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Lords Chamber

Volume 705: debated on Thursday 6 November 2008

House of Lords

Thursday, 6 November 2008.

The House met at eleven o'clock: the LORD SPEAKER on the Woolsack.

Prayers—Read by the Lord Bishop of Chelmsford.

House of Lords: Defra

asked Her Majesty’s Government:

Why the decision was taken no longer to have a Department for Environment, Food and Rural Affairs Minister in the House of Lords responsible for farming.

My Lords, I speak for all Defra business in this House, including farming. The decision to give me ministerial responsibility within Defra for sustainable development and environmental issues was made to maximise the benefits of working for both Defra and the new Department of Energy and Climate Change.

My Lords, I thank the Minister for that response. I do not wish to question his ability; that was not the reason for tabling the Question. However, he now straddles two departments and has 15 specific responsibilities. What proportion of his time will be given to food, farming and production? How will he deal with the crisis among upland farmers, who are now faced with clawback due to the diabolical way in which the RPA handled their payments?

My Lords, the noble Baroness will know that the RPA had rather a troubled history and introduction, but overall its performance has improved. We are committed to improving its performance. I know that there are concerns about hill farmers and about the new environmental stewardship system. However, we are in very close discussion with those interests.

It is not uncommon for Ministers to have responsibilities across both departments. I will do my very best to ensure that I know as much as I can about farming. I have met the president of the NFU. As a consumer, I welcome the developments in British farming and consider that it will play a very important role in the future. I am sure that noble Lords will remind me if they think that I am neglecting farming matters.

My Lords, does the Minister recall that when we had a Minister in this House specifically responsible for farming—the noble Lord, Lord Bach—he was made the scapegoat for what happened in the RPA and was summarily sacked? Can the noble Lord reassure the House that he will not be sacked and made a scapegoat if there continue to be problems with the RPA? Has he seen yesterday’s figures on farm borrowing, which show that English farmers are experiencing considerable problems? They are having to borrow extensively and at record levels because of slow payments from the RPA.

My Lords, I shall be cautious in forecasting the length of my ministerial life. That is for a higher authority. The noble Lord is right to draw attention to the problems connected with the RPA. I pay tribute to my noble friend Lord Bach for the work that he did to resolve those problems. It is a great pleasure for me to see him back as a departmental Minister. Overall, the performance of the RPA has improved hugely. However, I can assure the noble Lord that we are not complacent. We continue to monitor its performance very carefully. We are always in close discussion with the NFU about these issues and we shall continue to pay attention to that important matter.

My Lords, I am sure that the Minister will be aware of the help given through the Farming Help Partnership to farmers facing hardship. Given the change of structures in ministerial provision, would he be willing, under the auspices of Defra, to arrange an opportunity for that partnership to meet Ministers, perhaps using the facilities of the Arthur Rank Centre with regard to rural issues?

My Lords, I am well aware of the difficulties that many farmers have had over the past few years and of the very grave consequences for them and their families. Equally, it is good to record that total farm income has increased considerably in the past year. We see a very positive future for British agriculture and we will do everything we can to support it.

My Lords, does the Minister realise that the undoubted success of his predecessor, the noble Lord, Lord Rooker, the consequent esteem in which he was held, and the regret that was widely expressed at his departure, came from the fact that he was tough with Defra and did not accept its nonsense? He questioned it and he managed it. There are few departments, other than probably the Home Office, that need more management than Defra. Will the Minister try to follow in those distinguished footsteps?

My Lords, my noble friend Lord Rooker is impossible to follow; he was a one-off and an absolutely brilliant Minister and colleague. I would always hope to learn from his example.

My Lords, will the Minister take back from all sides of the House the concern about the amount of his time, however superhuman he might be, that can be devoted to what is undoubtedly shortly going to be a major crisis in the uplands? Will he take back how much expertise there is in this House, which has proved invaluable in the many agricultural crises that we have had in the past 10 years, not only in providing what I hope was helpful criticism but constructive suggestions and communication from the rural communities? Could he please at least take that back, so that when the next crisis arises a better allocation of time can be given to these important matters?

My Lords, I understand the pressures on the upland farmers. That is why we are in close discussions with them and why so much work has been done with stakeholders on the proposals in relation to the introduction of the entry-level stewardship scheme in 2010, the final design of which will be announced later this year. The House has huge expertise in farming and in land issues in general, which is of inestimable value to my department. I am well placed to take back those views and concerns. The question of farming and food is of interest to everyone who lives in this nation. It is not unreasonable that from time to time the Minister responsible for food and farming should be in the other place.

My Lords, I declare an interest as a farmer and grower. I am sure that the House accepts the good intentions of the Minister and his modesty in the light of the praises that have been heaped on his predecessor. How does he propose to represent in government the great anxiety that has been caused by the European Parliament environment committee’s decision on pesticides yesterday and its impact not just on farmers and growers but on future food security?

My Lords, I declare an interest as a customer of the noble Lord. I well understand the concerns about the proposed pesticide directive and the discussions in the European Parliament and in the Commission. I can reassure the House that the Government and the Secretary of State are taking a very firm view in Europe. We are raising concerns. We approve of appropriate regulation, but it needs to be proportionate and we need to see the benefits. We will continue to press that point.

Schools: Academies

asked Her Majesty’s Government:

Whether academies are their preferred model for school improvement.

My Lords, a range of school improvement approaches are available to local authorities and the department to raise standards in schools, including academies. The National Challenge aims to secure higher standards in all secondary schools, with a focus on ensuring that all schools achieve above the floor target of 30 per cent of students achieving five good GCSEs, including English and maths. Academies are a central part of the challenge, alongside National Challenge trusts, federations and additional support from National Challenge advisers.

My Lords, I thank the noble Baroness for that very encouraging reply. I wish to ask about a slightly detailed area. Can she confirm the enormous success of the academy in the great city of Liverpool? Some of us had an opportunity to meet prospective pupils from the Sacred Heart and Kensington primary schools. Can she confirm that all the good work being done in the academy will be available to those young children and live up to the great motto, “Only the best will do”?

My Lords, I thank the noble Lord for his question and allowing me to say that the right reverend Prelate the Bishop of Liverpool chairs the governors of the Academy of St Francis of Assisi in Liverpool and has been a champion of the programme since it started. As the noble Lord knows, the academy is situated in a deprived area of Liverpool and, thanks to the right reverend Prelate’s efforts and those of the staff, the academy has made good progress since it opened, as Ofsted noted last year. I am sure that the right reverend Prelate and the noble Lord agree that there is more to do, but that academy, the North Liverpool Academy and the Belvedere Academy are helping to improve the life chances of pupils across Liverpool.

My Lords, does my noble friend agree that among their virtues, academies do two very valuable things; they help to bridge the gap between the maintained and independent sectors, which has had such a baleful legacy in the history of education in this country, and they attract more investment into schools in deprived areas?

My Lords, I agree with the noble Lord, and he gives me an opportunity to say how delighted I am that my noble friend Lord Adonis is sitting next to me on the Front Bench and how pleased I am that we in the ministerial team at the DCSF are able to continue the work he has championed on academies. Most importantly, academies do well by the children that they serve and are improving standards consistently; there is strong evidence to support this.

My Lords, the Liverpool academies are clearly serving their community. Will the Government consider allowing local authorities to select the sponsors for academies, based on their educational expertise and commitment to the particular community, rather than their bank balance?

My Lords, the noble Baroness gives me a chance to highlight the importance of the National Challenge, a programme working directly with local authorities to address the challenge of schools that are falling below the 30 per cent floor that I talked about. We are investing £400 million through the National Challenge to help those schools that have the furthest to go in terms of helping the pupils whom they serve. Academies are one option out of a very important range of support that will be negotiated and developed in partnership with local authorities. This work is going on in the department as we speak.

My Lords, I declare an interest. In fact, I have a personal involvement in three city academies. While the noble Lord, Lord Adonis, is in his place, I thank him for his personal work on the achievement of the academies in Liverpool. I thank also the noble Lord, Lord Lyell, for recognising the tremendous achievement of the young people in their academy in Kensington.

The Minister will be aware that in the spring of this year it was ruled that sponsors no longer needed to make a financial contribution, either to the capital costs or to the endowment of an academy. Will the noble Baroness recognise that those who entered into agreements before the spring of this year are now, in the light of the present economic downturn, finding it very difficult to raise the full sponsorship money? Can she undertake to review those agreements, so that those academy projects are not put at risk?

My Lords, I am very happy to hear what the right reverend Prelate says. As I said, an enormous amount of work is being undertaken, as we speak, through the National Challenge programme to work with local authorities to identify exactly what packages of help they need to support the schools in their areas. I shall be happy to look at this question and come back to him.

My Lords, is the Minister prepared to answer the Question posed by my noble friend Lord Lyell? Are academies the Government’s preferred model?

My Lords, I tried to answer the Question as well as I could. We have a preferred model, which is to provide a range of options that best suit the needs of the children and young people in a particular area. In areas that struggle and face the greatest possible challenge, an academy will almost certainly be the right and preferred option. We are absolutely committed to meeting our target of developing and opening new academies, and I know that only a couple of weeks ago the Secretary of State announced his commitment to open some new academies this year. I absolutely support the role of academies in promoting improved school results for young people.

My Lords, important as the academies are to the improvement of schools, does the Minister not agree that the most important factor is the quality of the teachers? Does she accept that the Government’s investment in teaching, particularly the Training and Development Agency for Schools, has tremendously improved the status of teaching and made it a significantly more attractive profession? Is that not a very welcome improvement over the past 10 years?

My Lords, one of the greatest successes of academies will be the strong leadership that they bring to schools. Obviously, the increase in the number of teachers in the UK, their improved status and the financial support for teaching have also played very important roles in driving up standards in this country.

India: Dalits

asked Her Majesty’s Government:

How they are assisting the Dalit population in India.

My Lords, the UK supports India’s efforts to combat caste discrimination through support for key national and state government programmes, and by working to ensure that those programmes deliver good and sustainable results for Dalits. In addition, the UK supports civil society organisations in raising Dalits’ awareness of their entitlements, empowering them to claim their rights. The UK regularly raises concerns about minority rights, with specific reference to caste issues, with the appropriate Indian authorities in Delhi and London.

My Lords, I thank the noble Lord for that Answer. The diocese of Carlisle has a diocesan partnership with Madras and I have strong personal links with the Bishop of Gujarat. Since last April, if the bishop or any minister in that state baptises a Dalit woman or child, he is liable to several years’ imprisonment and a large fine. In what ways can the Government protect the right of the Dalits to choose to be baptised as Christians in view of the seven Indian states that have passed anti-conversion laws?

My Lords, the Freedom of Religion Act in India was enacted in 1967. It prohibits conversion by means of inducement, allurement or the use of force, and it requires each conversion to have prior authority from the district magistrate. Anti-conversion laws are an internal matter for the Indian authorities. Nevertheless, officials from our high commission in Delhi continue to monitor religious freedom in India and had previously raised the issue with the appropriate Indian authorities. We condemn all instances where individuals are persecuted because of their faith or beliefs. The issue of religious freedom is due to be raised at the EU-India human rights dialogue in New Delhi later this year.

My Lords, the Minister knows that giving aid to India is DfID’s top priority, despite India’s huge economic success. India is the largest recipient of UK bilateral aid, and on 20 January this year the Prime Minister announced that he would invest another £825 million over the next three years. Does the Minister know, however, that the Dalit population has the worst poverty and health figures? How much money will DfID direct to the Dalits and how will it be invested?

My Lords, it is quite right that we devote our biggest aid programme to India. While in one sense it is a very successful country, it is also a very poor country. There are more poor people in India living on less than $1 a day than in the whole of sub-Saharan Africa. I do not have figures about the precise proportion that is directed at the Dalits, but all our programmes are directed at poor people. Some 136 million, a substantial proportion, are Dalits. We are helping Dalits and scheduled tribes to be included in and to benefit from India’s progress. That is a key focus in all DfID development work in India. DfID’s latest country plan for India explicitly commits us to addressing the challenge of social exclusion, which Dalits and other minority groups face.

My Lords, is the Minister aware that in recent weeks in the state of Orissa more than 50 Dalit Christians have been killed and more than 50,000 have been displaced? Will Her Majesty’s Government press the federal Government of India to exercise their powers under Article 355 of the constitution, under which they are able to act within a state where there is internal unrest? In particular, will he urge them to bring those responsible for this to prosecution, as the 50,000 displaced people are frightened to return to their homes at the moment because of the immunity of those responsible?

My Lords, we have pressed the Government. We welcome the Indian Prime Minister’s statements condemning the attacks. The central Government have made an Article 355 order. The local government in Orissa was slow to act, but we are now pleased to see that it has taken steps. We are pleased that the central Government have continued to urge Orissa state to do things and we have expressed our concerns to the Indian authorities. Orissa will be raised in the next EU/India human rights dialogue.

My Lords, yesterday we celebrated the realisation of part of the American dream. In all continents there are dreams. What are the Government doing to ensure that none of our new immigration or visa regulations will hinder the poorest and the most vulnerable in our world from achieving their potential and contributing as best as they can to our communities?

My Lords, some poor Minister had to be the first to deny the American dream. There are 167 million Dalits in India and immigration to the UK will not play any significant part in relieving their problems. The problems faced by Dalits have to be solved by Indians and by programmes to support them. We work hard in those programmes, supporting the Indian Government. The rules for immigration to this country were well set out by my noble friend yesterday. Programmes to give positive discrimination to a significant proportion of the Dalit community, which the Indian Government have been running since 1950, mean that those who have been so favoured will be equipped as high-value-adding individuals and would qualify for possible immigration to this country.


asked Her Majesty’s Government:

Whether the comments by the Parliamentary Under-Secretary of State for Defence, Mr Quentin Davies, on 3 November about the choice of equipment made by commanders on operations in Afghanistan reflect any change in the protocols relating to the relationship between Ministers and commanders in the field.

My Lords, I am grateful to the Minister for that reply. In seeking to apportion blame to the commander on the ground, the Minister in the other place quite improperly implied that he had a choice of vehicles. So as not to cast any suspicion of doubt on the commander’s word, can the Minister confirm that he had to use Snatch Land Rover on that occasion as there were no other vehicles? Can she also give the House an assurance that no commander in Afghanistan will again be forced to use Snatch for any operation beyond base perimeters?

My Lords, the Minister in another place was in no way attempting to apportion blame. That is not a wise thing for anybody to do, especially when there is always an inquiry into any incident. Ministers provide a wide range of vehicles for deployment in theatre. It is for commanders on the ground to decide which vehicles are suitable for which operations. Ministers have been told more than once by operational commanders that they wish to retain the Snatch vehicle for use in certain circumstances. Indeed, in the Statement made in another place last month, it was pointed out that senior operational commanders consider the Snatch vehicle to be mission-critical.

My Lords, the Minister was not in post at the time but is she aware that grave concern has been shown in this Chamber and in Committee at the dilution of the authority and stature of the commanding officers in the military? At this time they need not criticism but support, encouragement, and to be given the right kit for the right job. That is not happening and I ask her perhaps to express a view on it. Is it not wrong that those who have no battle experience and have never had their hair parted by a bullet, for instance, make assumptions about what happens in combat and, in that way, criticise and show distrust of our commanders in the field who are the ones doing the fighting?

My Lords, we should all have great respect for those who are doing the fighting, whatever their level. My honourable friend the Minister, in an interview at the weekend, said:

“Our commanders are second to none in their ability to make the right decisions”.

I think that we should acknowledge what he said and should all share in the admiration of those who are working on the front line. On the kit, I know that my ministerial colleagues, and indeed Members of this House and of another place, have visited Afghanistan, have spoken to people on the ground, have questioned them about the kit, and have been told that the kit that is supplied today is second to none and is, I think, the envy of many of our allies fighting with us in those circumstances.

My Lords, putting personalities to one side, for the Falklands campaign our defence industries were mobilised to deliver equipment to the ports and airfields, working flat out, with payments et cetera to be sorted out later. Last week’s Written Statement on the upgraded Snatch Land Rover for Afghanistan, the Snatch Vixen, hardly conveyed a sense of urgency. It said:

“We have already fielded a small number of these vehicles, and we will be substantially increasing the size of the fleet over the coming year”.—[Official Report, 29/10/08; col. 29WS.]

With every day’s delay possibly meaning the difference between life and death, why is our industry not working round the clock on this and other vehicle orders?

My Lords, we have, I think, already fielded 31 Snatch Vixens, and nearly 150 more are in train. Perhaps I should explain that once we buy these vehicles a great deal of work has to be undertaken by industry to upgrade them to get them to the theatre-entry level. That work is done with great speed and determination by companies such as NP Aerospace and Ricardo Special Vehicles. Perhaps I may use this opportunity to say thank you to those in industry, and to the whole team within the MoD, who have been very responsive to the needs of our operational theatres and who have done very well working together to get a great deal of modification to our vehicles and other kit to help protect people when they are out on operations in Afghanistan and elsewhere.

My Lords, I do not wish to comment on the individual issue, because that is subject to an inquiry, but is not the general problem that we cannot have heavily armoured vehicles on all occasions? If we do, we play right into the hands of the various insurgent groups who want to divide the NATO and UN troops from the local community. There is a difficult judgment for commanders in the field. Of course it is right that we have hardened vehicles, but we must recognise that challenge.

My Lords, my noble friend makes a valid point. That is one of the reasons why the advice that we have been given is that Snatch vehicles have to be used in certain circumstances, and, as I said, are mission-critical.

My Lords, my noble friend asked specifically whether there was a choice of vehicles available to the commander in the field in the incident about which he inquired. I did not hear a reply to that question; I wonder whether the Minister will give it to us.

My Lords, I said that I thought that it was not helpful to speculate in this House about any individual incident, especially when there is an inquiry into every incident of that nature.

My Lords, it is obviously very welcome that better and improved vehicles are being made available to the forces in theatre, but those vehicles will require experience for those using them. Can the noble Baroness assure the House that there are adequate vehicles available for training before the forces go out into theatre and have to use them on operations?

My Lords, that is an important point and one reason why the number of vehicles that we have now decided to acquire is so large. It is important that the people who will use the vehicles in theatre can train on them before they leave this country.

Social Security (Lone Parents and Miscellaneous Amendments) Regulations 2008

Medical Profession (Miscellaneous Amendments) Order 2008

Civil Contingencies Act 2004 (Amendment of List of Responders) Order 2008

Armed Forces (Alignment of Service Discipline Acts) (No. 2) Order 2008

Youth Justice Board for England and Wales (Amendment) Order 2008

Legal Services Act 2007 (Functions of a Designated Regulator) Order 2008

My Lords, I beg to move the first six Motions standing in my name on the Order Paper.

Moved, That the draft regulations and orders be referred to a Grand Committee.—(Baroness Royall of Blaisdon.)

On Question, Motion agreed to.

Legislative Reform (Lloyd’s) Order 2008

My Lords, I beg to move the seventh Motion standing in my name on the Order Paper.

Moved, That the draft order be referred to a Grand Committee.—(Baroness Royall of Blaisdon.)

On Question, Motion agreed to.

Planning Bill

Report received.

Clause 1 [The Infrastructure Planning Commission]:

1: Clause 1, page 1, line 5, at end insert “for the purpose of advising the Secretary of State on decisions made under section (Decisions by the Secretary of State on applications for orders granting development consent)”

The noble Lord said: My Lords, the more that I work on this Bill and consider its gestation, the more I find that it is not in very good order. I am sure that the Government’s consideration of the Bill arose from the definition of a problem. The problem that they identified was that we were suffering because the national planning process, especially where it concerns major infrastructure, was flawed under the present regime and that we needed to do something about that. Then they thought: can we define that? They answered, yes, it is national infrastructure. Then, I am sure, the thinking went: so what do we need to do something about that problem? They then came up with the Infrastructure Planning Commission. The Bill is written the other way round, so we have the mechanism for dealing with the problem before we have defined the problem. I am bound to say that that is a little unfortunate, but there it is; we have to deal with the Bill as it is.

My Amendment No. 1 would make it the purpose of the Infrastructure Planning Commission to advise the Secretary of State on the decisions to be taken on planning applications for national infrastructure problems. This is different from the Bill, which largely makes those decisions the prerogative of the commission. I do not apologise for bringing these amendments back to the House; the arguments that we began to advance in Committee are still vital. I remind the House that, under the existing planning regime, all planning decisions are in effect taken by politicians. At the local-government level, where the vast bulk of planning is done, planning decisions are taken by a committee of the local authority acting as the planning authority, and only the very minor decisions are decided in a delegation process. However, even the delegation process is subject to politicians’ approval.

The departure from this is when an application is called in either because it is nationally significant or because it is inconsistent with approved plans. Then it goes to the national level and becomes the prerogative of the Secretary of State. That political decision-making may have been criticised for the way in which it has been administered, but in general it has lent great strength to the planning system, and although people might not always agree with the conclusions, by and large they accept them. There are flaws in the Bill, not least the fact that that process is now to be eroded because the decisions are to be taken by a planning commission. We really need to ask why there is a need to depart from a well-tried and proven process.

In earlier discussions, the Minister has made much of the difficulties caused by the present appeal process. In that instance, she is acting in a quasi-judicial capacity. She must have a thorough and detailed review of absolutely everything to do with the application, which may involve a departure from the planning process. In many cases, it almost certainly involves overriding the views of a local authority. However, that is a very different process from the one that we are now discussing, which is a decision-making process not an appeal process. There is a clear distinction.

One of the interesting facets of the Bill is that, in its conclusion, there is no appeal procedure at the end of the process, with the possible exception of judicial review. If I understand matters correctly—I have no doubt that the Minister will tear me to shreds if I am wrong—the judicial review will be relevant really only with regard to process. If the process is correct, there will be no scope for judicial review. The purpose of these amendments and others that we have tabled later in the Bill is not least to try to ensure that the process in the Bill, particularly on decision-making, is so robust that it is not susceptible to the possibility of judicial review. If it is so susceptible, we are likely to lose most of the advantage of expedition, which this Bill is supposed to bring about. That is a very important point.

Amendment No. 1, which would bring the decision to the Secretary of State, is reinforced by Amendment No. 101, which would give Parliament the power to review a Secretary of State’s decision. It would be an order-making power, which could be set aside by a negative resolution by either House of Parliament. Bearing in mind particularly that the parliamentary processes would be subject to a timetable to be established in the Bill, if these amendments are agreed, we would have a much more robust process which would secure the new situation against review.

I find it really difficult. I understand the views of the CBI and major infrastructure providers that Ministers and MPs should be kept out of the planning process. I have a long and bitter experience of the existing system, which too often has provided prevarication, obfuscation and delay at what I would call the ministerial stage. This is not a particularly political point, because it has been going on for a very long time. But we need to realise that we are not discussing an appeal process, but a decision-making process.

I find it humiliating that at the national level we cannot behave and take decisions which are no more than parallel to the decisions we expect members of local authorities to take on a day-to-day basis. We expect them to be efficient and decisive. We criticise them if they do not deal with applications with sufficient speed, which has been a regular problem. It worries me that Ministers in Parliament apparently are not and cannot be trusted to do the same. As politicians at the national level, are we such a different breed that we cannot behave as we expect others to behave on a lesser scale in their own field? It simply is unbelievable to me. When you consider the scale of some decisions that some local authorities are obliged to take in relation to their size and functions, they are at least as significant as any decision that we are requiring to be made by a Secretary of State with the approbation of Parliament. There is no difference in scale.

While I understand to some degree why the Government have drafted the Bill in this way, it is wrong. The Bill sets out to bring change to the system. There is no disagreement between those of us on this side of the House and those on the Government’s side that the system needs to change. But, if we are going to change the system, we have to realise that Parliament and government cannot stand aside from change. It is part of what is necessary.

I do not need to but I shall, slightly naughtily, refer to the new theme of the President-elect of the United States. We are living through times of change and in an environment, particularly as regards climate change, in which change will become absolutely necessary. Members in both Houses of Parliament will not be immune from the process. I suggest that we begin to think about it quite seriously. Amendment No. 1 and the accompanying amendment would help to bring that process forward. I beg to move.

My Lords, I do not want to repeat all that I said at the Committee stage, but I will repeat what for us is at the heart of the issue, and that is not only who takes the decisions, but who the public believe does so and who they believe should do so. We have made it clear that we strongly support the model which puts the construction of policy ahead of individual decisions, and that will be a matter for scrutiny and possibly a vote when we come to it later today. But on the second and third questions, the answer is unequivocally that it is for the Government to do so. The public think that the Government take these major decisions, and that they should lie with the Government.

My amendments are more modest than those of the noble Lord, Lord Dixon-Smith, but if he chooses to divide the House, we will support him. I propose a system of ratification by the Secretary of State of a decision taken by the Infrastructure Planning Commission. I am prepared to acknowledge that the work that goes into considering representations, the local impact statement, the testing of evidence and so on is a matter for the IPC. In Committee the noble and learned Lord, Lord Boyd of Duncansby, said that individual decisions are,

“more properly and better done by the body charged with assessing the evidence”.—[Official Report, 6/10/08; col. 18.]

It did not occur to me at the time whether that might demonstrate a lack of faith in the robustness of decisions taken by Secretary of States hitherto—many decisions over a long period—or indeed in decisions that in the future will be taken by the Secretary of State when they do not go through the IPC. We are not proposing the abolition of the call-in procedure whereby something that would remain a local decision is called in by the Secretary of State. It goes through an inquiry process, but the final decision is taken by the Secretary of State. The noble Lord, Lord Turnbull, said that what we proposed—the Secretary of State at the last stage—was,

“increasingly suspect and anachronistic, as a Minister is subject to political pressure”.—[Official Report, 6/10/08; col. 20.]

