asked Her Majesty’s Government:

Whether they will propose the inclusion of aviation in the European Union Emissions Trading Scheme.

My Lords, on 24 October, the Council of the European Union adopted a directive including aviation in the European Emissions Trading Scheme. All flights arriving at and departing from European airports are to be included in the scheme from 2012 onwards. The Government led the debate within Europe on including aviation, and we are very pleased with this outcome.

My Lords, I am very grateful to my noble friend for that Answer and I congratulate the Government on that achievement. It is a great reflection on the Government. Does my noble friend agree that, when the proper values are attributed to air to reflect the damage that emissions cause, air traffic volumes will probably reduce, or at least the growth will be reduced, which is something that the airlines are already forecasting? In the light of that situation, my noble friend was at Paddington station last week to receive a cheque for, I think, £350 million from the British Airports Authority. Do we assume that that was something to do with inducing him to go for the third runway, or was it for Crossrail?

My Lords, I was receiving a cheque for only £230 million, but if my noble friend would like to make good the other £120 million, he is very welcome to do so. I stress that the contribution that BAA is making towards Crossrail is in respect of the current two-runway airport and the benefits that will accrue to that airport. It does not imply any decision in respect of further changes to runway alignments at Heathrow.

My Lords, I wonder whether the Minister has thought of the certificates of origin that have to be presented when a claim is made stating that the carbon emissions have genuinely been saved somewhere else. Can he reassure me that this is not some sort of plaything for the financial services industry to make a profit?

My Lords, this will be a robust scheme, but we have only just agreed the basis on which it will proceed. There will need to be considerable preparation before the scheme comes in to see that there are no ways of evading it unduly.

My Lords, do the Government see the ETS as currently configured as a vehicle for the calculation of aviation carbon emissions under the Government’s Climate Change Bill proposals? Is the problem not the challenge of Europe-wide agreement, which is welcome, but of relating a European system to a global market?

My Lords, the noble Lord is right that there is an international dimension to this well beyond Europe. We are leading discussions in the United Nations Framework Convention on Climate Change and in the International Civil Aviation Organisation. Negotiations will conclude in 2009. We still believe that we can get a global deal, including international aviation. The steps that we are taking in the European Union are an enormously important building block to achieving that global deal.

My Lords, does my noble friend agree that the aviation industry, apart from this issue, has made considerable progress? Does he further agree that quieter aircraft will be coming into service, perhaps in three or four years, and that we should certainly see an improvement? Does he also agree that there are different techniques for landing and take-off? All in all, the aviation industry has made a lot of progress.

My Lords, I agree with my noble friend that the aviation industry is making progress. Including aviation in the new EU emissions trading scheme will contribute to a reduction in CO₂ emissions of up to 129 million tonnes by 2015 and 194 million tonnes by 2020. So the steps that we have agreed within the European Union are hugely important in terms of the climate change agenda.

My Lords, have the Government studied the latest analysis by the Open Europe think tank, which shows how the whole climate action and renewable energy package, of which the ETS forms a part, may be severely misguided? For example, it will increase our fuel bills by around 13 per cent and push at least a million more people into fuel poverty. Given that the planet now appears to be cooling down, would it not be better to abandon the ETS and all the rest of it? Have the Government even thought of this as a way forward?

My Lords, it is hard to know which of the noble Lord’s questions was more tendentious, but since I assume that they started from a deep prejudice on principle against any action at European level, almost irrespective of the issue at stake, I suspect that that might deal with the substance of his questions.

Shame.

My Lords, the evidence set out in the Stern report was clear, and we regard action at the European and national levels as urgent if we are not to see very serious impacts on the planet over the next 50 years.

My Lords, as someone who has opposed airport expansion in the south-east, particularly the third runway at Heathrow and expansion at Stansted, for rather longer than the Conservative Party, I at least welcome its conversion to this cause. In view of the fact that 100,000 of the annual number of flights at Heathrow are to destinations that can be served easily by rail, and given my noble friend’s enthusiasm for high-speed rail and rail expansion, would it not make sense for them to take the place of those flights and for the third runway to be abandoned?

My Lords, my noble friend is absolutely right to say that I am keenly interested in the potential for expanding the rail network, including the introduction of high-speed lines, but, as my noble friend will be aware, fewer than 3 per cent of flights to and from Heathrow are to Manchester or Leeds, the areas suggested in the party opposite’s plan for a high-speed line. Therefore, we are discussing apples and pears; to my mind, there is a compelling case for examining the possibility of developing a high-speed line, but that does not relate at all clearly to the case for or against expansion at Heathrow.

My Lords, the Minister said that the ETS scheme had to be elaborated so that the aviation industry could not evade it unduly. Did he mean that it is okay for it to do so just a little bit?

My Lords, I think that we are working through the implications. I did not fully catch the noble Lord’s question, so I will write to him.

My Lords, I congratulate the Government on the progress they have made on aviation. What work is being done regarding an even bigger polluter—shipping? When are we likely to see that included?

My Lords, actually, on Thursday there will be a Question in the name of the noble Lord, Lord Higgins, on shipping and climate change, but I can tell my noble friend that the UK is proposing that the IMO negotiates a new convention to deal with greenhouse gas emissions from ships, using economic instruments such as an emissions trading scheme. We would welcome the inclusion of shipping in the EU Emissions Trading Scheme.

asked Her Majesty’s Government:

Whether they support the European Commission’s proposal to allow member states to reduce the rate of value added tax on repairs to and the renovation of housing and listed buildings.

My Lords, the Government generally support member states having the flexibility that would be allowed by the legislative proposal regarding reduced VAT rates adopted by the European Commission in July, including the elements to which the noble Lord refers.

My Lords, I am grateful to the noble Lord for that reply, particularly as the noble Lord, Lord Mandelson, dodged the question the other day. Does he agree that the only reason why the anomaly of a zero rate on new buildings and 17.5 per cent on repairs has gone on for so long is the European directive governing VAT? Will the Government press very hard the few nations that object to a change, particularly Germany, to try to ensure that the Chancellor of the Exchequer has the opportunity to make such a change now that targeted tax cuts are back on the agenda?

My Lords, I am sorry that the noble Lord made that slighting remark about my noble friend Lord Mandelson, who was merely reflecting that the issue is not yet decided in Europe. Before making a judgment, Britain must await the normal budgetary process, which is the responsibility of the Treasury and not of the Department for Business, Enterprise and Regulatory Reform. On the noble Lord’s more general point, I have indicated that the Government are in favour of the changes proposed by the Commission. He is right that a number of countries are still to be persuaded, but we have considerable hopes of making progress on that and of the directive being passed shortly.

My Lords, given the case in current economic circumstances for a stimulus to construction activity, and given the importance in any case of acting to remove the present perverse disincentive to conserve houses and listed buildings, will the Government not just support the introduction of the directive but seize the opportunity next year to use the discretion that the directive allows? Indeed, will they urge the Commission and ECOFIN to introduce the directive as rapidly as possible?

My Lords, I appreciate my noble friend’s interest in listed buildings. On VAT, he will already know that Britain has additional powers with regard to certain activities relating to listed buildings. However, he is right to press for additional benefits and we will be looking at that once the European decision is taken.

My Lords, the Minister’s Answer seemed to indicate that this matter would not be dealt with with any urgency. Will he consider the fact that, perhaps because of roofing or other difficulties, many historic buildings are in danger and in urgent need of something being done? Will he look at the possibility of speeding that up?

My Lords, I did not want to convey any lack of urgency on the issue. The European directive is expected shortly and the noble Baroness will know that the Pre-Budget Report, when taxation changes may be effected, is also imminent, so we are not talking about undue delay. I was reflecting that, with regard to listed buildings, the UK is in a slightly better position than the rest of Europe because we recognise particular features of Britain’s historic past, and we intend to improve on that.

My Lords, the Minister talked in general terms about a timetable. In his view, on the current timetable facing the Commission, would it be possible for the Government to introduce a reduced rate of VAT in next year’s Budget? If not, will they put additional pressure on the EU to bring the timetable forward?

My Lords, I have no specific doubts on the timing. The noble Lord will recognise that, as I said, the European decision is imminent and, although the date of the Budget has not yet been set for next year, we will have time before it is set. I do not want to convey the idea that we automatically follow what the European Commission offers as a possibility. We are in favour of the measure because it will give flexibility to states, but the House will appreciate that we currently give significant advantages on VAT to small businesses and the construction industry. For instance, the threshold does not start until a turnover of £67,000, which is vastly higher than the norm in Europe.

My Lords, further to his helpful replies, will my noble friend acknowledge that by agreeing to the ECOFIN motion on 7 December he will be helping small businesses in the construction industry and will be helping to renew the national infrastructure, as well as having the benefit of working in cohesion and in concert with our partners?

My Lords, the Government have made it clear that they want to assist the construction industry and housing in particular. There is a dimension with regard to listed buildings, which has been identified accurately today. I am not in a position to pre-empt or preordain the Government’s decision on VAT, but we have announced our strategy on and intentions towards small businesses. The construction industry will benefit and a decision will be taken on VAT at the appropriate time. The House will recognise that that appropriate time will be in the Pre-Budget Report and the Budget.

My Lords, will the noble Lord confirm that there is no need to wait for a Budget to make a change because there are already provisions on the statute book in relation to the regulator to do so without waiting for the Budget?

My Lords, of course that is the case, but the noble Lord will appreciate, with his vast experience of Treasury matters, that we have to look at the VAT issue in the round. He will know just how significant VAT is—

No.

My Lords, in this instance we are talking about more than £1 billion of revenue. I know that the Conservative Party might be entirely reckless about income to the state at a time when it has no control over the coffers, but I noticed that, when asked for its taxation proposals today, it proved to be a little coy.

My Lords—

My Lords, we are now well into the 16th minute.

asked Her Majesty’s Government:

Whether they have held recent discussions with the Government of France and representatives of Eurotunnel SA on the safety of the Channel Tunnel.

My Lords, through the Channel Tunnel Intergovernmental Commission, which brings together the relevant representatives of both Governments, there are regular discussions both between the two Governments and with Eurotunnel. The most recent plenary meeting of the IGC was on 25 September in London, when the Channel Tunnel fire was discussed, as were the measures being taken towards restoration of full services.

