concerned—engineering and others—will fall under the aegis of BERR. Obviously the Office of Nuclear Development will be part of the Minister’s department, but how will the supply chain of that office’s work function? There will have to be a very close collaboration between his department and that of the noble Lord, Lord Mandelson.
My Lords, the noble Lord said that they were three simple questions, but they were pretty fundamental questions, as I would expect from someone so experienced in this hugely important area. I must say how much I welcome his comments about the establishment of the new department. I have listened to him with great interest over the years on many matters, not least in your Lordships’ House on the question of the need for an effective energy policy.
On targeting, the noble Lord’s point is well made. Since my days at the DWP, I am not as well informed on that question as perhaps I ought to be, but I take his point that in dealing with fuel poverty we have to ensure that the money that is available is spent most effectively. I think that that was the point he raised. He will have understood from my comments and from the Statement of my right honourable friend that we understand clearly the importance of dealing with fuel poverty, particularly in these very difficult times.
On the question of the Nuclear Decommissioning Authority and the other question the noble Lord raised, he will understand that the department has been established for only 10 days and matters still have to be decided. I would rather not attempt to give him a definitive answer at this stage, but perhaps I might report both to him and to the House when we have finally established the whole set of responsibilities. It is fascinating to be at the creation of a new department with all the excitement and potential, but one or two practical issues must be dealt with.
I can tell your Lordships that the role of the NDA is critical. It is a non-departmental public body that was set up under the Energy Act 2004. The question is the sponsorship of that body, but it is a matter to which we are giving close attention. It is important, too, in relation to the fund that has been established and the future investment in our nuclear policy.
My Lords, there are advantages in bringing together two intertwined issues such as energy and climate change, but there is an important proviso, which is that no one faction within a department becomes dominant and drowns out the voice of the other. I regret that this happened once in my experience in the early days of the Department for the Environment, Transport and the Regions. The roads voice was largely suppressed, and it took many years before we returned to a more balanced policy.
Secondly, I welcome the creation of feed-in tariffs as an additional instrument, but with the caveat that care will be needed with the price that is set. Otherwise, in the metric of cost per tonne of CO2 avoided, we could find ourselves paying a lot more than we need, compared with other instruments that we could be using.
My third observation is about the 80 per cent target. Because we are expecting GDP to be growing over this period, the reduction is not 80 per cent but, in terms of grams of CO2 per dollar of GDP, we will need to reduce carbon by something like 95 per cent. In other words, we will have to run our whole society on about 5 per cent of the carbon that we use at present. That is a massive task, so it is essential that we bring others along with us. Otherwise we will have the double jeopardy of paying to decarbonise our economy and paying to raise our sea defences.
My Lords, I welcome those comments and certainly agree that is a hugely challenging target. I shall not trade figures with the noble Lord but he is right to suggest that it will be very tough indeed. I also accept that dealing with climate change can work only if there is international agreement. Given our wish, which I believe is shared by the whole House, that this country should take a lead, we have to be a good example. That means having a tough target and the determination to reach it.
The noble Lord made an important point about feed-in tariffs and the pricing structure. We are considering them at the moment and are deciding how to take forward the pledge made by my right honourable friend in the other place.
The noble Lord speaks with huge authority and experience about different balances of view within a department. I take what he said to heart. We should not be frightened of policy tensions within government. Simply moving the deckchairs—moving a division from one department to another—does not solve problems overnight, but it can lead to greater focus, a determination to ensure that the twin issues of energy and climate change are dealt with together, dealing with some of the tensions and, in the end, ensuring that we reach the right policy decisions. However, with all the doubts that can always be expressed about structural changes, it is clear that this is the right path to go down. It has huge potential, and it is a huge privilege for me to serve in the department.
My Lords, I add my welcome to the Minister in his new position and to the new department. I also welcome the fact that aviation is to continue to be dealt with in an international environment. Is the European Union still pressing ahead with its intention to bring flights into and out of Europe within the European Emissions Trading Scheme, ignoring wider international law?
In relation to the extension beyond carbon into the six Kyoto greenhouse gases, will the climate change committee now bring forward not only carbon budgets but budgets for all six Kyoto greenhouse gases on rolling five-year programmes over 15 years? Is the remit of the climate change committee for carbon budgets now to be expanded?
On the question of the level playing field and giving a lead to the rest of the world, can the Minister tell the House his assessment of the strong resistance from Poland and other countries to the speed at which this country wishes to go in dealing with emissions and getting agreement within Europe? Can he give the House any guidance on the discussions taking place and the progress being made on achieving a post-Kyoto agreement? Finally, can he confirm that the European Union is dropping its idea of having carbon taxes on imports as a way of trying to ensure that there is a level playing field for industry across the world and that we do not just export emissions to China and India? It would be helpful if the House could be informed on that point.
My Lords, I shall write to my noble friend on some of the details of the European negotiations.
I take his general point in relation to the discussions that are taking place. Different countries came to those discussions with a different approach. We will find ways of reporting progress to Parliament in due course. In the Statement, my right honourable friend referred to the risk that some countries will say that because of the current economic uncertainty, we should row back on dealing effectively with climate change and carbon emissions. My view and that of the Government is that it would be a disaster to row back. It has never been more important that we press on. I assure noble Lords that we will make that point time and time again. The fact that we have announced that we are setting ourselves a tough target for 2050 gives us a stronger position from which to argue with our European neighbours.
My Lords, I declare an interest as a current member of Sub-Committee B of the European Union Committee, which is imminently to report on the renewable energy replacement 20 per cent reduction by 2020. While welcoming the Minister’s report, I have to dampen some of his enthusiasm about the potential for achieving his targets given the appalling state of the technical supply chain in this country. In the event that we were to depend on what is available now, the Minister would have had to commence the wind farm programme on the seventh birthday of Jesus Christ. That would fully utilise the existing resource of offshore maritime installation facilities. It takes eight months to produce one offshore wind farm comprising 34 turbines. There are only two ships available in this country with the necessary cranage platforms capable of taking the turbines out to sea, and one of those has an unfortunate tendency to sink when it gets there. In the event that the boat capability was available to generate the development of these wind farms, somebody has got to find a way of very quickly building about 50 more of them at about £12 million each. There are none in production at present, so we have very limited resources with which to go forward.
In addition, there are two further major supply chain problems on which the Government could do something urgently. There is no gearbox capable of providing the optimum generation that can handle wind shifts of between 12 and 40 miles an hour. The only one that is available is—
My Lords, will the Government do something to obtain within the European Community a licence for a British company to manufacture the only good wind farm gearbox, which is made by Siemens and is currently not available to us? That is what we need most urgently. Secondly, can something be done to accelerate the technical development by universities of a means of storing surplus capacity to level the evenness of supply, which is the other major failure?
Alas, my Lords, in the discussions I have held within my new department the question of gearboxes has not yet been addressed. However, I take the noble Lord’s point seriously. The target for 2020 is challenging, let alone the target we have now set for 2050. We need to see considerable progress in renewables. We also need to see British companies developing technology, winning contracts and creating jobs because I am convinced that the renewables area goes hand-in-hand with investment in the UK and with developing skilled jobs. The noble Lord has brought to our attention the need to do everything we can to make sure that British companies take advantage of that, and I will take that back to the department.
Enterprise Act 2002 (Specification of Additional Section 58 Consideration) Order 2008
rose to move, That the order laid before the House on 7 October be approved (SI 2008/2645).
The noble Lord said: My Lords, it is a great honour to speak for the first time in this House. I want to begin by thanking your Lordships for the wonderfully warm welcome I have received from all sides of the House over the past few days and also from the staff who work here and add so much to the character of the House. It means a lot to me; it is nice to be back.
Being greeted by such a succession of noble Lords these past few days—many old friends and former colleagues—has been like replaying the last 30-odd years of my life, starting in the Wilson years and moving through the eras of Callaghan, Foot, Kinnock, Smith and then Blair. I know that a lot of people think of me as being quintessentially new Labour—indeed, who could doubt that?—but my roots go deeper. One of the privileges of being a Member of your Lordships’ House is the richness of the political experience drawn from past decades that I have benefited from over the years, and which is available to our debates today.
Of course, my greatest wish is that my parents were alive today. My gregarious father loved mixing with politicians. When I was a boy, he was not above driving his car into the precincts of Parliament, although not a Member, relying on a cheery wave and a copy of Hansard left casually on the back shelf of his car to reassure the policeman on the gate—in those days it was a single policeman on the gate. My mother had more mixed feelings about politicians. The daughter of one, and then the mother of another, she had no appetite for more.
The House is very different from the one my that my grandfather attended. Its breadth is wider. It is more representative. It is also a House that takes its scrutiny role very seriously, as I know from my European experience. There is not only a breadth but a depth in this House—something that might be more generally acknowledged.
More than 50 years ago, my grandfather, making his maiden speech in this House, spoke of the Marshall plan and its importance in rebuilding the shattered economies of the allied countries of Europe after the Second World War. Now, as then, the world must come together to secure the future of its financial systems and the international architecture supporting them, at a time of deep uncertainty and turbulence in global markets.
A strong, stable banking system is essential to support and protect the investments, savings and loans that help us grow our economy and succeed as individuals. Further to the recent measures announced by the Prime Minister and Chancellor to put the British banking system on a sounder, more secure long-term footing, private sector mergers can play an important role in helping a financial institution in difficulty.
It is critical that in cases where a proposed merger could bolster financial stability in the UK’s economy, the overall public interest is served by a proper consideration of the need for stability, alongside the implications for competition.
I beg to move, therefore, that your Lordships consider the Enterprise Act 2002 (Specification of Additional Section 58 Consideration) Order 2008, Statutory Instrument No. 2645. The order was considered by the Lords Merits of Statutory Instruments Committee at its meeting on Tuesday.
Merger control in this country is regulated under the Enterprise Act and the European Community merger regulations, with the Office of Fair Trading and Competition Commission responsible for investigating UK mergers on the basis of their impact on competition in UK markets.
The Enterprise Act provides limited powers for the Secretary of State for Business, Enterprise and Regulatory Reform to intervene in mergers to protect legitimate public interests. Public interest considerations are currently defined under Section 58 of the Act as ensuring national security and plurality of media ownership. Section 58 also provides the Secretary of State with the power to specify additional considerations, when necessary, to protect the public interest.
As noble Lords will be aware, my right honourable friend John Hutton—my predecessor at the Department for Business, Enterprise and Regulatory Reform—announced on 18 September that he had issued an intervention notice in respect of the proposed Lloyds TSB group merger with HBOS plc. He also announced that he would place an order seeking the necessary power to enable him to take into account the vital public interest issues surrounding this merger.
Let me be clear. It is not that the merged bank would be sheltered, if the merger goes ahead, from competition law. Were there to be any evidence of market abuse at some future time—not that I expect any such behaviour—the normal powers will be available to the competition authorities to protect consumers.
The order specifies the maintenance of stability in the UK financial system as a public interest consideration under Section 58 of the Enterprise Act 2002—a new public interest consideration. This will enable the Secretary of State to intervene in those mergers in order to be able to make the final decisions based on the vital public interest of financial stability, alongside the competition issues.
As Secretary of State, I am unable to take decisions on this merger until parliamentary approval is received for the order. Subject to approval of the order by your Lordships, I will ensure that I receive all available advice and views before I make any decisions. This will include advice from the Treasury, the Bank of England and the FSA, which make up the tripartite authorities. I am sure that your Lordships would agree that swift, decisive action is needed to give investors the regulatory certainty that they need and to send a clear signal to the market about the proposed merger between Lloyds TSB group and HBOS.
The order will allow us to make careful and urgent consideration of financial stability an additional part of our assessment process, and as a result, support our work to help millions of UK businesses and families get through these very difficult times. It is a critical addition to the public interest considerations specified in the Act and I commend it to your Lordships.
Moved, That the order laid before the House on 7 October be approved (SI 2008/2645).—(Lord Mandelson.)
My Lords, on behalf of us all, I welcome the noble Lord to the House of Lords and congratulate him not only on his appointment as Secretary of State for Business, Enterprise and Regulatory Reform but on his very accomplished maiden speech.
He led us on a fascinating and absorbing journey through history. There are many lessons to be learnt from the events that he described. We also share his pride in his family's contribution in the past. We also thank him for the way in which he praised the width and depth of the experience of this place. We all value the contribution that he is going to make, given his impressive career to date. His tributes to colleagues, in particular to the staff, will be much appreciated and are reciprocated by us all.
As I was reminded by one of my more senior colleagues, the Minister, now that he is a life Peer, can be introduced only once in the House of Lords. Under the present system, we will all work together until death do us part. He has now indeed joined the aristocracy. Revisiting my well thumbed copy of his book, The Blair Revolution, which was published in 1996, I came across his reference to Joseph Chamberlain’s biblical allusion and comment on the aristocracy:
“they toil not, neither do they spin”.
Although the Minister may find it necessary to toil in his new post, I am sure that he will already have reflected deeply on the second part of that formulation, and so we look forward to hearing from him on many future occasions as we toil together in the public interest. We in this House assure colleagues in the other place that we intend to hold the noble Lord and his fellow Ministers fully to account in this place.
This is not the first experience that the noble Lord and I have of working together. I have many memories of our partnership 30 years ago when together we ran the British Youth Council. Here I declare my interests as set out in the Register of Members’ Interests. In the spirit of transparency, perhaps I should also declare a generous gift that he gave to me when I completed my term as president of the council. He arranged for me to receive a Toby jug, and I admire him for his forethought. This object now beams at me from my mantelpiece with the well known face of Neville Chamberlain. I do not think that I have ever thanked him enough. Although I greatly appreciated that gesture three decades ago, with all its nuances and subtexts, I assure him that, although we on this Front Bench will approach each issue on its merits and will not oppose for the sake of opposing, we shall not adopt a policy of appeasement.
There has been broad cross-party consensus, both here and in another place, on the Government’s response to the banking crisis. Although we on these Benches have repeatedly made it clear that we will not stand in the way of the Government’s efforts to deal with the crisis—this also applies to the order—a number of points and questions need to be raised. Although no one seriously queries the need for significant intervention in the banking sector at this juncture, we should pause for a moment before making our next foray into this minefield of moral hazard.
The Bank of England is the long-established lender of last resort and the provider of liquidity of last resort. By establishing Her Majesty’s Government as the owner of last resort, we have entered almost entirely uncharted waters. Implicit in everything that we are discussing today is a recognition that the levers that we had in place before this crisis have proved to be inadequate. This is probably the most fundamental point of all. The biggest and most pressing question today, therefore, is what convincing assurances, if any, the Government can give for the future. How can we now feel confident that the merged superbank that we are helping to create today will not abuse its dominant position in the market? It is implicit in the order that competition issues are being raised. What do we need to do in addition to what we are doing today? What will the management of this new entity be required to do to allay the legitimate concerns of Which? and a number of other bodies about market power?
In the Northern Rock case, we on these Benches, strongly supported by the Liberal Democrats, said that the Government should lay annually before Parliament a report on the impact on the competitiveness of the market in the UK of any merger that might proceed by virtue of that emergency legislation. We said further that it should report to Parliament as soon as it identified a significant adverse effect on the competitiveness of the market in the UK as a result of that merger. Our concerns are, if anything, greater in this case. The Minister referred to those concerns in his opening speech, but we need more detail.
The Explanatory Memorandum makes it clear that the order is intended specifically to address the HBOS/Lloyds-TSB case. However, the investments announced this week in several of our biggest banking names serve only to underline our wider concerns. It would be helpful if the Minister explained how the Government have addressed competition issues across the board. The Explanatory Memorandum further indicates that the new public interest consideration will not be available in the case of a merger or a takeover with a European Union dimension. Is it correct to assume that the specific ground on which the HBOS/Lloyds-TSB merger avoids breaching the regulation is the two-thirds rule? If so, will the Minister confirm for the record under which threshold the Alliance and Leicester/Santander transaction avoids such a breach?