But we believe that these big decisions are political in nature.

It was also said that it would be wrong for the Secretary of State to be both judge and jury in the case of a government-sponsored project. As the noble Lord, Lord Dixon-Smith, pointed out, those of us who have experience of local decision-making are used to being confronted with a council-sponsored project that has to go through the planning process and where proper planning criteria are applied as well as all the propriety matters. My amendment would not, I believe, amount to reopening these matters. There is a distinction between bringing out the issues going through the whole detail of the process and drawing a conclusion. I believe that it would be both right and possible for the Secretary of State to consider the issues brought out but perhaps come to a different conclusion.

We have heard a great deal about the need to avoid delay—I do not depart from that—but I do not think that requiring the Secretary of State to look at the evidence, consider it with her or his advisers and so on, would amount to the catastrophic delay that is being presented to us. If there is a problem with the Secretary of State being required to take the final decision, how did it come about that the new Secretary of State for Transport was able to publish a decision on the expansion of Stansted Airport six days after his appointment? Perhaps he spent the whole of the six days working on this—I do not know—but it seems unlikely.

I asked a Question about this, framed in less direct language, on 13 October, and I referred to comments made by the Minister. Despite that, the Government did not realise until quite recently that there might be some connection with the Planning Bill and the Question went to the Department for Transport rather than it being connected with CLG. In any event, the Question has not yet been answered. I will be interested if the Minister is able to give an answer today.

Amendments Nos. 4 and 106 would provide for the Secretary of State to require the commission to take back and reconsider the whole or any part of its decision. To us, that is less desirable than the more radical approach but the Secretary of State may well think that the IPC should reconsider, for instance, conditions attached to a decision. But, overall, big projects are political matters and we feel that the Secretary of State should be seen to have responsibility for them.

My Lords, the amendment goes to the heart of the role of the Infrastructure Planning Commission which will be set up by the Bill, and hence to the heart of the new arrangements for handling the planning of nationally significant infrastructure projects as proposed in the Bill. It is a very important amendment. Subject to a number of smaller points—for example, on attention to good design and a list of those who should be statutorily consulted—to some of which the Minister has responded by tabling government amendments, for which I thank her, I am broadly satisfied with the structure proposed by the Government.

It is reasonable that the Secretary of State and Parliament must be fully concerned with the national policy statements that are drawn up and approved. The Secretary of State designates and is responsible for the national policy statements and must lay them before Parliament. It remains to be settled whether parliamentary approval is to be required—I think it should be—and that is the purpose of Amendment No. 34, to which we shall come later. However, the question which now arises on Amendments Nos. 1, 2, 101 and the others is whether the Infrastructure Policy Commission, working within the national policy statements established by the Secretary of State—and, I hope, approved by Parliament—should now have the power to take the decisions on proposed developments and projects; or should it have only a consultative role, leaving the decision, or at least ratification, to the Secretary of State.

There are extensive provisions in the Bill on the pre-application procedures; for example, on the duty to consult the local community and to publicise. There are also detailed provisions on the handling of applications by the commission. I think that we can seriously ask what is to be gained by transferring the role of decision-making to the Secretary of State and reducing the Infrastructure Planning Commission to an advisory role. If we can get right the basic building blocks consisting of the national policy statements and parliamentary approval, we can leave the specific development and project decisions in the hands of the commission. We do not need to add a further stage of submission to the Secretary of State.

My Lords, I should like to make a brief contribution to this very important debate. I think it is true that the noble Lord, Lord Williamson, has never been an elected representative. I have been, in a number of roles, including vice-chair of a planning committee. All of us in this House and in the other place must be very concerned at the degree of disengagement that the public feel regarding political decisions, and no more so than in planning decisions. We all know how in any community a planning issue of a major development can stir a feeling of frustration and concern which is probably never reflected in any other process in our democracy. But we are talking about a representative democracy, and that is why inserting a ministerial longstop at the very end of the process, as proposed in the amendments of the noble Lord, Lord Dixon-Smith, and my noble friend Lady Hamwee, will be critical in terms of public perception. If it is not there—even if it is very rarely used—that will be interpreted as the bureaucrats having won, which would be extremely dangerous.

In our democracy it is very important that we know who will ultimately be accountable for decisions. If they get them wrong and do not, for example, reflect the policy that has been agreed by Parliament or go through the processes of consultation to which the noble Lord, Lord Williamson, referred, who is ultimately responsible for checking that that decision has been properly arrived at?

In my view, going to the courts is not a proper longstop. I hope that everyone in your Lordships' House agrees that regular recourse to judicial review on these matters is something that we should avoid at all costs. Therefore, it is surely much better that the final court of appeal, as it were—the final check to make sure that the process has been correct—should be a Minister rather than judges, somebody who has been elected.

I hope that the Government will reflect very carefully on what the noble Lord, Lord Dixon-Smith, and my noble friend Lady Hamwee have said. If we do not put in place that longstop, the public will interpret this change in the law as yet another move away from engagement by the public in the political process. At a time when the United States has come alive again, and people are a great deal more involved and interested in what is going to happen to them in terms of political decision-making, we would be stepping in the opposite and wrong direction.

My Lords, I oppose these amendments, which seek to make the IPC a referral body. I have carefully listened to the debates in Committee and have, of course, read Hansard. I have reflected on the arguments through the prism of my 35 years of experience in the planning arena where, for the most part, I was on the receiving end of decisions made on planning applications.

I have become more and more convinced that the Government’s architecture for the new planning approach—separating policy-making from decision-making—is correct. The years of delay inherent in the old system, which have been rehearsed many times in this House, are threefold but interlinked. First, the tangle of policy, which took much time to unravel; secondly, the lengthy processes in use at the inquiry; and, thirdly—and this is the point in question today—the delay involved in a Minister taking a decision following an inspector’s report, which often took as long as the inquiry itself. The Bill seeks to solve all these problems and, I believe, does so satisfactorily.

Let us not forget that all the delay and expense which the old system created have a deterrent effect on developers and funders alike at the very time when so much of our infrastructure is in urgent need of replacement. The amendments would reintroduce one of the elements of delay by referring back a decision of the IPC to a Secretary of State, with the lorry-loads of material gathered at the hearing going back to be trawled through by officials for a final decision by the Secretary of State. This is in the name, as I understand it, of the principle of democratic accountability. However, in Committee, this argument for accountability was shown to be quite misplaced. A Minister reaching a decision fulfils a quasi-judicial function. He is constrained; he must act independently; he is not open to parliamentary persuasion; he is not a free agent. It is said that the IPC is unaccountable, but, as the Minister pointed out on the first day of the Committee stage, while the commission is unelected, that does not mean that it is unaccountable. It will operate within statute, within the powers given to it. It will be appointed by a Secretary of State to whom it will report. Senior appointments are subject to pre-appointment scrutiny, and it will make full reports which will be the subject of judicial challenge. Indeed, the independence of the commission, with its body of experts, is a strength, not a weakness, and it will come to be welcomed by the public because it will not be seen to be a rubber stamp and it will not be a judge and jury.

The late Lord Denning once said in relation to a Housing Act inquiry that it was infinitely better that the man who heard the evidence and the arguments should decide the case, but that Parliament had decreed otherwise. Here, in this new system, the body which hears the evidence, finds the facts and balances the arguments will be just that, and we should welcome it. I oppose the amendments because they will bring the dangers of additional cost and delay without any corresponding benefit.

My Lords, this has been a long-running argument. It has run through the debates in another place and has figured substantially in debates in this House at every stage of the Bill. I have received, as have, no doubt, many noble Lords, a sheaf of representations on this issue. It will not surprise noble Lords who were perhaps not in the House yesterday that I have received a lot of information and advice from those who are concerned with the energy infrastructure of this country. I have also had evidence from a variety of statutory and voluntary bodies which seek to argue the case that has been argued by my noble friend and the noble Baroness, Lady Hamwee.

I find the argument slightly difficult. At Second Reading, I made my opinion very clear, which is that the key part of this process is the approval of the national policy statements. In Committee, I moved amendments to require that those statements be approved by both Houses of Parliament. Amendments on this Marshalled List would have the same effect. I agree with the noble Lord, Lord Dixon-Smith, who said at the beginning of his speech that the structure of the Bill is the wrong way round, because the process starts with the national policy statements. When they are approved—howsoever that is done—the planning commission takes possession of the individual applications. We have to consider this the other way round, and it is a difficult process.

However, we will come to the other question later. I was delighted to hear what the noble Lord, Lord Williamson of Horton, said about that. I hope that we shall have his support for the amendment seeking affirmative approval by both Houses for the national planning statements.

One comes back, therefore, to the function of the commission. I am not sure that I would go the whole way with the noble Baroness, Lady Hamwee, who said that the new Secretary of State for Transport was able to take the decision on increasing the number of flights on the first runway at Stansted in a matter of six days. As Financial Secretary in 1970, I think I approved the expenditure on the Thames Barrier in rather less time than that. But, of course, it had been considered by Treasury officials for years before I came into office. I was puzzled as to why my predecessor had not taken the decision and signed the authorisation but, under the rules, as anyone who has served in government will know, my officials were not allowed to discuss that at all. I did not ask them, because I knew that they would not be able to tell me. So the point about the right honourable Geoff Hoon taking a decision in six days is not wholly convincing.

I have occupied the position of Secretary of State for Industry and been, therefore, concerned with industrial developments and related issues. I have been Minister for Energy and concerned with investment; in those days, it was primarily about the North Sea. But I have also held office as the Secretary of State for Environment and been responsible for the planning process. No doubt, in the eyes of applicants or opponents, I was seen to take an astonishingly long time to reach a decision required by the Secretary of State after an appeal on a planning application. So in a sense I have seen both sides of this. I was interested in the remarks made by the noble Lord, Lord Hart of Chilton, who has much longer experience on this matter than I do, on where he saw the balance lie.

I find this an extremely difficult decision, largely because I start from the proposition that I should like to support my Front Bench. When I was a Minister, I liked my Back-Benchers to support me, although they did not always do so and it could sometimes be rather painful. At the same time, I have been mightily impressed by the weight of evidence from those who will be responsible for producing the infrastructure investment which lies at the heart of this Bill. It is in order to accelerate the process of vastly needed investment, not just in energy but in other infrastructure projects, that the whole of the first part of the Bill has been introduced.

I addressed a conference the day before yesterday, in the City, which happened to be hosted by the City Forum and was headed “Nuclear renaissance”. I was asked to talk from the point of view of the political and planning aspects. I described for that audience on Tuesday the argument between, on the one hand, those who would hope to invest in major infrastructure projects and those responsible for bringing them forward and, on the other hand, a mixture of the environmentalists, who make their views very clear, and the constitutionalists, who feel that somehow this has to be a political decision. I said that on the whole I had the impression that the former group was winning the argument. The noble Lords, Lord Williamson of Horton and Lord Hart of Chilton, reflected what I have come to regard as perhaps the better view. I will not vote against my noble friend’s amendment but, as I have discussed with him at some length over recent weeks, I think that I shall find it difficult to vote with him. I shall probably abstain.

My Lords, I am grateful to be able to follow the noble Lord, Lord Jenkin, because I, too, want the Bill to be the right way round. I believe that most of us in this House really want the Bill to work. We desperately want to speed up our ability to respond to climate change and to invest in modern infrastructure. Of course it would be wonderful if we could wave a wand and have a high-speed rail link up the east and west coasts of Britain and it would be nice if 50 per cent of our energy came from renewable resources and fed into a modern grid et cetera—as long as it was not in my back yard, of course.

For these projects, which, as I hinted, are almost certainly locally unpopular, to be implemented with minimum delay in our democratic society, we need the full authority of Parliament. I believe that, if we can achieve the full authority of Parliament behind the national policy statements, it will be perfectly acceptable for the IPC to implement and carry out the will of Parliament. If the NPSs have the full authority of Parliament and the IPC makes its judgment in the light of that authority, Parliament will have spoken, as the noble Lord, Lord Jenkin, said in Committee, and the decision will be unchallengeable. However, if the decision were questioned or reversed by a set of civil servants answering for the Minister but at one remove from the detailed analysis of the project, that would be a travesty of democracy and justice and would probably hold up the projects for no good reason; it may even make them challengeable in court.

Why would the Secretary of State come to a different decision, as the noble Baroness, Lady Hamwee, suggested? In my view, the Secretary of State would either be taking a decision for reasons of party politics in the constituency concerned or he or she could be ignoring the recognised and overriding local circumstances, which would have been thrashed out in public at an open hearing conducted by the IPC. Thrashing things out in public and having an open decision-making process are not synonymous with the ministerial decision-making process, with which the phrase “behind closed doors” seems to fit more readily. In conclusion, I believe that if we get Clause 9 right, we will not need ministerial involvement in the IPC decisions. I therefore give my full support to the Government on this issue.

My Lords, I have not spoken before on this Bill, largely because I regard it as probably the most progressive planning Bill since the last great progressive planning Bill, that of 1948. I will say a little about the Conservative Party’s policy, the evolution of which I had some involvement with, in a strange way. If the Conservatives were in government, they would strongly resist the amendment, because it strikes at the heart of the Bill. I disagree with the noble Lord, Lord Jenkin, on the national policy statements, which I think should be the start of the process, but I agree with much else of what he said. He is right to be concerned about delays in the process.

The reality is that we have never had in this country a planning system that allows us to promote infrastructure. Britain’s infrastructure lets us down in all sorts of ways. I disagree with the noble Lord, Lord Tyler, when he says that people are disaffected because of bureaucracy and their inability to intervene in the planning process. I suggest that what frustrates people is their inability to understand why we cannot deliver infrastructure programmes in this country as we used to be able to do in the 19th and early 20th centuries and as Europe does now.

I declare an interest, more for reasons of form than for reasons of substance, as a campaign director for Future Heathrow, which not only deals with the expansion of Heathrow but campaigns for the extension of the high-speed line to Heathrow and further north—I made a speech about this in Manchester two years ago. The two should go together. That hinges on one of the most important aspects of the Bill: how we deliver an integrated transport system in the UK.

As I said, the evolution of Conservative policy on this is interesting. In the 1980s, I set up an organisation called the Labour Planning and Environment Group, a group affiliated to the Labour Party and of which I was chairman. We ran a number of successful conferences and invited members of the Conservative Front Bench to speak—although not the noble Lord, Lord Jenkin, who might remember those occasions—and they did. The Secretary of State spoke at them because we were drawing together local authorities and business to address problems.

We never dealt with the infrastructure problems. They were not part of the discussion then, which focused on things such as out-of-town shopping centres. However, there was recognition by all of us, almost across the political spectrum, that the infrastructure planning process in Britain was seriously flawed. We all know the importance of infrastructure—roads, railways, airports, sewers, water, the lot—but the most important part of delivering it is the planning process. If you get that wrong, an awful lot of other things go wrong as well, which is what has happened.

I do not want to speak for long, so I conclude with a—slightly long—example. When the high-speed rail line opened in 2007 between the Kent coast and Paddington it had been about nine years in construction, while the French high-speed line had already been open and running for 10 years. Why? Was it because the British are not capable of building it fast? Was it because we did not have the money? Was it because of the urban density of the south-east? There is an element of truth in that; the density of the south-east corner of the UK is a problem. But urban density is a problem in Belgium and Holland, too, but they have a high-speed line. The financing is different here from France, and the French were better at getting that through.

However, a major cause of the delay was planning. People were travelling around Europe at 180 miles per hour, then coming through the tunnel and slowing down to about 80 miles per hour—in the country that had invented the train, started the industrial revolution and achieved all the scientific progress that enabled that revolution to take place.

The construction of the high-speed lines in Europe and Britain should warn Members to think twice before voting for the amendment. If you take away the independence of the infrastructure committee and place it within a political process, certain things will happen; the noble Lord, Lord Tyler, will know this as well as I do. If I am invited, as a local resident or politician, to object to something that local people say that they do not want, I will use every weapon in my arsenal to slow it down. That has happened for years, which is why we need a system in which we accept that problems for local people must be addressed through compensation and other things, without seizing up the whole country because of problems in particular areas.

I beg those who are thinking of voting for the amendment—particularly the Liberal Democrats, but also the Conservatives—to go into the Library before they vote and ask for maps of transport infrastructure in the European Union countries. There is heading after heading: France, Italy, the Benelux countries and all the others, and the links between road, rail and air. That is integrated transport, to which we all pay lip service in this country but do not deliver. Looking at the maps, you get to the Channel and see one little link to London, with talk in just one section of a proposed west coast line.

Britain is left out of it. The noble Baroness, Lady Thatcher, signed the single market treaty and believed in it very strongly. Whether you are pro-Europe or anti-Europe, if you are part of a single market, the last thing you want to do is design an infrastructure that excludes you from it. We are doing that, and it is a serious issue.

Noble Lords who vote for this amendment will strike at the heart of the independent process. If it is accepted, we will lurch right back into the situation, which we all agree we want to get away from, of constant delays to infrastructure projects which are necessary for the United Kingdom’s economic development. It does not help anyone if we lead people to believe that they can slow something down and stop change happening. Of course, people often object to change and of course it causes problems when it takes place, but you deal with that by addressing the problems caused for people; you do not just accept that slowing it down is a good thing.

My final warning is that if anybody thinks that either the objectors or the developer got any satisfaction at all from the planning process on terminal 5, they should forget it. It upset just about everyone. The one good thing that came out of the terminal 5 inquiry was that it made many people, myself included, go away and look at what was happening with regard to airports in continental Europe and ask why Heathrow was going downhill so fast. That was the only good thing about it. Everybody came out dissatisfied. It did us no good at all. I ask noble Lords please not to support the amendment. I ask noble Lords on the Conservative Front Bench, in view of their own history on this matter, not to push the amendment to a vote, and if they do push it to a vote, to look first at the maps of Europe and ask themselves whether they want Britain to end up as an offshore island that is cut off from the incredibly dynamic European economy, and with an infrastructure system of which we, as the first industrial power, ought to be slightly ashamed.

My Lords, I draw the House’s attention to my interests on the Register. My law firm carries out considerable planning work, in which I am sometimes involved. The inspector at the terminal 5 inquiry—a most distinguished barrister, Roy Vandermeer QC—really had his work cut out. The local plan was years and years out of date. The then Government had not produced proper traffic forecasts. All those things had to be sorted out by the inspector. That was not his fault. There were no national policy statements and that led to the problem.

My Lords, I was not criticising the inspector in any way. I think that he did a good job. The issue was the planning structure.

My Lords, my point is that there were no national policy statements. The inspector had nothing up to date at his side to assist him in dealing with these very complex major matters.

I have a fairly straightforward question for the Minister. If the IPC’s decision is wayward, or is, in the Minister’s view, unacceptable, or if circumstances change fundamentally after it has given its decision, can the Secretary of State intervene either to quash the decision or to challenge it in a court? What powers does the Secretary of State have in those circumstances? I support the system of national policy statements. It is a sound system and Parliament should have a crucial role in it. I also support the thrust of the amendments in the names of the noble Lord, Lord Dixon-Smith, and my noble friend Lady Hamwee. As the noble Lord, Lord Jenkin, so succinctly said, the Secretary of State does not consider these matters lightly. Teams of officials work on inspectors’ reports. One should get a valid, properly scrutinised and well considered decision from a Secretary of State. These major projects are deeply political and the buck should stop with the elected Government.

My Lords, I oppose the amendments, and I do so for the reasons that I explained before when we spoke about these matters. I draw attention to the fact that I have interests in the nuclear industry.

I am concerned about the apparent elevated status that ministerial involvement in this process seems to be accorded. Under the present planning system I cannot imagine even a Government whom I support, confronted with an unpleasant decision 18 to 20 months away from a general election, grasping that nettle and courting unpopularity in their constituencies. Frankly, in the unlikely event of the Liberals ever securing a place in government, I imagine that, faced with such a choice, they would do the honourable thing and resign, because their ability to grasp nettles of any kind is virtually unknown.

I therefore draw an analogy in this instance with the MPC, a body set up with the express purpose of denying ministerial political involvement by the Treasury in virtually every circumstance in the determination of interest rates. I offer the House the information that the interest rate has today been cut by 1.5 per cent, a cut of such magnitude that no politician would ever have had the guts to make it. Even with the respect that I have for Alistair Darling, a friend of many years’ standing, I do not think that any politician would have taken a chance like that. I do not think that the IPC is about taking chances, but it is about taking necessary decisions which at times might be popular and which at times might, equally importantly, be unpopular.

Frankly, in my 40 years and more of political involvement, the degree of courage shown across the political spectrum has not been of an order to indicate that political accountability would enable people to make that kind of decision. It is near hypocritical for people to tell us that Ministers like taking unpopular decisions and that they will go boldly on and take the consequences. They do not do that. They certainly do not do it in council groups where, as I understand it, there is no political involvement in the planning committee and there is no attempt by Whips to interfere, or so I am told. Certainly, no one would ever put anything on paper—conversations never took place and meetings were never held. We know that these things happen and that little councils sometimes come to decisions for daft reasons, in the almost certain knowledge that the applicants do not have the resources to appeal. Where the applicants do have the resources to appeal, they appeal and appeal and appeal, and the infrastructure gets into a dreadful state. We are not able to sustain the kind of economy or the kind of environment that is becoming ever more important in these sorts of debates.

There is a large dose of hypocrisy in what is being said today. I think that the amendment will be defeated and the proposers will be quietly satisfied, because they will know that they will not have to deal with that kind of problem in the future and that it will be left to the IPC to do so.

My Lords, I, too, declare interests, which are in the Register. My law firm also deals with planning matters, including infrastructure issues.

The noble Baroness, Lady Hamwee, quoted my intervention in Committee, and it may be said, as someone who has just been acting as counsel in a planning inquiry in Scotland, and having just received a positive response from Ministers to my client’s application, that it ill behoves me to take issue with the involvement of Ministers. However, I do so, and I do so in this context. The architecture of the Bill is to set up a new procedure to deal with large infrastructure projects. As I see it, the national policy statements are at the core of that. To that extent, I agree with those noble Lords who have suggested that we have got the Bill the wrong way round; not that it matters at the end of the day, but the key issue is the national policy statements, which will set out the strategic direction for the construction of infrastructure in our country.

Against that, the role of the IPC is critical and crucial. It will take decisions in an independent and quasi-judicial manner. Independence is at the core of the role of the Infrastructure Planning Commission. It is absolutely critical. To that extent, the amendments that have been tabled are almost wrecking conditions, because of the way in which they would go to the heart of the operation of the Infrastructure Planning Commission.

I draw noble Lords’ attention to Clause 102(3), which sets out the role of the commission in taking these decisions. It states:

“The Panel or Council must decide the application in accordance with any relevant national policy statement, except to the extent that one or more of the following subsections applies”.

That is absolutely clear. The national policy statements, which have gone through the procedure set out in the Bill, subject to whatever parliamentary procedure is finally agreed, are the determining factor. One of the key subsections is Clause 102(7):

“the adverse impact of the proposed development would outweigh its benefits”.

I suggest that that will be at the core of much of the IPC’s consideration. The IPC will have before it the national policy statement, which may very well support the application that it is considering; but the adverse impacts of the development on the locality are the key consideration.

I suggest that the body that is most able and which ought to take that decision is that which is charged with receiving all the evidence and, to the extent it is necessary, testing it. That is the IPC. To have, otherwise, the intervention of a Minister goes to the heart of the independent and quasi-judicial nature of the IPC. The amendments, particularly those from the Liberal Democrat Benches, suggest that the decision, once the IPC has taken it, would be subject to ratification by the Secretary of State. The Secretary of State’s alternative, as I understand it, is to remit the decision back to the IPC.

On what grounds would the Secretary of State undertake that function? It would only happen if the Secretary of State felt for some reason that he had got it wrong. If I were on the IPC I would send it straight back because to countenance a remit on that basis would go to the heart of the independence and the quasi-judicial nature of the function that I as a member of the IPC had been charged to fulfil.

With the greatest respect to those who tabled the amendment, it is a dangerous proposition for the House to contemplate. It is also dangerous for the Secretary of State. Let us imagine that the IPC has taken a decision in accordance with the NPS, to the effect that there are adverse impacts from the development but those adverse impacts do not in its judgment outweigh the benefits of the development; so it makes a judgment in favour of the applicant. In some communities, particularly the more middle-class and vociferous communities, there might very well be a vociferous campaign to try to overturn the decision. That would come, for example, through questions to Ministers and newspaper campaigns, as pressure increased on the Secretary of State to remit the decision back to the IPC. That goes to the heart of the constitutional arrangements that the Bill sets out—that there should be a clear division between the strategic direction which the IPC is implementing, and the independent, quasi-judicial decision on the individual applications.

I wish to raise two final matters. The noble Lord, Lord Tyler, suggested that one needed a long stop—the Secretary of State, not the courts. In fact, the courts are always a long stop. They are the long stop now and they are the long stop in the Planning Bill, because we live in a constitutional democracy, subject to the rule of law. The courts will always have a function. I, too, am concerned at the delay that may very well be occasioned by remitting back or involving the Secretary of State in any way. I echo what has been said by other noble Lords, and recall the words of a chief executive of one of our major utilities companies, who told me that in his opinion this was the most important Bill that Parliament had considered in the past 50 years, because it was critical to achieving security of energy supply and meeting the challenges of climate change. After recently debating climate change and energy matters, we should keep these issues at the forefront and defeat these amendments.