My Lords, I declare an interest as a frequent user of the tunnel and thank the Minister for that Answer. When will the Channel Tunnel Safety Authority deliver its report on changes in risk and safety assessments? I think that it is due in September of next year, which seems a long time away. Will he accelerate that in view of the great interest in the matter at the moment? Does he agree that the Channel Tunnel services have recovered enormously since the accident, and that even if its cause were other than what I am about to describe, both Governments should address their priority interest to excluding dangerous materials in heavy vehicles going through the tunnel?

My Lords, I am glad to say that services are getting back to normal. Eurostar services are close to normal and there has been an increase in shuttle paths through the tunnel. On 10 October, Eurotunnel announced that work would now proceed to renovate interval 6 of the north tunnel, which was the affected part of the tunnel, with a view to regaining full operations in the north tunnel by mid-February.

On the Channel Tunnel Safety Authority’s investigation, I can add nothing to the Answer that I gave in your Lordships’ House a short time ago. There needs to be a thorough investigation and we do not believe that it would be appropriate for either Her Majesty’s Government or the French Government to intervene in established processes. We have made it clear that any issues on safety brought to the attention of the two Governments will be acted on immediately.

My Lords, the Rail Accident Investigation Branch reported that Eurotunnel had not installed fire suppression systems, which are available and are specifically designed to protect the tunnel from fires on wagons carrying lorries. It gave as its reason that,

“the tunnel is effectively owned by the French and British Governments and we operate under their regime”.

Why did the Government fail to insist upon this measure?

My Lords, I am not familiar with the issue that the noble Lord raises. I need to look into it and come back to him, but I should tell him and the House that following the fire in 1996, the Heath and Safety Executive commissioned an independent review of the design of the trains using the tunnel, including the shuttles, which concluded that any risks attached to the design were as low as reasonably practicable. I think that incorporates the point the noble Lord raised, but I shall look into it and come back to him.

My Lords, does the Minister agree that after the first fire in the tunnel, the Health and Safety Commission, which investigated it, made some propositions about how unlikely another fire was? I believe the figure ran into some millions. The fire happened very quickly and was very dangerous. Will the Minister press the safety authorities—I am not asking him to interfere with their independence—to produce an interim report as soon as they can stating the cause and what is most likely to prevent it happening? Railway investigating bodies are notoriously slow in their progression.

My Lords, we will act on any issues as soon as they are brought to our attention. As the noble Lord will know, two pieces of work are being undertaken: first, the safety inquiry looking specifically at the causes of the accident and lessons to be learnt, which is being conducted by the French independent accident investigation body together with the UK Rail Accident Investigation Branch; and, secondly, the work of the Channel Tunnel Intergovernmental Commission and its agents on the assessments. Proper processes are in place for taking stock of the issues raised by the fire. We will seek to act immediately on anything brought to our attention.

My Lords, will the Minister give an undertaking in his new post to look at the arrangements for searching passengers and vehicles prior to them embarking on trains for the Channel Tunnel and satisfy himself that they are adequate, given the requirements that are insisted upon for airports and air travel in the United Kingdom?

My Lords, we believe that they are adequate, but if the noble Lord has any particular issues he would like to draw to my attention, I would be happy to take them up.

My Lords, does the Minister recall that when we were negotiating the tunnel treaty, the issue of French customs officers carrying guns on British trains and British soil arose—the dangerous material to which the first supplementary question referred—and that the Treasury replied that French customs officers could carry guns on tunnel trains, provided they gave an assurance that they would apply in writing to the chief constable of Kent if they wished to use them?

My Lords, I cannot think of the answer to that question. The noble Lord has better historical knowledge of the negotiation of the Treaty of Canterbury than I do.

asked Her Majesty’s Government:

What proposals they have regarding the provision of aid to Ethiopia.

My Lords, over 30 million people in Ethiopia live in extreme poverty, of whom more than 6 million are dependent on emergency food aid. The Department for International Development expects to spend £130 million this year on improving governance and accountability, promoting human development, supporting sustainable growth and providing humanitarian assistance, as well as an additional £35 million in response to the humanitarian crisis.

My Lords, I thank the Minister for his Answer. Ethiopia has received £4.7 billion in aid between 2001 and 2005 and the £130 million from DfID, but that mainly contributes to the protection of basic-services programmes, to help the Ethiopian Government implement their own poverty reduction plan. Does the Minister agree that it is disgraceful that aid agencies are unable to conduct surveys into the scale of need in the region because they require government permission and military escorts which the Government are failing to provide? How are HMG monitoring this situation and the very worthy projects that are, after all, funded by taxpayers’ money?

My Lords, the issue raised by the noble Baroness was one of the key concerns raised with the Ethiopian Government by the Secretary of State at recent talks. Whether it is related or not, in the past few weeks we have seen encouraging signs that humanitarian access and delivery in the Somali region, in particular, is improving. The military has begun discussions, the UN World Food Programme has begun to operate, and, key to the process, the Government have agreed to nutritional surveys and needs assessment to ensure that a humanitarian response is based on the most up-to-date numbers.

My Lords, a few weeks ago, when the Secretary of State visited Ethiopia, did he not threaten to cut aid to Ethiopia because he found on his visit that children seemed to have been thrown out of a hospital on the border with Somalia because it would have looked bad if he had discovered as many children in difficulty as there were? Is that what happened? Did he threaten to cut aid? What happened to those children, and how was the episode resolved?

My Lords, I do not have the specifics of the incident, but I can assure your Lordships that the Secretary of State was not driven by that incident. He visited Ethiopia on 16 and 17 October and, at the end of his visit, he raised two particular UK concerns: the humanitarian situation in the Somali region, which we have already discussed, and the likely impact of the proposed legislation to regulate civil society funding and activities. Mr Alexander explained that because of those concerns, he was unable to announce multiyear DfID funding for Ethiopia at the current time. He indicated that he would follow progress on those issues closely. Forthcoming DfID programme decisions will be informed by developments on the ground and consultation with international partners.

My Lords, arising from that answer, will my noble friend confirm that it remains the position of Her Majesty's Government that development assistance will be provided only to democracies or to countries that are seen to be moving towards democracy, and that we give no funds whatever to dictatorships?

My Lords, I wish the world were that simple. The simple DfID commitment is to reduce poverty. We of course then caveat that in a series of ways. We caveat against the effectiveness of the Government, whether they are straight and honest and what is their attitude to issues such as human rights. Ethiopia is a poor country trying to make good in a very tough neighbourhood. The case for aid is extremely strong. Comparatively speaking, Ethiopia is stable and has a capable Government who have demonstrated commitment to addressing poverty with an impressive record of pro-poor spending, sound financial management and low levels of corruption.

My Lords, as Ethiopia is such a poor country, do we know where it is getting the money to purchase the weapons and other armaments to pursue battles in Somalia and Eritrea?

My Lords, I did not entirely hear the question, but in our aid programmes, we have withdrawn from budget aid—five years ago, I believe. The money targeted for Ethiopia goes through a programme of budget support tied to local government delivery. It is checked all the way. We make sure that the money goes into those programmes and we believe that we are having a positive impact on poverty in Ethiopia as a result.

My Lords, my noble friend Lady Northover raised an important issue about aid agency reports of children being thrown out of hospital. If the Minister does not have the answer, will he look into the matter and place a reply in the Library so that she can have a proper reply to the question?

I am sorry, my Lords, but I feel that I have answered the question. We strongly audit all our programmes. Ethiopia, of all the countries that we give to, has some of the strongest governance systems. We have high levels of confidence that aid going to Ethiopia goes to the purposes for which we have agreed it. We have strong co-operation with other donors; hence, right across the board, we believe that the aid is going to the hospitals, the educational establishments and the programmes. I do not believe that there is any doubt that the aid is going where we intend it or that it is properly monitored.

My Lords, perhaps I may follow on from the question asked by the noble Countess, Lady Mar. Ethiopia is currently engaged in military operations in Somalia and in Eritrea. Its operations in Somalia have, as I understand it, been substantially funded by the US Administration of President Bush. Does the Minister join me in hoping that the change in Administration in the United States may change some of the priorities of the Ethiopian Government in this respect?

My Lords, my understanding is that there is no military activity in Eritrea and that the Ethiopian operations in Somalia were intended to achieve a particular objective which has largely been de-scaled. We keep pressing the Ethiopian Government to withdraw their troops from those operations. They want to do so but need an appropriate African force to fill the vacuum. It is not a simple matter of “these are the bad guys”; these people are trying to do their best. We do not approve of the original incursion, but we see that there is a real problem of just how quickly they can withdraw.

My Lords, while the Ethiopians may not be engaged in any military activities in Eritrea, would it not be possible for Britain and the European Union to increase aid to Ethiopia if it would finally settle its dispute with Eritrea on the frontier, on the lines of the recommendations made by the Lauterpacht commission?

My Lords, we in this country pride ourselves on drawing a strong distinction between providing aid and seeking to use it for political influence. That is enshrined in our law. The case for providing aid to a country depends on its level of poverty, and whether we provide money for that aid depends on whether it will be spent effectively through organisations such as NGOs or by the country itself. We also check against factors such as the level of corruption and so on. We do not use our aid in a quid pro quo for political decisions.

My Lords, I am sure that the whole House will be aware that tomorrow is Armistice Day. At 11 tomorrow morning, the House will not be sitting. Members of the House, their staff and the staff of the House will nevertheless be going about their work outside the Chamber. I hope the House will agree that it is appropriate that we should observe the two minutes’ silence at that time so that we might remember those who have made the ultimate sacrifice in giving their life for this country. If the House is content, instructions will be issued to heads of department, so that those members of staff who wish to observe the two minutes’ silence should be enabled to do so.

My Lords, I beg to move that the Bill be now further considered on Report.