The Government claim to have adopted the five principles of good regulation set out by the Better Regulation Task Force. I remind your Lordships that these are proportionality, accountability, consistency, transparency and targeting. Will the Minister describe the procedure that he has been through to ensure that the order complies with these principles? I emphasise accountability in particular. Accountability does not imply a one-off debate here or in another place; it must be ongoing. The departmental impact assessment of the order fails to provide concrete figures for one-off or annual costs either to UK plc or the public purse. We appreciate that time is of the essence, and I fully understand that the order has necessarily been drafted with considerable urgency, but will the Minister confirm that such costs are genuinely anticipated to be zero over the medium to long term, or at least negligible? It is by no means a negligible action to amend an Act of Parliament as the order does.
We all hope that this period of crisis management is coming to an end and the Government can establish themselves as the master of events, not the victim. Only then will we start to see confidence return to the market. If the most violent part of this economic squall is indeed over, we must all turn our attention to the well-being of the real economy, for which we hold the Government responsible. Against that background, the Minister now holds probably just about the most important departmental brief in government. The resilience of every firm in this country will be sorely tested in the months, and possibly years, ahead. In business, as in life, survival is all. A healthy banking sector is an essential foundation stone for our economy, but it is not the be-all and end-all. By buttressing the banks, we make it possible for British firms of every shape and size to survive now and flourish later, but we cannot make that inevitable. Most of the real hard work remains to be done, and our thoughts are with every individual and business, particularly our small businesses, at the present time.
As we seek to get the economy back on its feet, the order is not the end. To paraphrase a wise old statesman in another place, it is not even the beginning of the end, although it is perhaps the end of the beginning.
My Lords, like the noble Lord, Lord Hunt of Wirral, I congratulate the new Minister on his appointment and on his elegant and eloquent maiden speech. I am sure that the Minister appreciates that he cannot avoid his reputation, which precedes him here. Indeed, such was his reputation when I made my maiden speech 11 years ago—at a time when it was rumoured that he had instructed every Labour Member of Parliament to wear a pager on which to receive his instructions—that I was considerably embarrassed when my pager went off in the middle of my speech. I was even more embarrassed when someone from the far reaches of the Cross Benches loudly shouted: “Oh my God, he’s got Peter Mandelson on the phone!”.
No one has commented on the welcome that the Minister received from the civil servants in the department upon his return after 10 years. It is very much an indication of the respect in which they held him at the time and which they obviously continue to hold. He has to be congratulated on that as well.
I agree with almost everything that the noble Lord, Lord Hunt of Wirral, said. There is a concern that the world has moved on, in terms of HBOS/Lloyds, since the order was first mooted. Had the order been brought in immediately after the announcement of the HBOS/Lloyds merger, the concerns now being expressed in this House and elsewhere would not have arisen. With the share-price variations of the two companies, we do not know whether the merger will take place. Assuming that it does, it will be in circumstances in which the Government will have taken a significant stake in both banks. That poses a problem for the Government, but it also gives them leverage to deal with a number of the competition and consumer issues causing concern.
It is not as if the banking industry has been noted for its non-competitive business practices. As the consumer organisations have drawn to everyone’s attention, over the years the banks have been in serious difficulties over practices such as ATM charging; the mechanics of the clearing system, whereby no one quite knows what happens to their money after it leaves one bank account and before it appears in another; and unfair overdraft charging, on which the banks have often been criticised. The merger is not taking place in what is, prima facie, a competitive environment. Two major high street banks—which on some reports will have 30 to 40 per cent of UK current account business—are being put together in a way which would never have been allowed were it not for the current circumstances of the economy.
The noble Lord, Lord Hunt of Wirral, raised a number of the concerns that consumers, consumers’ organisations and noble Lords will inevitably have. Due to their increased power with the banks, the Government have the opportunity to insist on rigorous conditions. For example, will they attempt to impose on the merged bank a similar restriction on the proportion of retail deposits that it can have? It is understood that such a requirement was imposed on Northern Rock, so that it could not have more than 1.5 per cent of the aggregate retail deposits in the UK. As a result, the week before last Northern Rock had to close many accounts because of a danger of breaching the 1.5 per cent threshold. Will the Government impose a similar requirement on this bank?
What will the Government do where there is a branch of Lloyds and of HBOS in the same street or the same town? Will closures be required? Will there be a restriction on the number of closures? Theoretically, these banks are competing with each other. What will be the Government’s position on closures?
Which? is concerned that the two banks will be allowed to maintain separate banking licences, thereby triggering separate calculations for purposes of deposit protection. If someone has £50,000 deposited with Lloyds and £50,000 with HBOS, will they have £50,000 protection for each deposit following the merger, or will they lose the protection in one of the banks?
This is an important moment for the Government and for regulation of the banking sector. This order will go through—only a lunatic would attempt to vote against it at this sensitive time—but the Government should at least look very hard at what undertakings they can extract in the HBOS/Lloyds merger in order to provide proper protection for the consumer.
My Lords, I offer my noble friend my heartfelt welcome to this House. Perhaps I may also say how pleased I am that we will have the benefit of his skills and talents in charge of this very important ministry, which will add to the tremendous skills already being displayed by the Prime Minister and the Chancellor of the Exchequer in tackling the banking crisis that we are facing.
I commend the order in the sense that I welcome the extension to this sector of the powers under the Enterprise Act to intervene in circumstances where the public interest is at stake. Financial stability is the paramount public interest issue. However, I am concerned about the Lloyds TSB/HBOS merger. I should draw to the attention of the House an interest: I advise another banking group. However, I feel able to speak on this matter because, a little while ago, when I was deputy chairman of the Competition Commission, I had the privilege of chairing the inquiry into the proposed Lloyds TSB/Abbey National merger, which was a much smaller merger. I commend to your Lordships the report into that merger. It gives a good insight into exactly what Lloyds TSB might do as a merged entity.
Other noble Lords have already referred to the merged entity’s large market share of current accounts and mortgages. In the business model of our high street banks, the current account is the entry product, if you like, because the business model is based on the need to cross-sell. Others have referred to some of the difficulties which the banks have gotten into by being forced to cross-sell, perhaps often inappropriately, because they make no money at all from current accounts. I ask the Minister to take careful note of the risks to consumers of this very large merged entity. At the moment, the cards are all in the air in the banking market. We may have part-nationalised banks, and we will have a very large merged entity. The competitive landscape in banking is uncertain. Given that, will the Minister take careful account of the risks to the consumer?
There should be more than simply a reliance on the existing powers of the OFT to intervene. For all its merits and strengths, that body moves rather slowly in this area. We need to be certain that this matter will be subject to careful scrutiny. Does the Minister propose to look at the situation after two years to ensure that there has been no market abuse? Can he explore the possibility of securing pre-merger undertakings from Lloyds TSB/HBOS?
My Lords, I congratulate the noble Lord on his appointment and on a super maiden speech. Having accompanied him in his previous role on visits to India, I look forward in my role as the chair of the UK India Business Council to working closely with him in the future.
The order before us concerns the global financial crisis, which we all noticed rapidly unfolding during the summer Recess. I could not help but think that to the world at large, we in Parliament may have appeared to look like Nero fiddling while Rome burned. I felt very frustrated and helpless. We have now been back for almost two weeks. Earlier this week the noble Lord, Lord Peston, asked why we have not had a major debate lasting a whole day on the global financial crisis. The noble Lord, Lord Davies, said that we have had three Statements and that Questions had been tabled. Yesterday, at the weekly meeting of the independent Cross-Bench Peers, this issue was brought up again. There was a unanimous request not just for one major debate lasting a day but for a series of regular debates. I ask the noble Lord to institute such debates.
One of the greatest strengths of this House is that we have experts in every field. What more could we ask for when considering global business? We have some of the world’s most famous economists, academics, captains of industry, entrepreneurs and chairs of banks, former Chancellors, Chief Secretaries to the Treasury and former Secretaries of State for Business. We are not tapping into all the expertise of this House enough. During a debate on just one of the Statements made last week, the issue of using preference shares to support the banks was raised. Three noble Lords instinctively, on the spot and without preparation, said that the Government might have to consider convertible preference shares and that they might have to consider equity. That sort of instant expertise is available in this House, so why do the Government not use it more?
The Government are to be congratulated on offering £500 billion-worth of support; indeed, the whole world is congratulating our Government and looking to them, which is fantastic. But I ask the Minister to use this House. Today in Switzerland, that bastion of financial stability, we heard that two of the most famous banks in the world require support. A debate that I tabled on the reform of global institutions has been waiting in the pipeline for months, while just this week the Prime Minister said that we need a new Bretton Woods. That suggestion should be debated right now. With unemployment rising and the possibility of a long and deep recession, what could be more important to this House than business? We have other matters to discuss, but this is the priority now, otherwise we in Parliament could be accused of being ostriches with our heads in the sand or of being in an ivory tower with tinted glass, and not looking out at the real world. At long last we have a Secretary of State for business who is a Member of this House. I urge the noble Lord as Secretary of State and all noble Lords to make the most of it and to put business at the top of the agenda.
My Lords, in making his speech a short while ago my noble friend indicated that it was on 18 September that his predecessor issued an intervention notice stating that a public interest consideration might arise in the case of Lloyds TSB/HBOS. That was nearly a month ago, and I thought I would start by making the point that during the past three or four weeks, we have seen a tremendous general intervention by the Government through the Treasury in the banking system. I am thinking particularly of the United Kingdom, but we know that similar events have taken place in many other countries as well. We know also that two of the banks to have received financial assistance are Lloyds TSB and HBOS. Given that, how urgent is this public-interest-consideration intervention into Lloyds TSB/HBOS now, in order to favour the merger, when it is already going to receive benefits under the so-called bail-out package that has been agreed? Has the level of urgency changed?
I want to ask my noble friend a basic question. Do the Government accept that a major takeover involving two of the five largest retail banks in the UK may well create substantial competition problems and consequent consumer disadvantage, as well as disadvantage to small and medium-sized enterprises? Under the present procedure set out in this order—assuming that it goes through, as I am sure it will—the Office of Fair Trading has to report to the Secretary of State that, subject to and absent the public interest consideration about the stability of the financial system, the takeover ought to be referred to the Competition Commission. If the Office of Fair Trading says that, absent the public interest consideration, the normal competition concerns should prevail, will the Secretary of State retain an open mind on whether he should rule that that public interest consideration should trump the competition concerns that may be identified by the Office of Fair Trading?
I also want to ask my noble friend whether, if he is minded in due course to allow this takeover to go ahead, which is the point of the order before us, he feels able to impose any conditions on the lines suggested by my noble friend Lady Kingsmill to ensure that the new enlarged bank does not abuse its market position? Bearing in mind my noble friend’s recent transition from Brussels to London, I hope he will recall the statement made last week by the relevant EU Commissioner, his former colleague Mrs Neelie Kroes, that,
“competition policy has a constructive part to play in this crisis”.
I hope that he agrees with it.
Finally, does my noble friend agree that it might be a good idea to state that he would welcome an investigation by the Office of Fair Trading in either two years’ time, as my noble friend Lady Kingsmill suggested, or, as I would suggest, in 12 months, to see whether the abuses that can arise from the new dominant bank among other banks in this country are sufficiently serious to disadvantage the consumer?
My Lords, I join in the congratulations being offered to my noble friend the Secretary of State and give him a warm welcome to this House—long overdue, in my opinion. In his long history, there was a point when my noble friend worked for me. It was a somewhat notional arrangement, as I recall, but nevertheless we were all deeply impressed by his talent, and his career since then has borne that out.
As others have said, my noble friend has made an elegant speech. It is of course the tradition of this House that we make non-controversial maiden speeches. Not long ago, a speech which effectively promoted the amalgamation of two giant banks accompanied by a substantial degree of partial nationalisation would have been regarded as a touch on the controversial side, but it seems to have met with general consensus around the House and in another place.
I also welcome my noble friend’s reappointment as Secretary of State in the current department. I do so because he is not only the Secretary of State for business but also the Secretary of State for consumers. I declare an interest which I have not declared in its present form in this House as yet because my new organisation, Consumer Focus, was formed by the merger of the National Consumer Council, energywatch and Postwatch only a fortnight ago. We are now the major nationally-backed consumer organisation in the country.
In that context, I echo some of the concerns about the banking merger. Given the turmoil in the financial markets and the international situation about which we are all deeply concerned, it is inevitable that we should go down this road. However, once things have settled down, longer term issues in relation to individual consumers and, in particular, small businesses will arise. As the noble Lord, Lord Razzall, said, there are many flaws in the retail banking system and the banking system as a whole, but the combination of some degree of intervention by regulators, the Government’s commendable activity on financial inclusion and competition within the banking sector has extended banking and credit facilities to a swathe of the population and vastly increased their quality of life as a result.
The fact that we are now merging, with government funding support, into an organisation which will control about 30 per cent of the retail banking system and about 30 per cent of mortgages must give us cause for some degree of concern. I have written to my noble friend on this issue and suggested that, from a consumer point of view, a number of concerns need to be addressed. I echo the words of my noble friends Lord Borrie and Lady Kingsmill that when things have settled down the OFT needs to have a longer-term look at the operation of competition within the banking sector. Within the mortgage sector, particularly given the equivalent turmoil in the housing sector, it is important that the OFT is specifically committed to looking at the mortgage sector in its next annual plan and at how it extends mortgages to both individual consumers and small businesses.
Also in this context is a hotchpotch of different regulatory activities for what most people regard as normal banking. If you go for a loan, it is one sector; if you go for a mortgage, it is another; and if you go simply for the normal retail banking functions with a current account or a deposit account, it is a third set of regulations—the OFT, the independent banking code and the FSA. Consumer interests and consumer understanding of the situation are not necessarily best served by this confusion. Given the change in the structure and the Government’s involvement in the banking sector, this is an opportune point at which to look again at the whole structure.
The noble Lord, Lord Razzall, also referred to the local situation. Clearly consumers, by and large, both business and individual, operate in their locality. If there is a restriction of competition as a result of this merger in certain localities, particularly in the more remote localities, that will be an issue which the Government and the competition authorities will have to address. I hope the OFT will also at some point, whatever the timescale, look at that dimension as well.
Finally, and somewhat cheekily, I suggest that consumer institutions ought to be represented in the newly-merged bank. It would behove the management of the new bank to establish internally a proper and authoritative consumer panel representing both individual and business interests. That would give a lot of reassurance to consumers and to all parts of this House.
My Lords, I welcome the Secretary of State to his new role and thank him for his excellent speech. I shall be brief—I wish to raise only one issue—but I hope I will not put my foot in it as I characteristically do sometimes. As the Secretary of State may recollect, shortly after his departure from his second role in government he entered a lift in which I was going upwards, as it were. I said to him, “Are you going up?” He said, “I wish I was”, and his characteristic humour came through. I thought that was very good and I shall try not to put my foot in it again.
The Secretary of State knows of my long-term interest in small businesses and I am in touch with his department on a number of issues. I hope that under the present circumstances of the merger and the influence that the Government have through the banking sector we will see small businesses being treated fairly and helpfully. The small business sector provides an awful lot of work and that is why it is extremely important. Small business could suffer and big business is suffering. I welcome the Secretary of State in his role as a champion for business—which I know he will be—and I hope he will also be the champion for small business.
On that note, I hope I will hear back from his department shortly on a number of points that I have raised.
My Lords, in joining the welcome to the Secretary of State, I should like to go back 50 years—he went back 50 years—and describe to him my experiences in the Grand Hotel, Hartlepool, where I frequently found myself negotiating the annual wage round with the local unions. I remember that one of their strongest arguments was the need for wellington boots for their many children.
I follow the noble Lord, Lord Borrie, in his argument. He, quite significantly, used the word “takeover”, and it is important for the House to remember that there is really no such thing as a pooling of interests merger—or it is very rare. In all essentials, what we are looking at is the takeover by Lloyds TSB of HBOS. I also remember that when I was for a time a deputy chairman of the Monopolies Commission—the predecessor body to the Competition Commission—I had to behave myself very well whenever in the presence of the noble Lord, Lord Borrie, because the OFT had a certain status in relation to the Monopolies Commission.
I declare an interest. I have been for a number of years a small shareholder in Lloyds TSB; of course, now I am a very small shareholder in Lloyds TSB. I am a member of the Merits Committee and it might be useful if I describe the experience of that committee in considering this order.