My Lords, I am wondering what is left for me to add in opposition to these amendments. Perhaps I may take up two points that may not have had as much exposure as they could have. The first relates to the views of all those trying to carry out infrastructure projects who have written to many of us and made their views well known. They include the CBI, the British Chambers of Commerce, the transport industry, the UK Business Council for Sustainable Energy, the British Wind Energy Association and the Renewable Energy Association. The list goes on. These are the organisations that we are expecting to produce energy-saving measures, let alone to maintain supplies of gas and electricity and build the infrastructure to create the new transport links. These are the organisations that are asking us to get on with the job and not proceed with an amendment that they believe would—if the Secretary of State were to take his responsibilities seriously—create delay. It would slow things down, which would mean waits of more months. The Secretary of State could intervene but then be distracted by other matters. Not only would there be delay; there would be the uncertainty that came from not knowing on what basis the Secretary of State was coming in possibly to exercise a different judgment from that of the independent experts. One would expect noble Lords on these Benches to believe that independent expertise had merit in its own right. We on these Benches do not inherently believe that politicians will always exercise superior wisdom over and above the views of the experts in these circumstances.

I have been subject to local pressures. The noble Lord, Lord Dixon-Smith, has cited a parallel example involving local councillors who have to stand up to an awful lot of pressure at the local level. In trying to achieve affordable housing schemes, I have had the letters through the post box, anonymous phone calls made to my wife in the day, the local protests making themselves known in the very unpleasant ways that they do, let alone the formal representations from national lobby groups and the rest. I know how councillors feel. When a project is unpopular it requires great powers of leadership at the local level to stand up to these pressures and say yes. It is very difficult for politicians. If my affordable housing schemes can cause so much hostility and resentment, how much greater will it be if we are considering large-scale national infrastructure projects? A nuclear power station will multiply by 100 the pressure on politicians. I suspect that if we take the Secretary of State and frontline politicians out of the equation and allow the independent, impartial and expert group, the IPC, to take these decisions, we will be blessed not only by those who want to get out there and get on with doing the job, but by any political party that finds itself in power on another day and needs to face up to these difficult decisions.

My Lords, I promise the Minister that I will be brief, particularly at this stage and hour. I am grateful to my noble friend Lord Jenkin of Roding for helping me to resolve my dilemma. I happened to have a personal leper’s squint on the Sizewell B inquiry. On 1 January 1983, the Treasury Solicitor rang my brother, shortly after he became a Silk, to say that the Secretary of State for Energy, my noble friend Lord Lawson of Blaby, had decided to brief counsel to the inquiry and to ask my brother if he would undertake that role. Two-and-a-half years later, I was in the British Embassy in Tokyo and coincided with the late, great Walter Marshall, whose accent a number of noble Lords will have in their minds’ ear. He kindly said that although the quality and quantity of the questions which my brother had asked had greatly prolonged the inquiry, which at that stage had been running for two-and-a-half years, he was satisfied that those on the technology and the hazards absolutely needed to be asked. He said that provided the questions were asked only rarely and there was confidence that they would not have to be repeated, he, at the receiving end, was happy for them to be asked.

I understand the pressure of the questions that have been brought to us and I can understand them more readily, because of the Sizewell B case. At about the same time, I attended a public seminar conducted by the noble Lord, Lord Flowers, on the transportation of irradiated fuel. That was not strictly a planning matter but it was an analogous situation. He said that he was totally satisfied with the safety of the urban transportation of irradiated fuel. I was the only Member of Parliament to attend, but I was an urban MP. However, he realised that there would be very grave public apprehension about that process and that, therefore, it was important that by one means or another, the public should be satisfied that the right decisions were being taken.

What we are contemplating in the Bill would confer a major responsibility on the IPC to explain and justify its decisions on a host of matters to the general public and to the specific public, in the context of specific applications. It would be welcome if the Minister said a little about the discharge of that responsibility on the part of the IPC. In the mean time, I am minded to follow my noble friend.

My Lords, having listened carefully to the noble Lord, Lord O’Neill of Clackmannan, it occurs to me that his proposition would result in no person who depended for their position on elections taking an executive decision. That seems to be a wide proposition. I do not express any view about the desirability of applying that doctrine in this case, but it seems to be a doctrine of very general application which would have a great effect on the machinery of government in our country.

My Lords, I am extremely grateful to everyone who has spoken in this debate. The noble Lord, Lord Williamson of Horton, started by saying that this is the fundamental clause, and indeed it expresses the fundamental purpose of the Bill. Therefore, I am grateful that we have had such a serious, thoughtful and expert debate on this group of amendments.

I do not want to repeat the arguments that I set out at length in Committee; they have been well rehearsed this morning. However, I believe that the weight of the argument has been with the Government. Despite my best efforts—and I shall continue to try to persuade the opposition Front Bench—the amendments still seem to suggest that an independent body making final planning decisions is a step too far because Ministers should be seen to be, and indeed be, politically accountable, and that the Secretary of State can and should continue to have a residual role at the end of the planning process.

I find it slightly odd that noble Lords opposite accept the scale of the challenges that we face, together with the logic of the NPS and what it is designed to achieve, but that they are still reluctant to follow that logic when it comes to the role of an independent Infrastructure Planning Commission, which will bring greater certainty, transparency, expertise and efficiency to the final planning processes.

The question before us—it was posed by the noble Baroness, Lady Hamwee, in Committee, and I shall return to it because it is the right question—is: where does accountability more properly and effectively lie in the new system set up by the Bill? What are we trying to achieve through the changes in the Bill, and how can that best be secured in the new processes that we have put forward and amended since Committee?

The case that I want to reinforce this morning—it has already been made by many of my noble friends and by noble Lords across the House—is not simply that the Bill provides for a stronger and more certain response to the formidable challenges that we face in terms of energy and climate security, but that the process that we have put in place brings greater accountability and divisibility within the political process and in terms of ministerial responsibility. It also provides a process which will allow for the community to exert greater influence—I take the point made by the noble Lord, Lord Tyler, on this—at different key stages, and, as my noble friend Lord Howarth said, for decisions to be taken by those who have heard and weighed up the evidence and are able to balance national need and local impact, and are as free to reject an application for development consent as they are to accept it.

A great deal unites us across the House, despite our different conclusions on the place and role of Ministers. The noble Lord, Lord Dixon-Smith, agrees that we need to change the system, and few would dispute that or dispute the definition of failure—which is where he started his argument today—or the scale of failure. It has been documented by the Eddington and Barker reports, and by the weight of evidence that has been brought to your Lordships’ attention and attested to this morning. In simple terms, that evidence means that, when it comes to major infrastructure projects, our planning system is so slow, so uncertain and so unclear that most applications are begun “at risk” by promoters. The deterrent effect is the default mechanism. We have heard evidence of the costs of failure. The ports industry has put a price tag of £45 million on the Dibden Bay application process.

The wider costs are borne by the community, which lives with uncertainty and blight for many years. Ultimately, if we fail to build the power stations, reservoirs and roads—the things that we need for our survival—we will all pay a far higher cost. The problems are becoming more urgent. There is no exaggeration in the statement that the great challenge to our generation is to provide energy and climate security together in a way that promotes and guarantees economic and social sustainability.

Those are common challenges for every country, which is one reason why this is such a competitive situation when we are looking for investment. However, we have specific problems in this country. We are the first industrial nation; we have a growing and ageing population, which we need to house; we need to provide transport; and we need to meet energy needs. Much of our infrastructure requires urgent replacement now, and it needs to be done sustainably. At the same time, we need to grow a competitive, knowledge-led and energy-dependent economy. That would be a big enough challenge but doing so in the face of a need to move towards an 80 per cent cut in carbon emissions by 2050 to avert catastrophic climate change means a tenfold increase in renewable generation over the next 12 years. To secure a new supply, the best modelling that we have suggests that between 10 and 20 new power stations and around a dozen major gas storage facilities will be needed by 2020.

The point about competitiveness comes in when you look at the scale of all this. Let us take Shellhaven Port as an example. It is phenomenally expensive, involving a £1.5 billion investment, and it will bring with it the largest logistics centre in Europe. It will generate 12,000 jobs and bring huge regeneration benefits for the Thames Gateway. That is the sort of investment that we need.

To achieve that, we need a predictable, clear planning system, which we do not have but other countries do. It is to other countries that the investment and skills will go unless we get this right in the Bill now. They will attract the skills to modernise their infrastructure because their planning systems are more certain—whether you are talking about Australia, Germany or North America—more welcoming and more liable to manage risk. Why should anyone commit to building our new power stations or ports when what we offer is a process where nothing—timetables, processes, outcomes or decisions—is certain, where national policy is debated and disputed on the floor of the planning inquiry at the final stage, where local interests and impacts are often overlooked, and when countless separate consents are needed.

Therefore, we are putting forward a planning regime for major energy, transport, waste and water infrastructure that addresses those things. Thresholds are set out in the Bill for each sector to capture only those projects which can genuinely be described as nationally significant—about 45 each year. That is why I do not take the parallel with the local planning decision that noble Lords have been making. The Bill replaces the eight current consent regimes for major infrastructure with a single consent regime. There are three stages in this regime and they are all interdependent.

The first stage in an entirely new process is indeed the national policy statements, which will set out the Government’s overall objectives for infrastructure development, including in relation to need. In some cases, as we have debated, these may specify locations as being potentially suitable for development; in others, they will need to specify criteria against which the suitability of locations can be assessed. In all cases, national policy statements will be subject to mandatory consultation, appraisal of sustainability and an entirely new form of parliamentary scrutiny. The noble Lord, Lord Burnett, referred to the failure of the process in relation to Heathrow—not least because we had no national policy statement.

My Lords, I am very grateful to the Minister for giving way. I think there is consensus around the House that there is a very powerful case for these national policy statements. The Minister makes a very powerful argument. She has talked about the planning system being uncertain and expensive and about the fact that we need a predictable planning system. I am moved to ask her whether the Government will alter, or try to streamline, the remaining elements of the planning system which are also unsatisfactory.

My Lords, I can answer that. At the moment, we have an end-to-end review—the Killian/Pretty review—which is looking at just the sort of problem that the noble Lord and I both know exists.

The second stage is about project development. The Bill requires applicants to consult those whose land interests may be affected, the local community, the local authority and statutory consultees. This, again, is a new process of pre-application.

The final stage is consideration by the Infrastructure Planning Commission. Complex projects will be considered by a panel of expert commissioners, with less complex cases being considered by single commissioners. The time limits will be very important. There is a statutory six-month limit for inquiries and a further three months for a decision, both measured from the point at which the inquiry begins. Decisions will be made by the commission, taking into account the national policy statement, the local impacts report from relevant local authorities and any other matters which the commission considers important and relevant. That is the framework in which we are having this discussion on accountability.

The charge here is that, by giving decision-making to an unelected body, the proposals undermine the accountability of such decisions to the public. The argument, which we heard again on Report, is that this in turn is unacceptable because of the significance of these decisions.

I should like to make three arguments. The first—I could not agree more with the noble Baroness, Lady Hamwee—is that we fully recognise that the decisions on power stations, airports and major roads are indeed big political matters. They involve important questions of the balance of the public interest, the national economy and sustainability. Because we believe that so deeply, the essential change that we are making in the Bill is not to remove the Minister, not to reduce responsibility and certainly not to humiliate the Minister, as the noble Lord, Lord Dixon-Smith, suggested, but to reposition the Minister, the Government and that responsibility in a way that makes the process visible and actually enhances it.

I am grateful to my noble friend Lord O’Neill for a very powerful speech, which drew out some rather uncomfortable home truths. For the first time, Ministers will have to set a clear policy framework for our key elements of infrastructure. They will have to make their case for their policy through public consultation; they will have to set out clearly how sustainability is achieved and where the balance of public interest lies; and they will have to consult and go through parliamentary scrutiny.

I believe that the questions raised by the noble Baroness, Lady Hamwee, are fully answered. Who takes the decision? The Secretary of State takes the decision. Who do the people believe takes the decision? The people will see that the Secretary of State takes the decision in the national policy statement. Who should take the decision? The Secretary of State should do so. Ministerial accountability will be tested in parliamentary scrutiny. That is strengthened by our own amendment that the Government will need to respond to the views of committees of either House. So let us be clear: Ministers will be visible and at the front of the process rather than at the back end where the Minister takes a decision within the privacy of the private office.

My second argument has already been dealt with by my noble friend Lord Hart. He pointed out that because the commission is unelected does not mean that it is unaccountable. I offer two instances. First, it will be appointed by, and need to report on its performance to, the Secretary of State; and, secondly, it will have to give full reasons for its decisions.

The third and the most important argument is that this regime will provide much clearer and more transparent decision-making than the current system. I believe that noble Lords have challenged and demolished the misconceptions about the nature of ministerial decision-making. It is often asserted that these decisions are essentially political acts. This morning, those arguments have been exposed as fragile by planning lawyers and Ministers with years of experience. I agree with the very frank appreciation of the process of decision-making by the noble Lord, Lord Jenkin, who has so much experience in this area.

Ministers who take planning decisions do so in a quasi-judicial fashion. They cannot be lobbied, or take into account representations received outside the prescribed procedures, and they cannot be challenged in Parliament. But as long as the roles of policy making and decision-taking are so entangled, as they are, there will be an understandable confusion and an obscuration of where decisions are taken.

Under the regime in the Planning Bill, the process will be much clearer. The boundary between policy and planning will be clear and explicit. The current situation where the Secretary of State may in some instances set the policy, promote a scheme and then decide whether it should go ahead, effectively acting as judge, jury and defence counsel, will no longer apply. The basis on which decisions are to be taken will be absolutely clear and fair. I say to the noble Lord, Lord Burnett, that the commission will determine applications in accordance with the law. It will not take daft decisions. This is a process of such rigour—

My Lords, I will not give way to the noble Lord as I need to press on. While, of course, it will need to consider important and relevant evidence and to reject projects where the costs outweigh the benefits, it will have no discretion to apply a different policy other than that set out in the national policy statement.

We are satisfied that the regime proposed in which Ministers are held clearly accountable for overarching policy, and in which individual decisions taken independently within this framework can be challenged in the courts as now, is fully accountable, clearer and more certain than the current system.

I turn to the amendments. If the IPC were only an advisory or recommending body, as the noble Lord, Lord Dixon-Smith, would have, much of the logic and the advantage of having ministerial accountability set out in the NPS would be lost; and the speed, efficiency and clarity of a single process would be lost. The incentive for Ministers to produce rigorous NPSs would be greatly diminished and there would be an inevitable tendency to use the decision process to tinker with policy. All that would significantly and unnecessarily increase the risk of challenges and uncertainty. Under our proposals, there would be a clear opportunity to challenge proposals after the IPC decision. The approach recommended by the parties opposite would mean that there would potentially be sequential challenges. That would create more uncertainty. People have said to us, loud and clear, that they do not want that.

I turn to Amendments Nos. 1 and 101, and to new Clause 101. The amendment of the noble Lord, Lord Dixon-Smith, and the noble Earl, Lord Cathcart, to Clause 101 would require that any decision taken by the Secretary of State be subject to annulment pursuant to a resolution of either House of Parliament, which would exacerbate the situation further, adding another layer of delay and uncertainty as everyone waits to see whether Parliament would intervene and annul the decision of the Secretary of State. That would be yet more uncertainty.

On Amendments Nos. 2, 4 and 106, I know that the noble Baroness, Lady Hamwee, has struggled “womanfully” to address the problem about which she feels strongly. As my noble and learned friend Lord Boyd made perfectly clear, whether one is talking about recommendation, ratification or reconsideration, one cannot invent a spurious process which simply requires the Minister, in all integrity, to rubber-stamp a decision. The Minister would have to revisit the evidence.

A question was raised about why the Secretary of State was able to take a decision in six days on Stansted. I think that rather makes our case. The inspector reported in January; the department considered the evidence extremely carefully over the course of several months; and we had to refer back to the inspector on two occasions to obtain further detail. Ministers were involved throughout the whole process, but it took months to come to a decision. In the end, this is precisely why we believe that those who examine the evidence are the right people to take the decision.

With regret, I cannot accept the amendments. I am sure that the noble Baroness is also aware that her amendments would render the commission inoperable because it would require that all decisions taken under it, including matters such as whether to accept an application or how to examine it, would be subject to ratification.

Before I conclude, I want to make a further brief set of comments. We brought back to this House a number of amendments which I believe address the second of the questions which started my personal debate with the noble Lord, Lord Dixon-Smith, on this Bill: we need to be assured that this is a workable process. The job of this House is to ensure that whatever we bring forward will work. We have brought forward a number of amendments which not only strengthen the workability of the process and improve it, but also strengthen accountability. We have strengthened the role of this House by putting an explicit reference in the Bill to its role in scrutinising national policy statements. We have strengthened its sustainability duty. We have given high quality design greater prominence. We have strengthened the role of planning authorities by putting national parks authorities on the face of the Bill. We have clarified the considerations that the Secretary of State should take into account when deciding when to review national policy statements. We have made it absolutely explicit in Clause 12 that all national policy statements should meet the tests set out in the Bill for consultation, scrutiny and appraisal of sustainability. We have given the IPC new powers to appoint legal advisers in the examination of applications and clarified when the examining authority should invite participants to cross-examine witnesses.

The Bill is better and stronger as regards democracy and accountability. All that will add to a process which we have tried very hard to ensure is speedier, clearer, more certain and more transparent. That will ensure that the independence of the IPC is not achieved at the expense of confusion or compromise, and that ministerial accountability is in the right place and will be strong enough for parties opposite to have every confidence in it.

My Lords, this has been a long, interesting and in some ways very detailed debate, which I find saddening and depressing. For 28 years, I was a member of a county council and for five years I served on a county planning committee when the county was the planning authority. When I first stood for election, I could genuinely say to my electorate, “These decisions will be for me and other members, and if you do not like what I decide, that is fine by me; you can chuck me out at the next election”.

Forty years ago—heaven help me when I think of that number—somebody introduced public consultation into the planning system. The planning process has been going downhill ever since. I accept that we are where we are and the position is not satisfactory. The body of objections that we have heard from most Members opposite were unquestionably right in their criticism of the existing system. That is fair enough. The existing system is wrong, but we are not discussing the existing system; we are discussing the Bill. Our amendment would not prolong the existing system. Most people seem to have forgotten Clause 105, which time limits the Secretary of State’s decision. If the national policy statements are appropriately and correctly approved, if the commission, as I would expect it to, properly and equitably follows the processes to its, in our case, recommendation, and in the Government’s case, decision, the efficiency of the system will work perfectly satisfactorily, if—and I admit this is an “if”—we as politicians can behave responsibly and act with sufficient expedition. I entirely acknowledge that under the existing system that has not happened for a host of not good reasons. I find it very sad that the Opposition—sorry, the Government—appear to be rather nihilist in this matter. The time may come when that remark of mine is entirely appropriate, except that I may be sitting over there.

My noble and learned friend Lord Mackay of Clashfern got it right when he said of the remarks made by the noble and learned Lord, Lord Boyd of Duncansby, and, effectively, so many other noble Lords on that side of the House, that if the reality is that politicians are not to be trusted with executive decisions, we need to start thinking very seriously because they should not take any executive decisions. If that is the conclusion that we are to draw from this debate, that is why I am depressed and saddened by what I have heard today. This is a significant matter. I have more faith and confidence in the future and in the politicians who we will have in the future. I am not being party political when I say that; I think that we will find that we will change in nature and become more positive.

I do not accept—although I have to acknowledge that it is more expeditious—that the continentals have some great advantage in this. If one goes to the continent, there are a great many things that still need to be done. If one asks whether the French system is satisfactory from the point of view of the general populous, the general populous accepts what is done, but on the whole is not very satisfied with it because it has very little input. That may be a wonderful model for a Government, but it is not in keeping with our traditions in this country.

This is a matter of sufficient significance that we ought to test the opinion of the House.

[Amendment No. 2 not moved.]

My Lords, I beg to move that consideration on Report be now adjourned. In moving this Motion, I suggest that Report begins again not before 2.26 pm.

Moved accordingly, and, on Question, Motion agreed to.

Safeguarding Vulnerable Groups Act 2006 (Transitory Provisions) Order 2008

rose to move, That the draft order laid before the House on 15 October be approved.

The noble Baroness said: My Lords, the orders arise from two different effects of the 2006 Act on the barring of unsuitable persons from work with vulnerable groups. First, the Act requires us to go through a transition from barring decisions taken under the current schemes by the Secretaries of State, as happens now, to barring decisions under the new vetting and barring scheme, which is to go live in October 2009. The barring decisions under the new scheme will be taken by the new Independent Safeguarding Authority or ISA, referred to in the legislation as the Independent Barring Board. Secondly, the Act was passed in 2006, before amendments to the current List 99 scheme in 2007 which expanded List 99 coverage to foreign offences, so we want to update the Act to catch up with the expansion of the List 99 scheme.

I thank both the Joint Committee on Statutory Instruments and the Merits Committee for carefully considering the orders. As noble Lords will be aware, neither committee found anything to comment on in the orders, but the Merits Committee reported the orders because it felt that they were of interest, and published brief supplementary information provided by my officials.

I have published an information note for noble Lords to support the debate, which explains in detail how we wish to make use of the functions created by the foreign offences order in future proposed regulations on automatic barring. I will not repeat the detail from that note about the automatic barring regulations as the regulations will be affirmative and we will have the opportunity to debate them in their own right. I will, however, outline the main reasons for the orders.

First, we propose to handle the transition by undertaking it in stages. The transitory provisions order requires Ministers to stop taking barring decisions on new referrals under the current schemes. Instead, it requires the ISA to take the barring decisions on those referrals under the Safeguarding Vulnerable Groups Act. Ministers will decide on the remaining tail of existing referrals. Bodies such as employers, who have a duty under the current legislation to make a referral—for example, where they dismiss an employee because of a risk of harm to children—will generally have to make new referrals directly to the ISA. The exception is that referrals under List 99 legislation in Wales will still have to be made to Welsh Ministers, who will pass them on to the ISA.

We aim to bring the transitory provisions order into force by 19 January 2009, a very important date. The ISA will start to take decisions from the date on which the order comes into force, subject to parliamentary approval not only of these orders but of the regulations on which offences will lead to an automatic bar. We aim to lay those regulations promptly if Parliament approves the foreign offences order.

The main benefit of starting ISA decision-making before the vetting and barring scheme goes live is that it helps us to manage the transition more smoothly. All individuals placed by Ministers on current barred lists will be referred to the ISA. The ISA will then include them, or consider including them, in its barred lists under an order made by Ministers in the spring. By moving decision-making to the ISA from January 2009, we will reduce the number of individuals whom first the Secretary of State and then the ISA must decide whether to bar. Instead, the ISA will take a single decision straightaway. This is the most streamlined and efficient approach. It will also minimise any period, after the new scheme goes live, when current arrangements will need to be preserved while the Secretary of State completes the decisions on the tail of cases that are for him to decide and the ISA migrates those cases to the new barred lists. If I dare, I shall say a little more on this in a moment.

Secondly, the foreign offences order enables the 2006 Act to catch up with an improvement that was made in 2007 to the List 99 regulations, to which I have already referred. This provided for an automatic bar in the case of a person convicted of a specified foreign offence. We want to have this power under the 2006 Act as well to increase protection for vulnerable groups and to honour our commitment that statutory safeguards under the Act are not less than those under current schemes, including List 99.

The information note, which we have circulated, sets out how we intend to use that power. It contains a list of offences and the circumstances of commission. We propose that when the ISA is informed of an individual being convicted or cautioned for any of those offences in those circumstances, or convicted of an overseas equivalent offence, the ISA must automatically bar that individual.

I will say a little more about the transitory provisions order and our reasons for proposing to tackle this stage of transition in this manner. My right honourable friend Ruth Kelly made a commitment to Parliament in January 2006 to put decision-making in the hands of experts who are independent of government. Having the ISA take over decision-making on new referrals at this stage is the earliest possible fulfilment of a major part of that commitment. It also supports the ISA in preparing in a stable and thorough way for the launch of the new scheme, which is scheduled for October 2009. Reducing the number of decisions to bar individuals which the Secretary of State must take—individuals whom the ISA would then have to consider for inclusion on its barred lists—helps the ISA to complete a significant share of those transition cases before the go-live date.

This makes things a bit simpler for the employer and the barred person, because they will have dealings with just one body, the ISA. For employers, the order makes hardly any change to current arrangements. In particular, employers must continue to make referrals in the same circumstances in which they make them now under current schemes. I will highlight one or two of those changes. With the exception of List 99 cases in Wales, employers will have to send new referrals directly to the ISA. Where the Secretary of State now asks for information held by employers, regulators and similar bodies, they will have a statutory duty to provide that information to the ISA. We will make a commencement order to bring relevant sections of the Act into force, and will lay regulations in a few weeks time to prescribe the information that these bodies will have to provide on request.

The automatic barring of individuals who have been newly convicted or cautioned for more serious offences, which happens now under List 99, will be extended to all the workforces from which persons are barred by current schemes. The offences are listed in the information note. Just as the Secretary of State now writes to persons whom he has barred or intends to bar, the ISA will write to persons whom it proposes to bar, or has automatically barred, informing them of their rights to make representations. If the bar is confirmed following representations, the ISA will write to them informing them of their right to seek leave to appeal, except for the most serious offences where those rights do not apply, and their right to seek permission for a review of the bar after a set period. The ISA will inform them that, before the new scheme goes live, the bar covers the same workforces as a bar by the Secretary of State under the current schemes; and that, after the new scheme goes lives, the bar will cover the wider range of workforces specified by the Safeguarding Vulnerable Groups Act, of which noble Lords are well aware.

Nothing can be more vital than safeguarding children and vulnerable adults from those who pose a serious risk of harm. While we all have a responsibility, the Government are determined to play their part by doing everything that they can to safeguard them. I therefore commend the orders to the House. I beg to move.