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

Clause 12 [Pre-commencement statements of policy, consultation etc.]:

moved Amendment No. 42:

My Lords, the cornerstone of this Bill is the national policy statements and the robust processes that each statement must go through before it can be designated as a national policy statement. There are strict processes regarding consultation and publicity, and the noble Baroness has said,

“we want there to be a proper national debate”,—[Official Report, 15/7/08; col. 1163.]

strict processes regarding parliamentary requirements, appraisals of sustainability and compliance with all existing legislation, both UK and European. All this is excellent stuff until we get to Clause 12, where it is quite extraordinary that the Government can just dust down policies regardless of how old they are or whether they are able to meet the correct procedures. Like other noble Lords, I agree that if opponents to a national policy statement felt that the Government had cut corners or had not followed the strict processes set out in the Bill, there would be legal challenges not only in the UK but in the European courts. This would bog down and delay the process of speeding up planning decisions, which is one of the core aims of the Bill.

My Lords, following discussions last week and in Committee, I formed the impression that the Government had not really understood the extent to which these national policy statements are a departure from where we are now. The statements will rule the decisions of the IPC and give those decisions the authority needed to expedite these essential, but nevertheless locally unpopular, infrastructure projects.

During our debate on Clause 12 in Committee, the Minister said that there was no intention to avoid the high standards of consultation and sustainability implicit in the Bill and that Clause 12 would ensure that a Minister would have to take into account consultation carried out before the commencement of the Bill. She even said how thorough the consultation on the air transport White Paper had been. To me, however, that misses the whole point of the national policy statements.

As I said, I do not think that the Government quite realise what a departure NPSs are from what we have now. They will authorise, empower and arm the IPC with the authority to carry out the will of Parliament without challenge. The Government appear to miss the point that, unless the previous consultation on these previous White Papers or planning guidelines expressly stipulated that they were going to dictate the decisions of the IPC, that consultation is invalid as far as the new process is concerned.

To be honest, I am not so concerned about the people or the NGOs that might have taken part in the process of consultation. It is more a question of the ordinary people, or their representatives, who would not normally have involved themselves in national policy guidelines, which are usually drafted within departments, behind closed doors. This is not something that normally features on people’s radar but suddenly they will find the rules being changed at half-time. These national policy statements will dictate the decisions of the IPC which could dramatically affect ordinary people throughout the country.

No one expects the Government to start with a blank sheet of paper, as the Minister said. I do not mind if they cut and paste whole chunks of previous statements, guidelines or White Papers, or maybe even all of them, as a starting point. That would probably make sense. They should also look again at all the previous consultation to see what really appeared to matter to people. That, again, would make sense. However, the national policy statements are different: they will focus people’s minds as they have never been focused before. To my way of thinking, it would be underhand to assume that any previous consultation in what were completely different circumstances amounted to more than a row of beans when it came to controlling the decisions of and giving authority to the IPC.

As many of us have said before, national policy statements are what make the Bill work. They are new, they are different and, in my view, therefore, this clause is redundant. Even if the Government do not agree, I hope that they will accept that whatever past policy is used in this way, it will at least ensure that a new consultation process is implemented.

My Lords, the noble Lord, Lord Cameron, has put very adeptly the concerns that we on these Benches have. I would like to ask the Minister one question about the wording of Amendment No. 44. The proposed new subsection says:

“The Secretary of State may take account of appraisal”,

previously carried out. It refers not to “appraisals” or “an appraisal”. I think that “appraisal” here means something slightly different from where it is used in Clause 5(3). This goes absolutely to the validity of the appraisal—in other words, whether there has been consultation. Can there be consultation on appraisal used in its normal sense, over a much wider area, not a discrete piece of work? This may seem a tiny point, but I believe that “appraisal” means something rather different from a specific appraisal on specific policy, a specific White Paper or possibly a series of appraisals on specific policies that will have alerted the public, as the noble Lord, Lord Cameron, said, to their importance and relevance for national policy statements.

My Lords, the noble Lord, Lord Cameron of Dillington, eloquently said almost exactly what I would have said. However, I will add one point. The pre-commencement statements were made with an entirely different purpose from that which this Bill is now enshrining in the national policy statements. They were, for instance, available to local planning authorities and to the Secretary of State, if he or she had to decide an appeal. The national policy statements are, by contrast, directed almost wholly to the Infrastructure Planning Commission. Indeed, the whole of that part of the Bill has been drawn up so as to make sure that the national policy statement is in a form fit to go before the IPC, after it has gone through all the processes, notably of consultation, local inquiry and parliamentary scrutiny. It is, therefore, for the IPC to determine any particular planning application made to it and then to decide on that application in the light of the NPS. I am sorry if I merely paraphrase what others have said.

The pre-commencement statements, of course, vary hugely in their degree of detail, in the amount of consultation undertaken and in the importance that was to be attached to them when issued. I know that it is not now parliamentary to break into Latin phrases, but the lawyers would have said that they were prepared alio intuitu—with another intention. What has aroused the alarm not only here but in another place is that those statements will, in a sense, be taken as substituting for the quite elaborate procedure that the Bill sets out for approving the policy statement.

I recognise at once that the noble Lord, Lord Adonis, and the Government have sought to allay such anxieties. However, I remain anxious, for there is scope in how the Bill is now drawn—with these amendments, if they are now accepted—for the Government to cut corners by taking an existing planning policy statement and elevating it to the status of a national policy statement. That, to my mind, is the mischief in this clause.

One has dealt with these statements before: the noble Baroness, Lady Andrews, will recall our arguments about underground gas storage proposals, where my complaint was that, when her department ultimately issued its decision, Mr Darling’s statement of policy was reduced to one sentence. It is inconceivable that the commission would, when considering a particular application, reduce a national policy statement to one sentence.

I have been told that one of the first new NPSs that the Department of Energy and Climate Change is seeking to draft will deal with the underground storage of gas. Therefore, that particular one is starting anew. One is not expecting simply to start, as the noble Lord, Lord Cameron, said, with a tabula—I am sorry, I must not use Latin again—that is, with a clean sheet of paper. Of course, the department will take what has been said before as the basis for the statement, but it has to comply with the full and rigorous procedure that we have put into the Bill about parliamentary scrutiny and all the rest of it. It is not enough merely to say that the sustainability criterion must be added; much more than that will be needed.

I have not combed past planning decisions to see what previous decisions were, but noble Lords in all parts of the House have expressed huge anxiety about the aviation White Paper turning itself into a national policy statement. If ever a paper was directed to an entirely different purpose than the one that we will have for national policy statements, that was it. The noble Lord, Lord Adonis, and his colleagues will have to make some decisions on that White Paper. What about new circumstances? The noble Lord gave an extremely interesting interview to the Times a few days ago, in which he declared his passion for high-speed rail. That echoed what my honourable friends in another place said when they addressed the conference in Birmingham; they thought that high-speed rail would be a much better alternative than having large numbers of short internal flights. I happen to agree with that. I never fly to Edinburgh; I always go by train. Is this a change of circumstance? Is it a change of circumstance that the noble Lord, Lord Adonis, has arrived at the Department for Transport with this new enthusiasm? This is the kind of thing that one will have to look at. If there is going to be a national policy statement for aviation, airports, new runways and all the other things, it is difficult to say that you can simply take that White Paper, dust it down, add a sustainability criterion and then say, “Right, off we go”.

That is the anxiety that I have. I hope that the noble Lord, Lord Adonis, will be able to deal with it. He has met criticism from all parts of the House in trying to make sense of this clause. I hope that he, with his considerable abilities, will be able to allay our fears, but somehow I doubt it.

My Lords, the course now proposed by Her Majesty’s Government in this amendment is, to use Latin for once, a via media, which should be welcomed in this context.

The problem with the new structure proposed in Clauses 1 to 8 is that one has to avoid one or two extreme and unwholesome situations. One extreme would be a total republication of all the relevant policy statements, from the year dot. That, of course, would be utterly impossible. On the other hand, if one were to say that none of them had any effect at all, the situation might be even more drastic. One must find some sort of compromise, with criteria being applied as to whether a particular policy statement is current and relevant for present-day needs and, of course, whether it conforms to the criteria set out in the Bill.

The amendment proposed by Her Majesty’s Government does the job as well as one could reasonably expect. However, I have one question. It is many years since I did any planning as a barrister, but there may well be great dubiety as to exactly what the situation is. Will there be a general publication with regard to all the previous policies—I suspect not—or will it come by dribs and drabs? The difficult situation of a petitioner then will be that he or she will not know exactly what the validity is of a matter that has been dealt with in the past. In other words, how soon can that dubiety be removed, how comprehensive will the statements be and what machinery will have operated in each case before such a statement is made?

My Lords, I warmly welcome the government amendments, which I respectfully suggest address the issues raised in Committee. I direct the House’s attention to the terms of Amendment No. 43, which would insert new provisions into Clause 12 and in particular to proposed subsection (1C), which states:

“For the avoidance of doubt, section 5(3) to (7) continue to apply where the Secretary of State proposes to designate a statement as a national policy statement for the purposes of this Act”.

Clause 5(3) provides that,

“the Secretary of State must carry out an appraisal of the sustainability”.

As we saw last week at Report, that now includes both design and reference to climate change as well as general sustainability.

Clause 5 (4) states that:

“A statement may be designated as a national policy statement for the purposes of this Act only if the consultation and publicity requirements set out in section 7, and the parliamentary requirements set out in section 9, have been complied with”.

Those are the full requirements in relation to these matters. National policy statements would be required to comply with consultation and publicity provisions in Clause 7 and the parliamentary procedure in Clause 9, which we amended on Report last week.

Clause 5 (5) sets out what the national policy statement must include; Clause 5 (6) states that the,

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

and Clause 5 (7) states that:

“The Secretary of State must—

(a) arrange for the publication of a national policy statement, and

(b) lay a national policy statement before Parliament”.

Those provisions go a very substantial way indeed towards concerns expressed by noble Lords in Committee, and ensure, so far as I can make out, that pre-commencement national policy statements will have the full rigour applied to them as would be applied to national policy statements made after the commencement of the Act.

From my own knowledge, in the nuclear field the Government have commenced the procedure for the adoption of a national policy statement through consultation on the strategic siting assessment and the criteria for a strategic environmental assessment. We heard not only in this Bill but also in the course of debates on climate change and energy about the problems that face the Government and our society in meeting the challenges of climate change and security of energy supply. If we delay any further, as would be implied by not accepting pre-commencement national policy statements, we would be doing a disservice to the challenges that we face.