The order was laid on 7 October. At that time the solution to the banking crisis was being taken along institution by institution. On 8 and 13 October, we received the overall plan, which covered the eight leading banks to start with and then was to be spread to the whole sector. In the regulatory impact assessment before the Merits Committee, only two solutions were proposed. This was written on 3 October and came to us, unsigned, via the Minister, although, of course, I assume the original copy in the records will have a signature on it. It proposed two options: one was to do nothing and the other was to lift competition law restrictions. But, by the time we came to consider the order on Tuesday of this week, there was a third option—that the two banks should remain independent as they are both eligible to be recapitalised under the new scheme. Indeed, there are agreements in the Library, signed by the Treasury but not signed yet by either Lloyds TSB or by HBOS, which provide for £6 billion of preference and open offer ordinary shares to Lloyds TSB and about twice that to HBOS. Around £17.5 billion has been committed. But these agreements stand up independently, as they have been written; they are not dependent the one upon the other. So the Statement made to this House which said that the acceptance of these agreements by the banks and the confirming of them by the Treasury was dependent on the merger has not been followed in the structure of the arrangements that have been made.
The most important point that we are asking the Secretary of State to consider is not whether we should pass this order but whether he will ever use the powers that he will be granted under it. That is the crucial question. The noble Lords, Lord Razzall and Lord Borrie, asked him to think again about whether he should exercise the powers which no doubt Parliament will grant him.
The Secretary of State said that he would take very careful note of what the Treasury, the Bank of England and the FSA had to say. I should like formally to add the OFT to that list. It is due to make a report to him at the end of next week—on 24 October, I think—and this order cannot come into effect until 24 October. I should like the noble Lord to confirm to the House that he will wait until he has studied not only the advice from the present players but the report from a new player about this proposed takeover of HBOS by Lloyds TSB.
In the mean time, I offer a little thought. It is said by the Secretary of State’s department that both banks want to continue with the talks. I would think that Lloyds TSB is a lot keener than HBOS—certainly the reports indicate that. Did the HBOS leadership put up a white flag and just depart or was it pushed? It is not very clever for the leadership of HBOS to have departed. It is rather like the captain leaving the bridge when the boat is sinking.
The fundamental question then becomes: is it wise to continue with what is being proposed? If we take short-term considerations into account, Lloyds TSB is among the stronger of the banks at this troubled time. It has some problems of its own. HBOS has, under the Halifax title, what I believe to be a very sound mortgage book. Under the Bank of Scotland, it has a lousy commercial loan book. I may be wrong about that or I may be right; I am going on analysts’ reports. Past experience of takeovers is that the majority do not deliver what is promised at the time that they are proposed. In fact, the great majority deliver significantly less, and quite a large number are failures. In my view, Lloyds TSB’s ambition should give way to common sense. It should not risk its own position, and it is very much against the public interest that it should do so. We need it, and we do not need it to be tied up with a highly complicated task which may indeed prove to be insurmountable in the problems that it brings.
If we look at the matter in the longer term, I should like to think that the rescue plan for the banks—their recapitalisation—will work. I think we are all optimistic, and it is a good sign that out of the eight to which the proposals were first made, only three have taken up the opportunity. If this recapitalisation is a success, in the longer term I do not think that anybody would support a fully investigated takeover of HBOS by Lloyds TSB. We should not just be focused on the short term. Let us hope that the solution to that is well in progress. We should still think about the longer term.
My Lords, I thank the noble Viscount, Lord Eccles, for his kindly reference to the Grand Hotel in Hartlepool. He will be interested to know that it has undergone a tasteful refurbishment since he last visited, and I am sure that there will be a welcome there for him.
Let me say to the noble Lord, Lord Razzall, that I am only too well aware that my reputation precedes me. Should I ever forget it, I know that my friends in the press will be there to remind me. And to the noble Lord, Lord Hunt, I say that I am very well aware that I am here to toil, not to spin. In that context, I will take very seriously the accountability that I have to Parliament through this House. I will extend that accountability in ways to the other place, but at this Dispatch Box, I know where my duty lies.
I commend to the noble Lord, Lord Bilimoria, the article I presciently wrote for the Guardian, before I realised that I was going to be standing at this Dispatch Box, on the need for a new Bretton Woods. I stand by every word of that article which, I am glad to say, coincides with the views of the Prime Minister.
I say to my noble friend Lord Whitty that it is true that the relationship between a director of campaigns and communications and a general secretary in a fraught general election campaign can be a little fraught. The campaign to which he was referring was the famous “Red Rose” campaign of 1987, which was subsequently described by Private Eye magazine as “Labour’s brilliant election defeat”. Funnily enough, I turned up a note that my noble friend left me at the end of that campaign in which he wrote, if I recall it correctly, that, “If at times it might have appeared otherwise, I would like to place on record my appreciation of your role and contribution to the result of this election”. It could have been interpreted as a little double-edged, given that the result was a Tory majority of well over 100. I think we gained a princely 28 per cent of the poll on that occasion. But, as history records, we lived to fight again.
I thank noble Lords for their consideration of this very urgent and necessary measure and for today’s frank and useful debate. I should like to offer one wider observation arising from something that the noble Lord, Lord Hunt, said, and also offer an important caveat. The wider observation is about the general economic situation that we face. I believe very strongly that we should neither exaggerate nor downplay the wider economic consequences of what has happened internationally in the banking system. It will be a struggle for us, there is no doubt at all about that, and there are no overnight quick fixes to the challenges that we face. Equally, the UK economy has some innate strengths, many very strong companies—as I know, because in my previous job I was championing them as well as those across the European Union—and we have among those companies some excellent positions in overseas markets. I hope that no one, whatever their political affiliation, will be tempted to play politics with the banking crisis in order to make out that things are worse than they are, because that will help no one. So I welcome the noble Lord’s remarks in that context.
The caveat is this: the order that we considering is brought forward to allow for the careful consideration of financial stability as part of our assessment of the proposed merger between Lloyds TSB Group and HBOS. This debate, therefore, is not about the assessment, which I have yet to undertake. I will do so following receipt by me of the OFT’s recommendations on the competition and public interest issues which are due by 24 October. I have an open mind to both the competition and the public interest considerations.
The noble Lord, Lord Hunt, asked two specific questions. The first concerned the regulatory cost of the order. There are no direct costs on business as a result of the amendment, because it simply introduces a fresh public interest consideration. Secondly, the European Commission has approved the Santander takeover of Alliance & Leicester. That arises because two-thirds of its turnover is outside the UK and the competition issue is dealt with by the Commission, which is not the case with Lloyds/HBOS.
The failure of a bank or building society could leave individuals and businesses unable to access savings, raise finance or meet their day-to-day financial obligations. That reality places on us as a Government the real and urgent obligation to take the actions that we have. Such failure has the potential to spread to other parts of the financial system, threatening the jobs of employees and wider communities, the trust and confidence of global investors, and the future success of our country. That much is at stake, which is why we have had to take the actions, supported by all parties on both sides of this House, that we have taken.
Financial services account for all but 9.5 per cent of UK GDP, while HBOS plc alone manages around one-fifth of residential mortgages in this country, holds one-fifth of all UK current accounts and employs tens of thousands of people. In such circumstances, the Government have a responsibility to act. This Government are committed to do all they can to ensure that our banking system functions effectively for the stability of our economy and good of our society.
A dynamic economy needs open, flexible markets. This Government remain absolutely committed to ensuring a regulatory framework that promotes competition, improves productivity, drives innovation and protects the vital interests of businesses but also, I say to my noble friend Lord Whitty, of consumers as well.
It is critical now that Governments work together across the international system to assure stability and responsible risk-taking in their own economies and the global financial system as a whole. Therefore, the actions that the Government have taken and measures that we have put forward are the end of the beginning; they are not yet the beginning of the end. There is plenty more that Governments have to do, but plenty more in particular that Governments have to do together to put in place the international regulatory systems that we have learnt from this crisis are essential to be created.
In addition to the measures currently being implemented at an international and national level, the powers set out in this order will enable quick and comprehensive action to be taken in the assessment of proposed mergers that could bolster financial stability in the UK economy. The order will allow the Secretary of State for Business to base final decisions on the vital public interest of financial stability, alongside competition issues. There is no question of putting aside or disregarding competition issues. They will continue to be monitored, and any abuse carefully assessed and acted upon. I emphasise, and do so in particular to my noble friends Lady Kingsmill and Lord Borrie, that all normal powers remain available to the competition authorities to protect consumers now and in the future. I understand the concerns that have been expressed and we will be vigilant. I do not, however, want to anticipate any time limit on that vigilance. Therefore, I do not envisage a one, two or a three-year review following whatever decision I take on the merger in due course. I will not be drawn on conditionality in advance of my decision, but I assure your Lordships that, should a decision be taken for the merger to go ahead, we will not relax our vigilance at any time when it comes to the proper protection of consumers. I am sure that the prospective management of this potentially merged bank will have heard the suggestion of my noble friend Lord Whitty of the creation of a consumer panel.
The powers contained in this statutory instrument will be reserved for these exceptional circumstances where vital public interest issues are at stake. Now is such a time and we must take the action that we are proposing. I commend the order.
On Question, Motion agreed to.
House again in Committee on Clause 36, Amendment No. 176.
We resume debate on this long and varied group of amendments on applications for development consent and consultation on them. The lead amendment in the group was moved some hours ago by the noble Lord, Lord Dixon-Smith. We have a number of Liberal Democrat amendments, 10 in total, in the group, to which I shall speak in a minute. In addition, my noble friend Lady Hamwee and I have added our names to the three amendments from the noble Lord, Lord Jenkin, to which he has already spoken. I am not sure that the digression into building a highway tunnel under the Lake District was entirely appropriate in this debate, and I do not think that the Minister would want us to go that way. The idea of a road tunnel being built under Great Gable and Bow Fell would not immediately gain our support—we wonder where it would come out at each end. As somebody who has been peripherally linked to a campaign against building a similar road under the Vignemale in the Pyrenees, I would not support it. However, we support everything else said by the noble Lord, Lord Jenkin, with great enthusiasm.
I also added my name to the two amendments tabled by the noble Lord, Lord Judd, about national parks. I will briefly return to the issues that we talked about on Tuesday relating to national parks, parishes and consultation. As the noble Lord, Lord Cameron, said, this is part of the Bill where it is most important that a statutory right to consultation exists, because it is about development control. They will be called applications for development consent, but in practice they are applications for planning permission for big nationally important projects.
At the moment, if someone comes along and wants to build a new road, power station, railway or whatever in a parish, the parish council has a statutory right to be consulted on that planning application. Unless it is written into the Bill, that is an existing right of parish councils that would be taken away. That is the fundamental point. Surely the Government do not want that. When we were talking about the Local Government Bill on Tuesday, the Government said that they did not have a national database of parish councils. I have been thinking about that since then. Parish councils must be the only organisation or group of people in the entire country that the Government do not want to have on their new super database. However, if that is the case, as I pointed out previously, local planning authorities would do the job for the applicants if that was a way round it, but it has to be in the Bill.
The argument about national parks, of course, is that they are the local planning authorities in terms of planning implications. They are the local development control authority within each national park. It would be extraordinary if the body which, at the moment, is initially the body to which application is made, should be cut out of the process altogether and should not even have the right as a consultee. These are important matters and I hope the Government will reassure the Committee, or I have a feeling that we will have to return to them.
The issue raised by the noble Lord, Lord Dixon-Smith, is very important. He asked about the relationship between these new national planning applications—applications for development consent—in relation to existing local development frameworks, which are a part of the existing planning policy system. But the issue is wider than that because the existing planning policy system, which is fairly complex as we all know—some would say inscrutable—essentially consists of three layers. There are the national policy statements or planning policy statements, the regional planning policy statements or regional spatial strategies and then there are the local development frameworks which will all develop within the regional spatial strategy. If you are considering a planning application as a local planning authority, those are all important material considerations. You look at the local development framework, you look at the regional spatial strategy and you look at the planning policy statement.
Sometimes, they conflict. Together with all the other material considerations, you decide whether to pass the planning application. However, I am not clear about the new system. One thing that is clear is that the new national policy statement will be up-front and will be the first thing that the Infrastructure Planning Commission will look at. It is the number one material consideration, although others are listed in the Bill.
However, if you have a planning application for a new power station or railway line, for example, it is most unlikely that all the considerations to be taken into account to deal with that application will be in the national policy statement. By its very nature, the national policy statement is a more strategic document. Even if it is pushing people towards specific sites, it is still an overall policy statement. Everything else connected with it is probably not in the national policy statement, such as the materials in which a building will be built, for example. Some of these other issues may be found in planning policy statements, regional spatial strategies and local development frameworks. I cannot find in the Bill the role and relationship between the Infrastructure Planning Commission and the existing policy structure set out within the planning system. That is the fundamental issue in the narrower amendment of the noble Lord, Lord Dixon-Smith, which talked specifically about local development frameworks. It would be helpful if the Minister could send round one of her famous circulars explaining how the provision will work, because we need to understand it. If it is not clear at the moment, the Bill should be amended so that it is clear.
I now move rather more rapidly, I hope, towards the amendments in my name. Amendment No. 178 relates to the consultation report that follows the consultation. We must remember that there is a great change of emphasis on consultation under this new system compared with the existing planning application because the onus is on the applicants to carry out the pre-application consultation. At the moment, there are occasions when applicants do that. We have just had a new supermarket application in Colne and the applicant, Sainsbury's, put in a lot of local consultation. But the danger is that the consultation will not be seen to be unbiased. If a company proposes to build a nuclear power station and that company—presumably EDF or whatever it will be called in this country—puts in an application, and then does the consultation, people will simply not believe that it is not rigged and that it will be fair, open and transparent and that people’s views will be fairly listened to. The amendment suggests that the consultation report must include not just the results of the consultation but an explanation of how that consultation has changed the application in any way. If it has not changed, it must explain why the consultation has been ignored. That is the purpose of that amendment.
Amendment No. 183A relates to the point I previously made about who carries out the application. All that we are saying is that the applicant can do the consultation themselves, as the Bill suggests or it can appoint some other quite independent body that is seen by people to be independent to carry one out on their behalf, which would be in the interests of applicants. That is the purpose of that amendment. It is important that the consultation is seen to be fair and impartial. The specific example put forward by my noble friend was BAA submitting an application for expansion of an airport—if I were to think of one at random it would be Heathrow. People throughout south-west London will not believe that BAA itself would carry out a fair consultation exercise, but somebody else might on its behalf.
On Amendment No. 184, at the moment, Clause 41(1) says that the applicant must consult,
“such persons as may be prescribed”.
We would like to add the words:
“who shall include persons living within the area of each local authority that is within section 42”—
—in other words, local residents within the local authority concerned. We are not suggesting that everyone necessarily has to have a door-to-door leaflet about it, although in some cases that might be appropriate—that is what Sainsbury's did in Colne. There are local newspapers and other means of publicising things. The important thing is that everybody who lives in the area should be told about the application and have the opportunity to respond. There is a Conservative amendment on a similar point.
I would simply tick the box and say about the amendment of the noble Lord, Lord Taylor of Holbeach, on marine issues, that we share his concerns. A later group of amendments will look at that in a bit more detail.
Amendment No. 193 is about categories for the purposes of Clause 41(1)(d). It puts the onus firmly on the applicant to make a diligent inquiry as to who the owners, lessees, tenants and occupiers are in order to consult them. At the moment, there is no duty on applicants to make reasonable efforts to identify these people; without such a duty, they will miss out people, who will be miffed. Large organisations or those rich enough to do so might go to the courts; others will feel that the planning system has failed them.
Amendment No. 198 relates to Clause 44, on the timetable for consultation. The Bill defines the consultation documents as,
“the documents supplied to the person”.
We want to strengthen the definition to mean all the documents required to be supplied.
That ties in with Amendment No. 202 to Clause 47, on the duty to publicise the application during consultation. Clause 47(1) says that regulations will be prescribed. We would like clarification of whether that prescription would be by the Secretary of State or the infrastructure planning commission. We assume that it is an order by the Secretary of State. There is ambiguity about whether the overall supervision and monitoring of the consultation is in the charge of the Secretary of State or whether it is devolved to the infrastructure planning commission. We would like clarification.