Moved, That the draft order laid before the House on 15 October be approved. 28th Report from the Joint Committee on Statutory Instruments.—(Baroness Morgan of Drefelin.)

My Lords, I apologise for not being here when the Minister began her remarks. I am afraid that I was taken up entirely by our amendments to the Education and Skills Bill and did not notice the time.

I thank the Minister for explaining why these orders are being implemented and what they aim to achieve. She explained that, to help the transition, it is necessary—indeed, desirable—to undertake it in stages. I observe, however, that these are orders to an Act that has now been around for two years, and that the preparation and reports that were produced for that Act had been swirling around Whitehall for some time before that. It is a measure of how dependent the 2006 Act was on secondary legislation to fill out the details that we are discussing these very important orders in November 2008. Perhaps the Minister will appreciate why we Opposition Peers so frequently express our unhappiness at being assured that the detail is coming, when we see that years can pass before the full picture of a Bill emerges.

Of the two statutory instruments, the foreign offences order gives rise to the most serious questions. Maria Miller, my honourable friend in another place, pointed out what a significant part overseas workers play in our workforce. They are as many as one in 10 of the overall workforce. In healthcare, one person in four comes from overseas. It is therefore vital to address the issue of how overseas workers are vetted. The order brings us back to a point which the Conservatives made when the Act was still a Bill: that offences committed overseas must be taken into account. I am unsure why, having thought that the matter was suitably covered then, the Government have now realised that it needs to be examined. None the less, I am grateful that they are now doing so.

Overseas workers pose a major loophole in the vetting procedure. Put simply, if they have committed crimes in other countries they may not show up on a CRB check. I have two problems with that situation. The first should be obvious: it is not remotely acceptable to have 10 per cent of the workforce or, as I said, in some sectors as much as 25 per cent dropping beneath the radar in criminal background checks, so that we effectively cannot say one way or another whether they should be considered safe.

The second point follows directly from the first: if people are to be vetted, and if necessary barred, it strikes me as hugely unfair that everyone is not subject to the same rigours. How do the Government intend to make checks on those overseas workers who may or may not have committed an offence? The same goes for workers who have merely spent some time overseas. Presumably, any check on them will turn up nothing for the period during which they were out of this country. I am not sure that it would even be enough to flag up such individuals so that employers are put on notice. What exactly should employers be expected to do with that information?

What reciprocal arrangements are in place with other countries to exchange such data? I understand that a scheme is in place with Australia and France. But is that all? How are those schemes working in practice? What are the Government doing to obtain information from other countries? How reliable can we expect that information to be? What do the Government propose to do about cases where the offence is a crime in the other country, so may be flagged up by a check, but is not an offence here? Will that person still be considered a risk? How will the Government deal with such disparities in differing criminal justice systems? How will those individuals get through the system if a system is put in place?

I am glad that we have finally had the chance to debate these measures. The noble Baroness, Lady Walmsley, and I tried to bring these issues up when discussing previous orders on safeguarding vulnerable groups. I hope that the noble Baroness sees that there are still awkward questions which need to be answered.

My Lords, it is true that this legislation was drafted and put through Parliament in a bit of a hurry. It suddenly dawned on Ministers that they are not the appropriate people to make these decisions. Although it has taken a couple of years to get to the first stage of implementation, I am very pleased that, at the very least, as soon as the expert board was created it started to advise Ministers in a formal way, which is a good thing. The Minister knows how supportive both opposition Benches were about the main thrust of this Act when it went through your Lordships’ House.

It is right that there should be a transitional period; otherwise the burden of cases probably would cause undue delay, and none of us wants that. However, the crucial issue is the extent to which employers and those who may be affected by banning orders know and understand where we are up to in that process of transition, what they have to do in the case of employers and how the ban affects them in the case of banned individuals. How will the Government ensure that all that is clearly understood during the transition phase? Do people know the difference between the ISA and the IBB? I understand that there is no difference. I should like to know why it is necessary for the board to be referred to by two different names.

On the foreign offences order, we have had a lot of information about the extent to which the exchange of information about offences in other countries has progressed. Clearly, collaboration is not perfect yet. The whole process still relies on two things. The first concerns an employer asking an applicant whether he has worked abroad. What can be done about that? How can we make sure that employers always ask that question? The second thing is whether other countries let us have information about offences when the ISA asks for it. Perhaps the Minister will answer the questions posed by the noble Baroness, Lady Morris, which are also in my mind, about where the gaps are in other countries. If the ISA does not ask for the information, because no one knows that the applicant has worked abroad, the whole thing falls apart however good the communication between our law officers and those of other countries.

The information note, which the Minister was kind enough to send us, has 26 pages of UK offences that would result in a bar, either with or without representation. I should like to know who decides about the equivalents of these UK offences in other countries. Some of them are technical and include an element of the age either of the perpetrator or of the victim, which might vary in respect of offences in other countries. Does it have to be done in detail country by country, looking at a list of our offences compared to a list of their offences, or is there an international table of equivalents which can be referred to?

The noble Baroness, Lady Morris, referred to a situation where someone commits an offence in another country which is not an offence here. I should like to ask about the reverse of that; namely, if something is not an offence in another country—say, to have sexual relations with a child of a particular age—but it is an offence in the UK, how will the Government find out if any applicant has done that? Presumably, the authorities in the other country will have no reason to have a record if it is not an offence in that country. I accept that people will be barred for an offence overseas only if that offence is also an offence here. But what if one of our offences is not an offence there? Such a person would not come to the notice of the authorities in the other country.

That raises two real issues; that is, first, knowing whether a person has worked abroad, so that the questions can be asked in the first place and, secondly, those offences that are offences here—we would like to take them into consideration if someone applies to work with a vulnerable group—but are not offences in the country where the act was committed. Will the noble Baroness clarify the position?

When the 2006 Act was going through the House one of our main worries was whether people who were accused of one or more minor offences really understood the consequences of accepting a caution in relation to a future career involving working with children. Has the Minister any further evidence on that situation since we first debated the matter two years ago? Has any research been done on the extent to which those who have accepted a caution really understand what it means to them in relation to working with any particular group? I still am worried that when people accept a caution it is because they consider it to be the easy way out rather than going through a court. They may not be guilty of committing an offence, but they may accept a caution without realising the effect it could have on their future career.

My Lords, perhaps I may add another situation for the Minister to comment on; namely, those people whose behaviour in the past might be considered to pose a risk and might be presented for consideration under the system, but who do not have a criminal conviction of any sort or a caution. Will the ISA/IBB provide guidance for those of us who manage large numbers of people on how we should handle those situations?

There is also concern about appeals. People who do not have any sort of criminal conviction, but nevertheless may be considered to be a risk, are being drawn into a lengthy, legal process as regards barring. How does the Minister see the appeal system working through this process?

My Lords, I thank noble Lords for taking part in this short debate and for giving me the opportunity to answer their questions. If I do not cover them adequately, I will write after I have cross-checked questions and answers in Hansard. I will undertake to make sure that all noble Lords have the information they seek.

The noble Baronesses, Lady Morris and Lady Walmsley, asked about gathering more information on convicted foreigners seeking to work with children and vulnerable people here. The EU Council decision taken in November 2005 ensures that an EU state must inform the UK if a UK national is convicted in that state, and under the same decision criminal conviction information can also be sought on EU nationals being proceeded against in this country. The UK sees information-sharing as a key priority for the next EU work programme, and, as noble Lords will be aware, we have signed the Council of Europe Convention on the Protection of Children Against Sexual Exploitation and Sexual Abuse, which recognises the need to share information for child protection purposes. The noble Baronesses also asked about bilateral efforts between countries. The Criminal Records Bureau is pursuing bilateral agreements, and in her speech the noble Baroness, Lady Morris, referred to the examples of France, Ireland, Poland and Australia on their agreements to exchange information for employment vetting purposes. However, this is difficult territory and so far only three of the 26 EU countries have said that they can co-operate with us on these bilateral agreements. That is an indication of how far we have to go. We recognise that there is an enormous amount of work to do.

Noble Lords will be aware of Sir Ian Magee’s review into sharing information on criminality, published in the summer. The review recommends that we expand information flows with other countries. Doing so will provide a more co-ordinated approach, and Sir Ian has said that vetting and barring will be a priority in this work. I was asked whether a clear CRB check provides evidence of a clean record. We agree that this is an important point. As the noble Baroness pointed out, when someone comes from abroad, a clear CRB check does not necessarily mean that they have a clean record. That is why our guidance to schools states that additional checks should be made on the work carried out by people overseas. Those checks should include, for example, certificates of good conduct from the relevant embassy. I want also to make absolutely clear the duty on employers because the new scheme is not a substitute for employers’ general duties and responsibilities. It complements rather than replaces them. Employers should inquire into a person’s career history, take up references and ask searching questions about any gaps, as they do now. The noble Baroness, Lady Morris, said that she was not convinced about a flagging scheme because it can only do so much and would mean a massive increase in the scheme’s complexity. If we were to attempt to track through this scheme all employees who travel abroad, that level of complexity would make it unmanageable. It is therefore important to stress that the scheme does not replace the duties on employers.

I understand that in the Commons Committee there was a debate on an amendment that would have required the Secretary of State or the ISA to inform a relevant regulatory body like the General Teaching Council or the General Medical Council if we or the ISA became aware that an individual had been charged or convicted of a foreign offence which, had the act been committed in the UK, might have lead to the individual either being barred or considered for it. That is not the same as using the information to bar an individual automatically. The Act provides that if someone is on an equivalent barred list in a foreign country or subject to a foreign order such as a sexual offences prevention order, they can be automatically barred. At the moment, the Act does not provide for someone to be automatically barred where there is just an equivalent foreign offence. However, the ISA will be able to take into account information it considers appropriate, which is a wide power that needs to be borne in mind.

The noble Baroness, Lady Walmsley asked about the change of name from the Independent Barring Board to the Independent Safeguarding Authority. The IBB is only the legislative name for the ISA. I appreciate that changes of name, complexity of processes, the order and timetabling of regulations and so forth can be bewildering, but I want to make it clear from this Dispatch Box that we in the department will do all we can to ensure that noble Lords have the information and support they need to scrutinise these proposals in a timely manner. Name changes and timetables should not stand in the way of appropriate and searching debate in your Lordships’ House.

All communications with the general public about the vetting and barring scheme will refer to the Independent Safeguarding Authority, which will be the “brand”, and the IBB will not be referred to. All individuals and employers using the scheme will first look at the guidance rather than a copy of the Act, which I am sure will come as no surprise to any noble Lord. We believe that those using the scheme will be clear about the correct name, the ISA. I hope that I have reassured the noble Baroness on that point.

We recognise that there are difficulties surrounding foreign offences and that this is not a straightforward area. We have already provided some information to the Merits Committee but we will be happy to go over it. Our full response to the committee has been published in its report, but I want to make it clear that the police provide us with information on the read-across between foreign offences and their UK equivalents. This is important for the ISA. In particular, the UK Central Authority for the Exchange of Criminal Records has developed significant expertise over the past two years in interpreting foreign convictions and a track record is developing in this regard.

The noble Baroness asked about offences committed abroad which are not considered to be offences over here. There will be no automatic barring in such cases. Only foreign offences which have an equivalent to a UK automatic barring offence will lead to such barring, but I stress again that the ISA will take into account those offences. However, they will not be automatic.

I turn to the point raised by the noble Baroness, Lady Walmsley, about cautions. ACPO has strengthened its guidance to police forces to ensure that when in the UK cautions are accepted for an automatic barring offence, the individual understands that he or she will be barred. I am not sure whether that fully answers her question, so I will check further into the position with regard to offences for which there is not an automatic bar and come back to her more fully.

The right reverend Prelate asked about guidance for employers and in general on the system. We will be issuing comprehensive guidance to employers and I shall check personally that the right kind of information is being provided to all those who are engaged with the system, whether they are large or small employers, or in the voluntary sector. It is important that that is done properly. I am afraid that I do not have the answer to the question of research into cautions, but I will get back to the noble Baroness, Lady Walmsley, as quickly as possible.

I hope that I have answered the questions raised, although I feel that I may not have answered all of them fully. An enormous amount of work is needed to get this right and more regulations will be forthcoming. To get it right, it has to be done properly and we have to get the transition working well. I am grateful to all in the House who have helped us. They have challenged us but they have always put the need for safeguarding children and vulnerable young people at the centre of the debate. Ultimately, that is what we are all concerned to achieve.

On Question, Motion agreed to.

Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria) (Foreign Offences) Order 2008

My Lords, I beg to move the Motion standing in my name on the Order Paper.

Moved, That the draft order laid before the House on 15 October be approved. 28th Report from the Joint Committee on Statutory Instruments.—(Baroness Morgan of Drefelin.)

On Question, Motion agreed to.

My Lords, I beg to move that the House do now adjourn during pleasure until 2.26 pm.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 2.01 to 2.26 pm.]

Planning Bill

Consideration of amendments on Report resumed on Clause 1.

3: Clause 1, page 1, line 7, at end insert—

“( ) There is to be a body of Commissioners to be known as the Commission’s Council (“the Council”).”

The noble Lord said: My Lords, we do not have quite the audience that we had before lunch, but it is my job to speak to Amendments Nos. 3 and 5 in my name. Since first reading the Bill, I have been doubtful about the concept of “the Council”. Its role is explained in Schedule 1 but there is no reference to it in the text of the Bill until Clause 60. In the Bill it is always described as “the” council, whereas in practice a new council is formed for each case. It seemed to me that the council was a superfluous concept, fulfilling a role that should be performed by the commission. Accordingly, I introduced a series of amendments in Committee removing “the Council” from the text of the Bill. Those amendments were not accepted, and we are stuck with this wording.

The question now is how best to introduce the concept of the council into the Bill. The council has a very important role; for example, it is the council, rather than the commission, which has the decisive role in assessing applications that are initially examined by a single commissioner. Given this importance, I think that its existence should be acknowledged in the opening clause of the Bill, as proposed in Amendment No. 3.

The amendments are proposed as a simple improvement to the text of the Bill and I hope that they will be acceptable to the Minister. I beg to move.

My Lords, Amendment No. 6 in this group is in my name. The noble Lord, Lord Cobbold, did a most valiant job in Committee of identifying references to “the Council”. As we were debating his amendments and issues surrounding the role of the council, a number of noble Lords felt that it was an uncomfortable title for the role which the Government envisage. At that point, I suggested that the word “committee” might more properly reflect that role, but, being less energetic than the noble Lord, and rather than finding all the references, my amendment would allow the commissioners and the Secretary of State to call the council “committee” or anything else they felt was appropriate. That would not disturb the Bill, and the alternative would not even need agreement at this stage. I agree that this is not a hugely elegant solution, but it may be a practical way of addressing something that has the potential for causing confusion.

My Lords, the group contains government amendments to the schedule which aim to deal with the difficulty that I raised previously about the risk that the chairman of the commission might end the appointment of a member to the council—I shall come to that in a minute—as it were, peremptorily. No doubt the Minister will explain the government amendments later, but, by adding the words “or ending” they make it clear that there needs to be proper consultation by the chairman with the other commissioners and the chief executive before a member’s appointment is ended. The Minister has met my point completely, and I am grateful for that.

I return to the amendments of the noble Lord, Lord Cobbold, and that spoken to by the noble Baroness, Lady Hamwee. I have criticised the use of the word “council”. I can understand that something between a panel, which may be just three people, and the full commission is needed, but “council” seems to have an entirely wrong connotation. Apart from anything else, it is not a permanent body, but a group of commissioners who may be appointed ad hoc for a particular inquiry. A completely different body of commissioners may be called the “council” at the inquiry dealing with the next application. The noble Lord, Lord Cobbold, has drawn our attention, with huge persistence, to the fact that this is the wrong word. Whether it is left to the commission to decide, as the noble Baroness’s amendment would have it, or whether the Government should recognise in the schedule that there will be something between the single commissioner, the panel and the full commission, it needs to have a name that conveys that it is a group of commissioners appointed ad hoc. That is what one is looking for. That is a sensible suggestion, but to call it “the Council” seems to be a contradiction in terms.

I serve and have served on a number of bodies where the council is the governing body. Many charities will be run by a chairman and council. There are many others. My noble friend on the Front Bench is familiar with a local authority. Local authorities have an elected council, a body which exists until the whole lot is removed. It is not a peripatetic body, or a peripatetic name for a number of different bodies that may be appointed under the procedure of the Bill. I hope that the Minister might have another look at this between now and Third Reading, because the use of “council” in these circumstances is a misnomer. It is not a council as one recognises in any other walk of life.

My Lords, there is no doubt that “council” has a particular connotation, which does not apply in this instance. The amendment of the noble Baroness, Lady Hamwee, which leaves the subject open, is probably preferable to the rigidity of the Bill. I wonder whether this group would be not more executive than a council, but even “executive” would not describe its function with sufficient accuracy. The only thing on which I think we shall be able to agree is that we do not like the title. It is a little unfortunate. If we could find something better on which we could all agree, it would be an improvement.

My Lords, we all have a sense of déjà vu and frustration about this. The noble Lord has pursued the matter assiduously and I wish that I had a solution, because it will become increasingly clear that, for different reasons, I do not.

I will address the amendments in turn. The noble Lord, Lord Cobbold, wishes the Bill to include reference to the council in Clause 1. The noble Baroness, Lady Hamwee, and the noble Lord, Lord Greaves, ingeniously suggest a way of improving the terminology. I have tabled a number of amendments in response to concerns raised in Committee about the scope of the power of the chair to end a commissioner’s appointment to the council.

The noble Lord, Lord Cobbold, has consistently raised concerns, both here and in discussions outside the Chamber, that the first appearance of “the Council” is not until Clause 60. Our previous debates were to clarify the role of the council. I am pleased that we now know that it is not a superfluous body, but exists to do a very important job. As he said, several councils could sit at the same time.

The noble Lord feels that, as the council takes decisions on nationally significant infrastructure projects under certain circumstances, it should be put up front in Clause 1. Our problem in doing so, and this is not a Jesuitical argument, is that such a clause would not follow the normal conventions of legislative drafting.

We are afraid that it would lead to greater confusion about the role of the council, because the council is essentially part of the operational structure of the IPC. When we set up bodies such as this in legislation, detail on how it will operate is nearly always set out in the schedules. Schedule 1, which is about the IPC, is clearly referenced in Clause 1. It would not make sense to isolate the one activity represented by the council and put it in Clause 1, as the noble Lord suggests. It belongs in the schedule, because it is part of describing how the IPC will work. I am sorry to disappoint the noble Lord on that, but it is sensible to keep things as they are.

I turn to Amendment No. 6, in the name of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Greaves. It was argued in Committee—the noble Lord, Lord Jenkin, has eloquently done so again—that the term “council” could cause confusion as a council is more generally understood to be a fixed body whereas, under the Bill, the council will instead be a more fluid body for different purposes. I fully understand that. The terminology of the Bill was very much an issue for debate at earlier stages. It was felt that “the Council” was still the best expression for the IPC. “Committee”, another obvious candidate, was considered, but it was felt that it might cause confusion with the panels of the IPC, which people might see as being committees of the commission—the noble Lord, Lord Cobbold, picked up that point previously. Using “council” therefore seemed to solve the problem. It may not be perfect. We have thought very hard about it and I have shared my concerns with noble Lords. We looked at the possibility of replacing the terms in the Bill—replacing “Council” with “Committee”—but it would have generated well in excess of 70 amendments, which we felt was inappropriate at this stage.

The noble Baroness, Lady Hamwee—bless her heart—has ingeniously proposed a different solution, by providing that the IPC and Secretary of State could agree to call the council by a different title if they so chose. The IPC and Secretary of State can agree to do that without provision in the Bill. While I am very grateful for her helpful suggestion, I am genuinely frustrated that the proposal is unworkable, because paragraph 6(1) of Schedule 1 provides that:

“There is to be a body of Commissioners to be known as the … Council”.

The effect of Amendment No. 6 would be that, while the Secretary of State and the IPC might agree to call the body something else, in strict legal terms it would continue to be the council. It would therefore not require third parties to call it by a different name; as a matter of law, it would continue to be the council.

That would have the strange result that the Secretary of State and the commission could call the body something different from everybody else. One can only imagine the confusion, for example, if—God forbid—there were an application for judicial review of an IPC decision. The parties to the proceedings could call the council by the different name agreed by the Secretary of State and the commission, but the courts would be required to follow the legal interpretation. An already complicated situation would become rather confused; it would make the perception of the role of the council even more complicated.

We have thought about this, and we have come up with a solution that I hope will provide some reassurance. Ministers will now set out the purpose of the council very clearly in guidance under the Bill, and will ensure that information on the IPC’s procedures and structures is widely available, such as on the IPC’s website. We will explain the terminology and ensure that people understand that this is a fluid concept. In fact, it will be explained by its functions, and putting it in guidance will ultimately be the most practicable thing to do. I can see that that may not satisfy noble Lords, but it will in effect address the problem and will not cause the complications which the solutions so generously offered in the amendments would bring.

I hope that I turn to a happier note, with our Amendments Nos. 7 to 15, which respond to concerns raised in Committee that the chair of the commission has too wide a scope to remove ordinary members from the council. The noble Lord, Lord Jenkin of Roding, was particularly concerned that there was potential for abuse of that power and that people who might be a thorn in the flesh would be too easy to remove.

As debated in Committee, our aim is that the council will be a fluid body. We want to provide the chair with the flexibility to change the council to meet different circumstances and challenges, so we need to provide that the chair can employ the right range of skills for each particular issue that comes before the council. I have looked carefully at what the noble Lord has said and agree that he has raised some important points, and therefore we have put some safeguards in place.

The government amendments require that before exercising the power to end the appointment of a commissioner who is an ordinary member of the council, the chair or, if delegated, a deputy chair, must first consult and have regard to the views of the other relevant members of the council, the chief executive and any other commissioner that the chair or deputy chair thinks it appropriate to consult. This means that at least six people—the chief executive and minimum five members of the council—must be consulted before any decision is made to end an appointment of an ordinary member of the council. This builds on the provisions set out at paragraph 9 of Schedule 1, which currently apply when making a new appointment to the council.

I think that the noble Lord has said that he feels that those proposals meet his point. I hope that they do. As I say, they are intended only to allow the chair to be as flexible as possible, with the resources available to them.

My Lords, I thank the Minister for that response, but it is very disappointing. I am grateful to the noble Lord, Lord Jenkin, for his support and to the noble Baroness, Lady Hamwee, for agreeing that the present use or concept of the council is misplaced and that we should find an alternative to that. In the event that we cannot do so and are left with the council, we should make more of a thing of this issue and introduce it in the opening session of the council. I find it hard to accept the Minister’s view on this matter. However, those are the facts. I should like to see some more thought go into it between now and Third Reading. In the event, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 4 and 5 not moved.]

Schedule 1 [The Infrastructure Planning Commission]:

[Amendment No. 6 not moved.]

7: Schedule 1, page 138, line 29, after first “making” insert “or ending”

8: Schedule 1, page 138, line 29, leave out “7(1)” and insert “7”

9: Schedule 1, page 138, line 29, leave out “making the appointment” and insert “doing so”

10: Schedule 1, page 138, line 32, leave out “appointment” and insert “matter”

11: Schedule 1, page 138, line 36, after first “making” insert “or ending”

12: Schedule 1, page 138, line 36, leave out “7(1)” and insert “7”

13: Schedule 1, page 138, line 36, leave out “making the appointment” and insert “doing so”

14: Schedule 1, page 138, line 37, after “expressed” insert “about the matter”

15: Schedule 1, page 138, leave out lines 40 and 41

On Question, amendments agreed to.

16: Schedule 1, page 139, line 20, at end insert—

“11A (1) The Secretary of State must appoint a person as the Solicitor to the Commission.

(2) The Solicitor to the Commission—

(a) is to be a barrister in England and Wales, an advocate in Scotland or a solicitor of the Senior Courts of England and Wales or a solicitor in Scotland;(b) is not to be a Commissioner;(c) is to be a member of the Commission’s staff.(3) The Solicitor to the Commission shall advise the Commissioners on the exercise of their functions and in particular shall seek to ensure that the consideration of development consent applications is lawful and fair.

(4) The Solicitor to the Commission’s terms and conditions of service are to be determined by the Secretary of State.”

The noble Lord said: My Lords, when we think about how the commission will work and consider applications—and, more importantly, how the applicants themselves are to develop applications and present them in a fair and equitable way—the Bill as it stands is open to some question. The difficulty right at the beginning for any applicant is that they have to undertake a public consultation. Anyone who has been in the public relations business knows that if you want to get a particular answer you can go a long way towards predetermining it by how you ask the question. There is a broad suspicion—I put it no stronger than that—that applicants for planning permission and nationally significant infrastructure projects who have to undertake public consultations on applications will load the way in which they produce that system so as to colour the answer in their favour. It would in fact be remarkable if that did not happen but, if it were to happen, there is no question but that at some point someone would say that the consultation was not representative or fair. Then we would find ourselves in a judicial review situation. That is the purpose behind Amendment No. 16.

Amendments Nos. 91 and 95 deal more specifically with the issue of the public examination of the application by a panel of commissioners or a single commissioner. Here the doubts are somewhat similar; there is no question but that at that point the cross-examination of witnesses in public hearings must be seen to be unbiased. The danger is that it might not be. One cannot afford to have a situation in which a request for an order for planning permission is granted when someone can say that the commission—the panel or the individual members—undertaking the cross-examination asked questions of members of the public appearing in the public session in such a way as to predetermine the answers. There is no easy answer to dealing with that issue, but it is a vital matter of public confidence; the public must have absolute confidence in this system if it is not to be distrusted.