My Lords, my noble and learned friend Lord Boyd has made my speech for me. It answers a good number of the points raised by the noble Earl, the noble Baroness and the noble Lord, Lord Jenkin. Again, I draw the attention of the House to Clause 5 and the provisions of subsection (3) onwards, which would apply in respect of the designation which could take place under Clause 12. As my noble friend said, it would make clear that:

“Before designating a statement … the Secretary of State must carry out an appraisal of the sustainability of the policy set out in the statement”.

It must only be done, under subsection (4),

“if the consultation and publicity requirements set out in section 7, and the parliamentary requirements set out in section 9, have been complied with”,

as well as all the provisions set out in subsections (5), (6) and (7). These ensure that the concern the noble Lord, Lord Jenkin, still has that there might be a cutting of corners cannot take place. It cannot take place because of the provisions in the Bill. It is not a question of my giving assurances from the Dispatch Box. This will be the law once we accept these amendments. I hope that on that basis the House is reassured. As always when you have constantly to flick between amendments and different provisions on different pages, the problem is to understand their full force. Noble Lords need to read Clause 12 as if all the subsections in Clause 5 continued from subsection (1) of Clause 12. I think in that context the concerns that have been raised are met.

My Lords, I am most grateful to the noble Lord for giving way. He clearly has a point as regards the parliamentary process. I should think very few pre-commencement statements have ever been through anything like that. On consultation of local interests and other stakeholders, the anxiety is that the Government may well say, “There was a lot of consultation about the aviation White Paper; that will suffice”. That is the anxiety, even though it was done in an entirely different set of circumstances.

My Lords, the consultation requirements set out in Clauses 7 and 8 are substantial. The elephant in the Chamber is the Air Transport White Paper. That issue is giving rise to a good deal of concern and it might be helpful if I state categorically that we intend to produce a national policy statement which meets in full the policy and statutory requirements for national policy statements set out in the Bill. As part of that I can say categorically that we will consult again on the airports national policy statements in line with the Bill’s requirements. We shall have to make a judgment on how we conduct that consultation in the light of what is in the national policy statements and the extent to which it differs from what is in the Air Transport White Paper, but it will need to meet in full the requirements of the Bill.

In respect of the noble Baroness’s concern about appraisal, Clause 12 needs to be read in the context of Clause 5(3), which makes it clear that the appraisal in question is one of sustainability. Although the Secretary of State can take account of existing appraisal work in that context, there will be a new appraisal of sustainability on any new national policy statement, and that would include one concerning airports.

The noble Earl, Lord Cathcart, wanted to know who would seek to advise the Secretary of State on whether there had been a significant change of circumstances. Under the Bill, the Secretary of State ultimately has to make a judgment on whether he believes there has been a significant change of circumstances, but it will be open to parliamentary Select Committees, the public and others to make representations to him. The Secretary of State would have to look at those representations and take a view on them when making a judgment. The noble Earl also referred to strategic environmental assessments as required under EU law. Where a strategic environmental assessment is required under EU law, it will be undertaken within the appraisal of sustainability, ensuring one integrated assessment process, so that we do not have unnecessary duplication. We have already stated our intention to produce an airports national policy statement which incorporates the Air Transport White Paper in a way which meets the policy and statutory requirements for national policy statements set out in the Bill. We will, of course, conduct a strategic environmental assessment for the airports national policy statement if it is required under EU law.

I hope that I have dealt with the specific issues raised and made categorical statements in respect of the seriousness of the consultation and appraisal process that would need to take place before a pre-existing statement of policy could be designated as a national policy statement. I again emphasise the provisions of Clause 5, which would need to be satisfied in full before such a designation could take place.

My Lords, will the Minister clarify something for me, so that I understand it perfectly? Is the noble Lord saying that any PPG, PPS or White Paper that is now going to become a national policy statement will have to undergo fresh consultation in the light of the change that is going to happen?

My Lords, it would need to undergo fresh consultation if the consultation that had been conducted so far did not meet the terms of the Bill.

My Lords, I thank the noble Lord for his responses. He categorically said that the Air Transport White Paper would go through the consultation process again. Given that the evidence that was used in the original policy was called into question by the Sustainable Development Commission, and it has called for an independent review of that evidence, will that now happen?

My Lords, I said that there will be a fresh consultation in respect of any airport’s national policy statement. I believe that incorporates the noble Earl’s point.

On Question, amendment agreed to.

moved Amendments Nos. 43 to 45:

moved Amendments Nos. 47 to 51:

moved Amendment No. 52:

My Lords, Amendment No. 55 concerns Clause 15, relating to the principles established under Clause 14(1) on,

“the construction or extension of a generating station”.

The amendment refers to page 8, line 41, and proposes to leave out “or Wales”; in other words, the powers of IPC would be restricted to England in this respect. We want legislation in Wales to cover generating stations of more than 50 megawatts; Clause 15(3) refers to 100 megawatts. This clearly restricts the ability of Wales to influence what the IPC does regarding the expansion of electricity generation in Wales.

My Lords, this has been an extremely interesting debate, and I shall attempt to answer some of the points made. The noble Duke, the Duke of Montrose, asked about the Bill defining only overhead electricity lines, a point which we debated to a certain extent in Committee. The Bill defines only overhead electricity lines because permitted development rights relate to underground electricity lines. We are not seeking to change that through this Bill. Clause 15 has been drafted to reflect Section 37 of the Electricity Act 1989, which sets out the current regime for electricity line consents.

The noble Duke raised an interesting point about the cost of putting electricity lines underground. As he knows, it is not a simple matter—although, on the face of it, underground lines always seem an attractive option. They can be very expensive and, as I said in Committee, can involve additional environmental and social costs. None the less, it can clearly be an option. Permitted development rights are available, and under Clause 118(1) the IPC can require that sections of a proposed overground electricity line project are constructed underground if there are strong reasons for doing so.

The noble Duke also asked about electricity lines under territorial waters. We will shortly discuss a group of amendments on offshore generators.

My Lords, it is interesting that overhead lines are exempted from consideration under the Bill if they are less than 132 kilovolts. Is the Minister saying that there is no limit on underground lines and that regardless of the kilovolts any underground line would be a permitted development?

My Lords, underground lines are covered by the permitted development procedure, so it applies to them. Electricity lines under territorial waters are not part of the Bill but they can be consented as part of a nationally significant project such as an offshore wind farm. Permission for electricity lines under the sea is currently granted by the Secretary of State under the Food and Environment Protection Act 1985 and will in future be granted by the marine management organisation, subject to legislation which we all hope to see in your Lordships’ House as quickly as possible.

The noble Duke raised some interesting points on the electricity transmission system in general. We clearly need new investment in the grid infrastructure together with changes to the existing access arrangements to support the connection of new renewable and other essential generation. That will help us to meet the UK share of the EU 2020 renewable energy target, which I need not remind noble Lords is extremely challenging. I understand that £560 million has already been committed to upgrading the network in Scotland and the north of England to connect renewable projects. In the recent transmission price control, Ofgem set out plans to invest some £4 billion in the electricity transmission network. In addition, as noble Lords who debated the issue during the passage of the Energy Bill will be aware, in June 2008 the Government and Ofgem set out a package of measures in the transmission access review which, taken together, will remove or significantly reduce grid-related access barriers. We have taken an order-making power in order to intervene if agreement is not reached between Ofgem and the companies concerned.

The noble Duke, the Duke of Montrose, raised a point about decisions on projects in England and Wales that are below 132 kilovolts. These decisions will continue to be taken by the Secretary of State under Section 37 of the Electricity Act subject to certain exceptions. We intend that the decisions will be made with regard to the electricity networks national policy statement. The intent is that the IPC will deal only with electricity lines of national significance. The Government intend to conduct a review of where such cases might best be decided in future. We intend to conduct it over a similar timescale to the review, to which my right honourable friend the Secretary of State, Ms Blears, has committed, to examine whether there is a case for extending the grounds for ministerial intervention in IPC decisions. My understanding is that the review is intended to commence about two years after the IPC has accepted its first application.

I sympathise with the commitment to renewables by the noble Lord, Lord Livsey, and his comments about railway infrastructure in Wales. I use railways in Wales, particularly from Birmingham to Aberystwyth, and I know what he means, but that is perhaps to stray a little from the point of our debate today, although it sets the context. He will not be surprised by my answer because, as was set out in the debates in the other place, the UK Government have taken the view that reserving powers on nationally significant energy infrastructure is the best way of developing the UK’s long-term energy strategy. The planning White Paper made it clear that the current devolution settlement works well, and the Government propose that it should continue. On that basis, the intention is that projects must be included within the IPC’s remit and thus benefit from a quicker and more effective system that improves the ability of individuals and local communities to participate in the process.

I noted carefully the noble Lord’s comments about Welsh confidence in the IPC process. I want to make it clear that, under our proposals, UK Ministers will consult Welsh Ministers in drawing up national policy statements that apply in Wales. This requirement will be imposed by secondary legislation. Welsh Ministers will also be consulted by developers in advance of any consent application and by the IPC during its consideration of any scheme in Wales. As for confidence in the IPC process, it is proposed that two or three IPC commissioners will be appointed on the advice of Welsh Ministers where an application to be determined by the IPC relates to land in Wales. Where reasonably practical, at least one of the members of the decision-making body—the panel or, for applications examined by a single commissioner, the council—should be a commissioner nominated by Welsh Ministers. We think that that is the best approach to ensuring consistency with the devolution settlement and sufficient involvement of the Welsh dynamic, if I may put it that way, in the process.

As for the 50 megawatt threshold raised by the noble Lord, it is defined in the Electricity Act 1989 as being the appropriate boundary between national—in other words, England and Wales—and sub-national decision-making, and no case has been brought before us to suggest that we should change the threshold.

My Lords, before the Minister sits down, will he clarify something for me? If a new interconnector was constructed that crossed the border between Scotland and England, under what planning procedure and under which Act would that fall?