Clause 47(2) is the only specific requirement in the Bill under these regulations, if that is what they are. It provides a deadline for the receipt of responses. Amendment No. 202 would add the words,
“the scope and content of consultation documents to be provided under sections 44 and 46”.
The scope and content of the documents are vital. You could post a postcard through people’s doors and say “That’s it” or you could give them various types of access to consultation documents. It ought not to be left to the applicants to decide the content of those documents; the regulations should clearly prescribe the minimum information that people must be given.
Amendments have been added to this group about the minimum number of days in which to give a consultation response. This was raised by a number of noble Lords, including the noble Lords, Lord Jenkin and Lord Cameron, who tabled amendments on it. We propose that the minimum number of days for a consultation response, whether by statutory consultees, such as local authorities, other organisations or members of the public, be raised from 28 days to 90 days. We do not hold firm to the figure of 90 days, but 28 days is not long enough by a substantial degree. The noble, Lord Jenkin, suggests 12 weeks and the noble Lord, Lord Cameron, 56 days. I am sure that we can agree a period, but it should certainly be more than 28 days, especially given the effort needed to give a reasonably detailed and coherent response to a planning application for a power station, a railway line, road or any of the other infrastructure projects mentioned.
If the period of 28 days is included in the Bill and adhered to rigidly, the system will be brought into disrepute. The Government cannot countenance that happening as a result of people not believing that they have had enough time to take part properly. People need to spend time deciding what to do when they get notification of an application or read about it in the paper, possibly a week later. Local authorities would have to call meetings to decide what to do and to gather evidence. If the application is for a big development such as a nuclear power station, district councils would probably have to appoint consultants to assist with the response. It takes time for authorities to do their work, make decisions and submit a report. It is simply not acceptable to ask even a local authority to respond within 28 days to huge, major proposals in their area; nor is it acceptable for ordinary people, local groups, parish councils or even national campaign organisations. Of course there are always applications submitted on 20 December or just before the summer holidays, and people go bananas, quite rightly, because they cannot respond.
I have spent some time talking about these amendments because they are very important; they are at the heart of the system. There is huge suspicion about the new consultation system because it is to be organised by the applicants. If it does not work and is not seen to be fair, transparent and effective, the whole system will go into disrepute very quickly.
I apologise that I have not been able to be present since the lunch break. I gather that we will not be here beyond 7 pm but I shall certainly stay for the rest of the debate.
I support Amendment No. 191, in the name of my noble friend Lord Judd and the noble Lord, Lord Greaves. It seems inconceivable that national park authorities would not be automatically involved as consultees if land in their areas is affected. I hope very much that, today or on another occasion, the Minister can be positive about that.
This has been a very long debate, necessarily so as there is a huge range of amendments in the group. It is testimony to the integrity of this House that so much time has been spent on what the noble Lord, Lord Greaves, rightly said lies at the heart of this: the need for a credible process so that people genuinely own the changes under the Bill.
These amendments address consultation at the pre-application stage. We must remember that this is a new, very welcome part of the planning process. I am sympathetic to much of what noble Lords said, and I hope I can reassure them wherever possible. There is currently no requirement in the planning system for promoters to undertake pre-application consultation, though they do it as a matter of good practice. Part 5 seeks, therefore, to set out standards and processes that should be common to all applications but which are flexible enough to meet the needs of large and small, and more and less complex, projects.
Three principles will guide the consultation. First, it should be early so that people not only have their influence felt but know they have influenced the process and that their views have been taken into account at the formative stage, when it counts. The promoters must be able to refine and improve their proposals by identifying problems early on, by negotiating on and discussing those issues with the local community and suggesting solutions. That will improve the quality of the application.
The second principle is that consultation must take place with the relevant people and local authorities, statutory consultees and people with an interest in the land or whose land could be affected by proposals.
Thirdly, the consultation must be undertaken with the local community. It has to reach into communities to make sure that those affected have a say. That is why the promoter is required to consult the local authority on how to consult local people. Local authorities can give detailed guidance on how to undertake local consultation, in the light of the proposals and of the nature of the local community. That could include which bodies and groups should particularly be referred to, what timescales are appropriate and so on.
In addition, promoters must have regard to any guidance from the IPC. The IPC may wish to give general guidance as to how consultation should be carried out. That is important, as the IPC must be satisfied that consultation has been properly carried out before it accepts an application.
Thirdly, a promoter must have regard to any guidance from the Secretary of State, including any guidance from the Secretary of State about community involvement in planning. This is likely to be in the form of broad, strategic guidance on consulting with local communities. There is a robust set of requirements surrounding this process.
Turning to the amendments and the issues they raise, Amendment No. 185 of the noble Lord, Lord Dixon-Smith, and the noble Earl, Lord Cathcart, would require that a list of statutory consultees for pre-application consultation must include residents who would be affected by the proposals. Amendment No. 184 of the Opposition and Liberal Front Benches would require this list to include persons living within each affected local authority, as defined by Clause 42.
In saying why the amendments are unnecessary, I shall explain the ways in which the Bill meets the objectives, and how the consultation will capture those people it should. First, Clause 41 requires consultation with local authorities, statutory consultees, and those who would be directly affected because they either have an interest in the land, or because their land would be affected to such an extent that they might be able to make a claim for compensation.
Secondly, Clause 46 provides that promoters must draw up a statement setting out how they propose to consult people living in the vicinity of the land. There is no legal definition of “vicinity”, so if we take the dictionary definition it would mean, “people living nearby”. That captures what the noble Lords are concerned about to a large extent.
We must remember that the principle behind this drafting is quite simple. The projects will vary in size and complexity, and impacts will vary. For example, an underground gas storage facility may affect people located nearby, but have little effect on wider traffic flows. As we have heard from the noble Baroness, Lady Hamwee, an airport, for example, affects traffic flows over a wider area. We must therefore have some flexibility about the definition.
Rather than prescribe a rigid and, frankly, artificial geographical boundary for consultation, the Bill gives promoters the flexibility to make a judgment about what “vicinity” means in each case, based on the detail of the proposal. However, I reiterate—and assure the noble Lord, Lord Dixon-Smith—that this judgment is subject to the safeguards outlined above for those different requirements for advice and to follow guidance.
To ensure wider coverage, promoters must also publicise both the proposed application under Clause 47 and the local community consultation statement under Clause 46. In both cases, the Secretary of State may prescribe in secondary legislation how this should be carried out. I therefore hope that this will meet the purposes of those amendments.
Amendment No. 202 seeks to require that regulations under Clause 47(2) must make provision as to the scope and content of consultation documents to be provided. As I said above, projects will obviously vary enormously, and it would therefore be quite difficult to make regulations about scope and content both useful and universal. They would have to be very broad and therefore probably quite banal and perhaps not very useful.
There will be a significant body of advice and guidance to which the promoter must have regard when undertaking consultation. Moreover, the IPC must decide whether the applicant has complied with the provisions of Part 5 before it can accept an application. As the arbiter of this matter, and as the body with responsibility for the new regime, they should therefore be responsible for providing guidance on how the requirements should be complied with.
Amendment No. 183A of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Greaves, would clarify that a promoter could organise consultation under Clause 41 through a third party. Members of the Committee will understand that, through these provisions, we are trying to initiate a proper dialogue between the promoter and the local community. On the grounds of responsibility, the promoter should have overall control and can be held responsible for this process. I take issue with the noble Lord, Lord Cameron, on this: it does not mean that the promoter runs the process. The promoter will be under some serious requirements to follow the guidance I have already spelt out. They must ensure that the application meets those standards.
One of the purposes of consultation at this stage is to identify any significant impacts of proposals. The promoter must address that, take account of them and amend the proposal. This does not mean that a promoter could not appoint a third party to assist them in carrying out this consultation. Nothing would stop that if it was felt a better process. The clause does not rule out that possibility. However, it is vital that the duty should bear directly on the promoter and they must take direct responsibility for it.
Before the Minster goes on to another amendment, applicants will set great store by the tone that the Government set on this. My noble friend rapidly—because we understand the need to move on—explained the problems of trust and confidence if a promoter undertakes the application himself. I can envisage people saying, “Well, it’s the applicant; there is no point in us going along to a meeting”, while the applicant says, “Only three people came, so there is no objection”. What the Government have to say about encouraging genuine consultation is very important in addition to the words in the Bill.
I could not agree with the noble Baroness more, which is why the guidance to be issued by the IPC and to be complied with is so important. The guidance of the Secretary of State—the language, the scope and tone—will be crucial. On this amendment, however, there is nothing in the Bill to stop the promoter bringing in a responsible, respectable party to conduct a consultation for them.
I am grateful for my noble friend’s intervention. Does the Minister not understand that there is a difference? I am entirely in favour of a dialogue between applicants and the local community, where it is very local or huge. That is an important part of a good planning application at any level. However, that is a different process from that of consultation of the wider community in a more unbiased and independent manner as part of a general process of consultation and participation—engagement, the Government would say—in that process.
The process of dialogue between an applicant who has a strong point of view and the community is different from consulting the community about what it thinks as part of the application. Is there not a conflict here?
Not necessarily. We are talking about pre-application consultation. All I can say to the noble Lord is that it is because we want this to be as acceptable and credible as possible that we have built this process into the compliance requirements of the IPC itself. It must be satisfied that this consultation has been conducted properly, impartially, fully and inclusively, not least bringing in those with disabilities, which we addressed this morning.
Moving on, promoters are also responsible for carrying out an assessment under the EU EIA directive, where one would be required, and for preparing an environmental statement, which involves consultation with certain bodies. There is an element of precedence here.
Amendments Nos. 178 and 203 probe how far promoters would have to explain how they had accommodated responses. Amendment No. 178 would require that the consultation report would include details of the extent to which the application is affected. Amendment No. 203 would require that, under that duty in Clause 48, they would have to take account of responses to publicity and consultation and so on.
As I said, some projects will be more controversial than others and will be bound to excite a huge number of responses. I do not think it is sensible, as suggested by Amendment No. 203, to require promoters to explain how far they were unable to accommodate each individual response. However, I am more sympathetic to the principle underpinning Amendment No. 178. Clause 36 already requires promoters to report the account taken of the responses to public consultation. That would include describing how the responses had affected the consultation. Therefore, I believe that the Bill meets those requirements.
Other amendments, for example, Amendment No. 186, would further broaden the list of statutory consultees to include local organisations representing disabled people—I again pay tribute to the work of the noble Lord, Lord Jenkin, in ensuring that we listen to and are cognisant of the needs of people with disabilities. I put that in the context of the other amendments that consider other consultees.
Earlier we discussed the role of local authorities. Local authorities are the only statutory consultees specified in the Bill because, as I said, they are both the elected representatives of their areas and experts in local consultation. However, I am sympathetic to what noble Lords seek to achieve with these amendments. A wide range of bodies should be consulted by promoters about applications, but primary legislation is not the right place to put such a list. However, I reassure noble Lords that we would certainly expect that organisations representing disabled people and the marine environment would be specified as statutory consultees where appropriate. I hope that takes account of the amendment in the name of the noble Lord, Lord Taylor of Holbeach.
There are a raft of amendments concerning parish councils and national parks. The Committee has made its views clear on where it stands on these matters and the importance it attaches to these very important bodies. I have instructed my officials to ensure that, wherever appropriate, national park authorities and parish councils will be included as statutory consultees in regulations. I hope that fully meets the requirements of noble Lords who raised these points. As I said, we cannot put these in the Bill. We are putting no statutory consultees in the Bill. However, they will be clearly identified as statutory consultees in secondary legislation.
Amendment No. 193 in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Greaves, would require that an applicant make diligent inquiry to identify people with an interest in the land. I can confirm that this is the effect of the clause as drafted. Therefore, I believe that is taken into account.
Amendments Nos. 193A and 225A stand in the name of the noble Lord, Lord Jenkin, who asked how we expected to be able to consult and notify people who might be able to claim compensation for injurious affection and sought to remove the relevant provisions. I wish to respond in some detail as this is an important point. Identifying people who could be able to make a claim for injurious affection is far from impossible and this is certainly not the first time that we have done this. I reassure the noble Lord on that point as he was obviously concerned about it. The relevant provisions in the Bill are based on those in the Acquisition of Land Act 1981, which requires that where a compulsory purchase order is being made in relation to a project, people who might be able to claim for injurious affection must also be notified.
It is only right that people who could be affected in this way should be notified and consulted. Not to do so would infringe their rights under the ECHR. Injurious affection is not abstract or mysterious; it is based on the depreciation in land value as a result of the construction or use of works. Therefore, we have precedents; this is a very specific procedure and we are required to do it under the European Convention on Human Rights.
Promoters are responsible for understanding the potential impacts of their projects and should therefore already have evidence as to what they will be at this stage. However, in response to concerns that this requirement is drawn too widely in the Bill, we are bringing forward amendments, which will be debated shortly, to require the notification and consultation of people who might be able to make a claim so far as they are known after a “diligent inquiry”. The words “diligent inquiry” appear in government Amendment No. 192. This will ensure that, were a developer to miss a person who might be able to make such a claim, despite their best efforts, neither they nor their consultation would be vulnerable. I hope that the noble Lord is reassured by that.
Amendment No. 198 in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Greaves, seeks to ensure that the timescale within which someone must respond to consultation—the point at which the clock starts ticking, as it were—starts to run from the point where the person being consulted has received all the documents required under the provisions of the Bill to be served on them. That is already the position under the existing wording of Clause 44: the reference to the documents means all the documents.
Staying with the issue of timescales, Amendments Nos. 196, 197, 199A and 250 all urge the Government to extend these. Amendments Nos. 196 and 197 argue that consultees need to be given sufficient time to respond to a promoter’s consultation, but it is equally important that they provide the promoter with any information or advice he needs in a timely manner as the promoter will be reliant on certain consultees such as local authorities for specific information. Therefore, statutory consultees who hold such information have to be able to respond promptly and properly to help the investigation along.
The noble Lord, Lord Greaves, as always, spoke eloquently on this issue, but I stress that the 28-day period specified in relation to pre-application consultation is a minimum period. It will be open to an applicant to give those consulted a longer period to respond. Applications will vary in complexity and will require different periods of time for consultation. Promoters will have to look very carefully to ensure that those periods meet the requirements of disabled people. I take the point the noble Lord made that often documents in a special format come out far too late for disabled people to make use of them. We should try to do something about that. Therefore, we have flexibility when specifying a deadline for consultation. The question arises of why the promoter should make that offer. However, they are in a position to come to a view on the timetable. The promoter knows the detail of what he is dealing with. That is all subject to the same safeguards in relation to the IPC advice and guidance, advice from the local authority and guidance from the Secretary of State. Those safeguards will kick in there.
The formal pre-application consultation is unlikely to be either the beginning or the end of the process. That is relevant because many of these details will have been hammered out in bilateral conversations with individuals, agencies and groups in the community before the application even reaches the pre-application process.
On Amendments Nos. 199A and 200, I underline that the local authority is not being consulted on the application—that takes place under Clause 41—but is being asked to express its opinion on how a promoter should consult people in the local authority’s area. It is important that local authorities respond quickly to this consultation and it is reasonable to give a four-week opportunity to do so, because we do not want any procrastination at these sorts of process levels. The timescales set out allow for flexibility but provide safeguards. I hope that noble Lords will accept that explanation.
Amendments Nos. 201 and 183 would require that arrangements for publishing an application locally include one talking newspaper where available and that arrangements must be made to make sure that the register of applications maintained by the IPC is available in formats accessible to disabled people. I fully sympathise with the purpose of these amendments. I can give an assurance that guidance from the Secretary of State under Clause 46(5)(b) will give consideration to the need for consultation to address the needs of people with disabilities. As I have said, the Disability Discrimination Act will apply.