I am sorry that the noble Viscount, Lord Colville, is not in his place, because he is much more of an expert in these matters than I am. He apologises, but he is involved in a consultation with a regulator; that date was set in his diary before the dates were set for this Report stage and there was nothing he could do to get here in time. Much as I might wish to do so, I could not keep my speech going long enough to enable him to arrive, nor would the House thank me if I did so.

There is a vital issue of public confidence in the system. We have to ensure that the system not only is fair but is seen to be fair. Probably the people with the most expertise in this field—and there are a lot of them about—are the planning lawyers. I do not fancy myself as an advocate for what I would call the planning lawyers union, but they are very experienced and good at what they do and I would be surprised if one or two of them did not finish up on the commission. Of course, that is up to those who will ultimately undertake the appointments, but it might solve the problem. However, the solution that we have suggested of an independent legal adviser to cover these matters is likely to be seen as more equitable and fair in the interests of both sides of the argument.

The issue is very much about public confidence in the system. Whatever we might have thought about our earlier debate, that was the principle behind the amendment that we moved. In the scale of things, this is a much simpler and more straightforward issue to understand. It is important to get the public outside to believe that the system is not loaded against them. Regrettably, there is already a large concern that the system that the Government are proposing will ride roughshod over all difficulties and objections and will speedily reach conclusions without particular consideration of equity. The Minister has gone a long way towards allaying that concern in her remarks. Government Amendment No. 94 also deals with this issue, albeit in a slightly different way. I look forward to hearing her reply, which I hope will cover exactly how she sees this paragon of unbiased and unprejudiced virtue working. I beg to move.

My Lords, there is a major issue other than public confidence: making sure that evidence is tested. The examining authority must have all the tools necessary, whether directly or indirectly, to ensure that points are made in a way that it can understand and on which it can act where appropriate. The testing of evidence is central to the amendment to which I spoke—I may even have moved it—in Committee and which is here again as Amendment No. 92, in my name and those of my noble friend Lord Greaves and, gratifyingly, the noble Baroness, Lady Andrews. I am sorry—well, not that sorry—that we got there before her. I will not speak to the amendment at any greater length, because the Minister may well have her own explanation and I do not want to steal her thunder. I have probably achieved what I wanted.

On government Amendment No. 94, is it anticipated, as I read it, that there will be just one person who is the source of legal advice? There are two issues: general legal advice to the commission and assistance to the examining authority in dealing with a particular application. I want to be certain that both are covered by the amendment and not just the first. I suspect that a single individual would not be able to cope. Indeed, a single individual at the level that one wants would not necessarily be available. One wants advocates with great experience of this sort of job, but such individuals may not want to take a full-time appointment with public sector pay. We must allow the commission to cherry pick from the range of talent at the Bar. I became a little uncertain about this as I read the amendment and was not wholly sure.

My Lords, I, too, am puzzled by the proposal in government Amendment No. 94 and I look forward to hearing the Minister’s explanation. The appointment is of,

“a barrister, solicitor or advocate to provide legal advice and assistance to the Examining authority”—

the commission, the panel or perhaps the single commissioner. Subsection (2) of the proposed new clause states:

“The assistance that may be given by a person appointed under subsection (1) includes carrying out on behalf of the Examining authority any oral questioning of a person making representations at a hearing”.

In other words, where people are concerned to make representations about an application and to challenge the statements that are being made, it will be no part of the role of the person appointed to examine the applicant, as I understand it. They may examine the witness or the,

“person making representations at a hearing”.

I cannot help feeling that that arrangement will look very one-sided, but perhaps I have misunderstood what the Government are getting at. All I can say at the moment is that, having studied the new clause, I am not entirely clear how it is supposed to work.

Amendment No. 95, in the names of my noble friends Lord Dixon-Smith and Lord Cathcart, is also in this group. It, too, concerns a person,

“appointed to act as advocate to the examination”.

Subsection (3) of the proposed new clause states:

“An advocate … may make oral and written representations to the examining authority and may ask oral questions of any person making representations at a hearing of the examination”.

That seems to cover the same ground, although the amendments are far from identical. One is looking to ensure that there is an opportunity to examine the people who are making the application and to ask whether it has been properly thought through. That must be done in front of the decision-maker.

I referred in our debate earlier to the conference that I addressed on Tuesday. At the conference, a highly qualified lawyer practising in the City made a skilful presentation on the main thrust of the Bill and the new planning process. I was hugely impressed. He had not caught up with all the amendments that were being made in this House, but I do not blame him for that, as that would be a difficult thing to do. However, he laid stress, as we did in Committee, on the need for a forum in which someone can ask oral questions of the applicant and perhaps his expert witnesses. That may come at an earlier stage, but the arrangement is not entirely clear to me.

There was a good deal of discussion in Committee about the oral examination and I was left with the impression that part of the streamlining that the Minister and her department are trying to get will eliminate or substantially cut down the oral examination that may be allowed on an individual application. Again, I may have misunderstood what is proposed, but this group of amendments gives the Minister the opportunity to explain not only what her amendment means—as I said, it is not entirely clear to me—but how she expects the examination will be conducted and when there will be an opportunity for people who want to make representations about the application to cross-examine those who are putting it forward and their expert witnesses. I accept that it may have to be done within a tight timescale. The whole purpose of the Bill is to reach a decision much more swiftly than under the existing cumbersome system. However, it seems to me and to others that to dispense with the opportunity to put oral questions to the applicant and his witnesses is to remove a substantial part of what should be a participative process which will eventually give credibility to the ultimate decision of the IPC.

It may be that I have misunderstood these things and not read them properly. However, having looked at them carefully, I am still somewhat puzzled as to how the Government envisage this process being carried on.

My Lords, this is an important group of amendments, and I am grateful for the support for our amendment from across the House. Two important points have rightly been made. These processes must be seen to be fair, and must work in such a way that everyone feels that they have had their say and been listened to properly, that the evidence has been tested thoroughly and that the judgment is sound and on the basis of the best possible evidence. Confidence in the process and ensuring that the evidence is properly tested, and that there are the skills and tools available to do that, are extremely important.

When we debated this in Committee, I sensed that there was growing understanding and support for the Bill’s proposal to charge the commissioners with examining an application, to probe, test and assess the evidence through direct questions, rather than the traditional means of outsourcing this to advocates speaking on behalf of other people. At the end of our exchanges, we were also able to agree that cross-examination was not ruled out in the new regime. I made it clear that the commission can allow participants to cross-examine where it considers it necessary to ensure the adequate testing of any representations, or necessary to allow an interested party a fair chance to put the party's case. In short, this means that if there is a good case for inviting interested parties to cross-examine witnesses, the commission can certainly do so.

However, it was apparent across the House, not least behind me, that there were concerns that the commissioners might not always have the appropriate skill and expertise available to them to question parties in the same way that experienced advocates could, to dig under the evidence, and that they might need support to do that. It was argued in the debate led by the noble Baroness, Lady Hamwee, that the requirement for commissioners to consider that cross-examination may be allowed only “exceptionally” might make it more difficult for them to allow cross-examination, and that what we had inserted as a “safety valve” might not function as such.

Members of the Committee asked me to provide assurances, and to come back on Report with a better story and some amendments. I hope that I have done that. First, however, Amendment No. 16 of the noble Lord, Lord Dixon-Smith, and the noble Earl, Lord Cathcart, provides that the Secretary of State must appoint a solicitor to the commission for the purpose of advising it on the exercise of its functions, ensuring in particular that the consideration of applications is lawful and fair.

The new clause proposed in Amendment No. 95—which is, of course, closest to where we are—provides that the chair of the commission may appoint a qualified lawyer to act as an advocate to the examination, provided the solicitor of the commission considers them to be a suitable person to act in that role. It further provides that the advocate to the examination can make oral or written representations to the examining authority, and may ask oral questions of any person making representations at a hearing. It also provides that the solicitor to the commission may appoint a suitable person to assist the advocate. Amendment No. 91 is consequential to that.

I understand that noble Lords are seeking assurances that our approach to examining evidence is workable. In that context, I shall go over the opportunities that those coming forward will have to make an oral case. The noble Lord, Lord Jenkin, asked me to explain how that would work in practice. Most representations to the IPC would be written. They would be so technical that, by the time they had reached that stage, a lot of the discussion and argument on principle may be in-house. There is a good case for prioritising written representations to clarify technical issues.

However, there are two separate opportunities for oral hearings. First, there can be specific oral hearings on any one of a number of topics that are germane to the application. Secondly, and this is unique, there are open-floor hearings. That provides two powerful opportunities for individuals, both the promoters and those from the local community, to come and make their case and test each other’s arguments.

As I said before, we expect that all commissioners will be provided with appropriate training to carry out their functions, including training in the techniques of testing evidence: questioning, listening and asking the right questions in the right way. However, I absolutely took the noble Lord’s point that commissioners might sometimes need the support of a professional advocate to ensure that the right evidence is tested in the most effective and revealing way. That is what our new clause in Amendment No. 94 is about.

To answer the first point of the noble Baroness, that clause will provide that the chair to the commission may appoint a barrister, solicitor or advocate to provide legal advice and assistance to the examining authority—that could be a panel or a single commissioner—where the examining authority requests it. However, it cannot be a single person. Needs will differ, the scope will differ and the nature of the examination will differ. A counsel with experience in engineering projects or in dealing with different types of witnesses may be required. We have therefore left it as fluid as possible.

The noble Lord, Lord Jenkin, asks how it will work. Essentially, the advice and assistance that may be provided must be determined by the panel itself when it specifies its needs. It will certainly include the ability of the advocate in question to conduct oral questioning at a hearing, on behalf of the panel, of anybody who comes before it; it may be the applicant himself, or someone from the local community. His function is to probe the veracity and test the quality of argument and the quality of evidence provided. I hope that that addresses the concerns raised.

Our amendment will ensure that the assistance of the advocate would be available should the examining body feel it requires some extra support and forensic skill. It also provides that the chair will have the final say as he or she will have the ultimate responsibility for the deployment of the commission’s resources. We are building in that discretionary power.

On Amendment No. 16 to Schedule 1, the main purpose of the solicitor to the commission would be to provide advice to the commissioners on the exercise of their functions. The appointment would be an appointment of a staff member of the commission. I understand what the noble Lord seeks here; I shall try to reassure him. The Bill provides that the commission secretariat will be responsible for the internal running of the IPC, including resource planning, appointments, finance and expenditure. It will be headed by a chief executive, and we do not want to constrain or curtail their power. It is entirely right that the chief executive should have the freedom to plan and manage those resources, including the appointment of staff. It should therefore be the chief executive who decides whether there is a requirement for the appointment of a solicitor to the commission, and he is likely to do so in all probability. It is worth pointing out that similar provisions apply to other public bodies, such as the Competition Commission. Although the Competition Act 1998 does not state that a solicitor to the commission should be appointed, I understand that such appointments have been made. Therefore, I can put that on the record.

The proposed new clause in Amendment No. 95 is somewhat similar to the proposed new clause in government Amendment No. 94, but it provides that the advocate to the examination may make,

“oral and written representations to the examining authority”,

in addition to asking questions of witnesses at hearings. That question was raised by the noble Lord, Lord Jenkin. I, too, am not quite sure what the intention of the noble Lords is with regard to the advocate’s role in making,

“oral and written representations to the examining authority”.

However, it suggests that it may allow the advocate to both question witnesses about their evidence, and give evidence about the application. If my understanding of the amendment is correct, I caution against it. I suggest that decisions where an advocate could both give evidence and, as it were, get evidence might be open to a claim of judicial review because of the dual function involved. Therefore, I cannot accept the relevant amendments because that is rather problematic.

As regards cross-examination, the noble Baroness, Lady Hamwee, has returned on Report with Amendment No. 92, which seeks to remove the word “exceptionally” from the test in Clause 93(7). I know that noble Lords are concerned that “exceptionally” might make it incredibly difficult for anyone to justify the use of cross-examination. The noble Baroness is aware that I will accept her amendment, and I am very happy to do so. However, I wish to explain what it means in terms of our position on cross-examination in the context of the Bill.

I have said that the Bill sets out a way of proceeding for the IPC that aims in the best possible way to probe, test and assess evidence through direct questions rather than through cross-examination. Consequently, we expect that, in most cases, the examining authority—the panel—will question witnesses and probe the evidence. Direct questioning would be the norm; cross-examination would be used only where needed. That is why originally the Bill contained a reference to “exceptionally”.

I have also said that while we believe interested parties should be able to cross-examine witnesses in certain circumstances, we think there needs to be a good case for departing from the norm. We think that the right test is therefore that of when it is necessary to ensure the adequate testing of representations, or that an interested party has a fair chance to put their case. I am sure noble Lords will understand that, given the arguments I have set out about cross-examination and direct questioning, we certainly do not consider that we should invite cross-examination unless it is necessary. However, I should stress that the Bill emphatically does not rule out cross-examination. If the commission concluded that allowing a party to cross-examine was necessary to ensure the adequate testing of any representations or to give a party a fair chance to put their case—these will be experienced people with the highest standards of argument and ability to know when it is important to be able to probe that much further—it would, as a basic matter of administrative law, have to allow it under the test we have included.

I have now further considered the strong arguments put by the noble Baroness in Committee. Although I am clear that in the examination of evidence, direct questioning would be the norm and that cross-examination would be used only where needed, I accept that the inclusion of “exceptionally” in the test to decide whether it is necessary to allow cross-examination may send the wrong, rather negative signal to commissioners and make it harder for them to allow cross-examination where it was necessary. Therefore, I am very happy to accept Amendment No. 92. I share her pleasure in seeing my name attached to that amendment, along with her own and that of the noble Lord, Lord Greaves.

My Lords, this has been a very useful and helpful discussion. Indeed, the noble Baroness went a long way to helping us further our objectives by tabling her amendment and particularly by accepting the removal of the word “exceptionally”. That was definitely one of the words that those who have discussed this matter with us were concerned about.

I hear what the noble Baroness said about the possible conflict of interest in my amendment, in which I am in effect asking a lawyer to do what we criticised the process for doing, and sit on both sides of the fence at the same time. I shall have to study the matter with care to be absolutely sure that where we finish up—given the government amendment and the change that she has accepted—is an ideal situation. Subject to that minor caveat—if we need to do anything about that, we can do so at Third Reading—for now I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

17: Schedule 1, page 140, line 1, leave out “42(2)” and insert “(Guidance about pre-application procedure)”

The noble Lord said: My Lords, I wish to speak to government Amendments Nos. 17, 70, 72, 76, 77, 78, 80, 81, 82 and 83. We had a full discussion of the provisions for pre-application in Part 5 in Committee and we have given considerable thought to the debate we had on that day.

As we set out then, the Government believe strongly that the promoters of major infrastructure projects should carry out the pre-application consultation on those projects. We are trying to initiate a proper dialogue between the promoter and the local community. We believe that the duties must therefore bear on the promoters and that they must take direct responsibility for meeting them. However, we were struck by what the noble Baroness, Lady Hamwee, said about the importance of the guidance that the Government will issue on pre-application consultation. We thought she put it particularly well when she said:

“What the Government have to say about encouraging genuine consultation is very important in addition to the words in the Bill”.—[Official Report, 16/10/08; col. 871.]

We were also struck by the comments of the noble Lord, Lord Cameron, about the importance of making sure that promoters are under a clear obligation to spell out what responses they have had and what account they have taken of them, so that we can be assured that no corners have been cut. As my noble friend Lady Andrews said in that debate, we believe that the provisions of Chapter 2 of Part 5 represent a robust set of requirements. Promoters must consult local authorities on how to engage with people living in the vicinity of the land. They must have regard to the guidance on different points issued by the Secretary of State and the IPC. They must take account of the responses to consultation and produce a consultation report. Above all, the IPC must be satisfied that the requirements of the chapter have been complied with before it can accept an application.

However, having listened to the debate and reflected on it, we think that the requirements could be clarified and strengthened, and the amendments that we have tabled seek to achieve that. First, we have sought to clarify and strengthen the provisions for guidance across the chapter. Amendments Nos. 72 and 80 remove the various provisions in Clauses 42 and 47 that allow the Secretary of State and the IPC to give guidance at specific points in the process. I recognise that those are too piecemeal and, aside from being difficult to follow, perhaps they do not send quite the right message. Amendment No. 81 would therefore replace those provisions with a much clearer new clause that sets out unambiguously that the Secretary of State and the IPC may give guidance on how any of the pre-application requirements of the chapter should be complied with. Crucially, it also requires that the promoter must have regard to that in the guidance. That makes it much clearer where guidance can be given and by whom, and extends the scope for guidance on the part of both the Secretary of State and the IPC across the chapter.

Noble Lords may be concerned that this raises a potential for conflict between two sets of guidance. I place on record that we expect the two sets of guidance to be fundamentally different. The Secretary of State will provide high-level strategic guidance on how pre-application consultation should be carried out and how communities should be engaged with. We expect that guidance from the IPC will be based on, and will take account of, that and will focus on the detail of how it expects promoters to apply that in practice.

Secondly, we have sought to strengthen the requirement on promoters to spell out what responses they have had and what account they have taken of them. Amendment No. 70 to Clause 37 strengthens the requirement for promoters to produce a consultation report, extending the report to cover consultation and publicity under Clauses 42, 47 and 48. The report must give details of any relevant responses and the account taken of them. We will make sure that the consultation report is thorough and makes clear how responses to consultation and publicity have been addressed by promoters.

The new requirements are reinforced by Amendments Nos. 82 and 83 to Clause 54. They make clear that when the IPC has decided whether the promoter has complied with the requirements for pre-application consultation in Part 5, it must have regard to the consultation report, any adequacy of consultation representation by the local authority and the extent to which guidance issued by the IPC and the Secretary of State has been complied with.

Amendments Nos. 17, 76 and 77 are consequential. Amendment No. 78 to Clause 47 clarifies how the promoter’s statement of community consultation relates to the proposed application, bringing the drafting into line with the wording used in Clauses 37, 42 and 48. Taken together, the amendments both strengthen the requirements for pre-application consultation and make clearer how they are to be enforced. The Secretary of State and the IPC will be able to provide guidance on any aspect of the pre-application procedure. Promoters must have regard to that, and the IPC must take account of whether the promoter has done so when deciding if it can accept the application.

Moreover, the amendments expand the consultation report and explicitly bring it within the scope of the IPC’s decision on whether an application can be accepted. The amendments go a significant way to addressing the concerns expressed by noble Lords in Committee, and I hope that noble Lords are happy to support them.

I shall speak to Amendment No. 79, tabled by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Greaves. It seeks to ensure that promoters must consult local authorities on how to undertake consultation with people living in the vicinity of the land. I confirm that that is the effect of the Bill. Subsection (1) requires promoters to draw up a statement describing how they propose to consult the local community. Subsection (2) requires promoters to consult the relevant local authority about what should be in the statement. That has the same effect as the amendment; they are effectively consulting on how consultation should be undertaken. I hope that reassures the noble Baroness and that she will be prepared to withdraw the amendment. I beg to move.

My Lords, I am grateful for the compliment, and I am very glad to see the government amendment, which I support. The noble Lord is absolutely right in his analysis of my Amendment No. 79; I wanted to be reassured about the “how”. The noble Lord may recall that we used the example of Heathrow, as they did in the Commons. If the British Airports Authority was regarded as being too close to the consultation, it would be regarded with considerable cynicism. That is a big example, but there would be smaller examples. I wanted an assurance that the local authority, which understands the nuances, was consulted on methods and mechanisms as well. I am grateful for the assurance and, when it comes to it, I shall not move my amendment.

My Lords, I hope that it will not be too tedious if I raise again the question that I raised in Committee. It is about trying to get guidance out as early as possible. I know that departments are currently working on national policy statements. As I understand it, as soon as the Bill becomes law the Secretary of State will be able to issue guidance under new Clause 81. They do not have to wait for the commission to be appointed; the Secretary of State could issue guidance and may well wish to issue draft guidance. However, potential applicants out there are very anxious to get ahead with this. They cannot actually start until they have some guidance on how the pre-application process will work, how they should draw up their applications and in what form they are expected to present them to the various stakeholders in the pre-application process.

It has been said in reply that it will be for the commission to produce the guidance, but the Government’s new clause makes it perfectly clear that the Secretary of State can do this and does not have to wait until the commission has been appointed. This process is still at a fairly early stage. One has seen the advertisements for the chair of the commission, and there will be other appointments. I suspect that the process will run for several months before we have a commission in place. In the mean time, I do not see any reason why the Secretary of State should not start to draw up guidance now, or at least as soon as the Bill becomes law, which I hope will be fairly shortly, so that applicants will have a much clearer idea of what will be expected of them in the pre-application process.

I wholly welcome the pre-application process; it is a very important stage in the process of an application that will eventually go before the IPC. As I have said, many of those who propose major infrastructure projects want to get ahead with it. I hope that the Minister can provide some assurance and comfort that a start will be made on the guidance process as quickly as possible.

My Lords, the noble Lord, Lord Jenkin, raised a very important point. I can reassure him that we are just as committed to beginning this process as he is and that we will prepare the guidance as soon as is practicable.

My Lords, I thank the Minister for listening to what I said in Committee and for reacting to it. I am grateful that the IPC will not only have to take into consideration responses to the applicant, but that account has to be taken of these responses by the applicant. Those new words are exactly what I wanted. I am very happy to support the government amendments.

My Lords, the government amendments are, indeed, helpful, but my noble friend Lord Jenkin of Roding raised a fundamental point about timing. I have met potential applicants who are desperate to know how far they can go before the Act is even in place. That raises an interesting issue as to whether they are able to deal with the technical aspects of their application. If there is a proposal to build a nuclear power station on an existing site, a lot of design work and so on can be done; but we need to recognise that applicants in that situation will want to start work almost while the commission is being established.

One purpose of my standing up to support my noble friend is to ask the Minister whether the Government have a view on how far potential applicants can go in preparing an application before the commission is “up and running”. The commission will probably have to be established on one day and to expect its first application on the second day of work. Some of the subjects under discussion are very urgent. Is it in the background of the Government’s thinking that it will be technically possible for applicants, not to put in an application straight away—public consultation and that part of the report would have to be done—but to carry out the great deal of work that they can do? It would be interesting to know the Government’s views on this. One would not wish anyone to cause themselves embarrassment because some of the papers were dated before the existence of the commission, when it is perfectly well known that when the application finally comes before the commission it will be in the proper form.

My Lords, I can probably surprise all noble Lords by showing how fast this Government work. Since my last statement, we have already started work on the guidance and we hope to consult on it in the first half of next year. Therefore, I suggest that people wait until the guidance comes out, but of course there is also the question of how fast we can deal with the detail of the NPSs.

My Lords, before the noble Lord sits down, I am sure he realises that “in the first half of next year” is a pretty vague sort of undertaking. As they have started on the guidance, I should have hoped that draft guidance, at least, would be available in, say, the first two months of 2009. I emphasise that there is a great deal of impatience out there among those who have been most enthusiastic about the new process. They want to get on with it but they cannot start until they get the guidance. So will a draft be available in the first two months of 2009?

My Lords, I completely agree with the noble Lord, but I am reassured by the fact that we have started so quickly. As soon as the draft guidance is ready, we will put it out—early in the new year, I hope.

On Question, amendment agreed to.

17A: Schedule 1, page 143, line 2, at end insert—

“Disability Discrimination Act 1995 (c. 50)In section 49D of the Disability Discrimination Act 1995 (power to impose specific duties) after subsection (1) insert—

“(1A) A public authority for the purposes of subsection (1) includes the Infrastructure Planning Commission.””

The noble Lord said: My Lords, I was very encouraged when the noble Lord, Lord Low of Dalston, added his name to this amendment. He has asked me to apologise to the House as, due to prior commitments, he is not able to be here this afternoon.

The noble Baroness will be aware that in Committee I moved a number of amendments on behalf of the disabled community, who have felt at a disadvantage in the operation of the planning system. I shall not weary the House by repeating all that I said on those occasions, but this amendment is one to which the disabled community attaches a great deal of importance. The purpose of moving it again—it is identical to the amendment that I moved in Committee—is, first, to emphasise that it is seen as a very important issue for the Government to address and, secondly, to ask the Minister what progress they are making in considering issuing a specific list of duties, as well as the general public duty under the Disability Discrimination Act.

I am very much obliged to the noble Baroness for the careful note that she has given me on this, and no doubt other noble Lords who have taken part on the Bill have also received it. It gives me an opportunity to speak on behalf of, I believe, a number of noble Lords. During the passage of the Bill, few Ministers can have taken as much trouble as the noble Baroness to keep us informed of the Government’s thinking, to answer our points and to ensure that none is lost sight of. She may take some comfort from the fact that this has been much appreciated in all parts of the House.

My Lords, returning to the Disability Discrimination Act, the noble Baroness has described to me the three public sector equality duties: the disability duty under that Act; the race duty; and the gender duty. As the House will recognise, here I am particularly concerned with the disability duty.

There is an overarching general duty on all public authorities to avoid discrimination, but that can be underpinned—to use the noble Baroness’s own word—by specific duties set out in secondary legislation. I understand that the IPC will be subject to the general duty, but I firmly believe that, when one deals with the complex structure of planning, the more specific duties should be applied to the work of the IPC. The noble Baroness has told me that when deciding which public authorities to list under specific duties, the Government consider such factors as whether the body has significant direct dealings with disabled service users, has a significant impact on the lives of disabled people, could be a significant employer of disabled people and is of sufficient size to support the duties. For planning legislation, the second point—whether it has a significant impact on the lives of disabled people—is important.