My Lords, my understanding—it is complex because it has to be consistent with the devolution settlement—is that overhead line consents between England and Scotland would need to be split at the border. For a 132 kilowatt electricity line project, therefore, the IPC would consider the part in England and Scottish Ministers would consider the part in Scotland under the existing regime. We must hope that, within the context of the devolution settlement, it all works well together.

My Lords, I hesitate to intervene before my noble friend sits down, especially on Report, when we should be on our best behaviour, but will he remind the noble Duke, the Duke of Montrose, who made a very interesting and informative contribution to our debates, as he often does, that offshore wind farms produce about 25 per cent of their rated capacity, much of which would be lost in the underwater cables that the noble Duke proposes and that more would be lost when we got to the grid? That suggests that we should not rush too madly into proposing any more offshore wind farms.

My Lords, my noble friend pushes us a little far from our debate. I very much welcome him to our debates; it is very good to see him in his place. Although there are issues about connection, offshore wind has a potential part to play in meeting our renewables target, but not just offshore wind. I am very keen on technology development in wave power and the other marine technology in which this country has a lead. Having seen a prototype model in Lowestoft on Friday, I am especially enthusiastic. We should not underestimate the potential that water, through offshore wind and wave, has to make to meeting our renewables obligation.

My Lords, with the leave of the House, I take note of what the Minister said, but the Electricity Act 1989 is pre-devolution—prehistory as far as the constitution is concerned. We want measures to come from the Welsh Assembly to meet the sustainability targets in Wales. The priorities are different in Wales because, as I explained, there is a surplus of electricity in Wales. We need to convert to lower carbon types of electricity production. Those are our priorities, which are not necessarily those of the IPC in that context.

My Lords, can the Minister answer one question on offshore wind that puzzles me? I understand that some proposed offshore wind projects are close to but actually outside our territorial limits. Will the provisions of the Bill apply to such plans?

My Lords, we are on Report. Perhaps I can write to the noble Lord on that rather than go into an extensive debate.

My Lords, I am happy to receive a letter from the Minister, but would he be so kind as to place a copy of it in the Library, as a fundamental point is raised that I have not seen addressed in any of the official communications on this subject?

My Lords, I thank the Minister for that wide-ranging response, but he did not address the point about fibre optics; I do not know whether he has anything to say about that. He creates an interesting scene in my mind. If there is no limit to the size and extent of underground cables and someone started to put the main interconnector—not that that is necessarily a very big cable—underground, in the north of England, and heading for Scotland, and did not need planning permission, could they simply dig a hole and put it in without anyone having any say in the matter?

My Lords, I am sorry that I did not answer the fibre-optic question. My understanding is that the IPC could not consent to fibre-optics cables in their own right, although if they were part of a nationally significant infrastructure project that required them, a promoter could apply to have them as part of an NSIP—as associated work—under Clause 113.

My Lords, it has been of great interest to the House to hear from the Minister how sea-situated connectors will be considered under the marine Bill. When we get to that stage, I think we will all want to be very sure about how this ties in with Ofgem’s responsibility for security of supply. It will have to look at several Bills to ensure that it can carry out its available duties. I shall read what the Minister has to say, but, in the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 53:

My Lords, I am glad to respond to the noble Baroness on this matter. She has raised an important point and it is important at the very least that I place on record the Government’s view of the intent behind the clause. As she suggested, Clause 14 sets out in broad terms what types of project will be nationally significant infrastructure projects for the purposes of the Bill. The detailed thresholds for each type of project are spelt out in subsequent clauses. It is right that the Secretary of State should have the ability to make secondary legislation at a later date, as provided for at Clause 14(3), in order to respond to the changes in circumstances that may arise. That flexibility is an important balance to the other provisions in the Bill.

One may ask why that flexibility would be required. First, it provides flexibility to add new projects where Ministers feel that there is a good case for so doing. That might be by varying the existing thresholds or by adding an entirely new category of project. The safeguard is that a new category of project can be included only if it involves the carrying out of works in one or more of the five fields set out in Clause 14(6): energy, transport, water, waste water and waste. An example might be a project that deals with the geological disposal of higher-activity radioactive waste, should Ministers decide that such a project should be considered nationally significant. The second aspect would be if Ministers wished to remove projects from the new regime if, for instance, circumstances change and there is a good case for taking certain decisions out of the new regime. In such a scenario, the thresholds could be reduced or a category of project removed.

Regardless of the change, this power is subject to an affirmative resolution in both Houses. Unless both Houses agree that such infrastructure should or should not be considered nationally significant, Ministers would be unable to make the proposed changes. That is the essential safeguard against what might be described as a frivolous use of this power to get around a particular problem, say, with a local authority’s decision in relation to a specific planning consent. Taken in the round, first, there are enough safeguards and, secondly, it is self-evident that none of us can say for sure whether the thresholds will continue in the long term to meet the purpose or whether there might not be a new development that, although it comes within the categories laid down in this clause, would justify the flexibility inherent in this clause.

My Lords, the Minister anticipated—perhaps because I gave him a hint in an e-mail—my concern that the provision could be used to override what the Government could regard as a recalcitrant local authority. There could be matters concerning transport, for instance, which would be the responsibility of a local planning authority and not within the ambit of the IPC. Given our stance on the IPC as a matter of principle, I am not challenging the removal of projects from the IPC regime, although we all know that there are limitations on the use of affirmative resolutions and on the effectiveness of challenging them. I knew that the Government would not agree to vary this in the Bill, so the purpose of the amendment was to elicit clarity. I am grateful to the Minister and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 54:

My Lords, this is the first time that I have spoken on Report so I should declare an interest as a member of a local planning authority and a development control committee. Once again I thank the noble Lord, Lord Taylor of Holbeach, for bringing these issues before the House. He did so in Committee and performed a service, and he is doing so again today.

We are in some difficulty because we think that we know what will be in the marine Bill that we believe will come before the House in the not-too-distant future—indeed, there will be, if not riots on the streets, then riots on the beaches if the Government do not bring it forward this time, having come so far. We have only a few weeks to wait until we get a guarantee that it will come forward, but we do not know exactly what will be in it because the Government may have altered the draft version that some of us have already been scrutinising and discussing.

As the noble Lord, Lord Taylor, put it, the Bill is part of a daisy chain of legislation that will fundamentally change our planning and development systems. Indeed, in addition to the Bills and Acts listed by the noble Lord, the Housing and Regeneration Bill—now an Act—that we considered is a fundamental part of these systems. So we are in some difficulty. The real debates on the issues raised by the noble Lord today may come when we consider the marine Bill and how the marine environment and new marine planning system slot into the system that by then will have been enacted by this Bill.

It is absolutely right that we should consider this issue today and the Liberal Democrats support the noble Lord’s amendments. There will be a completely new planning regime for the marine and coastal environment, which will involve new organisations, such as the marine management organisation, new planning documents, such as the new marine plans, and new concepts, such as the marine conservation zones. It is important that the Infrastructure Planning Commission should not be able to ride roughshod over a new system that, although it does not yet exist and there is no Bill before us, is nevertheless casting its shadow over us. It is right that this Bill should recognise what will happen in the general terms described by the noble Lord, which could apply in the interim to existing organisations and systems even if there is not a marine Bill. I add my support to the noble Lord’s remarks.

My Lords, I was delighted to hear the Minister express enthusiasm for the power of the tides and waves and so on, and for his visit to Lowestoft. I am pleased that he came back full of enthusiasm because, as he knows, the Carbon Trust estimated some time ago that about 15 to 20 per cent of UK electricity could be generated by wave and tidal power, so it is potentially of enormous importance.

The Bill as framed effectively brings under the IPC only wind farms of 100 megawatts or more. So, given the current state of technology, for some years to come, what is recognised to be strategically important—that is, the power of the wind, waves and tides—will not come under the IPC. Among the few questions that I would like my noble friend to address today—or, if not, to write to me before Report—is whether or not wave and tidal energy will be considered under national policy statements. Clearly, under the Bill it will not fall under the IPC—I assume it will fall under the powers of the marine management organisation—but where will this important technology come in in relation to national infrastructure policy statements?

Given this distinction, perhaps my noble friend will address one or two matters today or, if not, write to me. Under the Bill there is a minimum limit of 100 megawatts for what are, effectively, wind farms. If a wind farm of 100 megawatts was extended but the extension was much less than 100 megawatts, would the IPC deal with such an extension off-site—it would be helpful to have this on record—or would it come under the MMO? The question of extensions is, potentially, quite important.

I turn to my second question. Offshore planning and maritime issues are at present subject to a limited amount of expertise. They were previously under BERR but, I believe, are now under the new Department of Energy and Climate Change. That is a small team, as noble Lords will know; it is certainly in single figures. The future location of that expertise is really quite important because there is not a lot of it. In future there will be the DECC, the IPC and the MMO. The worst of all worlds would be if that expertise were split up in some way and spread around even more thinly. It is important that the expertise is kept in one place, at least until things have settled down and then we can see what the scale of operations is going to be. Has thought been given to this? The IPC will shortly be formed and in operation, and applications will be coming in forthwith. They will have to be dealt with, or they will be outstanding. Will the expertise be kept together and put in with the IPC until such time as future expansion and development determine whether a large amount of expertise is needed in the MMO as well?

My Lords, my name is also to these amendments. As the House would expect, I support my noble friend Lord Taylor on them. We have talked a great deal throughout the Bill on the best way to improve the planning system so that the most appropriate decision can be made expeditiously. That is right. We have also debated keenly who should play a part in the planning process, and that is quite right too. The amendments fill a gap that we risk leaving open. By agreeing to them, the Minister will be able to ensure that the most appropriate decisions on marine planning are taken by the right people.

We have mentioned wind farms today. The noble Lord, Lord Woolmer, mentioned wave and tide. There are also cable and pipelines that may have to be laid in the marine environment.

As the Bill stands, as my noble friend has already said, the IPC has the power to determine proposals in the marine environment. That runs contrary to the Government’s stated aim of creating a strategic overview and reducing complexity at sea through marine planning and reformed marine licensing. The proposed marine Bill, we are told, will create a marine management organisation. If that specialised body is to be created, it would be better to leave decisions with the Secretary of State until such time as the MMO is ready to take over.