Amendment No. 176, tabled by the noble Lord, Lord Dixon-Smith, and the noble Earl, Lord Cathcart, would alter Clause 36 to require an applicant to provide evidence that he has taken all reasonable steps to ensure that his proposals conform with the local development framework relevant to the affected area. I happily respond to the invitation made by the noble Lord, Lord Greaves. I will be delighted to send a long letter to noble Lords about how this locks into the planning process. It is not complex, but it is quite difficult to visualise. We are not talking about a hierarchy of planning documents, although the NPS will be the material consideration. We are talking about the integration of the planning policies that are already in place into the NPS and the reflection of those policies, through the regional spatial strategies, into the local development framework. I will happily set out for noble Lords how we see that working and the flow chart that it will involve.
It is already a requirement that, once a national policy statement is established, the relevant development plans, including regional spatial strategies and local development frameworks, should be consistent with it. I take the point raised by the amendment that the developer must work with the local authority in relation to the local development plan to ensure that, in so far as it can be consistent, it is. We hope that there would be evidence of close working throughout the entire process. Local development plans are coming on stream and the process has been accelerated. Part of the purpose of the Bill is to simplify some of those processes. It would not be helpful to require the promoters to sign up the policy in an NPS with what might be out-of-date policy in an LDF, which I think is implied in the amendment. We would have to leave it to common sense and clear thinking. The Bill requires that NSIP applications must be decided in accordance with the relevant national policy statement going through that process. For normal applications, the evidence of conforming to the local plan will have to be shown at different stages as it goes along.
However, that does not mean that local concerns will not be taken into account; far from it. In fact, the Bill places a clear role for local authorities to ensure that local concerns are given proper weight. In addition to their role in consultation that I have specified, the Bill makes specific provision for local authorities to be statutory consultees and to submit a report of local impacts. The local development plan will be reflected throughout that and it will highlight the impact of the proposals.
I have spoken at some length. I hope that I have addressed all the issues that have been raised in the amendments.
This is purely a matter of clarification. I want to ask about marine representation in the Bill. Am I right in assuming that the noble Baroness has affirmed today that by regulatory means there will be a requirement to consult with the marine body—the Marine and Fisheries Agency or later the MMO? I cannot understand why that is not central and why it is not in this Bill, because it will be part of the forthcoming marine Bill. That suggests some resistance by the promoters of this Bill to acknowledge the concern of the promoters of the marine Bill that there should be equivalence. My interest in this matter is to try to make sure that there is a system in which the pre-consultative process diffuses the tensions that can exist. One does not want—and I am sure that the noble Baroness is no exception—a situation where planning applications go through but a body starts to create a fuss at later stages, as the MMO will be perfectly entitled to do under the marine Bill, which we shall consider in due course.
I agree with everything that the noble Lord has said. First, there has to be a proper read-across between the provisions of both Bills in terms of the objectives that they serve and what we are after, to ensure that we have the best possible processes and understand how the marine environment will relate to them. At one level, the marine legislation will be fed into the national policy statement, like every other piece of relevant national legislation. In terms of the regulatory structure, the MMO will be a statutory consultee. That will be set out in regulations. We have not identified any statutory consultees in the Bill, because it is not good practice to do that; one would need to keep adding to the list and different NPSs will require different statutory consultees. I hope that I have answered the two main points. Perhaps I may write to the noble Lord, because we have not had a full debate on that relationship and we may tease out some of the other issues that he raised.
I have two quick points. I thank the Minister for yet again providing us with a large amount of bedtime reading before the next stage of the Bill. I particularly look forward to her promised explanation of how the NPSs and ADCs will fit into the existing planning system. If we can get that soon enough to dissuade us from putting down amendments at Report, it would be in everyone’s interests, although it may not dissuade us.
The national policy statements will not go into the sort of detail that local development frameworks do on all kinds of things, such as design and materials. I am trying to discover whether aspects of the planning policy at regional and local level through the LDFs will need to be taken into consideration, alongside the major strategic matters in the NPS, when the Infrastructure Planning Commission deals with an application.
The noble Lord is absolutely right. In some cases, the NPS is a material consideration; the planning system will not be suspended but will operate alongside the NPS, in matters such as siting, location and materials, which are governed by a range of other provisions to improve the way in which we plan. I give the noble Lord that assurance.
Okay; we will look forward to that. The other issue that I wish to raise is the role of a local authority as a statutory consultee under the pre-application consultation system. A local authority will be asked to do two different things. One is to provide information. It is perfectly reasonable that there should be a deadline such as 28 days if the applicant is serving a notice on a local authority asking for information on, for example, local sewers, traffic counts, what is in the LDF and so on. It is reasonable that a local authority must provide that information quickly, because it possesses that information. If the local authority is efficient in any way, it will be able to pull the information off the shelf or out of a computer and provide it. That is different from the local authority as a consultee being asked to provide its considered views on a proposal—in other words, being asked to provide its opinion, based on facts and information. That is why 28 days is onerous and will cause bother.
I think that there is a distinction to be made; it is that distinction that allows for the flexibility to kick in and will allow longer for the second sort of application. However, I shall clarify that and, if I am wrong, I shall write to the noble Lord.
I hesitate to disagree with the noble Lord, Lord Greaves, except on one thing. It is not bedtime reading, otherwise I would fall asleep; it is weekend reading. We shall certainly want to study carefully what the noble Baroness said, particularly with regard to the points that I raised on the two, what I might call “legal”, amendments to which I spoke. I think that I understood what she was saying, and obviously one will need to consult. However, she was extremely responsive to the amendment concerning disabled people. The promise of guidance on the publication of documents in formats suitable for visually handicapped people will be valuable. One of the major complaints is that it takes a long time for them to become available and, of course, if the time limit is very short, that makes it extremely difficult for people to respond. However, I am grateful for the trouble that the Minister has taken.
I thank my noble friend for what she said about national parks; it was very encouraging. I have no doubts whatever about her personal commitment. What I am still a little anxious about is the cut and thrust and dynamics of the real process of planning. Without wishing to bore the Committee, perhaps I may remind noble Lords that the post-war Labour Government had a vision of the parks belonging to the nation. Thank God that that vision has been endorsed by Administrations of different political persuasions ever since and the parks do belong to the nation. The principle was that people would be appointed to be the guardians of the responsibilities; we talked a little about democracy on Tuesday, and I cannot see anything undemocratic about this. Parliament decided that the parks belonged to the nation and they were for the nation. It was the guarantor of the whole process and Parliament is certainly accountable to the people.
The trouble with regulation, as distinct from what is in the Bill, is that, as powerful realities come into play, a certain psychology develops. People say, “Have all the consultations taken place? Yes, here on the face of the Bill are the things that have to be consulted about and the bodies that are consulted”. When asked whether there is anything else, the answer is, “Oh yes, there are the national parks”, and their status immediately begins to drop in the debate. That is what I am worried about. Therefore, although of course I welcome what the Minister indicated she is determined will happen—it would be wrong not to welcome that most warmly—I ask her and her officials and colleagues to go away and think about this. I believe that if they are to fulfil the vision that has been held by successive Governments, it is important to take an opportunity such as this to say that the national parks are a major consideration in the deliberations.
It will be difficult to give a sufficient summary of what has been said and the Committee will be relieved to hear that I have no intention of trying to do so. However, one or two points need to be mentioned. The whole tenor of this debate has been about a process. It has been about consultation. The first question was: who is to be consulted? I shall not go into the answers to individual questions, except to pick up what was said by the noble Lord, Lord Judd. The national parks are planning authorities. I understand that, with a little luck, by the time we get to the end of the Bill they will have a regular place, because I believe that it is proposed that planning authorities should be the bodies to charge the community infrastructure levy. If that is the case, the planning authorities will be included at that stage, and it seems to me that those will be adequate grounds for including them everywhere else where appropriate.
“Who?” is of course an important question. The second important question is: how is this consultation to be done? A number of questions were raised on the issue of how much faith people would have in a system of consultation run by the applicant. That leads me to the next word that I have written down: “trust”. We have to see all of this in operation before any of us knows how it will work. The next word is “effect”. What effect will the consultation have on the application, if any? People will have much more faith in the process if it is clear that applicants are doing their best to respond to what is said. My final question is the timescale in which all of this has to take place.
All these important points have been raised in the debate, but the Minister has answered all too often, “Guidance will be forthcoming from the Government on all these matters”. We have to answer the question to our satisfaction today without the guidance. That is one of the great difficulties that we constantly have with legislation. There is nothing that we can do about it; in the end it comes down to a question of belief. We ought to realise how significant this debate has been. Everyone who has tabled amendments will no doubt study the Minister’s response in considerable detail and with great care and will have to decide how far she has answered their concerns.
There will be some interesting times ahead. I will pick up just one point made by my noble friend Lord Taylor of Holbeach, who asked that the Marine Management Organisation should be a consultee. It should be a consultee not only on things that happen in the sea. Some things that happen on land can have a dramatic effect. Any power station or cooling system on the coast consumes enormous volumes of sea water to enable it to keep running at a reasonable temperature. There is no particular problem with that except that every now and again they consume enormous numbers of fish fry—little baby things that you hardly notice drifting up and down the coast. Sometimes large proportions of fish fry stocks can go through a power station in a short period, which has a dramatic impact on stocks.
Those are all important points. I am most grateful to the noble Baroness. I, like everybody else, will go away and find a cold wet towel and decide what to do. She has certainly tried to give an answer even though it cannot be satisfactory because we cannot put into the Bill what she hopes will happen. This is part of a learning process, as it will be for the whole community. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 177 and 178 not moved.]
Clause 36 agreed to.
Clause 37 [Model provisions]:
179: Clause 37, page 23, line 23, leave out from “may” to “to” in line 25 and insert “provide model provisions”
The noble Baroness said: This may not take quite so long. Clause 36 deals with what my noble friend has called ADCs—applications for development consent. I have three little amendments here, and I hope that the Minister got my note saying what I would say. First, I want to probe what is the regulation-making power in Clause 36. Secondly, model provisions may be prescribed, but they are not mandatory. My amendment probes what that means. Does it mean that there cannot be a provision which is a bit different from the prescribed provision? Can the Minister give me a translation? I hope the noble Lord, Lord Patel, also received my e-mail. I feel that Clause 37 is slightly heavy-handed, but I shall not take issue with that. But I am unclear about how this will work. I beg to move.
These amendments alter the way in which the Secretary of State may bring forward model provisions relating to development consent orders. The amendments would remove the requirement that any model provisions for incorporation in a draft order should be set out in regulations made by the Secretary of State. The procedure for bringing such model provisions forward would consequently be less formal than is currently provided for in the Bill. The noble Baroness, Lady Hamwee, helpfully set out her concerns. In order for us to consider this issue further, I shall set out the details behind our thinking on this and briefly explain the background.
Model clauses are already used extensively by promoters through the similar power to issue model clauses by order in Section 8 of the Transport and Works Act 1992. Model clauses are helpful in ensuring that development consent orders follow high standards of legislative drafting. They provide consistency in drafting, which is undoubtedly of benefit to all. They often cover technical matters which frequently arise in relation to large infrastructure projects and developments.
Clause 36(3)(d) gives the Secretary of State a power to prescribe certain documents and information that must accompany an application. It is intended that regulations under this power will be used to require that a draft of the consent order sought by the promoter should be one of the accompanying documents. Promoters will find it useful to have model provisions to follow when preparing such draft orders.
Clause 37(2) requires the commission to have regard to model clauses when making an order for development consent, while subsection (3) makes it clear that Clause 37 does not amount to a requirement to use model clauses but simply makes them available for use where they are helpful. Amendment No. 182 would delete subsection (3), but if the intention is that, as a result, the IPC should be required to use model clauses, then I must disappoint the noble Baroness. Nothing in the Bill requires the IPC to use the model provisions, and we believe that that is right. That is not the purpose of model provisions, which are intended for guidance. Making the inclusion of model provisions a legal requirement would be unduly burdensome and contrary to the spirit of the Bill. Giving the Secretary of State a power to prescribe model provisions by order brings them within the general provisions relating to statutory instruments and allows for scrutiny by the Joint Committee on Statutory Instruments. That provides a further safeguard to ensure that model clauses are drafted to a high standard.
The provisions are designed to be helpful to promoters. The similar power under Section 8 of the Transport and Works Act has worked well and been well received. I hope that that reassures the noble Baroness and that she will withdraw the amendment.
I am grateful for that explanation. I take it that the term “prescribed” in Clause 36(3)(d) refers to a regulation-making power—I think that I am losing my grip on the terminology here. No, I did not mean that model provisions should be mandatory.
The noble Lord has reminded me of a suggestion that I was going to make on how we can move on with this Bill. After a certain point on any given day, noble Lords who have tabled amendments should simply stand up and move them, because the Ministers will always tell us what the amendments’ effect will be. Perhaps we should reserve our remarks for our response to the Minister’s reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 180 to 182 not moved.]
Clause 37 agreed to.
Clause 38 [Register of applications]:
[Amendment No. 183 not moved.]
Clause 38 agreed to.
Clauses 39 and 40 agreed to.
Clause 41 [Duty to consult]:
[Amendments Nos. 183A to 188 not moved.]
Clause 41 agreed to.
Clause 42 [Local authorities for purposes of section 41(1)(b)]:
[Amendments Nos. 189 to 191 not moved.]
Clause 42 agreed to.
Clause 43 [Categories for purposes of section 41(1)(d)]:
192: Clause 43, page 25, line 16, after “the” insert “applicant, after making diligent inquiry, knows that the”
The noble Baroness said: I have given notice of the amendments, so if the Committee will allow me, I shall speak swiftly to them because it is a rather large group and it is important that I put it on record. We have tabled the amendments in place of Clause 151. They fall broadly into two categories: setting out a legal position by which NSIPs relate to the common law on nuisance; and consequential technical amendments which flow from that, in terms of who promoters should consult and notify about applications. I hope to speak also to the stand part debate of the noble Lord, Lord Reay, on Clause 151 alongside the government group, and to the amendment laid in the name of the noble Baroness, Lady Hamwee, Amendment No. 394B.
Let me begin by explaining the history of Clause 151. The text in the Bill was suggested by an amendment from the other place. It was designed to replicate the defence of statutory authority against nuisance claims which already exists for some of the infrastructure types which will be classed as NSIPs by the Bill. In particular, highways, railways schemes, ports schemes and airport schemes already benefit from such a defence against nuisance claims.
In practical terms, Clause 151 as drafted would prevent any nuisance proceedings from being brought in relation to development, works or operations authorised by an order granting development consent. Likewise, Clause 151 would prevent proceedings from being brought in relation to escape of things from land in relation to matters authorised by a development consent order. That is a very wide definition that would mean that a defence was available in more cases than currently.
We accepted the principle at the heart of the amendment originally, because we recognise that in the past, nuisance claims have sometimes been used aggressively to try to block developments that would provide great benefits to the wider society.
We certainly believe that it would be important that all NSIPs could benefit from a defence of statutory authority against nuisance claims, on the basis that the big decisions are now taken up-front. The main arguments around NSIPs will have been held in the context of the national policy statement itself. We want discussion on possible nuisance and impacts in relation to individual projects to take place in public at the examination. It would be inconsistent with that process if individuals could apply for subsequent injunctions to reopen these decisions.
However, after close consideration, we believe the clause as originally laid is too broad. We agree with the noble Lord, Lord Reay, that it tips the balance too far towards the promoter. It effectively blocks all nuisance proceedings, including those only “in relation to” development contained in a development consent order. Our amendments aim to maintain the balanced settlement that has allowed the development of such important infrastructure while ensuring that individuals can receive compensation for the effect on their land. Our new amendments replace and correct the text in Clause 151.
The prime amendment is the new clause in Amendment No. 394A, which has been drafted to replicate more closely the position of statutory undertakers under existing legislation such as the Transport and Works Act and the Harbours Act. In particular, it defines more narrowly that a defence of statutory authority exists only where the nuisance relates to carrying out development to which a development consent order has specifically consented and where any requirements or controls placed on the promoter through that order have been complied with. We have also included the ability for the IPC to make an order that does not grant a defence against nuisance claims if it believes it appropriate to do so.
The clause is also designed to operate within the framework of the existing common law provisions on nuisance. The default position set out in our amendment does not confer a defence against any of the statutory nuisances set out in Section 79(1) of the Environmental Protection Act 1990, in so far as they involve matters outside what would constitute nuisance in common law. It is possible, however, for individual development consent orders to confer a defence for any of these activities, as Transport and Works Act orders sometimes do. Likewise, we intend the common law test that is applied by the courts for acts or omissions specifically authorised by statute to apply where the clause confers statutory authority.