There is no doubt whatever that buildings and other facilities which are to be accessed by the public have to be accessible by disabled people, and that would certainly include a number of major infrastructure projects. One of the complaints of the disabled community is that their pleas to planning authorities have not been met with much sympathy or acquiescence. On the contrary, they make the point again and again, if that kind of thing can be taken into account early in the design of a project, the necessary facilities for access can be made available at far less cost and in a far more acceptable way than if they have to be added later. I do not want to bang on about it, but it is very important. I know from my brief discussion with the noble Lord, Lord Low, that he fully accepts that view. He asked me to emphasise his support for what we are proposing here. We need the specific duties under the Disability Discrimination Act to be applied to the IPC. I beg to move.

My Lords, I am pleased to have an opportunity to return to this matter. On the great tribute that the noble Lord paid me, I take it as no more than my duty to keep the House informed of how we are approaching the Bill and it has been a pleasure to work with noble Lords on all sides of the House. I had hoped that we would have resolved this so that, on Report, I would be able to give the detail. Unfortunately, although progress is being made, we have not quite got there. I take the point made by the noble Lord. In Committee, we debated the difference between general and specific duties. I apologise to the noble Lord that we have not been able to finalise the advice in time for Report. I would like him to accept, on behalf of the people for whom he is speaking, my assurances that this will not fall between the cracks. It will be addressed properly as part of the implementation process for the IPC. Once a final decision has been taken, the noble Lord will be the first person to know. I shall write to him and to the noble Lord, Lord Low of Dalston.

I feel confident in making that case, without reiterating what I said in Committee, because I am of the same mind as the noble Lord. Perhaps I can digress for a minute from the Bill. Last year, we spent a great deal of time in my department developing a policy called Lifetime Homes, Lifetime Neighbourhoods. Essentially, that was the first policy of its kind to address what we need as an ageing society: not only homes in which we can grow old, stay independent, safe and comfortable and which are affordable, but neighbourhoods which are welcoming, inviting and responsive to the needs of people of all ages and of all disabilities. We are now in a process of configuring what we mean by a “lifetime neighbourhood” and what it might look like, whether it be planning communities in a regenerative context or new build communities. We worked alongside groups of elderly and disabled people to make this as sound and effective as it might be. I recently visited the Papworth Trust to look at how it is providing homes in the middle of communities for people with quite severe disabilities. It was a great inspiration to see how integration is effective and happy for everyone concerned. We have this much in mind.

The noble Lord, Lord Tyler, earlier made the point that our planning system has not been particularly susceptible to people with particular needs or aspirations; it is nearly always a reactive process. I would like to see people involved in real planning—planning for real as we call it really—and being part of the debate that makes the scheme from the developer’s or local authority’s first vision of what they want for the community. People have to be in there right at the very beginning saying what they want. That is particularly important for people with visual or mobility difficulties. The noble Lord and I are of the same mind on this.

My Lords, I am grateful for that and for the Minister’s apology for not being able to produce the answer in time for Report, which is what I asked for. However, it is more important to get it right than to do it quickly. I think the noble Lord sitting on her right might recognise the problems of the amendments we were dealing with yesterday on the Energy Bill. This is of huge importance, and it is important to get it right. The noble Lord, Lord Low, and I can take some comfort from what the Minister said, as can the communities on whose behalf we speak. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

17B: Clause 5, page 3, line 13, at end insert—

“(3A) Before designating a statement as a national policy statement for the purposes of this Act the Secretary of State must be satisfied that (taken as a whole) the policies in the statement contribute to the mitigation of, and adaptation to, climate change and to the achievement of sustainable development.

(3B) A statement designated under subsection (1) must contain a statement to the effect that it is the Secretary of State’s view that the requirement of subsection (3A) is satisfied.”

The right reverend Prelate said: My Lords, I shall speak also to Amendments Nos. 29A and 51A, but not to Amendments Nos. 104A and 105A, which I shall not move. The amendments I shall speak to are concerned with climate change. I thank the Minister for her willingness to respond to concerns expressed in Committee about including a duty to consider climate change within the planning process at local, regional and national levels. She has been extremely sympathetic and accommodating. I also thank her for responding positively by placing a climate change duty within the regional spatial strategies—that will be done in a government amendment. It will strengthen the Bill and ensure that there is a duty in the local and regional planning process to contribute to the mitigation of and adaptation to climate change.

I also thank the Minister for her amendments to Clauses 5 and 10. They include climate change within the drafting of national policy statements and as part of the duty of the Secretary of State. However, I am still concerned that these amendments do not go far enough and leave the Government’s carbon strategy to achieve an 80 per cent reduction in emissions by 2050 very vulnerable.

In the Government’s amendment to Clause 5, the national policy statement must take,

“account of Government policy relating to the mitigation of, and adaptation to, climate change”.

In the Government’s amendment to Clause 10, the Secretary of State is called to,

“have regard to the desirability of … mitigating, and adapting to, climate change”.

By contrast, the regional spatial strategies and local planning documents must not just have regard to or take account of but must contribute to the mitigation of and adaptation to climate change. In the Government’s amendments, the NPSs and the Secretary of State are called upon simply to have climate change in mind. There is no requirement upon them to contribute to the mitigation of and adaptation to climate change. I imagine the Minister assumes in good faith that in practice that will be more rigorous than the language of the Bill implies.

My concern is for future Administrations, who will be called on to operate the legislation in 2010, 2020 and 2030. The Government have clearly understood the need to place a clear duty on the process locally and regionally, so the question is: why not nationally? At a national level, all we have is the provision “to take account”, “to have regard” “to have in mind”, not “contribute”, which is the responsibility laid on people locally and regionally.

As we know, the national policy statements offer the framework for the development of national infrastructure and for decision-making by the Infrastructure Planning Commission. As we move towards a low-carbon economy, we need to transform the planning process. Many national infrastructure projects will make a significant impact on our carbon emissions. That is why we require decisions for the development of the national infrastructure to “contribute” to the mitigation of and adaptation to climate change.

The Minister may say that through the range of the NPSs, through the assurance of sustainability, which is in the Bill, and through the Government’s Climate Change Bill, the Government will be able to maintain their strategy towards a low carbon economy, so that what you lose on one development, you gain on another in reducing emissions. But where is the mechanism that allows us to measure that, that enables us to hold them accountable? My fear is that, without a mechanism and an explicit duty in the national policy statement and on the Secretary of State, we will fail to achieve the Government's target of 80 per cent reduction by 2050.

As we are giving so much authority to the Infrastructure Planning Commission, we need to send an unequivocal message from the Secretary of State and from the national policy statement to the IPC industry that we simply cannot accept construction that ignores our responsibility to reduce carbon emissions. We must lay on the NPS and the Secretary of State a duty not just to “bear in mind”, not just to “take account” but to “contribute” to mitigating and adapting to climate change. That is why the amendments are important. I beg to move.

My Lords, I support the amendment moved by the right reverend Prelate, which would strengthen the Bill immeasurably. My name is not associated with the amendments, but, if I may say so, I have associated myself in a spiritual sense with the sentiment that he expressed.

I also note the government amendments, which are an attempt to address the issue but which are, in my view, insubstantial in their commitment to the thrust of the Bill. After all, we all know that, along with energy policy, climate change policy is one of the drivers behind the Bill. To include specific mention of it at these key points of decision-making is vital. I think that the right reverend Prelate has hit on the right points of incidence. I hope that the Minister will accept that that is a better way than the government amendments to ensure that climate change mitigation, adaptation and sustainable development are at the heart of the decision-making process that the Bill will introduce.

I welcome the Government’s provisions on regional spatial strategy, a subject on which I spoke in Committee; I am very pleased that they have been included. I wish only that they included the amendments now being tabled by the right reverend Prelate.

My Lords, my pager message says that we are in contempt of the amendments, but it meant content. We on these Benches support Amendments Nos. 17B, 29A and 51A, although I am glad that the right reverend Prelate is not pressing ahead with his other amendments because it is right that we look at these issues while we are debating the national policy statements.

We support the amendments in particular to strengthen the Minister’s arm in toughening up the provisions in the Bill and to find a way of showing the importance of climate change as part of wider sustainability concerns. I recognise that there might be irreconcilable differences between some noble Lords as to whether climate change should override everything, but we still need to work towards making it a part of the mosaic of the environment—this is not only about climate; there are other environmental concerns—and economic and social matters. I apologise for my pager; it will not shut up. That is probably the correction.

My Lords, I join my noble colleague Lady Hamwee in supporting the right reverend Prelate’s amendment. It is extremely important that the decisions that we took on the Climate Change Bill are applied right across government. Here we are, considering the same issues in our debate on the Planning Bill, and it is extremely welcome that the right reverend Prelate has raised this issue and made sure that the Government fully address it. I support the amendment also as a spokesperson in international development.

My Lords, I have tabled an amendment to a government amendment in this group. Would the Minister like to introduce his amendment first?

My Lords, I am in the hands of the House. As I will also respond to other amendments, is the noble Lord prepared to go first? I am sure we would all be grateful if he was. I will then cover all the amendments.

My Lords, I am quite happy to do that. I start by repeating an interest, which I declared in Committee, in that a planning application for a wind-power station may be made close to where I live on the Lancashire-Cumbria border.

In Committee, I introduced an amendment that sought to require the Secretary of State to ensure, before designating a statement as a national policy statement, that the statement was consistent with the terms of the European Landscape Convention, a convention of the Council of Europe that we signed up to a few years back. That amendment received some support in this House. The noble Lord, Lord Williamson of Horton, spoke in favour of it, as, I think, did others. The noble Lord, Lord Judd, who is in favour of wind farms, said that there were suitable and unsuitable places for them. The noble Lord, Lord Howarth of Newport, also tabled an amendment at that stage that required the Secretary of State to take account of the impact of policy on the,

“built heritage, scheduled ancient monuments and important landscapes”.

Now, the Government’s own Amendment No. 37 requires the Secretary of State to,

“have regard to the desirability of … achieving good design”,

following the excellent campaign of the noble Lord, Lord Howarth, on that subject. The noble Lord has tabled another heritage amendment, Amendment No. 64, which I hope will be accepted. Landscape has, alas, disappeared except in the restricted sense in which it appears in the amendment tabled by the noble Lord, Lord Howarth, which covers conservation areas, registered parks, gardens and battlefields, but no more.

Hence, my amendment seeks to rectify an omission by adding just four words to the Government’s amendment. It requires the Secretary of State to have regard to the desirability of,

“respecting high quality landscape”.

The phrase, “high quality landscape”, is to be found in the preamble to the European Landscape Convention. If it is thought to be a subjective concept, it is no more so than good design, which the Secretary of State will also now have to take into account.

Recently, I received in the post—in common, no doubt, with many other noble Lords—a small pamphlet which described itself as a snapshot of the work of areas of outstanding natural beauty. The covering letter, which was signed by the chairman of the National Association for Areas of Outstanding National Beauty contained the following two glowing sentences. It states:

“David Miliband commented in 2007, ‘landscape provides the backdrop and basis for the nation’s tourist industry, which contributes over £70 billion every year to the British economy. What attracts tourists to Britain is overwhelmingly the beauty and character of our landscape’”.

There we have it. In the words of one of our most senior Ministers, when it comes to tourism and the famed attractions of this country, landscape is paramount—unless this was just an example of the art of triangulation, which is to say to each audience what will please them and not worry about the contradictions.

The fact is that some of our finest landscapes are being industrialised and ruined by wind power stations. That is very much true of the corridor that runs between the Lake District and the Yorkshire Dales National Park, with which I am familiar, but there are many other areas as well. In my opinion, the Government should not let that happen. It need not happen. This Bill could be a tool to prevent it happening. The Secretary of State could make use of the terms of Clause 5(5), which provides:

“The policy set out in a national policy statement may in particular”,


“one or more locations as suitable (or … unsuitable) for a specified description of development”.

This amendment would require the Secretary of State to take landscape into account before designating a national policy statement. Let the Government show that they do not always triangulate, but that they occasionally engage in joined-up government, and accept this amendment.

My Lords, before the focus returns to climate change, perhaps I may support Amendments Nos. 23 and 37 in the name of the Government very warmly. My noble friend has shown great enlightenment in proposing that the obligation on the NPS to insist on good design is explicit. The citizens of this country will have a better future because of it. It remains only to say that I am most grateful to my noble friend and to the team at the DCLG which has worked extraordinarily hard with us to achieve this excellent result.

My Lords, to follow what my noble friend Lord Reay said, it has often been said that the Government have three connected Bills. The Climate Change Bill, the Energy Bill—to which we bade farewell last night, I hope—and this Bill all have broadly the same objective. Therefore, I hope that noble Lords will not consider it inappropriate if I refer to something we discussed during the passage of the Energy Bill, which refers precisely to the point made by my noble friend Lord Reay.

When we were looking at the contribution that wind farms—offshore as well as onshore—should make to achieving our environmental objectives, it was said again and again that it was being held up not by the inability of the regulators to provide the necessary financial flexibility, and certainly not by any reluctance on the part of investors to invest in wind farms, but by two other factors. The first is access to the grid, on which I will not say another word because that is not directly applicable today, and the second is the planning system. The other day I saw an article about wind energy in a newspaper supplement headed: “Where are the wind farms? Blame the councillors”. It is well known that a great many wind farm applications are pending because they have fallen foul of the planning system.

The difficulty for the Government and the IPC is how to break through the barrier to achieving the production of the amount of renewable energy to which the Government have committed themselves, while protecting precisely the kind of thing described by my noble friend and on which there has been so much debate. The place to do it is in the national planning statements. They should make it clear to those who are going to make applications based on a national planning statement for energy—I do not know how many statements there will be; one overarching statement for energy and perhaps others for more specific areas of energy—that they have to have regard to the aesthetic and human values related to these issues as well as the need to press ahead with achieving our environmental objectives. That is why I want to speak strongly in favour of these amendments, although I am not particularly wedded to the actual wording. If we are going to make sense of our energy policy we will do so not only by paying attention to the climate change legislation, but also by paying attention to this legislation.

Let me say this to the Minister: I do not envy the officials who will have to draw up national policy statements which are going to have regard to these multifarious objectives. However, we cannot go on with applications simply being held up indefinitely because of the opposition of local planning authorities. That is what this legislation is supposed to be about: major infrastructure projects of national significance, and no one can deny that wind farms fall firmly into that category. Here is a classic example of how all three parts of the legislative structure Parliament is now putting in place actually hang together.

I cannot sit down without telling a story that the noble Lord, Lord Chorley, may well remember because it relates to a wind farm he was concerned with in Cumbria. A cartoon in one of the papers showed a man rushing in and waving a piece of paper at his wife, saying, “We’ve won! We’re not going to have a wind farm, we’re going to get a nuclear power station instead”.

My Lords, this group is a bit of a jumble containing amendments on climate change, important landscapes and design. It is a pity that we have not had an opportunity for separate debates on all three, but of course we need to make progress. I am glad to have the opportunity to say a word about the amendment tabled by the noble Lord, Lord Reay. He rightly takes me somewhat to task for omitting a reference to “important landscapes” in Amendment No. 64, tabled in my name and which we will debate later. The reason I did not include the phrase is because, in the formulation of that proposed new clause, I have drawn on the language of existing legislation and it was rather difficult to bring it in. I am therefore glad that he tabled his amendment. I have every sympathy with it and I am most grateful to him for picking up the baton. I hope that the House will look favourably on his proposal.

It was my intention to present a bouquet to my noble friend Lady Andrews at this point, but entirely exceptionally she is not in her place. She is there for hour on hour so it is not unreasonable that she may have nipped out for a cup of tea or, more likely, for a conference with her officials. I want to echo the words of my noble friend Lady Whitaker and say that Amendments Nos. 23 and 37 on design are a civilised and important development on the part of the Minister and the Government. I thank the Minister and her colleagues in the DCLG for the thought that they have put into how to promote good design in the new national infrastructure which the development consent regime will herald. My noble friend has responded constructively to the strong views expressed around the House that a requirement for good design should be written plainly on the face of the Bill. I suspect that she has negotiated toughly and effectively with other government departments that did not readily recognise its importance, notwithstanding that good design will save time and money in their projects.

I also thank noble Lords who have spoken in a series of debates in which we have made the case for the importance of good design and for the Government finding more effective ways to promote it. There is a world of difference between reliance on generalised aspiration in policy statements and specific duties laid in statute; between the policy for the time being of the Government and the settled will of Parliament. With these amendments, the Secretary of State will have no choice but to insist that all concerned in the new development consent process take conscious thought and make a genuine effort to achieve a high standard of design whatever kind of infrastructure they have in hand. We could not assume that this would have happened without a clear requirement in statute.

Of course developers and the commission would have sought to achieve something that worked, but why should they have aimed higher? All the pressures for haste and cheapness would have driven them towards developments that were adequate for their function, but no more than that. If Clauses 5 and 10 are amended in the terms of Amendments Nos. 23 and 37, developers and the commission will know that it is their duty to do their job not only adequately but well. Not only will this requirement make it more likely that highly visible features of our built environment will perform well and be satisfying in appearance, but it will influence our whole national culture of design for the better.

My Lords, I support the right reverend Prelate the Bishop of Liverpool in his amendments on climate change. First, however, I must apologise to the House because this morning, when I spoke for the first time on Report, I failed to declare my interests in the register, notably as a landowner and farmer and, with particular relevance to the Bill, as chairman of the Charities’ Properties Association.

Climate change is the most important issue of our age. Banking crises, world recessions and even presidential elections might knock it off the front page every now and then but, given its importance to our generation and the next, there could not be anything more important than our climate change agenda. The Government recognise the case being made in the Bill. As the noble Lord, Lord Taylor, mentioned, one of the primary aims of the Bill must be to hasten our ability to react to and fight against the danger of climate change that threatens this country in various ways. I hope the Government will be able to strengthen their own amendments and give more backbone to the Bill on the issue of climate change

My Lords, the noble Lord, Lord Cameron of Dillington, has reminded me that I also should have repeated my interest as a landowner at the start of the Report stage. I neglected to do that this morning. That, however, is not the reason why I rise at this point.

The issue of climate change raised by the right reverend Prelate the Bishop of Liverpool is fundamental to the Government’s programme. He has got it right: there is no doubt that the Bills need to be inextricably linked. The question is whether the Bill and the government amendments go far enough. When planning documents must now definitely contribute to mitigation and so on, the right reverend Prelate’s reference to the words “taking account of” and “having regard to” being in the Bill simply makes the case.

This is a very important point and I am disappointed that the Government have not picked up this relationship and made it plain on the face of the Bill. This is not a place for something to be implicit—it needs to be explicit. The trilogy of Bills that we are considering in this Session will have a profound effect for a very long time. Anything which, heaven help us, contributes to dilution or to the possibility of excuses for dilatory action in the present situation simply is not tolerable. The principle of the Climate Change Bill imposes a very strong and difficult programme which has to begin now and go on at least until 2050. The depth of change that is required over that period will be very great indeed. It is essential that that process starts, and that it starts from day one. Neither the Bill nor the Government’s amendments, which are helpful, imply that necessity.

I offer strong support to the amendments of the right reverend Prelate. I hope that the Minister will find it in his heart to ease his position a little and move towards that of the right reverend Prelate.

My Lords, it is a great pleasure to respond to this group of amendments. I know that my noble friend Lord Howarth is a little disappointed that the amendment in which he has a particular interest was not taken separately. I suppose that one would describe this as a portmanteau group of amendments; none the less, we have had a very important discussion.

I very much agree with the noble Lords, Lord Jenkin and Lord Dixon-Smith, that we cannot consider the right reverend Prelate’s amendments in isolation from the Energy Bill and the Climate Change Bill. They come together. I agree with the sentiments of all noble Lords in wanting to ensure that the revised and reformed planning system is as consistent as possible with the Climate Change Bill and with what we are seeking to do in the Energy Bill. The argument between us is where ultimate responsibility lies. The Government firmly believe that ultimate responsibility has to be with the Government themselves and with Ministers. That is the difference in the interpretation of the amendments that I am bringing forward and those of the right reverend Prelate. I do not detect any difference between noble Lords in terms of the importance of making sure that we get this right.

The noble Baroness, Lady Hamwee, wants to strengthen Ministers’ hands—I shall come on to the detailed argument later. I, too, want to strengthen Ministers’ hands, but in doing so, we have to ensure that ultimate responsibility lies with Ministers. That is the point that I shall be arguing.

I would hazard a guess that it was after this proposal was debated in Committee that the Government announced the changes they wished to make to the Climate Change Bill and accepted the advice of the Committee on Climate Change, chaired by the noble Lord, Lord Turner, to go for the 80 per cent target. In a sense, that sets the new context in which we should be discussing these amendments. I suggest that even if Ministers wanted to run away from the implication of that in planning terms—which they do not—it would not be possible because the hugely challenging 80 per cent target means that it will be an imperative for Ministers to do what is necessary to ensure that we meet those targets, not because the target has been set, but because we know that meeting the 80 per cent target is the only way that we will contain the temperature rise to 2 degrees centigrade, which is absolutely critical, as the noble Lord, Lord Dixon-Smith, clearly pointed out.

I readily acknowledge the thanks which all Members have offered to the right reverend Prelate for pursuing this point. However, we have reservations about his amendment. We believe that any duties in relation to climate change need to fall on Ministers in performing their role of drawing up and designing the national policy statements. As we have made clear, the ministerial role in the new system is to set out policy in national policy statements that should take account of all relevant policy considerations and be the primary policy framework for IPC decision-making. The role of the IPC is then to examine applications for development consent, taking into account the national policy statement, any local impact report from local authorities, any matters prescribed in secondary legislation and any other matters that the IPC thinks are important and relevant to its decision whether to approve. The IPC is required to determine applications in accordance with the national policy statement except to the extent that one of the exceptions set out in Clause 102(4) to (8) applies. Chiefly, that means that the proposal must not be in breach of the law and its adverse impacts must not outweigh its benefits.

There is no question but that the role of the national policy statement is key. Ensuring at the outset that the policy is right and that appropriate weight is given to the various considerations will mean that they are then appropriately examined at each stage of the process. But here comes the reservation. If we were to place duties on the IPC in respect of policy on climate change or any other matter, there is a risk of detracting from ministerial accountability for policy and undermining the principles on which the new regime is built.

My Lords, is the Minister considering the right question when he says that it is a matter for the IPC to consider? Surely the duty needs to fall ultimately on the applicants. That is the issue that we need to get across. If we followed the amendments of the right reverend Prelate, the contribution to mitigation would be shifted across to the applicant, who would have to show how their application made a contribution. That is an extension of what the Minister is saying. It is not enough to discuss this matter just in the context of the planning commission.

My Lords, I well understand the noble Lord’s point, but it does not detract from the general thrust of my argument, which is that it is ultimately for Ministers to come to a view on the impact on climate change of a national policy statement. Applications are made within that context. My concern is that we do not detract from ministerial accountability and authority in these matters.

We could have a very good general debate about how we influence developers, communities and applicants to do the right thing in relation to sustainability and climate change. There are many mechanisms under which we do that, with responsibility in a number of government departments. Local authorities have a big role to play, as the noble Lord suggested in an earlier amendment. But the key point is the relationship between Ministers, the national policy statements and the IPC. All I seek to do, in acknowledging the concerns that the right reverend prelate has by introducing government amendments, is to ensure that we do not confuse those responsibilities.

My Lords, how does the Minister reconcile what he has just said with the actual words in the amendment? It says:

“Before designating a statement as a national policy statement for the purposes of this Act the Secretary of State must be satisfied”.

The substance of the right reverend Prelate’s amendment is a responsibility on the Secretary of State to be satisfied that,

“policies in the statement contribute to the mitigation of, and adaptation to, climate change”,

sustainability, and all those other things. It is the Secretary of State who must be satisfied to that effect. So I do not follow the Minister’s deduction that the amendment in some way diverts the responsibility from where it clearly lies in the amendment, which is with the Secretary of State.

My Lords, my reading of the amendments tabled by the right reverend Prelate is that it is a requirement for each national policy statement to contribute directly to the mitigation of climate change. Within the context of the 80 per cent target and the need to ensure that we do everything we can, there may be certain circumstances in which it cannot do that. What I am arguing for is some overall flexibility, with Ministers having accountability.

I stress at once that the concept of sustainable development sits at the heart of planning. This is made explicit in planning policy statement 1, which sets out how the principles of sustainable development apply to planning generally. In 2005, the Government published Securing the Future, a new sustainable development strategy for the UK, which set out five key principles for sustainable development: living within environmental limits; securing a strong, healthy and just society; achieving a sustainable economy; promoting good governance; and using sound science responsibly. The strategy makes it clear that in order for a policy to achieve sustainability, it must integrate all five of those principles, which is necessary if we are to meet the needs of communities while respecting the limits of our environment and resources. We must therefore look at the social, economic and environmental considerations holistically and integrate them in a way that allows us to promote development that meets the needs of the present without compromising the ability of future generations to meet their own needs.

It is important to give the House the Government’s understanding of what we mean by sustainable development, which we believe should be the guiding principle for Ministers in preparing national policy statements. That is why Clause 10 places such importance on it.

Issues around climate change—and I speak from my position, wearing my DECC and Defra hats—are very important indeed. The noble Lord, Lord Cameron, made the point that however much we are concerned about financial issues or presidential elections, climate change is the mega-issue that we face. That is why the decision by my right honourable friend the Secretary of State for Energy and Climate Change to go for putting the 80 per cent target on to the statute book was so important.

Despite that, other elements of sustainable development are also important and we must have regard to them. I think that the House might agree that, alongside climate change, we have to take account of the need to secure our long-term energy supply, for example. The noble Lord, Lord Jenkin, has powerfully and passionately been asking the House and the Government to ensure security of energy supply. It is also important that we have regard to employment and economic growth. We cannot ignore people’s standard of living and, crucially, other environmental decisions, such as preserving biodiversity.