If the IPC must retain jurisdiction in this area, it is vital, as my noble friend has said, that the expertise of the MMO is put to good use and that it should provide advice on both coastal and offshore applications that impact on the marine environment. The Planning Bill is vital, as I have said, but it is only part of the jigsaw puzzle. The other pieces, as has been said, are the Climate Change Bill, the Energy Bill and, soon, the marine Bill, as well as, as the noble Lord, Lord Greaves, said, the Housing and Regeneration Bill. Those Bills all have to take account of one another, so I support my noble friend on these amendments, which would take account of the marine Bill. It is a simple exercise in joined-up government, as I am sure the Minister will agree. If the Minister does not like the wording of these amendments, I ask him to agree to take them away and come back at Third Reading with his own amendments to ensure that the correct interaction between the Bill and the forthcoming marine Bill takes place.

My Lords, this has been an extremely interesting debate. I am grateful to the noble Lord, Lord Taylor, and other noble Lords, who have tabled amendments and have spoken.

I was very interested in the remarks of the noble Lord, Lord Greaves; noble Lords are keen to see the marine Bill before your Lordships' House. Because of the pre-legislative scrutiny, there has been considerable discussion and debate on what might be in a possible Bill that might be brought at a certain stage in the future. That is one of the problems of seeking to draft amendments to this Bill which refer to an organisation that at the moment has no statutory being whatever. None the less, I hope to reassure noble Lords in respect of a couple of the points that have been raised. However, I also understand that when we come to debate the marine Bill, a number of these questions will be debated again. Assuming that these are in its scope, I am sure that we will be able to ensure that noble Lords have undertaken effective scrutiny of the marine management organisation and how it relates to the national planning infrastructure.

The Government have made the decision that while the marine management organisation, if established as we all hope it will be, will have expertise on the marine area and will advise the IPC on challenges and impacts specific to the marine environment, it is the IPC itself which will be best placed to consider the broader significance of national need alongside the impact to the marine environment. There is clearly a difference of view here, but I should make it clear that that is the Government’s firm view on the relationship. Within that, it is important that the views of the MMO are made known to the IPC and that the expertise that is available is clearly brought to the fore.

As the noble Lord, Lord Taylor, suggested, the IPC could be established before the marine management organisation has come into being. If that were to be the case, the intent is that the IPC would draw on the expertise of the Marine and Fisheries Agency. I can assure the noble Lord that the MFA will be classed as a statutory consultee.

My noble friend Lord Woolmer spoke about the existing expertise. He is very anxious to ensure that that expertise is not dissipated, which I well understand.

Consents for offshore renewables are currently considered within two regimes—under Section 36 of the Electricity Act 1989 and under the Marine and Fisheries Agency, which provides consent under the Food and Environment Protection Act 1985. Although the two bodies have worked closely together to give a joined-up service to industry and stakeholders, an important benefit of this Bill and the future marine Bill will be to provide for a single point of application and consent.

We are looking very carefully at transitional arrangements, including the need to avoid any loss of existing expertise. Broadly, we expect the MMO to get most of its expertise from the Marine and Fisheries Agency, and the IPC from my department—essentially, from staff who have been transferred to the DECC. That will not necessarily be through permanent transfer of staff; precise arrangements will need to be worked out. It needs to be borne in mind that the Department of Energy and Climate Change will have ongoing responsibilities after the IPC is established, such as the preparation and maintenance of national policy statements. My department will need to have expertise on the books as well as any potential transfer to the MMO.

I reassure my noble friend that we very much recognise the expertise of those currently involved. The last thing that we would want is to dissipate or undermine that expertise in any way. My noble friend asked about an extension that might bring a project to over 100 megawatts. My advice is that the IPC would have to consider it at that point.

My Lords, that is most helpful, but the Minister answered in relation to an extension that took the wind farm over 100 megawatts. If it was already over 100 megawatts, would a smaller extension still be considered by the IPC?

My Lords, I assume that my noble friend is talking about a project that is already over that threshold. I would rather write to him about those specifics, because one has perhaps to distinguish between a major expansion and what might be a minor change. Rather than giving him an answer on the hoof, I would like to come back to him on that point.

On whether wave and tidal power can be considered under a national policy statement, I understand that, as technology is already being developed for large projects, the NPS will cover them. Where renewable energy is concerned, I agree with what was said about the general potential of marine and wave technology. The other important point is that the UK has a lead at present in that technology. It is important to do everything that we can to ensure that we take advantage of that lead, so I very much agree with the noble Lord.

Finally, on the question of the MMO being a statutory consultee, I point out that Clause 42 sets out a duty on applicants applying to the IPC for planning consent to,

“consult … about the proposed application”,

and prescribes the persons to be consulted. Amendment No. 71 in the name of the noble Earl, Lord Cathcart, would include “the relevant marine body” among those to be consulted, which is an ingenious way of referring to the marine management organisation. I reassure the noble Earl that certain persons who must be consulted on pre-application consultations will be prescribed in secondary legislation flowing from the Bill. It is our clear intention to prescribe relevant marine bodies in such secondary legislation, including—in due course and subject to all the caveats to which I referred earlier—the marine management organisation, should it be established.

Amendments Nos. 84 and 85 would include the MMO within Clause 59, which makes provision in relation to local impact reports. I well understand that these amendments would then require the IPC to give notice in writing to the “relevant marine body” that it has accepted an application and to invite that body to submit a local impact report for a nationally significant infrastructure project where the application is wholly or partly for a coastal or offshore development. This is not the right place for such a duty to be placed on the IPC. The term “relevant marine body” is not defined and it would be difficult for the IPC to interpret it as it stands. If the intention is to have the IPC notify the marine management organisation, that should properly be a provision in the marine Bill. I well understand that the noble Lord, Lord Greaves, has already given notice that we will come back to that in due course.

Moreover, provision for the IPC to consider local impact reports was added to give due prominence to democratically elected local councillors who represent local people affected by the proposed project. The case for the MMO is somewhat different, but I want to reassure noble Lords that the MMO will not be ignored by the IPC. Given that the MMO will be the Government’s strategic delivery body in the marine area, the IPC will be expected to draw on its expertise when assessing proposals for nationally significant infrastructure—for instance, when considering what conditions might be appropriate to mitigate any negative impacts on the marine environment. Detail as to how the IPC will receive advice from the MMO will be covered in guidance under this Bill, and in a Memorandum of Understanding. When taking decisions in relation to marine provisions, the IPC will have to comply with its obligations under the Planning Bill and the marine Bill. The provisions of the marine Bill will, of course, take account of the final form of the Planning Bill.

Amendment No. 102 would amend the decision test of the IPC so that it would have to have regard to marine plans. Again, the national policy statements will be the primary factor for IPC decisions in the new single consent regime, because they will clearly set out our national policy on, and the national need for, infrastructure, but only after they have been consulted on and scrutinised by Parliament.

Clause 102 also provides that national policy statements will not be the only factor, because the IPC must have regard to the local impact reports from local authorities, other matters that may be set out in secondary legislation and any other matter that the commission thinks is important and relevant to its decision. Even when the application is in accordance with the national policy statement, the IPC could well decide that a particular application for a proposed project was not appropriate because it would be unlawful or result in the UK being in breach of any duty imposed on it by or under any enactment. The IPC would still consider issues specific to the application at the local stage, such as detailed layout, siting or access, as well as the environmental impact. If it decides that the adverse impact of the development outweighs its benefits, it can refuse consent.

One matter that we will prescribe is that the IPC must have regard to relevant marine plans and the marine policy statement. We intend that the MMO will provide particular assistance to the IPC during the examination, not least by advising it as to any requirements that should be placed on a deemed marine consent that the IPC is considering granting. At the decision stage, we want the IPC to decide on applications in accordance with the national policy statement, except when certain specified circumstances arise. That principle should apply to projects offshore in the same way as to projects onshore.

We believe that decision-making on nationally significant projects should fall to the IPC, but it will have the advice available of the proposed marine management organisation. We wish the expertise available to go forward into the new organisations and we have order-making powers to ensure that appropriate consultation takes place. We can anticipate lively debate when that Bill comes to your Lordships’ House at some stage in future.

My Lords, I thank the Minister for his detailed reply. One can always rely on the noble Lord, Lord Woolmer, to come up with penetrating questions of detail, which have tested the Minister. I am grateful to all noble Lords who have spoken in this debate for the general support that they have given and I am grateful for the sentiments expressed by the Minister in giving support to the concepts that lie behind these amendments. I am pleased that in the matter of Clause 42 there is likely to be specific secondary legislation. I am grateful for that and for the fact that a memorandum will reflect the debate and the contribution of the Minister. Perhaps noble Lords are wrong to anticipate the royal prerogative—the speech from the Throne—as we have done to some degree today. On the other hand, it is nice to have something to look forward to. On those grounds, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 55 and 56 not moved.]

moved Amendment No. 57:

My Lords, I find this amendment rather interesting, because the noble Baroness, Lady Hamwee, is trying to put a limit of 50,000 air transport movements of passenger aircraft a year into the same subsection of the Bill where there is a limit of 10,000 air transport movements of cargo aircraft every year. In terms of noise, it does not make much difference whether a plane is carrying passengers or freight; it is still noisy or not, depending on one’s point of view. I assume that she has calculated the figure of 50,000 by taking an average passenger plane carrying about 200 people and converting it down from the 10 million passengers a year, which seems reasonable to me. However, it is also interesting to note that Clause 23(3) refers to a limit of 10 million passengers a year or 10,000 air transport movements of cargo aircraft a year, but not both. I am not sure that the amendment contributes a great deal to understanding this subsection, which is a bit confusing anyway, but perhaps my noble friend can explain whether “and” rather than “or” should be inserted between paragraphs (a) and (b), and whether it makes much difference whether planes are carrying cargo or people.

My Lords, these amendments continue the debate that we had in Committee about the airports threshold set out in Part 3 and in particular why we have phrased it in terms of the numbers of passengers who could use an airport rather than the number of air traffic movements. As I stated in Committee, we arrived at the threshold having gone through an extensive consultation process for the planning White Paper, on which this Bill is based.