I reiterate that the amendments provide a statutory basis for a defence against nuisance by setting out a position in primary legislation. However, individual development consent orders can also vary the breadth of that defence through use of the IPC’s legislative powers. These are intended to cover individual circumstances specific to certain applications where the default position may not be appropriate. We do not believe that airport operators, for example, should benefit from a defence against nuisance claims unless they already comply with the air navigation order under Section 77 of the Civil Aviation Act 1982. Nor do we believe that there are any circumstances in which reservoir operators should have a defence against Rylands v Fletcher claims. I am sure that noble Lords are completely cognisant of that case, which I understand involves reservoirs. This case explains why we have introduced Amendment No. 389A, which is intended as a safeguard to ensure that a development consent order cannot alter certain strict liabilities, set out in legislation, which affect certain serious emissions from land.
We have also addressed compensation. Clause 151 prevents people pursuing nuisance claims without offering a route to claim other forms of compensation. We recognise that it may be impossible in some cases to mitigate all the potential impacts of the construction and/or operation of nationally significant infrastructure. It is vital in such cases to ensure that individuals affected can receive compensation. This is why one of the amendments clarifies that compensation for injurious affection will be available where the value of a person’s land depreciates as a result of the construction and use of a nationally significant infrastructure project.
Amendment No. 389B sets out that affected parties will be entitled to seek compensation on the ground of injurious affection under Section 10 of the Compulsory Purchase Act 1965, or under Part 1 of the Land Compensation Act 1973 where public works are given consent by development consent orders. Compensation will be assessed, as it currently is, on the basis of the depreciation in the value of the land owned by the claimant. An order cannot contain a provision that removes or modifies the principles encompassed in these Acts. Amendment No. 373 therefore ensures that there are no contradictory applications of Section 10 of the Compulsory Purchase Act 1965 in different clauses of the Bill.
The compensation provisions for injurious affection work well. Compared with the uncertainty of a nuisance claim, they are a quicker and more reliable way of enabling individuals to obtain relief where they have suffered loss. We therefore support the proposal that similar compensation should be available for schemes approved by the IPC, as currently exists for those which receive statutory approval.
I hope that this explanation, complex though it is, will convince Members of the Committee that we have considered the position closely as regards nuisance. We believe that the amendments we have put down will ensure a right and proportionate balance between ensuring that nationally significant infrastructure progresses while maintaining the maximum protection for the rights of individuals affected by such works.
The national policy statements will require the IPC to look specifically at the possible sources of nuisance for every application in front of it. First, we intend that the text of the NPSs will give a strong steer to the IPC to consider placing strict requirements on the promoter, which are akin to planning conditions, where appropriate, in order to restrict and mitigate the levels of nuisance caused. We want the IPC to look specifically at the potential for noise, vibration, emissions, light pollution, smoke, smells, insects and so on to require that the potential for such nuisances is as low as possible, if not eliminated altogether. Requirements to control nuisances will be particularly important where they may be a risk to health.
Secondly, the IPC already has the ability to place requirements on the applicant, so that the latter conducts physical mitigation works, in order to reduce the potential effects of an NSIP on the local environment and communities; for example, installing double-glazing or embankment works. Thirdly, it should be emphasised that where a promoter does not abide by the strict controls and requirements placed on it by the IPC, it will not benefit from any defence against nuisance claims in the relevant area, quite apart from being liable to any enforcement actions provided for in Part 8.
Fourthly, the new clause in Amendment No. 394A makes it clear that the IPC has the ability to remove the defence against nuisance claims for a particular case if it believes it is appropriate to do so in light of the NPS and the evidence submitted. The IPC also will have the ability to make provision that modifies the application of any defence against nuisance claims in any particular case. So, for example, in order for there to be a defence to nuisance in relation to the operation of an airport, the promoter would have to continue to comply with the air navigation order.
The other amendments are largely consequential. Amendment No. 455A replicates this position in Scots law. Amendments Nos. 195 and 228 are consequential changes, which are based on the fact that a defence against nuisance claims exists. Since no one will subsequently be able to make a nuisance claim against an NSIP promoter, except in unforeseeable circumstances, it makes little sense to require an applicant to notify people who could make a claim. We are therefore deleting that category.
Amendments Nos. 192, 194, 224 and 227 also clarify that the onus on a promoter is to make diligent inquiry about who should be notified about a proposed application, which is where the interrelationship with the previous amendment, as raised by the noble Lord, Lord Jenkin, comes in. The Bill sets out a high standard for consultation with landowners, the local authority and the local community, including widespread publicity. However, it is still possible that a promoter can inquire diligently but still not be able to identify every person interested in a particular piece of land. We believe that it would be unfair for such a person to reveal himself at a much later date to challenge the application on grounds of not being notified.
I said that I would address the noble Baroness’s amendment, but we have had a useful exchange and I think that we have identified the problem. I am happy to leave it at that. I beg to move.
I shall speak to my amendment, which would leave out Clause 151. I put this amendment down some time ago and, later, I had the unusual experience of finding that the Minister had added her name to mine. In due course, I discovered that the Government have found something with which to replace it. I will now have to decide whether that will be a sufficient improvement on what was there before.
I was disturbed by Clause 151. As I think the noble Baroness explained, it was a last-minute addition to the Bill in another place as the result of a Back-Bench amendment which the Government accepted. It seems, however, to remove a basic human right to mount a legal challenge on the grounds of nuisance to any authorised development. No local council, for example, would any longer have been able to act on complaints from local people regarding nuisance caused by light, smell, flicker from wind turbines or noise in respect of any development once permission had been given for it to go ahead.
It so happens that infrastructure projects in the field of transport including aviation already enjoy, I believe, statutory protection from nuisance claims. What this clause would have done was to confer on energy and hazardous waste projects the same degree of protection. That would include electricity generating stations, some of which are small projects. The noble Baroness said that the big decisions would now be taken up-front and put that forward as a justification, but the threshold for onshore wind projects is set at 50 megawatts, which means 15 megawatts of annual production of electricity generated and suggests that they are only one-hundredth the size of a normal nuclear power station. They cannot be considered to be big projects.
It is not possible to list in statute all potential nuisances. “Nuisance” is a common law term and new nuisances arise all the time. In the case of wind turbines, some of the effects on nearby residents are only now coming to light and being recognised. Rulings have been made under existing legislation, and one can expect a growing rate of challenges and rulings as the number of development applications increases. In one case, a judge found that a property had decreased in value by 20 per cent following the erection of wind turbines nearby. In another case last July, the Lincolnshire Valuation Tribunal ruled that the authorities in Spalding had erred in not reducing the council tax banding of a house which was situated within one kilometre of wind turbines and whose owners had suffered dire effects from those turbines. Clause 151 would have severely restricted the right to claim compensation against nuisance, leaving landowners, as the noble Baroness said, with no other route to take for compensation. It has also been argued that it would have allowed the operators of major infrastructure projects to claim immunity on the grounds of statutory authority against prosecution, even when it could be proved that they had been negligent. It seems therefore hardly to add to the chances of the IPC acquiring a degree of public acceptance if it is given so much protection from legal proceedings on grounds of nuisance brought by members of the public or by local authorities on their behalf that it becomes immune to the consequences of its decisions.
The noble Baroness has decided to replace Clause 151 with the new clauses set out in Amendments Nos. 394A and 389B. These amendments were tabled only a matter of days ago and we need longer than we have had so far to examine their implications. Further, the noble Baroness with great courtesy and openness sent me in advance of this debate her speaking notes for this group, but again I have hardly been able to study them thoroughly. The purpose of the new amendments seems broadly to maintain the intention of Clause 151, which is to protect developers against claims for nuisance, except in the case of landowners, who will be given explicitly the right of compensation. That is the provision set out in Amendment No. 389B and I certainly welcome it. However, it would appear that no one except landowners will have a right to compensation or a claim for nuisance, so the rights that ordinary citizens who are not owner-occupiers but perhaps are tenants have today to bring proceedings on grounds of nuisance would be removed by the new clauses. I would like to consider very carefully what the noble Baroness has said and take a view in the days to come on whether to accept the new amendments.
The need for Amendment No. 394B disappears—or, at least, my argument for it disappears—if the clause is taken out. I, too, had an instinctive reaction against Clause 151 and my justification included not only discovering that the Minister was opposed to the clause standing part of the Bill but that the Equalities and Human Rights Commission was briefing against it, or at least had big question marks. I, too, was grateful to receive her speaking note. Once I had recovered from it—it was fairly daunting—my first reaction was that I am happy with the Government’s proposals.
As to Amendment No. 192, the next amendment, Amendment No. 193, was included in a previous group, as is the way of these matters, when the Minister gave my noble friend an assurance that the terminology “after making diligent inquiry” incorporates within it an obligation to make diligent inquiry. I assume—I would like her to confirm this—that the same goes for the new words to be inserted at her behest in Clause 43 and, indeed, in quite a number of other places throughout the Bill.
I offer my warmest congratulations to my noble friend Lord Reay on the astonishing achievement of getting the Minister to oppose Clause 15.
I have listened to the Minister with great care. We shall obviously want to study this but she has gone a long way towards meeting the concerns which I received in a briefing from the Environmental Law Foundation and others. They made an overwhelming case and one is surprised that the clause got as far as it did. But the clause has been removed and we have these new clauses in its place.
I do not know whether the Minister is in a position to reply to this question, but in other countries, particularly France, it has for a long time been the practice that when a large infrastructure project—for instance, a power station—is erected in a particular area, there is provision for reduced electricity charges to people within a substantial range of the facility. This is a wise provision but it has never been followed here. The nearest we are getting to it, as I mentioned earlier, is in nuclear waste disposal, where a community is being asked to volunteer and to suggest benefits for the community which might compensate it for doing so.
I did not table amendments to this effect because one would have had to change the whole shape of the Bill and this is not the right place to do that. However, is there not a case for looking at that solution to the problem? Perhaps it would not be appropriate for electricity or gas charges because that is limited, but a reduction in the community charge that is levied could apply automatically to people within a particular area. If a promoter put forward the proposal that a significant body of people affected by nuisance would get some tangible financial benefit as a result, the whole question of compensation could be dealt with in an entirely different manner from the exceptional cases, whereas the provision in the Bill—which is I fully concede a great improvement on Clause 151—requires the commission to go into considerable detail as to who will be entitled to what. Has that ever been considered by the Government?
The noble Lord is right, I cannot answer the question. As a good European, the suggestion sounds interesting and I shall refer it on to my noble friend the Minister for Energy and Climate Change.
On Question, amendment agreed to.
[Amendments Nos. 193 and 193A not moved.]
194: Clause 43, page 25, line 33, at end insert—
“This is subject to subsection (4A).(4A) A person is within Category 3 only if the person is known to the applicant after making diligent inquiry.”
195: Clause 43, page 25, line 40, leave out from “works),” to end of line 41
On Question, amendments agreed to.
Clause 43, as amended, agreed to.
Clause 44 [Timetable for consultation under section 41]:
[Amendments Nos. 196 to 198 not moved.]
Clause 44 agreed to.
Clause 45 agreed to.
[Amendment No. 199 not moved.]
Clause 46 [Duty to consult local community]:
[Amendments Nos. 199A to 201 not moved.]
Clause 46 agreed to.
Clause 47 [Duty to publicise]:
[Amendment No. 202 not moved.]
Clause 47 agreed to.
Clause 48 [Duty to take account of responses to consultation and publicity]:
[Amendment No. 203 not moved.]
Clause 48 agreed to.
Clause 49 [Advice for potential applicants and others]:
204: Clause 49, page 27, line 29, leave out “Commission may give advice” and insert “Secretary of State may by regulation make provisions about the giving of advice by an existing government body appointed for this purpose”
The noble Lord said: The Bill provides that the IPC should give advice to those who wish to submit a planning application to it on what the planning application should contain and the process by which the applicant should develop the final application. That, to me, is another one of these wretched cases of somebody acting as judge and jury in their own court. This group of amendments has one purpose solely: to give a third party—in this case the Secretary of State—the power to give the IPC guidance on exactly what advice it should or should not give.
I am well aware that there is one subsection that gives the Secretary of State power to intervene if it is thought necessary. We do think it is necessary and that the clause should be drafted slightly differently so that the Secretary of State advises the IPC on what it is to do and the IPC’s then passes that on. In that way, the advice is seen to be independent of the commission.
This is another part of ensuring that the IPC is independent. If that framework is, so to speak, established by the Secretary of State, then it will give the commission a greater degree of freedom from involvement in the applicants’ actual work. If it is seen to be giving applicants advice, it could be advising them to put in the application in a form which suits it. It could be argued that the commission would be leading the applicants. That would be neither desirable nor good. I beg to move.
It occurred to me, when reading Amendment No. 204, that there is an analogy. In the normal world of planning, a local planning authority will give advice. I am not quite sure whether that leads me to the conclusion that it should be the commission which gives advice or whether, following my arguments on the first day of Committee, the final decision should be that of the Secretary of State. I throw that in, for what it is worth.
I was distracted. I am not sure that the noble Lord spoke to Amendment No. 205. I believe that we have agreed informally that the question of cross-examination and oral submissions is to be left to a later group. I agree with his Amendment No. 208 about disclosure.
Perhaps I may begin by setting out what Clause 49 seeks to achieve. The giving of advice will play an important role both in helping to ensure that applications to the commission are consistently well prepared and are of good quality from the outset, and in assisting people to participate in the process for making representations about a proposal and participating in the examination process.
Promoters are likely to need early advice on whether the project that they are considering would fall within the commission’s remit to determine. The commission would also be able to provide technical advice on procedural issues and about the form of the application and the supporting documents that should be submitted.
The commission may also be able to give early advice on the kind of information that should be collected. Some data—for example, data needed for an environmental impact assessment—can take a long time to collect, and it will be important for promoters to understand the data requirements so that they can start gathering at the earliest opportunity. This could avoid substantial delays caused by needing to gather new information during the decision-making stage. We will make regulations about the environmental impact assessment in due course.
It is important that the advice-giving process does not favour the promoter, as other parties, such as local people or people with an interest in nearby land, may also want advice from the commission. They may, for example, seek more information about the application process, how to make representations, or the procedures and timescales.
Clause 49 therefore allows advice to be given about such issues equally to those seeking to make representations. That ensures that the process for applying for orders, granting development consent and making representations is transparent to everyone involved. It will help people who might object to a proposed application find out what types of evidence they may be allowed to give to the commission during the examination and how they can make their views known.
The detail as to how advice will be given will be a matter for the IPC to determine, in accordance with any regulations about this under Clause 49(4). However, it may be expected that a range of methods could be employed; for example, information could be made available online as well as in person, or on request in writing or even by telephone.
In Amendments Nos. 204, 206, 207 and 209, noble Lords argue that it would be improper for the decision-making body also to have responsibility for giving advice to promoters. The amendments would place this role in the hands of an existing body— perhaps they have in mind a body such as the Planning Inspectorate. I wholeheartedly agree with noble Lords on the need for propriety, and for a clear and transparent process for giving advice. When giving technical advice to promoters, it will of course be very important that the IPC does not prejudice its position as regards the determination of the application.
It is, however, essential that this advice-giving function falls to the IPC. Most importantly, the consent process will be owned by the IPC, and it would make little sense for another body to give advice on it. It will hold much of the detailed, practical information that might be needed. For example, the IPC will undertake the scoping for environmental impact assessments, and advice regarding this will be of vital importance.
I had understood that the role would be performed by a government body before it reached the Secretary of State. However, we still think that is important that the consent process is owned by the IPC, because of the detailed information that it will have and the process that will need to be gone through.
The IPC will be able to advise on how the requirements and standards for applications set out in Clause 36 will apply for individual applications as well. The IPC will also be able to provide information on the particular timings and processes for each stage of an application to ensure that those seeking to make representations are ideally placed to make their views known. Additionally, the IPC will be, and will be seen to be, independent of any body with an interest in the process, and is therefore ideally placed to give open, impartial advice to both promoters and those with concerns about a project. For example, the Secretary of State in this case or the Planning Inspectorate will not have the detailed knowledge of the IPCs processes that will be undertaken in respect of individual applications. That is a position unique to the IPC. It is absolutely a job for the IPC to do.