This is where we come to the nub of the argument, which I anticipated earlier. The amendments tabled by the right reverend Prelate would require that, before the Secretary of State designates a statement or amends a national policy statement, he,

“must be satisfied that (taken as a whole) the policies … contribute to the mitigation of, and adaptation to, climate change and to the achievement of sustainable development”.

Amendment No. 51A would separate climate change from sustainable development and introduce a new clause that would require the Secretary of State to draw up and review national policy statements,

“with the objective of contributing to the mitigation of and adaptation to climate change”.

Our problem with this is that the amendments would elevate the consideration of climate change to such a degree that the other considerations could be marginalised. There could be risks for other policies, including energy policy.

We have made clear our intention to undergo the transition to a low-carbon economy. It will be in statute, provided that your Lordships accept it when the Bill comes back on Monday week. That is the context in which all these other considerations come to the fore. It is the difference between where we were in Committee and where we are now on Report.

A basic principle of our climate change policy, as emerges in the Climate Change Bill, is that some individual policies may not necessarily contribute to meeting the targets. We have to accept that. As long as our national effort balances and the overall targets, taken together, are met, that is perfectly acceptable. The problem is not philosophical but practical. We do not want to undermine this prospect by requiring each national policy statement to contribute directly to the mitigation of climate change. We think that that would restrict our freedom of manoeuvre, which is why we have reservations about the amendments tabled by the right reverend Prelate. Ultimately, these decisions have to be made by Ministers. They cannot be made by anyone else.

We believe that the amendments that we have tabled create the kind of regime that will enable the concerns of noble Lords to be covered without in the end affecting ministerial responsibility. Our Amendment No. 37 makes it clear that addressing climate change and achieving good design are key and essential elements of the notion of sustainable development. Our amendments aim to highlight the particular importance of climate change and good design but do so as part of the broader sustainable development duty. They make it clear that climate change should be at the forefront of Ministers’ minds when drawing up national policy statements but that that should be done within the broader objective of achieving sustainable development. That is crucial. Clause 10 underpins and frames the Secretary of State’s actions. It ensures that those principles are always at the forefront of Ministers’ minds when drawing up and reviewing national policy statements, which is where they should be.

If Clause 10 sets out the principle, Clause 5 will underpin the practice. Amendment No. 25 to Clause 5 requires Ministers to include in each national policy statement an explanation of how the policy takes account of government policy relating to the mitigation of, and adaptation to, climate change. In effect, Ministers must describe how they have carried out their duty under Clause 10 by reference to wider government policy on the mitigation of, and adaptation to, climate change. This will, of course, include the Climate Change Bill once it is in place, so ensuring, as I have said, that national policy statements themselves are drawn up in the context of the targets and policies that it puts in place.

These duties should then be seen in the wider context of the processes which the Bill puts in place to ensure that the policy set out in national policy statements is appropriate and robust. First, national policy statements will be subject to an appraisal of sustainability, to ensure that environmental, social and economic objectives, including climate change, are properly factored into their development. This will involve an iterative process of collecting information, defining realistic alternatives, identifying sustainability effects and developing mitigation measures. That will then be fully integrated with the wider national policy statement preparation process, involving statutory consultees during key stages and, where necessary, the draft national policy statement will be revised in light of the appraisal of sustainability.

Secondly, national policy statements will be subject to public consultation and, as noble Lords have already debated today, subject to parliamentary scrutiny. If, in the process of scrutiny, Parliament were of the view that climate change—or, indeed, design, which we shall come to in a moment—had not been properly taken account of, it could make a resolution or recommendation in respect of that.

I emphasise that Ministers will be bound by the provisions of the Climate Change Bill once enacted, and will need to ensure that, taken together, government policy achieves the targets that it sets out. This is the key point: it is taken together. It must be seen as a collective government effort. Inevitably there will be some—I hate to say it—swings and roundabouts, but there must also be some balancing between the different national policy statements. In some areas, it will probably not be possible to show a contribution on climate change, but there will be a national interest in taking that policy forward. All of this happens within the context of the 80 per cent target enshrined in legislation. That is a critical point.

My Lords, before the Minister leaves that point, one of the essential features of the decisions that the commission must take is set out in Clause 101(7), which requires that the panel or council is,

“satisfied that the adverse impact of the proposed development would outweigh its benefits”.

That ties up with what the Minister was saying earlier. Can he confirm that one of the adverse impacts that might offset the benefits of a development would be the fact that it did not contribute to the objectives about climate change? In that case, it seems that what he said earlier—that the overriding requirement of climate change cannot apply automatically to every application—must be right. There must be times when the national need for infrastructure must outweigh that. The Minister is nodding. Perhaps he can confirm that that is what the Bill means.

My Lords, I think that is right. I am sure that is what is meant. Only two weeks ago, noble Lords were asking me about the so-called energy gap. We undoubtedly face a challenge in terms of the number of generating stations which are due to go out of business over the next 10 to 12 years. One way or another, we shall have to tackle that matter. Clearly, such issues must come into play as well. I hope that satisfies the noble Lord.

Good; that is a good start, my Lords. The point about regional matters was very well put. I very much welcomed the comments of the right reverend Prelate and the noble Lord, Lord Taylor, on the government amendment relating to regional spatial strategies, which is a very straightforward amendment.

I again pay tribute to my noble friends Lord Howarth and Lady Whitaker in relation to government Amendments Nos. 23 and 37 on design. Although I was not present when design was debated, my noble friend Lady Andrews has kept me well informed about them. As someone who has worked very closely with CABE over the years, I am very glad that she has allowed me to speak to those government amendments. I believe that the amendments will considerably enhance the Bill.

As regards the amendment in the name of the noble Lord, Lord Reay, it is a great pleasure to debate these matters with him. We had a similar debate only yesterday. I very much understand the issues that he raises. His Amendment No. 37A seeks to amend government Amendment No. 37 by adding “respecting high quality landscape” to the requirement for the Secretary of State to,

“have regard to the desirability of mitigating, and adapting to, climate change”,

and “achieving good design”. I do not know whether this will comfort him but the Government have always made it clear that wind farms should be located in appropriate places, and that local concerns should be listened to. I suspect the noble Lord, Lord Jenkin, thinks that local concerns have been listened to rather too much as regards those matters. None the less, we believe that the appropriate guidance has been given within the formal planning procedure. I understand that PPS22 on renewable energy of the Department for Communities and Local Government highlights the need to take account of environmental impacts in terms of landscape and visual effects. The noble Lord asked about sites of specific special interest. I am happy to write to him to give him further detail on that, but there are existing policies for those areas. There are clear duties on public bodies with regard to the statutory purpose of these areas when exercising or performing any function relating to or affecting land within them. However, as I say, I am happy to write to him to provide more detail.

I think I have made it clear that design and climate change considerations are component elements of sustainable development. I have no doubt that the desirability of preserving high-quality landscape is another. However, we run into what I call the list problem. One has to be careful of setting out a long list of component parts of sustainable development in the Bill. I reassure the noble Lord, Lord Reay, that impact on landscapes is among the impacts that will be assessed through the appraisal of sustainability, and we believe that it is captured by the notion of sustainable development, which we have discussed at length. I reassure noble Lords that I understand the importance of the new planning process being considered very much in the context of the challenge of climate change. There is no greater challenge that this nation or the world faces.

For the reasons that I have expressed, I hope that noble Lords will accept that there is a very germane reason why there still needs to be some flexibility for Ministers. There are some circumstances where climate change is not the only consideration. That is why the amendments that we tabled today probably meet the requirement of the right reverend Prelate. I am happy to have further discussions with the right reverend Prelate about this. I hope that, if he does not agree with me, at least he will accept that we are trying to sing from the same hymn sheet, if I may say that, on the importance of climate change.

My Lords, will the Minister give further consideration before the next stage to the amendment that was tabled by my noble friend Lord Reay? Good design is important, and I supported it in Committee, but landscape and siting are equally important. We were given a very good example at the meeting that the noble Baroness, Lady Andrews, held before Committee stage, of where a developer insisted on putting some structure on top of a cliff when it could have been moved down the hill and a couple of miles into a wood and been hidden. Not only would the design have been better, but the landscape would have been better. To some of us, the siting of major infrastructure is probably more important in some instances than the design. If the noble Lord would look this way and not just in his wing mirrors, and give a little help to this side of the House, it would be appreciated.

My Lords, I have spent the past three weeks giving help to all sides of the House. The noble Earl is a very experienced parliamentarian, and he knows that it is easy for me to say that I am happy to consider the amendment between now and Third Reading. The danger is that noble Lords will think that that is tantamount to saying that I am prepared to give a concession.

I am certainly happy to engage with the noble Lord, Lord Reay, after the debate and discuss it further with him, but I would not want the House to be under any misapprehension, and the Government think that landscape is essentially covered in the general consideration of sustainability as I described it earlier. We are very averse to adding more lists into the Bill, for all the reasons that noble Lords know. The more that you define through a list system, the more you exclude. If the noble Lord accepts that I will engage with him, but that I cannot hold out a promise of a government amendment on Third Reading, I am happy to do so.

My Lords, I thank all noble Lords for their contributions to the debate on this group of amendments. I am particularly grateful to the Minister for clarifying his position. He raised many points that are worthy of more debate, but this is not the time to do it. I reassure him that I recognised the hymn sheet that he was singing from; some of the tunes were familiar and delightful, but I am unpersuaded on one or two things. I agree with the noble Lord that the ultimate responsibility lies with the Secretary of State; but because we have before the House a Bill with new powers and with unique authority being given to the Infrastructure Planning Commission, it is all the more important to send out a message. That message must be at the heart of what the Secretary of State says. The Secretary of State and the national policy statement must be bound into contributing to the mitigation of and adaptation to climate change. For that reason, I should like to test the opinion of the House.

18: Clause 5, page 3, line 22, leave out “suitable (or potentially suitable)” and insert “potentially suitable”

The noble Baroness said: My Lords, I shall speak also to Amendments Nos. 19, 20, 22, 24, 26, 30, 124 and 125—a list which I hope is not as daunting as it sounds.

At the previous stage, I sought to take out the word “suitable”, as applying to a location, on the basis that any location could be no more than “potentially suitable”. In several places, the Bill uses the words “suitable (or potentially suitable)”. However, it does not seem to me that anything can be regarded as more than potentially suitable. I felt that the Minister made my case for me, and I shall refer to some of the things that she said on 6 October. She said that the terms were virtually interchangeable, but I do not agree. She added:

“They highlight that the suitability itself might be conditional on external factors. One cannot set out specific criteria for these situations in all cases”.

Indeed. Therefore, because of conditionality, the Bill should refer only to “potentially suitable”. The suitability of a location must be,

“ultimately dependent on the details of the particular project proposal”—

indeed, only potentially suitable.

“The IPC would have to look closely at the details … It would have to look at the specific application and the precise siting of potential impacts to determine whether the application was appropriate to go in the place identified”.—[Official Report, 6/10/08; col. 105.]

I could go on, but I think I have probably made the point. I hope that the Minister can explain what I was missing the first time around and what I am still missing in understanding the desirability of both phrases—that to include “suitable” does not pre-empt other decisions that need to be made. That goes to Amendments Nos. 18, 19, 30, 124 and 125.

Amendment No. 20 would delete the identification of a statutory undertaker as appropriate to carry out a development. In Committee and in a very long letter sent to noble Lords since then, for which I thank her very much—it was daunting, but as one got into it, it was very readable—the Minister’s argument was that this would mess up Clause 172, which deals with blight. Under Clause 172 the person who bears responsibility for the blight is the statutory undertaker, if identified in the national policy statement. If one is not identified, then it is the Secretary of State. There is a degree of circularity here. If there is only one undertaker, the Secretary of State should sort out the financial matters with the undertaker and that should not override what I see as a certain lack of propriety in identifying one undertaker if there is more than one candidate. If a single candidate is to carry out a particular development as the statutory undertaker, there is no need to identify it anyway.

We did not discuss Amendment No. 22 in these terms in Committee, but it seeks some clarity in the Bill, which I hope does little more than reflect what we have already been told, which is to insert a provision that an NPS should set out the extent to which it supersedes any other government policy—that is, planning policy statement, planning policy guidance or other documentation providing planning policy. In other words, it makes the hierarchy clear and ensures that those who apply the policies are completely clear about which takes precedence. In the planning world, I think we are all used to the term “emerging policy”, which is a useful cop-out for, “We haven’t quite settled this, but this is the direction we are going in”. I should perhaps say that with apologies to some planners. It would be helpful to have complete clarity.

Amendment No. 24 goes back to suitability. It is an attempt to encompass the assurances that we have been given by the Government. It states:

“The identification of a location as potentially suitable”,

since I do not accept that any location can be suitable full stop,

“for a specified description of development shall not be conclusive as to the suitability of any site which is the subject of an application for planning permission”—

in other words, is outside the IPC regime—

“or for a development consent order”,

which would be within the IPC regime. We had many assurances that the IPC is independent and that it is required to pay proper attention to all proper planning matters and to pay attention—more than pay attention—to the local impact statement. I have a particular concern that, if the Secretary of State identifies a location or a site, no discretion will be left for the IPC or the planning authority and the local impact statement would be completely worthless. I believe that that is not what the Government intend, but it would be worth spelling out here or elsewhere precisely how the suitability point bites and where it does not bite. I beg to move.

My Lords, at the outset of my remarks, it is appropriate to say to the noble Baroness that were she to decide to divide the House on this matter, I would not follow her into the Division Lobby, but I nevertheless think that yet again she has raised some significant issues. I hope my noble friend will accept that if we are to make a success of national strategy in planning—nobody is more in favour of that than I am—identification and ownership of the plan, right down to the immediate community level, is terribly important to enable people to identify with what is being planned so that the spirit is there in implementation. If not, we will have a minimalist approach to implementation, which would be very unfortunate. Where work is done by those with responsibility at local regional level, it is important that it is seen to be taken seriously before national decisions are made, otherwise there is resentment and a feeling that things are being forced upon people, and feet will be dragged. Undermining and “Operation Clawback” will begin. That would be very sad.

My Lords, my noble friend is right that important issues have been raised by the noble Baroness. I am grateful for the opportunity to respond to them. She focused on the technical aspects of what an NPS is and does, which are set out in Clause 5. Amendments Nos. 18 and 19, together with consequential Amendments Nos. 30, 124 and 125, probe how far an NPS can go in identifying locations as suitable for development by removing the provision that an NPS may identify locations as suitable in the first place.

The noble Baroness made it clear that she believes that the Secretary of State should only be able to identify locations that are potentially suitable, making clear that the IPC will therefore have genuine discretion for an independent decision. I take the point she made. In Amendment No. 24 she wants to ensure that identifying a location as potentially suitable should not bring with it a conclusive decision about its suitability for a particular project.

I will come to her Amendments Nos. 20, 22 and 26 as I go through my speaking note, because I think that they are linked.

Perhaps I may deal with the key issue of “potentially suitable” as opposed to “suitable”—whether we are dealing with semantics or a serious concept. The noble Baroness has argued that, in logic, all locations identified in an NPS can only ever be potentially suitable, because the IPC will still need to consider local impact and the other matters in subsections (4) to (8) of Clause 102. If they outweigh the benefits, the application could be refused.

I do not think that I made a very good fist of explaining that in Committee, and as the noble Baroness read it back to me I became even more convinced of that, so let me take another stab at it. In the first place, although Clause 5 permits an NPS to identify a location as suitable, it certainly does not mean that the IPC will have no discretion to refuse an application for development at that location. As I said, the IPC will need to consider the issues raised as a result of the tests in Clause 102(4) to (8). However, as the noble Baroness will understand, Clause 5 relates solely to the Secretary of State’s view expressed in terms of policy on an NPS; it does not relate to any decision of the IPC. Clause 5 permits the Secretary of State to come to a clear view about locations that in his or her view are suitable, but the final decision about whether development can go ahead in a location rests with the IPC. That is governed by Clause 102, not Clause 5.

Let me be clearer than I think I was in Committee about the definition. There is a defensible difference between policy that identifies a location as suitable and that which identifies a location as potentially suitable. The former is, clearly, more certain; the latter suggests that certain conditions still need to be satisfied or obstacles overcome before a location becomes suitable. Perhaps I can explain this in the context of the IPC’s decision-making framework. If an NPS says that, in the Secretary of State's view, a location is suitable for a particular type of development, the IPC will be required to decide an application in accordance with the NPS unless one of the exceptions set out in Clause 102 (4) to (8) applies.

The starting point for the IPC in that case would be that the Secretary of State considers the location to be suitable, and weighed against that would be the issues raised by Clause 102(4) to (8). Those issues could include whether special consideration of alternative locations was required if it was a habitat site, how far alternative locations had been considered by the Secretary of State in coming to the view, and whether there were local adverse impacts that the Secretary of State had not taken into account in coming to that view. However, if an NPS says that a site is potentially suitable, the starting point for the IPC would be that there are matters that must be addressed before the site can be considered suitable. The IPC would still need to come to a view on those matters and would then need to weigh the complete package against the issues raised by Clause 102(4) to (8). I think that that is a solid distinction.

The amendments would restrict the Secretary of State’s ability to identify suitable sites for NSIPs in a national policy statement and, therefore, his or her ability to take responsibility and accountability for that policy. The noble Baroness will understand that I cannot accept that amendment.

Amendment No. 24 goes to the heart of the matter. I should be absolutely clear that if an NPS were to identify a location as suitable or potentially suitable for development, that would in no way predetermine the outcome of a decision whether to grant development consent.

The IPC will always be required to consider any application in the context of the provisions for the examination of applications set out in Clause 102, and will be able to refuse consent in the circumstances set out in the clause. However, the noble Baroness has made an important point, which I accept, about clarity and certainty. I understand the concerns, and will take the matter away and consider it further to determine whether we can do something to make this clearer. Clause 5 may not be the appropriate place for clarification, because, as I have said, it is important that we maintain the distinction between policy-making and decision-making. We may be able to clarify this to her satisfaction in the decision test. If she withdraws the amendment, I will give the matter more thought.

I will not be able to give the noble Baroness, Lady Hamwee, as much satisfaction on Amendment No. 20, which deals with statutory undertakers. In Committee, noble Lords argued that NPSs should focus on policy issues alone and should not be distracted by the detail of who should carry out development. I went into this in some detail in my letter, and it is hard for me to improve on that. We may simply have to agree to disagree.

There is a pressing reason why this provision is necessary. Clause 5(5)(e) should be read alongside Clause 172, which defines appropriate authority, as she knows, for the purposes of Chapter 2, Part VI, of the Town and Country Planning Act. At the risk of déjà vu, I must repeat that removing the provision to identify statutory undertakers would result in the Secretary of State, rather than the promoter, becoming liable under the blight provisions in Clause 172. The problem is that this could greatly restrict the content of an NPS, as identifying sites as potentially suitable for development would render the Secretary of State liable for compensation for any blight caused. This would not be appropriate, because it is the promoter who will ultimately benefit from any such development, so they, not the taxpayer, should bear the burden of compensation.

Amendment No. 26 would require the NPS to set out how the policy in it relates to the provisions of other policy statements. Noble Lords seek to ensure that NPSs are consistent with one another and have proper regard for the policies that each sets out. Noble Lords also seek to ensure that they reflect the reality of the rest of the planning system and are consistent with it. I certainly agree. Indeed, the Bill is a huge step forward in this regard. For the first time, nationally significant infrastructure will be planned for and decided according to a single consent process, rather than through the minefield of consent regimes that we have now. However, it is neither appropriate nor practical to require NPSs to set out how each relates to every other NPS.

It is clear that in some cases NPSs will have close links with other NPSs. I recall our debate in Committee on the amendments tabled by the noble Lord, Lord Berkeley—who unfortunately is not in his place at the moment—on the transport NPSs. In other cases, however, there will be little common ground. On the other hand, NPSs will be linked to a wide range of policies outside the new regime, and those relationships will often be critical. NPSs will have to justify their policy within the wider orbit of relevant policies on transport, energy, the environment and planning, with the objective of contributing to the achievement of sustainable development. NPSs will need to explain and give evidence of those relationships. However, they will be different in each situation and will therefore be complex, so it would not be practical to place a requirement in the Bill that would constrain them artificially.

Finally, Amendment No. 22 would require each NPS to set out the extent to which it supersedes policy in a planning policy statement or any other statement of government policy. I sympathise with the purpose of the amendment, but if an NPS were to render policy out of date, this should be clear. However, NPSs will usually be narrowly focused. They will set out policy only on certain types of infrastructure above the threshold. The main thrust of this policy will apply above the thresholds set out in the Bill, although obviously as statements of government policy they will influence the TCP system to a degree.

Planning policy statements and White Papers are fundamentally different as they are drawn up for different purposes. For the IPC, the NPS is the primary policy framework. When other planning policy statements and White Papers with their own particular purposes and functions are out of date, they are either revised or replaced with another document with a similar purpose. The problem with the amendment is that there is a blurring of the line between different types of policy statement, which is not very helpful. Under the TCP system, the decision must be made in accordance with the statutory development plan unless material considerations indicate otherwise. The point raised by the noble Baroness is rather complex and I have replied in a rather elaborate way. If she will allow, I should like to write to her on this point, which is important and should be placed on the record.

My Lords, I am grateful for that. I will not press the point on the statutory undertaker, although I still think that Clause 172 should be sorted out instead of being prayed in aid as the excuse for keeping Clause 5 as it is. Clause 5 should not give a particular statutory undertaker an advantage if there are other candidates. Clause 22 is complex. We will have to have confidence that the NPS will make the position clear if there is scope for confusion, but I look forward to reading what the Minister might write.

As regards Amendment No. 24 and the other amendments to which it is linked, in substance if not in drafting, I absolutely take the point that Clause 102, on the decision-making process, probably is the place to deal with that issue. I am pleased to hear what the Minister has said and I am even more pleased that she will think about it further. To have something in the Bill that says no more than we have heard from the Government but makes absolutely clear the position would be extremely helpful and would give a lot of reassurance to people who have more cynicism about these matters than I should wish to express at this point. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 19 and 20 not moved.]

21: Clause 5, page 3, line 31, at end insert—

“( ) set out the flood risk of identified locations.”

The noble Earl said: My Lords, Amendment No. 21 on assessing flood risk adds to the list in Clause 5(5), so that it would read:

“The policy set out in a national policy statement may in particular … set out the flood risk of identified locations”.

When the Housing and Regeneration Bill was debated in this House, I moved similar amendments on flooding. Your Lordships will be relieved that I shall not regurgitate all the arguments. The House is only too well aware of the arguments and the problems. So I shall cut to the chase. Earlier this summer, my noble friend Lord Rotherwick sponsored an excellent debate on flood management. Then the noble Lord, Lord Davies, repeated a Statement on the Pitt report. Following the floods in 2007, there have been a number of Questions on flooding.

Your Lordships will recall that after the floods in 2007, power was disrupted and bottled water had to be shipped into areas because installations were damaged. In this House, a Question was asked about how many similar installations there are in the country in danger of flooding. The noble Lord, Lord Rooker, answered that there were hundreds. Unfortunately, my amendment on flooding in the Housing Bill was not accepted by the Government. In Committee, the Minister used PPS25 in her defence. She said:

“The point about PPS25 is that it gives us, for the first time, a hierarchy of risk, which we identify in terms of where we can build with modification. How do we assess the nature of the risk and what do we have to do … you cannot not build on flood areas in this country; you must assess the risk. That is where the Environment Agency comes in. PPS25 gives us a much more accurate tool than we have ever had before”.—[Official Report, 3/6/08; col. GC40.]

When I pressed my amendment on Report, the noble Lord, Lord Bassam of Brighton, responded for the Government by saying:

“The proper place for considerations such as these is within the planning regime. We will have the opportunity to debate this when the Planning Bill comes to your Lordships’ House later this month”.—[Official Report, 7/7/08; col. 566.]

So here we are.

I agree with the Minister when she says that:

“You cannot not build on flood areas in this country”.—[Official Report, 3/6/08; col. GC40.]

Of course she is right, but where this happens, mitigating action should be undertaken to ensure that development is flood resilient and resistant where necessary. The noble Lord, Lord Rooker, said that there were hundreds of existing installations up and down the country that are in danger from flooding. We must not repeat past mistakes when considering future infrastructure installations. My amendment provides that when the IPC is considering an application, it must assess the flood risk so that any mistakes made in the past are not repeated.

There are two types of flood risk: heavy rain or rivers bursting their banks and, as my noble friend Lord Dixon-Smith said in Committee, flooding due to rising sea levels. He went on to say:

“The thought of a nuclear power station being inundated in half a century’s time … A large load of radioactive material being lapped by the sea, would not be tolerable”.—[Official Report, 6/10/08; col. 97.]

Of course he is quite right. As an example my noble friend highlighted Dungeness which is located on the end of a long spit of very low-lying sand, all of which is susceptible to rising sea levels. Would we or should we build the next generation of nuclear power stations on a similar site? Perhaps not, if a flood risk assessment was made.

I am absolutely certain that the noble Baroness in responding to the amendment will fall back on PPS25 for her defence. First, can she guarantee that the IPC will as a matter of course be required to comply with PPS25 for all applications that come before it? Secondly, is PPS25 robust enough? I am sure that the Minister will argue that it is, but others are not so sure. In his review of flooding, Sir Michael Pitt concluded that there is a need to strengthen and reinforce the provision of PPS25 and the building regulations to ensure that flood resistance and resilience measures are fully built into all new developments where necessary. Sir John Harman, as chairman of the Environment Agency, said in response to the Pitt review that urgent review and consolidation of flood risk management legislation will, however, be needed if the recommendations are to be turned into action. Consideration by government of a new water Bill is, in our view, vital to rationalise outdated legislation and to give full effect to the recommendations.