The noble Baroness, Lady Tonge, suggested in Committee that EU regulations specified a threshold of 50,000 air traffic movements. We have researched this point, but the only relevant EU legislation that we can find that mentions a threshold of 50,000 air traffic movements are EU regulation 1794/2006 on a common charging scheme for air navigation services and the environmental noise directive 2002/49/EC. However, neither of these appears to us to have any relevance to the issue at hand. The regulation concerns reporting systems for the costs of air navigation services at airports. It specifies that, in respect of airports handling more than 50,000 commercial air traffic movements a year, there must be a transparent charging system for air navigation services that meets prescribed EU standards. The environmental noise directive requires member states to produce strategic noise maps every five years for the main sources of environmental noise, including airports with 50,000 annual movements and above.

However, the issue in this Bill is different. It is whether a proposed airport development is of such a scale that it should count as nationally significant and go to the IPC rather than through the local planning system. Our judgment, based on analysis and consultation, is that the figure of 10 million passengers constitutes the right threshold in respect of proposals having regard to passenger services. This would, for example, have taken in the recent decision to allow Stansted to increase the number of passengers using its existing runway.

Our concern about the noble Baroness’s amendment is that it might capture projects that do not involve increases in air traffic that are of such national significance. Our data suggest that, based on average current loadings, the 50,000 air traffic movements proposal in her amendment is equivalent to only about 5 million additional passengers nationally and about 7.5 million at Heathrow. Therefore, it would have the effect, which I do not think the noble Baroness intends, of having more proposals considered by the IPC, whereas I understand that she wishes to see fewer—indeed, none—considered by the IPC. Given her general position on the Bill, her amendment would move it in the wrong direction from her point of view.

The noble Baroness asked me a specific question about our view of the impact of proposals including air traffic movements. I stress that of course we fully accept that increases in the number of air traffic movements will affect people who live in the vicinity of an airport and that increases above 50,000 air traffic movements may affect them a great deal. However, as with other such local planning matters, these issues should be properly addressed by the local planning system with its manifold provisions for consultation. We would expect the local planning system to take full account of those issues, which do not constitute a threshold that would justify such proposals coming to the IPC.

The noble Baroness also asked whether local impact assessments could properly take account of air traffic movements. That would indeed be a proper matter to take account of. In respect of the question asked by my noble friend Lord Berkeley, it is “or” in the Bill. However, I am told that 50,000 air traffic movements at a freight airport is so large as not to capture any foreseeable projects, so I am not sure whether there is a real issue here in any event.

My Lords, I thought that we were dealing with the unforeseeable as well as the foreseeable. I readily acknowledge and had already acknowledged the dilemma that I presented myself with as to whether the Bill should be changed. I had wrestled with the and/or issue for quite some time.

The local authorities group SASIG—I cannot remember what that stands for, but it is the group within the LGA of local authorities that are particularly affected by airports—commented to me that it thought that the equivalence of numbers of movements and numbers of passengers was broadly right, but there we go. It is irrelevant, because I have achieved what I wanted, which was the acknowledgement of the relevance of movements to the local impact statement.

I am sorry that my noble friend Lady Tonge is not here to deal with the finer detail of EU provisions and I shall not attempt to answer that point. I thank the Minister for the assurances that he has given. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 58 and 59 not moved.]

Clause 26 [Rail freight interchanges]:

moved Amendment No. 60:

My Lords, briefly, I am very grateful to my noble friend. We got in a bit of a muddle about who was to move the amendments. I am really grateful to the officials in both departments for making the changes from “container” to “goods”. I find quite funny the need to define a goods train as meaning,

“a train that … consists of items of rolling stock designed to carry goods”.

I am sure that the parliamentary draftsmen have their reasons for doing it. I am very grateful to my noble friend for agreeing to the three amendments.

On Question, amendment agreed to.

moved Amendments Nos. 61 and 62:

moved Amendment No. 63:

My Lords, I shall be moving government Amendment No. 123 in this group. It is a purely technical amendment, simply a drafting change for the sake of clarity. The provisions on nationally significant infrastructure rely on a definition of development that is not necessarily completely the same as that used in Part 11 in relation to the community infrastructure levy. Our amendment ensures that the distinction is maintained.

The noble Baroness will be delighted to hear that we accept Amendment No. 69. She has persuaded us—as my noble friend Lord Berkeley did in the previous group—that it can improve the Bill in respect of “clusters” of projects, such as groups of wind farms in close proximity to each other which should be considered together for a better overview of their cumulative impact. It is not our intention that the Secretary of State will have a power to direct projects in different fields to the IPC together as a “cluster”. They must be in the same field together. The noble Baroness’s point is very well taken in that regard. We are therefore glad to accept Amendment No. 69.

On Amendments Nos. 63 and 67 and why the words “or forms part of” are included in the Bill, as the noble Baroness knows, we have set out thresholds in Part 3, and a project that meets these thresholds will subsequently be designated a nationally significant infrastructure project. Clause 31 ensures that to the extent that development will be carried out to further this overall project, development consent will be required for that development. Of course, it will be up to individual promoters which development works they choose to include in an application for development consents. At the very minimum, they must include those works that have a direct bearing on the construction of something which meets the thresholds in Part 3.

However, there may well be additional works, both onsite and elsewhere, that serve supporting functions to the main NSIP works. They might be needed for the purposes of preparation or finishing, to facilitate benefits, or to mitigate impacts. We want promoters of NSIPs to include in their development consent applications all relevant works, whether they are directly related to the main Part 3 thresholds or whether they form part of the wider projects. Therefore, under Clause 30, such development which “forms part of” a nationally significant infrastructure project will in future require development consent.

A promoter may wish to carry out development which is unrelated to a nationally significant infrastructure project. We want to ensure that promoters can carry out such development separately and enjoy existing permitted development rights where appropriate. As I mentioned in Committee, we do not want to create a loophole that allows promoters to salami-slice NSIP development into smaller chunks of work, which could therefore slip under the thresholds. For example, harbour facilities are not defined as such in the Bill but will often involve construction of a range of different things, such as a port access road, a container terminal, warehousing, berths for ships and so on. Together, they would make up a whole viable project. The proposed facilities need to be looked at as a whole to see whether the quantity threshold will be met. If they will, we want to ensure that development consent is required for each part of the development that forms part of the proposed project.

On that basis, we believe that the words “or form part of” are required to ensure that a developer cannot get round the need for development consent by separating out the types of development that go into an NSIP. I hope that, with that explanation, the noble Baroness will be able to withdraw her amendment and take some comfort from the fact that, where we have been persuaded by her arguments in relation to the later amendments, we have accepted them.

My Lords, I am looking ahead but cannot find the provision quickly enough. I wonder how this fits in with “associated development”, which is the term that we have had a bit of difficulty with. However, I think I understand that explanation better than I did the one on the previous occasion, which is all to do with me and nothing to do with the explanations. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

moved Amendment No. 64:

My Lords, the noble Lord, Lord Howarth, has shown admirable persistence in seeking to persuade the Government to accept this provision on the regard that should be given to the national heritage within the new planning structure that the Bill introduces. I know that the Minister has accepted a number of requests for additional provisions within the Bill—for example, on the attention to be given to good design—and, no doubt, she does not want to overload the Bill. None the less, this debate on Report is, in practice, the last stage during the passage of the Bill when we can ask the Government to consider favourably the new clause proposed in Amendment No. 64, which is moderately drafted. Like the noble Lord, Lord Howarth, I would like to see it included in the Bill.

My Lords, I add my support to the remarks of the noble Lord, Lord Howarth, and the sentiment behind them. When faced with large projects, the reality is invariably that the pressure seems to be behind those who wish to carry the project forward. It is almost by definition that once it has got that far, there is an enormously strong momentum. In those circumstances, the perennial tendency is for those things that cannot be reduced to figures in some sophisticated and more or less completely incomprehensible cost-benefit analysis to get swept to one side. As the noble Lord said, what is proposed is entirely in line with the proposed Heritage Protection Bill, and it would be inconsistent for the Government not to include it here.

My Lords, I support my noble friend warmly on this amendment and to make the point, which I have made on other amendments, that those of us who support the whole strategy of the Government and the importance of national planning to be able to make a success of our economy do so so that we have a society worth living in. If that society is to be worth living in, taking our heritage seriously and enjoying it must be priorities.

My Lords, there is very little that the noble Lord left unsaid, but I add my voice in support of this moderate and reasonably framed amendment. I am sure that we are at one on the importance of preserving our heritage. There is no issue there. In Committee, the Minister was at pains to assure us that she is passionate about design, and I am sure the same is equally true with regard to her attitude to preserving our heritage. The only issue appears to be how best to do it. From that point of view, I hope that she will be sympathetic to this amendment so that its mover is essentially pushing at an open door.

All the amendment does is to apply to the new development consent regime the existing statutory protections for heritage that apply under the town and country planning legislation. For reasons that I do not entirely understand, they are disapplied by the Bill in relation to the new development consent regime for nationally significant infrastructure. I should have thought that the important thing is to achieve consistency between the two regimes—the town and country planning regime and the new development consent regime. That has already been stressed by noble Lords who have spoken. After all, heritage is heritage regardless of which route the planning application goes down. It is no less so just because it is dealing with a major infrastructure project. Indeed, it might be argued that it is all the more important to protect heritage when we are dealing with major infrastructure projects that can, if not handled correctly, constitute a bigger blot on the landscape—a greater eyesore—than smaller developments. I hope that the Minister will be able to see her way to accepting this amendment.

My Lords, I strongly support my noble friend’s reasonable amendment. The harm that could be done would be irrevocable; that is the problem. I implore the Minister to provide the safeguards that he seeks.