Having set out the argument that the IPC is best placed to give this advice, I should stress that it is vital that this early contact between the commission and other parties should not prejudice its decision in any way. That is the purpose of the power in Clause 49 to make regulations regarding the giving of advice, in particular regarding disclosure of the advice more widely, and to the public in general. Amendment No. 208 would require requests for advice and advice given by the commission to be made available to the public.
These regulations will be published in due course, and while I am not therefore able to give details of what they will say, they are likely, for example, to make provision for minutes of meetings, notes of telephone conversations or advice from the commission to be available to all parties and the public in general, in an easily and widely accessible format. I echo the words of the noble Lord, Lord Jenkin, about making sure that people with disabilities have access to that information as well. That will help to ensure that it is clear to everyone that the commission acts impartially, and that the advice-giving process is as open as possible. Noble Lords will, of course, have an opportunity to scrutinise these regulations to ensure that they are proper, and they will also be subject to public consultation.
It would not, however, be appropriate to require that all advice requested and given be made available to the public, as Amendment No. 208 would require. I must stress that freedom of information legislation already provides a regime for determining when information should be made generally available, and in what circumstances information should not be made available to the public. We have added the Infrastructure Planning Commission to the list of bodies that are subject to the requirement of freedom of information legislation, and the normal provisions for disclosure and exemptions will apply.
Amendment No. 205 would alter Clause 49 to provide that the commission's advice about the making of representations should include advice on making oral submissions and the cross-examination of witnesses. I reassure the Committee that the provisions of the Bill in respect of advice also extend to oral representation. I can also confirm that it is the intention that advice will cover details of procedures, including the rules on when it might request cross-examination.
In conclusion, I should also like to underline the work that the Government are undertaking to ensure that people have access to information and advice on planning generally. We have announced that we will be nearly doubling the planning aid grant to £3.2 million this year, to enable more people to benefit from free independent advice to help them comment on proposals, make representations at inquiries, or submit a good planning application. Community planning programmes exist in each region in the UK to identify groups that have previously been excluded from the planning system or are disadvantaged from years of not having a voice, and the planning portal website also provides tools and information to help people find out about planning in their area and assist them in making applications electronically as well as submitting and tracking appeals online.
I understand the concerns expressed by noble Lords, but I hope that I have reassured the Committee that advice given by the IPC will be, and will be seen to be, transparent and fair to all parties. We are committed to making it easier for people to engage in the planning system generally, and the provisions in the Bill build on and enhance that commitment. I hope, therefore, that the noble Lord will be prepared to withdraw his amendment.
Before the noble Lord responds, if he wishes to pursue this matter at a later stage—I assume that he will not today—it would be helpful if he could be clear about a point that caused confusion. Amendment No. 204 suggests that the Secretary of State provides for the Secretary of State to give advice, or another body. I think that is where the confusion arose.
I apologise to the Committee if there is some confusion. The intention behind the amendment was that the Secretary of State should make provisions about the giving of advice by an existing governing body. By the time this legislation is in place, the existing governing body will be the IPC. It will be independent. I agree that the wording of Amendment No. 204 is somewhat obtuse, but we thought that it was clear.
I am grateful to the Minister. Unknowingly, he has been remarkably helpful. One of the first tasks of the commission will undoubtedly be to read the record of the processes by which the legislation was arrived at. Undoubtedly, the answers he has given me, if they do nothing else, will guide the IPC on how to deal with the question of advice to applicants. We always have this wretched business on the Floor of the House of flying blind in many ways, but in answering us the Minister has inadvertently given the IPC a framework for doing its job. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 205 to 209 not moved.]
Clause 49 agreed to.
Clause 50 [Obtaining information about interests in land]:
210: Clause 50, page 28, line 18, at end insert—
“( ) The applicant shall pay the recipient’s reasonable costs of complying with the notice.”,
The noble Earl said: Clause 50(2) states:
“The Commission may authorise the applicant to serve a notice on a person”
to give the applicant in writing the name and address of all those with an interest in the land in question. Clause 50 goes on to state that the recipient of the notice commits an offence if he does not supply accurate information within 14 days and will be liable to pay a level 5 fine, which I understand to be £5,000.
We have no problem with the need for the applicant to find out all those with an interest in the land in question, but this clause creates an onus, in supplying that information, on any of those listed in subsection (3). It could be an occupier, freeholder, mortgagee, lessee, receiver of rent or those who manage or arrange the letting of the land. Our Amendment No. 210 states:
“The applicant shall pay the recipient’s reasonable costs of complying with the notice”.
This amendment was moved by my honourable friend Robert Neill in another place, but the Minister, John Healey, replied:
“The only type of information that may be obtained using that power is a person’s name and address. In those circumstances, I think that the hon. Gentleman accepts that the costs of compliance are likely to be negligible”.—[Official Report, Commons, Planning Bill Committee, 24/1/08; col. 433.]
Unfortunately, the matter was not pressed further.
If only it were that simple. We know that property law and ownership in this country are far from simple. Let me give the Committee one example. A pensioner is the freehold owner of a property which he converted into flats in the 1980s. He let all the flats on long leases and subsequently there have been many sub-leases of each flat. How on earth does he supply the accurate names and addresses of the current interested parties within 14 days so as not to be fined £5,000? In the real world, I suggest, with great difficulty. He might remember who the original lessees were, but more likely he will have to contact his professional adviser, maybe his lawyer, at a cost—and we know that lawyers charge like wounded buffalos. He might also have to incur the cost of searches at the Land Registry, but we also know that not all interests in land are registered. The recipient of a notice, through no fault of his own, can have huge difficulties and costs in complying with the requirements of this clause.
I suggest that, other than in the simplest of inquiries, there may well be costs involved which would be onerous on the affected recipient of the notice, regardless of whether the project goes ahead or not, but peanuts for the applicants who, after all, will be large organisations. Meanwhile, poor Joe Bloggs the pensioner might be fined £5,000 if he does not provide accurate information within 14 days, on top of the costs that he may already have incurred. No doubt other Members of this Committee will be able to cite far more complex examples of the time and cost involved in providing this accurate information.
That brings me on to our Amendment No. 211, which would increase the number of days to comply with the notice from 14 to 28. We can all give examples of why 14 days might be too short a time. The recipient of the notice might be on holiday, in hospital or away on work commitments; or, indeed, the recipient’s professional advisers—lawyer or agent—might be away for similar reasons. More importantly, however, because of the sheer complexity of and complications in ascertaining the ownership or interests in a property, in the real world it may be physically impossible to comply with the notice in 10 working days. I hope that the Minister will agree that an extra 10 working days is not unreasonable. To use the earlier analogy of my noble friend Lord Jenkins, when he said that he wished we could get a response to our letters to Ministers within 28 days, in this clause Ministers are only giving themselves 14 days to reply to letters or risk a fine of £5,000. I beg to move.
I put my name to Amendment No. 211. I shall not back it up with such complicated urban examples as the noble Earl has given us about leaseholders and so on down the line. I was merely thinking about someone on holiday or about to go on a Christmas break, or a simple farmer or landowner who might be harvesting or lambing. I know several farmers who do not answer their mail during the lambing season, and who do not even open it during the harvest. So 14 days is seriously insufficient for them to be able to get to grips with answering such a request.
I was not going to speak to Amendment No. 210, but a thought occurred to me while the noble Earl was speaking. I know that this amendment applies to a specific expense in the clause. The noble Lord, Lord Greaves, and I were speaking earlier about individuals having to employ professionals and teams of people to be able to respond to the IPC’s consultation process. Maybe the Minister can inform me whether expenses are available to the ordinary applicant, a landowner, perhaps in other statues or elsewhere in the Bill, allowing them to apply for all reasonable costs in submitting their responses.
I support my noble friend on Amendment No. 211. It is a good opportunity for the Minister to tear up his brief, which will have “Resist” at the top, and say, “Yes, I think this is absolutely right”. He would get a lot of good will, and it might be the first major concession on the Bill after three and half days of churning through it. It really has far too short a timetable.
The noble Lord, Lord Cameron of Dillington, raised the point that I was going to make about farmers. He also touched on my other point: public holidays. Should the notice be served on 20 December, for instance, it is likely that somebody will fall foul of these requirements. I encourage the Minister to open the door of the cage, step out a little and say, “Yes, we will accept this”.
I am told that I had better not be brave. The only type of information that may be obtained using the power in Clause 50 is the name and address of a person. Therefore, we believe that the costs of compliance with a notice are likely to be negligible. The noble Earl said that this matter was not pressed in the other place and gave interesting examples of instances where it could take a little longer. I have no briefing on that. I shall ask officials to look into it and I shall write to the noble Earl. Nevertheless, we would not expect the commission to authorise the serving of a notice in circumstances where the applicant could readily obtain the information by other means; for example, by applying for a Land Registry search. The power in Clause 50 by which the commission is able to authorise the service of this type of information notice by a promoter is intended to be used exceptionally; for example, where details cannot be readily obtained from the Land Registry. In these circumstances, the amendment serves little purpose. I therefore urge the noble Earl to withdraw it.
As regards Amendment No. 211, it is important that a mechanism is in place to ensure that where ownership information cannot be readily obtained from the Land Registry, the required information can be obtained within a reasonable time by a promoter and/or applicant.
The purpose of Clause 50 is to give the commission the power to authorise a promoter or applicant to serve a notice on the occupier of the land, anyone who receives rent for it, manages it, is a mortgagee or has an interest in the land requiring them to provide the names and addresses of people with an interest in the land.
The clause specifies that a person who is served with such a notice should have a minimum of 14 days to respond. I do not believe that this is unreasonable. We should bear in mind that this is the minimum period that can be specified in the notice. Clause 50(5) does not prescribe the maximum period that can be specified. Where the proposals are such that information was not needed so quickly, the commission will be able to specify a longer period. Moreover, these provisions are in line with a similar provision in Section 5A of the Acquisition of Land Act 1981.
Moreover, the Bill provides that a person with a reasonable excuse for non-compliance would not fall foul of these provisions. Someone would not fall foul of the offence if they were able to provide a reasonable excuse for not complying; for example, if they were on holiday. I am not entirely sure whether a lambing season would be considered a reasonable excuse for someone not opening mail, but I am sure that excuse could be put forward. Clearly, a person being on holiday would be considered a reasonable excuse which would not fall foul of this provision. As I say, these provisions are based on Section 5A of the Acquisition of Land Act 1981, which was added to the Planning and Compulsory Purchase Act 2004. Without this power it would be possible for a landowner opposed to a potential development to cause delay and frustrate the process of providing infrastructure projects of national significance in a timely and cost-effective manner. This would not be in the national interest.
Clause 50 is reasonable. It provides adequate safeguards to ensure that someone would fall foul of the provisions only where there was an intention to do so. In both cases, it seems clear that 14 days is a reasonable minimum period to specify, and I therefore urge the noble Earl to withdraw the amendment.
I thank those who supported these amendments. I was interested to hear the Minister say that he would take away the measure and reconsider part of it. To our mind costs are involved. This is not a simple matter. Ownership of land is extremely complicated. Advice will have to be sought to get the right answer about who all the interested parties might be. They may be people who have rights of way or easements. Charities, property companies and trusts may be involved. It is not that simple. We still believe that 14 days is a very short period. I know that the Bill says,
“not … earlier than the end of the 14 days”,
and that therefore the period could be longer than that. However, it is always tempting for the commission to say, “How much notice do we have to give under the Bill? It says 14 days. OK, it will be 14 days”. That is the problem. There needs to be a bit of common sense and logic about when the notices are put forward. I look forward to reading the Minister’s remarks in his letter.
212: Clause 53, page 31, line 7, leave out “that purports to be an application”
The noble Lord said: I was prompted to table the amendment because it struck me that the wording of Clause 53(1) was peculiar. It says:
“The following provisions of this section apply where the Commission receives an application that purports to be an application for an order granting development consent”.
If the commission receives something that only purports to be an application, it probably is not an application, and therefore it should be referred back to the sender. It either is an application or it is not. That was the reason for Amendment No. 212; it is quite simple. If there is some frightful legalistic explanation of why we need those words in the Bill, I may be obliged to accept that they should remain there, but on the whole, for the sake of clarity, it would be much better if those words were removed.
Amendment No. 220 cross-references this question of interested parties back to those who have been consulted under Clause 41. They ought to be notified if a planning application, as a result of that consultation, is notified to the commission, so that it knows that there is a planning process in play.
Amendment No. 222 deals with how an application should be publicised using the local press and so on. Amendment No. 223 stipulates that that should be done within 28 days of the making of the application. Again, that is perfectly proper. It is an obligation on the commission, but I would have thought that it is not an obligation that is impossible for it to meet.
Amendment No. 226 includes the people who made representations at an earlier stage as the people who should be informed that an application has been accepted. There are other amendments in the group, which are all aimed at making the process transparent and obvious. I very much look forward to hearing what the noble Baroness says in response. I beg to move.
Amendment No. 221 is in my name. Again, it is directed to the disabled and the need to have the application notified to them in the right form. The noble Baroness has been extremely generous in her references to the disabled. There have been a number of related amendments, and I am sure that she will be sympathetic to this one.
We have a few amendments in this group. Amendments Nos. 215 and 218—Amendment No. 217 is consequential on Amendment No. 215—are directed to the same end as the amendment proposed by the noble Lord, Lord Dixon-Smith; namely, that it is not only local authority consultees who are relevant in this situation and that the definition of “adequacy-of-consultation representation”—I am sure that someone can find an acronym for that soon—should extend to the duty to take account of responses.
I shall not speak to Amendment No. 219 and there is no need for the noble Baroness to say anything about it. She has already answered on Amendment No. 225, when she confirmed that there would be a duty to make a diligent inquiry at an earlier stage and she does not need to repeat that.
I shall speak to two amendments in this group. On Amendment No. 216, I am probably fighting a managed retreat, but I think that I have a good defensive position. The Minister has already ably stated why she rejected my earlier amendment that attempted to direct the applicant during the consultation process. I am happy to accept those arguments, but she did say—probably pre-empting my weekend reading, to which the noble Lord, Lord Jenkin, referred—that the IPC has to be satisfied that this was a properly managed consultation process.
It occurred to me that, if the Bill stated that the IPC had to have regard to the response of the applicant to the consultee, that would be enough to force the hand of the applicant in how it handled the consultation process or, more important, how it was seen to have handled it. As I said earlier, the applicant has a huge financial interest, which will get in the way of a fair, unbiased—or even a seen-to-be-unbiased—consultation process. I cannot see how an amendment—either mine or something similar from the Government—could possibly interfere with the Government’s purposes. Indeed, if we took the Minister at her word, my amendment would fulfil the Government’s purposes and spell them out in the Bill. I hope that she can accommodate my point. It is a small amendment that directly confirms the Government’s stated wishes.
Amendment No. 221A reverts to the time limit of 56 days, not 28 days. I am not going to cover that ground again, but this amendment represents the last chance that an individual or a local authority might have to make their input. One could argue that the authority would have known about an application for a long time and that 28 days would be quite enough. However, although the authority will know about an application, it will not know the final details until that application has been submitted. It is a bit like the CIL clauses in the Bill. We knew that they would be there, but we did not know how they would work out until the Government recently tabled all their amendments and we could start thinking about them and making our case.
The Minister seemed to recognise the points that I and the noble Lord, Lord Greaves, made on the number of professionals and consultants involved in submitting a considered opinion. She said that 28 days was just a minimum but, as has been said on the 14 days, minimum time limits are what usually stick in practice. I think that I heard her say that she would consider our arguments on this point. I take this opportunity to urge her to consider this matter positively.
I am grateful to noble Lords for addressing their amendments succinctly. Some of this reiterates our earlier discussions. It is rather a large group of amendments and I shall follow them in the logical sequence of the Bill.