I do not pretend to be an expert on flooding, but here we have two experts who say that the current legislation, and in particular PPS25, is not up to the job. The likelihood of the Government strengthening PPS25 or introducing a water Bill in the near future is remote, hence the need to have a requirement in the Bill to assess the flood risk of identified locations. I beg to move.

My Lords, I support my noble friend’s amendment. I referred to flooding at Second Reading and, given the weather and the prospects for flooding in this country, it concerns me that something about it is not on the face of the Bill.

My noble friend is right: the Government will run for cover, will not want to be helpful to us and will say that PPS25 is the answer. It is not the answer. It is not robust enough and will not solve the problems. It will not identify the situation clearly enough for major infrastructure projects.

The Government development in east London, where many houses were built on the flood plain when Mr Prescott was in charge—it was one of his not so good moves—is one example of where the Government have not a grip of what this policy is all about. I hope the Minister will reflect that this is a serious matter for major infrastructure. PPS25 is inadequate and something ought to be on the face of the Bill.

My Lords, I do not recognise the caricature of PPS25 in the way it has been described today. In my experience, not only is PPS25 robust but on at least two occasions it led to an organisation of which I was in charge to pull back from a planning application. Contrary to what was attributed to Sir John Harman, the statutory process of consulting the Environment Agency also provides an important flooding safeguard. Flooding is an enormously important issue, as the noble Earl said, but it is unfair to characterise government action—PPS25, in particular—and the role of the Environment Agency in quite the way that we have heard today.

My Lords, I am grateful to my noble friend for that remark; she put the position more powerfully than I could. I have tried to be as helpful as I can throughout the course of the Bill. I shall continue to try to be helpful, including trying to explain to the noble Earl opposite, who makes a powerful and important case, why he can be reassured by not only PPS25 but other matters as well. I am glad to have another opportunity to reassure the House that the risk of flooding will be addressed when NPSs are being drawn up.

The August before last, I spent a considerable amount of time touring the country. My department deals with flood resilience and I spent a great deal of time looking into the damp and wet basements of people who had been flooded in South Yorkshire, Sheffield and Oxfordshire. We understand the human tragedy when people get flooded and the risks that are posed to some of our infrastructure. Therefore, when I say that the NPSs have to take into account the risk of flooding as part of national policy, I am very serious about it.

On the issue of PPS25, yes, of course the IPC will have to comply with it, as it will have to comply with all aspects of government policy. Sir Michael Pitt agreed with the Government and the Environment Agency that the policy in PPS25 is right and that it should be rigorously applied by local planning authorities. We intend to examine whether there any barriers to delivery which may be hindering local authorities from implementing PPS25. We are working closely with planning authorities, the Environment Agency and other stakeholders to make sure that that policy is in place on the ground. We issued a revised practice guide in June this year; set up regional workshops to deliver the message; we have made it compulsory to consult the Environment Agency on planning applications in flood risk areas; and we have issued a flooding direction which means that local planners cannot approve major schemes against Environment Agency advice without first checking with Ministers.

The NPS has to integrate, reflect and abide by relevant government policy at the time, including having regard to the policy and tests set out in PPS25 on the risk of flooding. It has to be applied where it is relevant.

What is key to what the NPS is able to do and say in areas where there might be issues such as flooding is the appraisal of sustainability. That will assess the various impacts of policy at a strategic level, and that includes flood risk. Where flooding is identified as a key risk, the appraisal will address the issue in detail. Some infrastructure will not be at risk of flooding, such as offshore wind farms—a very helpful example provided by the Box. Clearly it would not be right in all cases to require detailed assessment simply for the sake of it. However, consideration will be given to the risk of flooding for each NPS. It will be taken into account as part of the appraisal process and addressed as appropriate in the NPS.

Once we start identifying bits of policy here and there, we are open to what my noble friend Lord Hunt referred to as the list principle, refracting policy through individual policies. That is not what the NPS is about: it is about integration. Under Clause 5(6), Ministers,

“must give reasons for the policy set out in the statement”.

It can also be expected that an explanation of these factors at this point will in some instances include flooding.

Finally, the NPSs will be subject to public consultation and parliamentary scrutiny, both of which are very alive to the issue of flooding. Those factors will make doubly sure that NPSs take full and proper account of all these matters, including the risk of flooding, before they are designated.

I hope that that reassures the noble Earl, Lord Cathcart, who has been a champion of this issue since we began proceedings on the Bill. I understand why he is doing it and hope that he will be reassured.

My Lords, I thank my noble friend Lord Caithness for his support. From the Minister’s reaction, I seem to have put my hand into a hornets’ nest. I say to the noble Baroness, Lady Ford, that the quotes from Sir Michael Pitt and Sir John Harman came straight from letters. The Minister probably has other such quotes.

This is a big issue, which was highlighted by the terrible events of last summer. We must learn those lessons. We must somehow react to the Pitt recommendations—there are 90 of them. That is a Defra responsibility, but responsibility also falls on the noble Baroness’s shoulders for planning and housing. Departments must get together and see how to work through the Pitt recommendations to find the right answers so that when we build housing or the large infrastructures that will be built over the next 10 years, we do not make the same mistakes that have been made in the past.

Having stuck my hand into the hornets’ nest, I am reassured by the noble Baroness saying that the national policy statements and the IPC will have to take regard of PPS25 whether it is currently robust enough or not. That is heartening and I shall withdraw the amendment.

My Lords, before the noble Earl withdraws the amendment, I should like to make a clarification to ensure that I have not misled the House. I said that the IPC would comply with aspects of government policy, particularly PPS25. The IPC will have to determine its policy in accordance with the national policy statement. That will not encompass the whole of government policy but will reflect the national policy statement that is relevant. The NPS will take account of government policy when it is relevant and that is what the IPC will take account of. I want to refine my rather bold statement to the relevance of policy.

My Lords, I thank the Minister. I presume that the IPC would have to look at flooding and ask whether requirements had been complied with, whether the operation was resilient and whether flood risk had been mitigated as far as possible. The Minister is nodding. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 22 not moved.]

23: Clause 5, page 3, line 31, at end insert—

“(5A) If a national policy statement sets out policy in relation to a particular description of development, the statement must set out criteria to be taken into account in the design of that description of development.”

On Question, amendment agreed to.

[Amendment No. 24 not moved.]

25: Clause 5, page 3, line 33, at end insert—

“(6A) The reasons must (in particular) include an explanation of how the policy set out in the statement takes account of Government policy relating to the mitigation of, and adaptation to, climate change.”

On Question, amendment agreed to.

[Amendment No. 26 not moved.]

Clause 6 [Review]:

27: Clause 6, page 3, line 40, at end insert—

“( ) The Secretary of State shall consider continuously whether each national policy statement should be reviewed.”

The noble Lord said: My Lords, one of the problems that we all face in relation to legislative timetables is when to put down amendments. I feel bound to say that I would not have put down this amendment if the plethora of government amendments in this group had been in front of it. It is fair to note that our debate in Committee has provoked the Government into action.

The Bill states that the Secretary of State must review each national policy statement whenever the Secretary of State thinks fit. There may be occasions when the Secretary of State does not think it fit other than for matters of necessity. We tabled our amendment to deal with that, and I have to move it in order for the Minister to get up and explain her amendments. I think that we will find that in doing so she answers the question. I beg to move.

My Lords, when the Minister speaks to her Amendment No. 28, will she explain why it is necessary to include new subsections (1B) and (1C) and say whether they are limiting? I would use the list-principle argument that she used against me on the previous amendment to ask whether the subsections restrict the Secretary of State. When there is a change of government and a new Secretary of State, there is bound to be a change in some of the national policy statements out of pure politics. If we go back to 1997, the new Labour Government would have changed the national policy statements on roads and nuclear power. When a new Secretary of State takes over for an incoming Government, he will review the national policy statement. There might have been a manifesto pledge to build more roads or whatever the infrastructure might be. I am concerned that new subsections (1B) and (1C) are a little limiting in that respect. I would therefore be grateful if the Minister paid particular attention to that. She will not have been surprised to hear what I have said, because I raised much the same point in Committee.

My Lords, I have Amendment No. 40 in this group. It would amend Clause 11, which lists points reflected in the Government’s amendments. We have seen the list before. My amendment would change Clause 11(2) to require the Secretary of State to suspend the operation if he thought that there had been a significant change in circumstances, that the change had not been anticipated and that, if it had been, policy would have been materially different. This should not be discretionary. One would expect that the Secretary of State must and should suspend the operation. I compare this clause with Clause 6, which is a “must” clause. It says:

“The Secretary of State must review each national policy statement whenever the Secretary of State thinks it appropriate to do so”,

and then “must do” one of the three things set out below.

I shall probably get an answer saying that “may” is awfully close to “must”. I do not suppose that by the time I have done 25 or 35 years in this place, I shall ever quite understand that.

I am pleased to see the Government’s amendments. I look forward to hearing what the Minister has to say, but I provisionally give them a welcome.

My Lords, I do not have an amendment down in this group, but I understand that all noble Lords who have something to say on the amendments that are tabled should speak now, and then the Minister will reply.

I am interested in government Amendments Nos. 47 to 51, which relate to Clause 13. I have tried to keep up with all the implications of this Bill and have listened with much interest to the explanations that Ministers have offered as to the Government’s intentions for the extent of the Bill. I hope that noble Lords will allow me to express my puzzlement as to why Clause 13 should not apply to Scotland.

I accept that it is the Government’s intent that the Bill should have no practical effect in Scotland, because we recognise that the actual process of granting planning permission is a devolved function. But the Bill is fairly clear about which clauses apply to Scotland and which do not. Clauses 1 to 12 appear to apply to Scotland and, as such, whether as an unintended consequence or otherwise, and at some future date as well, at least a national policy statement might consider the Scottish dimension. Given that, it is possible that the Scottish Executive or some other Scottish entity might want to appeal to a court at some future point. Certainly, given the phrasing of the Bill, that could be on proposals for an electric line above ground, under Clause 16(1)(d), or a gas pipeline, as envisaged at Clause 20(2), in which the point at which the construction reaches the Scottish border will have a clear implication for how the engineering works will continue when they are within Scotland.

On the question of cross-border services, will the Minister clarify for me how things stand for railways? In answering my noble friend Lady Carnegy of Lour in Committee on 8 October, she said that,

“the arrangements for Scotland are within the devolution settlement”.—[Official Report, 8/10/08; col. 273.]

I spent some time following the progress of the Scotland Act, and noble Lords will be aware that under Section E2 of Schedule 5 the provision and regulation of services was in the first instance reserved to Westminster. Later, on 13 June 2002, I and other noble Lords took part in the consideration of what became Statutory Instrument 2002/1629. It amended Schedule 5 to allow railways in Scotland to be devolved to the Scottish Parliament. In our discussion of the meaning of that statutory instrument, the Minister said:

“The order amends Section E2 of Schedule 5 to the Scotland Act. It transfers to the Scottish Parliament legislative competence over powers for the promotion and construction of railways in Scotland … In future, permissions for railway projects that are wholly within Scotland will be granted at Holyrood and only cross-border developments will continue to be dealt with at Westminster”.—[Official Report, 13/6/02; cols. 449-450.]

It appears to me that there is a role for this Parliament in considering cross-border railway developments, although the noble Baroness may not want to include that in the Bill at this time. However, given that Clauses 1 to 12 have Scottish implications, someone might at some future date try to incorporate the issue into legislation. Perhaps the Minister could throw some light on the Government’s attitude to this.

My Lords, I had not intended to speak but, given the comments made by the noble Duke, the Duke of Montrose, I thought that I should make one or two points in relation to Scotland. I should perhaps declare an interest as a member of the Commission on Scottish Devolution.

It is right to say that the Bill has tangential effects on Scotland. In effect, however, it extends to England and Wales and not beyond, except for particular instances involving a pipeline or something of that nature. I am not entirely sure what amendment we are speaking to, but the noble Duke raised the issue of Clause 13. I believe that, were there to be an issue in that context, it would be open to an interested person in Scotland to raise proceedings in the courts in England and Wales to challenge the national policy statement. However, the circumstances in which that might happen seem pretty remote and unusual, simply because national policy statements will not extend to Scotland. Of course, Scotland has its own national policy framework—the spatial plan—which is in some ways identical to the national policy statements but in other ways very different. I do not know whether that helps to resolve some of the issues that the noble Duke has raised, but I thought that I should give my understanding of the position, which I hope is shared by the Front Bench.

My Lords, I am grateful for that intervention from such an expert. We talk about expertise in the House of Lords and, my word, it comes in handy sometimes.

I will come to the points about Scotland, but let me first speak generally about the amendments. This area of reviewing national policy statements was the subject of great debate in Committee, when it became clear to us that noble Lords wanted more clarity about the criteria that the Secretary of State should take into account when deciding when to review the statements. In Committee, the noble Lords, Lord Dixon-Smith and Lord Jenkin, and the noble Baroness, Lady Hamwee, urged that the Secretary of State should review national policy statements at frequent intervals.

I think that there is general agreement that it is essential that the decisions of the IPC should be taken on the basis of policies that remain valid and not on the basis of NPSs that are, to use a word used in Committee, “stale”. To do otherwise would be to undermine the credibility of the process. However, I have some problems with the amendments tabled by the noble Lord. As he kindly said, my amendments address the substance of his concern. Clearly, what we did not want was non-stop review of NPSs and the instability that that would cause. It is worth thinking back to the contribution in Committee of the noble Lord, Lord Bridges, who is not in his place at the moment. He said that we should be attempting,

“to find a form of words that commits the Government of the day to a serious policy and to making every effort to get everybody to agree with it, but which admits to the possibility that, in exceptional circumstances and after careful consideration, you might have to change it”.—[Official Report, 14/10/08; col. 629.]

That is absolutely right. The aim of national policy statements must be to set out a policy that meets the national need for infrastructure into the medium-term to long-term future. There is a benefit to having some continuity in such policy statements, while at the same time keeping flexibility to react when circumstances change. A review of the policy should be triggered by unforeseen changes, not simply by the passage of time. Some things will hold good. As we debated in Committee, there are different stages of change and some areas of policy are likely to change more dramatically and frequently than others. That is why the test of when an NPS needs to be reviewed is nothing to do with the age of the document, but with whether the assumptions underlying that policy remain true and whether it is therefore still fit for purpose. You cannot fit an arbitrary time and date around that.

It is also right that the Secretary of State, as the responsible Minister, should carry that responsibility into judging whether circumstances have or have not changed since the national policy statement was published. We agree with noble Lords that there should be more clarity at this point in the Bill about the criteria which the Secretary of State should take into account when deciding when to review national policy statements. That is simply what we have sought to do through the amendments.

Amendment No. 28 makes that clear. The Secretary of State must consider whether there has been a significant change in any circumstances on which the policy is based since the policy was last reviewed; whether these circumstances were already anticipated in the previous review; and whether, if the change had been anticipated, any of the policy in the statement would have been materially different. To answer the argument in the amendment of noble Lord, Lord Dixon-Smith, the Secretary of State should certainly frequently consider whether these criteria are met, but it is only when the criteria are met that the Secretary of State should review the content of the policy itself. As I explained in Committee, the criteria are the same as those set out in Clause 11, which are the right ones to determine when a national policy statement should be reviewed.

Government Amendments Nos. 28, 29, 38, 39 and 41 seek to clarify that when the Secretary of State wishes to conduct a review of the national policy statement, it could be a complete or a partial review. Amendments Nos. 47 to 51 and 111 to 117 make consequential changes throughout the rest of the Bill, providing an added measure of flexibility so that the Secretary of State can take a proportionate approach to reviewing NPSs. They also make it easier for the Secretary of State to respond quickly if necessary to changing circumstances and to review a national policy statement. If appropriate, the Secretary of State will only need to consider whether circumstances have changed significantly in respect of the part which is to be reviewed; that is obviously much more flexible and sensible. To take a hypothetical example, if further scientific data change our assumptions about the rate of flooding or coastal erosion, the Secretary of State might want to review parts of the relevant national policy statements but not all of them or parts that are unaffected by the change.

Amendments Nos. 111 to 117 are consequential, although they affect individual applications in Part 7. We have also addressed criticism that it was unclear which criteria would be applied to decide whether a review was justified.

I hope that I have reassured noble Lords that we are committed to ensuring that national policy statements must be based on an accurate understanding of present and future circumstances and whether the assumptions underlying that policy remain true. If those circumstances change, we want to ensure that the policy can be reviewed too.

The noble Earl, Lord Caithness, asked me whether new subsections (1B) and (1C) in Amendment No. 28 limit what we intend to do. I was not entirely certain which (1B) and (1C) he was talking about, because he will notice that there are two of each in this clause. However, new subsection (1B) relates to the review of a whole national policy statement and new subsection (1C) relates to a review of part of the national policy statement. The two issues are dealt with separately to avoid an extremely long and complicated provision. If the noble Earl was asking about the broader disposition of the clause, it does not limit what can be interpreted as “changing circumstances”. It is a broad definition that allows the Secretary of State to operate with discretion, allowing for flexibility, judgment and changing evidence. We could not anticipate a limit as it is not within our scope or that of the Bill.

The noble Earl has raised a serious political point, because incoming Governments have different values and different priorities. However, as I tried to make clear when we discussed this previously, demography does not change and neither does the need for power and energy. Our demands on water supplies and waste resources do not change. We will need predictable amounts of resource for the homes we must build. An incoming Government wanting to change the disposition of policy will have a national policy statement grounded in evidence. If they believe that a different political decision must be made, they are free to do so and that is a change of circumstance. Clearly, however, we cannot allow for that in the language of the Bill. All we can do is to try to anticipate situations where circumstances have changed. Therefore, the Secretary of State must be free to make a judgment on that basis and to review the NPS.

I cannot improve on my noble and learned friend’s intervention relating to Scotland. I was slightly surprised suddenly to find myself confronted with detailed questions about cross-border issues. The noble Duke said that the Bill reflects the devolution settlement. I shall come back to him after I have read what he said about cross-border issues in relation to previous legislation with which he has been involved. However, I can say something about Clause 13 and judicial review. The special provisions in Clause 13 apply only to England and Wales. I understand that Scots law does not admit time limits on JR, but this means that NPSs can still be challenged in Scotland using normal judicial review rules. I hope that makes sense. I have it on advice, but when I read what he said I shall see whether we can clarify anything in writing.

I hope that the noble Baroness can clarify something for me. If there is to be a review in whole or in part, as described in the amendment, one may have to suspend the operation of an NPS. I wholly agree that that should be discretionary and not obligatory. If there is no suspension, clearly the existing NPS continues in force and the planning commission has to continue to make its decisions on the basis of the NPS as it is. However, if it is decided to suspend its operation, does that mean there is then a complete vacuum for the IPC and all applicants until one has gone through the entire procedure after the review to approve the revised NPS? Does the noble Baroness have any idea how long that process might take?

My Lords, I do not know how long it would take. If the NPS is suspended, the IPC will refer decisions to the Secretary of State. I will let the noble Lord have a note about that, because two sets of circumstances might determine the choices. However, if an NPS has to be suspended, provision is made for decisions to be taken by the Secretary of State.

My Lords, I should be grateful if the noble Baroness will do that. The note that she kindly sent on this does not actually deal with that aspect. Therefore, an additional note would be very helpful. I apologise for intervening again.

Not at all, my Lords. I almost forgot to address Amendment No. 40. I have some sympathy with the noble Baroness’s arguments. It would clearly be inappropriate to have applications decided on the basis of a policy that is no longer valid. It is our intention that where the Secretary of State believes that circumstances have changed such that it is no longer appropriate for decisions to be made in accordance with the NPS, she will suspend it. However, we do not think it is necessary to suspend the NPS in every case where a review is being conducted, not least because, as I said, there is flexibility now about whether you review part or whole of the NPS. It would not invalidate the whole statement if one was looking, for example, only at scientific data about the risk of coastal erosion. One would have to make a judgment about the extent to which the whole NPS would be affected.

I am not going to say what the noble Baroness thought I was going to say about her amendment. The amendment would have an unfortunate consequence, because changing the word from “may” to “must” would remove the Secretary of State’s ability to judge what the appropriate response might be to a change in circumstances. The whole burden of the clarification and review is to ensure that everyone understands that it is the Secretary of State’s judgment that counts and that there is the necessary flexibility to anticipate and interpret what is happening.

If we move to the word “must” it is likely that the question of whether circumstances had changed would move from being something on which the Secretary of State can make a judgment to being a question of fact which would ultimately have to be judged by a court. Inevitably, that would lead to an increased risk of legal challenges. I hope that with that assurance the noble Baroness will feel able not to move her amendment. I can give her another assurance: we certainly intend that the Secretary of State would suspend the NPS if there were any risk of unsafe decisions being made on applications on that basis.

My Lords, I implied at the beginning of the debate that we were in a chicken-and-egg situation. If we had not had our earlier debates, we would not have had the amendments. If we had had the amendments earlier, we would not have had these discussions. I am very grateful to the noble Baroness for what she has said. She has gone a long way towards what we wanted. In this respect, the Bill is now in a satisfactory process. I pay tribute to her work. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

28: Clause 6, page 3, line 42, at end insert—

“(1A) A review may relate to all or part of a national policy statement.

(1B) In deciding when to review a national policy statement the Secretary of State must consider whether—

(a) since the time when the statement was first published or (if later) last reviewed, there has been a significant change in any circumstances on the basis of which any of the policy set out in the statement was decided,(b) the change was not anticipated at that time, and(c) if the change had been anticipated at that time, any of the policy set out in the statement would have been materially different.(1C) In deciding when to review part of a national policy statement (“the relevant part”) the Secretary of State must consider whether—

(a) since the time when the relevant part was first published or (if later) last reviewed, there has been a significant change in any circumstances on the basis of which any of the policy set out in the relevant part was decided,(b) the change was not anticipated at that time, and(c) if the change had been anticipated at that time, any of the policy set out in the relevant part would have been materially different.”

29: Clause 6, page 4, line 1, after “of” insert “all or part of”

On Question, amendments agreed to.

[Amendment No. 29A not moved.]

Clause 7 [Consultation and publicity]:

[Amendment No. 30 not moved.]

Clause 8 [Consultation on publicity requirements]:

31: Clause 8, page 5, line 15, leave out second “or”

The noble Lord said: My Lords, I shall speak to government Amendments Nos. 31, 32, 73, 74, 98 and 99.

In Committee, my noble friend Lord Judd tabled amendments which sought to add national park authorities to the list of local authorities specified in the Bill as statutory consultees at the various relevant stages. The amendments received considerable support, particularly as national park authorities have local planning authority status. We have given this matter careful thought, and we have been persuaded by the powerful arguments made by my noble friend and others.

Amendments Nos. 31, 32, 73, 74, 98 and 99 would therefore add national park authorities and the Broads Authority to the list of local authorities for the purposes of Clauses 8, 43 and 100. Let me outline briefly in more detail what that will mean. The Bill provides a central role for local authorities at all three stages of the new regime. First, relevant local authorities will be statutory consultees on publicity requirements where the national policy statement identifies specific locations for development.

Secondly, the relevant local authority will be a statutory consultee at the project development stage for all nationally significant infrastructure projects. Promoters will also need to consult the local authority when drawing up their plans to consult the local community about a proposed application, and local authorities will be able to make representations to the IPC if they believe that pre-application consultation has not been adequate, to which the IPC must have regard.

Thirdly, relevant local authorities will be statutory consultees at the examination stage. They will have an important role in ensuring that the IPC takes proper account of relevant local and regional factors and considerations. In particular, they will be invited to prepare a local impact report, which the IPC will have to have regard to in its decisions.

We have listened to the arguments made about national park authorities, and we agree that it is sensible to expand the list of local authorities specified in the Bill to include them. We believe that this would strengthen the Bill, and I hope that noble Lords will be able to support the amendments.

Let me also address Amendments Nos. 33, 75, 100 and 155, tabled by my noble friend Lord Berkeley. I believe that my noble and learned friend Lord Boyd will speak on his behalf. The amendments seek to add integrated transport authorities to the same three lists of local authorities that I mentioned earlier. I am aware that the Local Transport Bill, which recently completed Third Reading in another place, will establish new integrated transport authorities. Amendment No. 155 will expand the existing duty on local transport authorities to develop transport policies which must cover all aspects of transport, rather than the currently more limited requirement relating only to transport facilities and services. However, aside from the fact that we cannot amend the Planning Bill to refer to provisions of another Bill which has not yet been enacted, it would not be right to accept my noble friend’s amendments.

As I have already said, the Bill recognises the important role of local authorities, and local planning authorities in particular, in understanding the nature and circumstances of the communities that they represent and, therefore, in advising the Secretary of State and promoters on how to consult them effectively. Local planning authorities will have expert knowledge of planning issues in the areas for which they are responsible. It is because of this that those authorities are prescribed as statutory consultees in the Bill.

A wide range of other bodies will be engaged at the three key stages, which we will specify in secondary legislation. We expect that this will, where relevant, specify major statutory bodies, including those with local authority status, such as parish councils, fire and rescue authorities, police authorities, and so on. Like those bodies, the role of integrated transport authorities, once they are established, will be a matter for secondary legislation. It would not be appropriate to include the list in the Bill, because it would be unwieldy and would quickly become outdated and inaccurate.

I hope that I have adequately addressed the issues and, therefore, I urge my noble friend not to press Amendments Nos. 100 and 155. I beg to move.