I shall deal first with the handling by the commission of an application and then the notification and publicising of accepted applications. We are concerned with probing questions about the nature of consultation and the need for noble Lords to be secure in what the Bill will deliver. We talked on previous amendments about the safeguards set out in Clause 53—the series of conditions that must be met before the IPC can accept an application. The commission must be satisfied that the application is in the correct form and that the applicant has complied with the pre-application procedure, set out in Chapter 4. In deciding whether that is the case, the IPC is required to have regard to any representations from local authorities about the adequacy of consultation. I am sure that local authorities will not be slow in coming forward there. That consultation will be carried out under Clauses 41, 46 and 47, which relate to the promoter’s duty to consult statutory consultees and local communities and the duty to publicise the proposed application. Most of the amendments to Clause 53 therefore propose to extend the requirements placed on the commission when deciding whether to accept an application.
I want to address the central misunderstanding in Amendments Nos. 215 and 216. I reassure noble Lords that the reference to “local-authority consultee” in Clause 53(4) would not prevent either party from submitting representations about the adequacy of the consultation, nor would it mean that the commission could ignore them. The references to Clauses 41, 46 and 47 in Clause 53(5) would not prevent the other parties from making representations saying that the promoter had not had due regard to the responses to consultation, nor would it mean that the commission could ignore them. I thought that that was the noble Baroness’s concern when she spoke to her amendment.
Before the Minister moves on, the point is the one that the noble Lord, Lord Cameron of Dillington, has just made. In real life, people do the minimum. It is not a matter of ill will but, if they are directed to have regard to certain matters, even though they can have regard to other matters, it is not so likely that they will have regard to the matters that are not specified. That was my concern. I do not dispute with the Minister that of course they can have regard to other matters.
I think that I understand that but I hope that I may be forgiven if I have to read Hansard tomorrow to pick up the subtlety of the argument. I do not have to rehearse the excellent arguments that I have, as clearly they address the wrong point. The final line of my briefing reads, “I hope that that is reassuring”. However, it would be the opposite of reassuring, as we have missed the point of the amendment.
Amendments Nos. 216 and 218 probe how far a promoter would have to explain how he had accommodated responses to consultation. Amendment No. 216 would require the consultation report to include details of the extent to which the application was affected by any relevant responses. Amendment No. 218 would require that, under the duty in Clause 48, account was taken of responses to publicity, consultation and so on, with explanations given. The noble Lord, Lord Cameron, invited me to agree that this was merely sensible, but I believe that it comes within the notion of “adequacy”. I am afraid that it is difficult for me to say anything following what I said on previous amendments. There is an issue concerning proportion and the extent to which promoters can explain how far they have been unable to accommodate individual responses. As I said previously, I have some sympathy with the requirement that promoters report the account taken of responses to public consultation, describing how the responses had affected the consultation. However, I think that the Bill meets that requirement.
I listened to what the noble Lord, Lord Cameron, said, but the guidance has to address the question of adequacy. Perhaps he will let me think about the nature of the guidance, and we can have a conversation about the points raised by the noble Baroness, Lady Hamwee, concerning its scope. If that happens between now and Report, we can ensure that we are all on the same page with regard to what we understand by that. I should be very happy for that to happen and I hope that it will help.
Clauses 54 and 55 deal with the applicant’s duty to notify and publicise the acceptance of applications. The key word here is “notify”. Clause 54 sets out that when the commission accepts an application for an order granting development consent, the applicant must notify a range of persons, including the local authority, persons to be prescribed by the Secretary of State and anyone who has an interest in the land covered by the application identified in Clause 55. The clause specifies that the applicant must notify people in such a manner as prescribed and make available copies of the application and any other information, and that it must do that in the manner prescribed by the Secretary of State.
The people who are notified of an application would have at least 28 days in which to make representations. The clause also requires the applicant to publicise the application in a manner prescribed by the Secretary of State, provided that the person so informed is also informed of the deadline for receipt by the commission of representations giving the person’s interest in or objection to the application.
It is important to consider that Clause 54 draws a clear distinction between the category of persons to whom information must be made available and the wider group of people to whom information is required to be made through publicity. Notification under Clause 54 is a specific requirement and applies only to those people or bodies most likely to be directly affected by the application. I fully understand why noble Lords have tabled the amendments and I believe that the process laid out in the Bill satisfies the need for this part of the process to be as open and inclusive as possible. A small group of amendments generally attempts to create a list of people who should or should not be notified by the applicant of the acceptance of the application.
I am grateful to my noble friend for not speaking to Amendment No. 219, as we addressed the issue in a previous amendment. On the other amendments— Amendment No. 220 on the persons consulted by the promoter at the pre-application stage, Amendment No. 226 on people who make representations following the publicising and Amendment No. 221 referring to disabled people—we think that the Bill’s provisions set out a clear and strong requirement. I do not believe that including such groups of people in the Bill adds anything to those strong requirements. Clauses 54 and 55 are wide in scope and are sufficient for the applicant to know full well who should be informed and consulted.
Clause 54 already set outs that the applicant must notify an affected local authority, persons with an interest in the land, anyone who might be entitled to claim compensation and other statutory consultees. It is pretty comprehensive. Local people and any other directly affected parties are covered. We should not forget that the applicant is also under a duty to publicise the application in a manner to be prescribed by the Secretary of State. That will be sufficient to reach the wider group of persons whom the amendments would include.
It is also crucial that Clause 56 requires the applicant to certify to the commission that he has complied with the requirements to notify and publicise in such a manner as may be prescribed. That is an important safeguard, which takes care of the concerns expressed by the Committee.
I fully sympathise with the purpose of Amendment No. 221. Again, we intend to issue guidance from the Secretary of State. Clause 46(5)(b) on consulting local communities will ensure that consideration is given to the need for consultation to address the needs of disabled people. I give that assurance again, as this must be an inclusive process.
The other amendments—Amendments Nos. 221A, 222 and 223—would extend the time following notification or publicity for persons to make representations to the IPC that they have an interest in or objection to the application. They would also set minimum standards for publicising the acceptance of the application. Amendment No. 225, which I will need to address, refers to diligent inquiries.
Amendment No. 222 would prescribe in the Bill some of the minimum standards for publicising an application. The Bill already allows the Secretary of State to make much more detailed regulations on how publicity should be carried out. Subsection (7) gives the Secretary of State powers to prescribe minimum standards for publicity and notification. We will ensure that these standards are robust and that applications are given an appropriate level of publicity.
Amendments Nos. 221A and 223 refer to the minimum length of time. They are slightly different. The amendment tabled by the noble Lord, Lord Cameron of Dillington, would increase the minimum time from 28 to 56 days. I agree that people who might be affected by an application should have a suitable time to formulate representations. I believe that it is an appropriate minimum time. I am exhausting my armoury of arguments but I have not said that by the time an interested party is formally notified of an application he is likely to know of other proposals. It will be at the end of a rather long process.
I know that the process is long, but he will not know the details of the application until he gets the notice. I hope that a proposal will be changed throughout the process as a result of the consultation, but the person will not know the details and will be holding fire. He will not be in a position to submit his case.
The noble Lord makes a strong point. I go back to my original argument that this is the minimum time and the applicant can give a longer period.
The amendment tabled by the noble Lord, Lord Dixon-Smith, would impose a deadline of at least 28 days by which representations relating to an application must be submitted to the IPC. That would apply to those who are not notified directly by the applicant but respond to publicity.
As I understand it, the applicant has to satisfy the IPC that he has consulted properly. The IPC can disagree that the applicant has allowed sufficient time for that to happen. I shall double-check that point, but that is my understanding.
The regulations will deal with this issue in a more detailed way. We have allowed for flexibility in regulations so that the deadlines can account for different circumstances. We have no intention of setting a deadline in respect of receipt of representations of less than 28 days. I shall read what noble Lords have said about these arguments.
I return to Amendment No. 212, which is where we started, in a gallant attempt to try to make sense of it. I appreciate the noble Lord’s efforts to improve counsel’s drafting. I am assured by lawyers that the amendment does not change the effect. The two phrases are identical and mean the same thing. I confess that I think that the noble Lord’s option is clearer. On that basis, I hope that the noble Lord will withdraw his amendment.
I beg the Minister’s pardon. I was perhaps trying to read too much into her remarks. I am fascinated by the approach to publicity. We are prepared to give a great deal of detailed guidance to the commission about how publicity should be handled but in the previous group of amendments we were not prepared to have the Secretary of State give advice to the commission on the advice that it should give to potential applicants. There is inconsistency here. The Minister has, in her usual way, been conscientious in answering the points that have been raised. Other noble Lords will have to decide how far they are satisfied with those answers. I am most grateful to the Minister for her time and trouble. We shall study with great care what she said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 213 to 218 not moved.]
Clause 53 agreed to.
Clause 54 [Notifying persons of accepted application]:
[Amendments Nos. 219 to 223 not moved.]
Clause 54 agreed to.
Clause 55 [Categories for purposes of section 54(2)(d)]:
224: Clause 55, page 32, line 33, after “the” insert “applicant, after making diligent inquiry, knows that the”
On Question, amendment agreed to.
[Amendments Nos. 225 to 226 not moved.]
227: Clause 55, page 33, line 7, at end insert—
“This is subject to subsection (4A).(4A) A person is within Category 3 only if the person is known to the applicant after making diligent inquiry.”
228: Clause 55, page 33, line 14, leave out from “works),” to end of line 15
On Question, amendments agreed to.
Clause 55, as amended, agreed to.
Clauses 56 and 57 agreed to.
Clause 58 [Local impact reports]:
229: Clause 58, page 34, line 25, after “section 99(5),” insert—
“( ) in an area where there is both a county council and a district council, both councils,”
The noble Lord said: The amendment is grouped with Amendments Nos. 230 and 231, in the name of the noble Lord, Lord Taylor, which are nothing to do with Amendment No. 229; I am not sure why they are grouped together. I will probably not comment on those amendments until after the noble Lord has spoken to them, when I reply to the debate on Amendment No. 229. I think that that is the polite thing to do.
Amendment No. 229 is apparently an innocuous little amendment, but it is actually fundamental and complicated; if the Committee will bear with me, I will go through it. We are now on to the part of the Bill that deals with local impact reports. Local impact reports are the information and advice that a local planning authority—a local council—provides to the Infrastructure Planning Commission once an application for an ADC has been submitted. The Infrastructure Planning Commission contacts the council and asks it for any information and views that it wishes to put forward at that stage. Clearly, that is to inform the Infrastructure Planning Commission about the local impact that a proposal will have. The local impact is one of the criteria set out in the Bill of which it has to take account when it determines an application. Have I got that right?
The amendment adds to the provision:
“The Commission must give notice in writing to each of the following”,
that “the following” includes,
“both a county and a district council”,
in a two-tier area. The Bill states:
“each authority which, in relation to the application, is a relevant local authority within the meaning given by section 99(5)”.
That is a slightly odd cross-reference, because Clause 99(5) is in a different chapter of the Bill, but it states:
“In subsection (1) ‘relevant local authority’ means a local authority within subsection (6) or (7)”.
Subsection (8) states:
“In subsections (5) to (7) “local authority” means—
(a) a county council, or district council, in England”.
It then lists other authorities, such as a London borough, the Council of the Isles of Scilly, and councils in Wales and Scotland, which is all very clear. I submit that the phrase,
“ a county council, or district council, in England”,
is ambiguous and should be looked at. The word “or” gives rise to the question of whether someone can choose whether they wish to consult a county or a district council. I do not want to go into the realms of Boolean logic which, in this internet age, we have all had to learn to understand, but “or” usually has a different meaning to “and”. Perhaps our amendment should seek simply to remove “or” and insert “and”, although it would have exactly the same effect. Its purpose is to probe the meaning of the clause and to ask the Government whether they are prepared to make this matter clearer in legislation.
This phrase appears in at least one other place in the Bill, perhaps more, and it is not clear what,
“a county council, or district council, in England”,
means. I am not sure why the commas are there. There was a time when commas never appeared in legislation. They have been put in to clarify the legislation and to make it easier to read. We are always not told not to change the meaning, but the presence of those commas implies that there is a pause and emphasises that it is an alternative. It does not mean a county council and a district council, and someone will decide in any application whether the county or the district is consulted and asked to produce the local impact report. I think the Minister has understood the point that I am making. It should be both, because the county council still has a residual strategic planning function, and specific planning functions in relation for example to minerals, and the district council is the main development control authority. Clearly they should both be consulted in any particular case.
Unitary authorities can be either districts or counties. The Isle of Wight is a unitary county, and there are lots of unitary districts. There is no problem with a unitary authority, because it is obvious whether it is a district or a county. The problem is in two-tier areas, so I would be grateful for the Minister’s confirmation that there is no intention to exclude either of them. I beg to move.
I am tempted to say that I am all at sea, but only as a way of bringing the topic back to the draft marine Bill and to my two amendments, which seek to clarify the disconnect between the proposals in that Bill and this one. If we had considered the draft marine Bill first, we would have seen why there is an inconsistency between the two Bills that might be remedied. We need a marine representative body in this Bill that would, after the draft marine Bill has passed into law, become the marine management organisation. This body would speak and carry out an impact assessment on behalf of the marine environment and have a duty of care in that area. Writing it into this Bill would make it clear that it had this role, and previous amendments that I have tabled in this area would all fall into place. I am sorry to ask the Minister to include this in her correspondence and in her considerations between now and Report, but dialogue with other members of the Government with an interest in this Bill might resolve the matter before Report.
On an associated matter, what is the position of national parks under the clause? They are certainly not mentioned in this clause or in Clause 99(7), which is intended to clarify the matter. If “land” involves national parks, will they fall under this clause?
I have said many times that we are very keen to ensure that the local authorities have an enhanced role in this process, as they must as guardians of the local community and the local environment. The forensic attention which noble Lords have paid to those clauses has been well worth it. In essence, as I have said, the promoter of the project will consult the local authorities. The IPC will have to have regard to any report on the adequacy of the promoter’s consultation which they receive from a local authority consultee. Local authorities are statutory consultees.
In addition, Clause 58 requires the Infrastructure Planning Commission, on accepting an application for development consent, to invite the affected local authority or local authorities to produce a report of the likely impact on their local community. Clause 101 requires that the IPC must have regard to the local impact report when making its decision. Clause 102 requires the Minister to do the same in a case where they exercise their power of intervention to take over and decide.
The noble Lord, Lord Greaves, asked me a simple question: does the term “local authorities” cover county councils and district councils in two-tier authorities? The short answer is: yes, it does. I am pleased to confirm that there should not be any issue about that. The amendment duplicates the effect of Clause 99(5), which provides, among other things, that a local authority means a county council or a district council in England. He raised the reading of the clause and its grammatical structure. I shall look at the clause to see whether there is unnecessary ambiguity and will take advice. I am sure that it is written as it is for very good reason. I can give the noble Lord that assurance, but I will see whether any unnecessary confusion is caused by the punctuation.
The amendments to Clause 58, raised by the noble Lord, Lord Taylor of Holbeach, seek to expand the requirement of the local impact report to the marine environment, as well as provide that local impact reports should be produced by the relevant marine body if the land or area to which the application relates, or any part of it, is coastal or offshore. Clearly, the intention is to ensure that in deciding the application the IPC should have proper regard to the appropriate marine policy and plans. He has also made amendments to Clause 101, which is the crucial decision test clause.
Although we are absolutely clear that marine policy and marine plans, where relevant, will be important to considerations in decisions on applications for development consent, the Bill provides for those in a different way from the assessment of local impacts. We consider that the right place for the consideration of the marine environment will be the NPS and the marine policy statements. This is an important point and I want to reassure him that we will require that the NPS and the relevant marine policy will be consistent. The NPSs have to draw together all relevant policy into a framework that everyone sees is consistent in order for the promoters to develop their projects and for people to understand the balance of various arguments and interests. Within that, the IPC will take the final decision.
In addition, we envisage that where the development requires the consideration of the marine environment, the relevant marine body would be a statutory consultee. I am happy to confirm that. I have also said that I will write to the noble Lord and that I will explore the issue of the interrelationships before Report stage. If issues arise about this interface, I hope that we can discuss them outside the Chamber so that he can be reassured that we are doing out best to make sure that government policy, as always, is seamless.