My Lords, in Committee I spoke in support of the amendment moved by the noble Lord, Lord Howarth. Since this is the first time I have spoken on Report, I declare a variety of interests in heritage organisations; I was formerly chairman of the National Trust and so on. There is not much more to be said in argument than the noble Lord, Lord Howarth, so comprehensively and devastatingly said in just a few minutes flat. The Minister was extremely good to the noble Lord, Lord Judd, and me in helping us out with national parks. In terms of the Bill, that was probably a simpler issue because it is was that national parks are planning authorities. Nevertheless by the same token, I hope that the Minister will see her way to giving—however it is done in the Bill—equivalent status and protection to heritage assets.

My Lords, the noble Lord, Lord Howarth of Newport, made an extremely powerful and reasonable argument. I support his amendment, and I hope the Minister will see her way to accepting it.

My Lords, I add my name in support of this amendment for the reasons that have been expressed by all noble Lords. It is very important, and I hope the Minister will accept it.

My Lords, the logic of this amendment is irresistible. It is in line with many prior policies that we have decided in other enactments. This general provision would be an enormous addition and safeguard in the Bill.

My Lords, I listened closely to what noble Lords said. We have returned to a topic that has been assiduously pursued by my noble friend in ways that I can well appreciate. There is little that divides us when we consider the importance that we attach to protecting our heritage. I listened to the contributions from all around the House, which clearly put an obligation on me to explain as clearly as I can why we cannot accept this amendment. In so doing, I want to give every assurance to noble Lords that the Bill and the protections that will be carried forward will be more than sufficient to safeguard what noble Lords are concerned about. I shall also address the other issues that arise in the course of the argument.

My noble friend raised similar points in Committee, since when my officials and I have been in contact with him several times. I had hoped that we had been able to offer him the reassurance for which he was looking that the system that we are creating under this Bill will continue to maintain the highest levels of protection for heritage assets.

I know that this House takes the issue extremely seriously and I was grateful that my noble friend gave me advance warning of what he was going to say on Report. Let me try again to reassure all noble Lords who, rightly, want to be absolutely sure that the Bill does not deliberately or inadvertently reduce the protection available to our precious heritage and, in so doing, also to reassure the voluntary heritage organisations that have joined the debate.

As the noble Lord, Lord Low, said, we all have a common aim of maintaining existing statutory protection for heritage under the new infrastructure regime proposed in the Bill. I am grateful to my noble friend for outlining the other legislation and sharing with us details about why he remains concerned that the Bill will not deliver that objective. He is right when he says that Sections 66 and 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 will not apply to the new regime, but he knows that there is nothing sinister in that, as we are disapplying many consent regimes in so far as the new single consent regime will replace them. The Historic Buildings and Ancient Monuments Act 1953, which he cited, is untouched by the Bill.

In contrast to what my noble friend and the noble Lord, Lord Low, said, Clause 33 does not specifically disapply the protections for heritage in the 1979 and 1999 Acts. Clause 33 clarifies that nationally significant infrastructure projects do not need to seek separate listed building consent, conservation area consent or, indeed, scheduled monument consent, as those will be incorporated in the development consent order granted by the IPC. As I will explain, the fact that those consents will be contained inside the single consent regime in no way entails a reduction in the protection of our heritage.

I can do no more than reiterate in large part what I said in Committee. Under the Bill, a project that meets the threshold of a nationally significant project will require a single development consent. We have agreed across two days of debate on Report alone that that is one of the great prizes of the Bill. We are moving from the position where NSIP promoters need to secure a multitude of consents, including many, if not most, of the consents mentioned in Clause 33, to a position where a development consent order will cover all of them but will not require any consent under any of the existing consent regimes mentioned in Clause 33.

We certainly do not intend through the streamlining of consent regimes to undermine the vital protections that exist for heritage assets. Why should we take such a risk when we are completely in agreement about the unique value of our heritage and the need to be as vigilant as possible against any sort of vandalism? We intend through the Bill and secondary legislation to require that, when the IPC makes decisions on projects that would have implications for heritage assets, it must decide on those works in exactly the same way as a decision-maker under the Planning (Listed Buildings and Conservation Areas) Act 1990. We intend to replicate the tests set out in Sections 66 and 72 of that Act in the decision test in Clause 102 for the IPC and in Clause 103 for the Secretary of State by prescribing considerations set out in Sections 66 and 72 of the Act as matters to which the decision-maker must have regard. Clause 102(2)(c) gives the Secretary of State the power to do that by a set of regulations that prescribe matters to which the IPC must have regard and Clause 103(2)(b) provides an identical power for cases where the Secretary of State is the decision-maker.

In practice, the IPC, in considering whether to grant development consent that would affect a listed building, will have to have special regard to the desirability of preserving the building, its setting or any features of special architectural or historic interest that it possesses. It will be likewise for cases of major projects that affect conservation areas and scheduled ancient monuments.

My noble friend has argued that his advisers feel that regulations along the lines that I suggest will provide a significantly lesser level of protection than exists at the moment. I simply disagree with him. The fact that the protection is being enabled through regulations does not diminish or compromise its content or force. Decisions on works forming part of an NSIP that would affect listed buildings and other heritage assets will continue to be subject to the special considerations that form part of the existing heritage protection regime. That will be what the law requires.

My Lords, I warmly thank all noble Lords who have spoken. This has been an impressive debate and I hope that the Minister will acknowledge the significant expression of support for the proposed new clause from around the House. That, combined with the representations that have been made by the country’s leading heritage organisations, should, I still think, cause the Government to reflect carefully.

I am extremely disappointed by the Minister’s response. I will study carefully what she has said, but I do not think that she has advanced the argument. She says that I know that there is nothing sinister in the Government’s position, but the question that I am driven to ask is: is there a technical problem with the drafting of the Bill, or is there a political problem? She assured us that the DCMS is solidly with the DCLG in approving of the Bill as it is currently drafted, but it is difficult not to suppose that other government departments and agencies are extremely unwilling to see any satisfactory protection for heritage standing in the way of their ambitions and their requirements for moving rapidly forward with the development of new infrastructure. We are not against the development of new infrastructure; we are against the development of new infrastructure casually bulldozing our precious heritage. That is my fear.

I continue to believe that the protections that the Government are offering in the Bill are comparatively weak and insufficiently extensive. My noble friend makes the point that it would be a brave Minister who, having to bring regulations for affirmative approval before Parliament, dared to ignore the pledges that she has given on the record. There is some force in that point, but it remains the case that regulations are easily altered and that Parliament has little control over what regulations eventually do. I am also dissatisfied with what she said about parks, gardens and battlefields, because, as I said in my opening speech, government policy should be consistent. Government policy has been plainly declared in the Heritage Protection Bill and it is not right for the DCLG to disavow that Bill, which it seems to be doing.

I will think carefully about what my noble friend has said and I will consult further. I hope that there may be an opportunity for us to have another conversation in an amicable spirit, but we may well have to bring this issue and this proposed new clause back at Third Reading. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 32 [Meaning of “development”]:

moved Amendments Nos. 65 and 66:

moved Amendments Nos. 68 and 69:

moved Amendment No. 69A:

My Lords, I support the remarks made by the noble Lord, Lord Jenkin. I know from personal experience that wind farm applications in rural areas come up against a huge wall of resistance. Without some guidance or even a statement in the Bill along the lines suggested, wind energy, on which I believe our immediate future depends, will not play the part in our energy strategy that I know the Government desire. This is essential. I have dealt in local government with other matters of this sort, such as extracting minerals, finding encampments for Gypsies and the disposal of waste. Wherever you put them they will run up against huge prejudice and, no doubt, strong feeling locally, but they have to go somewhere. I warmly support the noble Lord’s proposal that planning policy guidance and national policy statements should take precedence over what I believe are local and often prejudiced concerns.

My Lords, I, too, support this amendment. I moved a similar amendment in Committee that related only to renewable energies, but this amendment better addresses the point that I sought to make. The point is well made in relation to wind energy, because we in this country have an objective to increase the amount of energy coming from renewable sources. Much wind energy will come from small-scale developments below the Bill’s threshold of 50 megawatts for a significant project. Those developments will therefore not be dealt with by the IPC, but they are critical to realising the national objectives of increasing the amount of energy from renewable sources.

There is a conceptual issue here. I perceive that this amendment will put national policy statements at the top of a hierarchy from which other policies cascade, particularly in relation to the development plan. I was involved as Lord Advocate in the change of planning regime in Scotland. In many respects this Bill is better than the one that we put forward in Scotland, but it perhaps falls down in one area; namely, the concept in Scotland of nationally significant projects, then major projects, and then local developments. There is a hierarchy of developments supported by a hierarchy of plans, with, at the apex of the planning system, a spatial policy, the national planning framework, within which are policies to support the development of renewable energy. In a sense, we have excised nationally significant projects and put them off to the Infrastructure Planning Commission with its own regime of national policy statements. We are asking the Government to ensure a consistency of approach from the top down to the bottom.

On the issue of wind energy, it is clear that there are many hold-ups in the system for introducing more renewables, such as connections to the National Grid. A good many of those hold-ups occur at the level of the local planning authority where it takes more time than is appropriate to obtain planning permission. There is a strong suspicion that part of the problem is that development plans do not recognise adequately the importance of renewable energy sources, particularly wind. In my submission, this is an important issue and we should ensure that there is consistency of approach.

My Lords, I support this amendment and indeed tabled a similar one in Committee. As other noble Lords have said, it provides a way of linking in legislative terms the big projects with all those that fall below it and generally come under the term of projects that people do not want in their back yards. They include not only the wind farms that so many noble Lords have talked about, but also rail freight terminals—I declare an interest as chairman of the Rail Freight Group—waste sites, hazardous waste disposal and ports. We have all come across examples of where people do not want developments in their back yards. I am not sure that you can have a mini nuclear reactor, but perhaps someone will come up with one of those.

The fact remains, as my noble and learned friend Lord Boyd has said so clearly, that we need a legislative link to ensure that policies at the top of big projects can cascade down and take precedence over the regional and local policies beneath them.

My Lords, I recall introducing some years ago a debate about the use of the splendid buildings at Greenwich. When we were looking through the estate agent’s particulars, we discovered that there is a mini nuclear reactor on the site.

Members on these Benches are not in the business of detracting from local autonomy, so I speak to this amendment in order to urge clarity in understanding what applies to what rather than seeking to use national policy statements to impose policy at the local level. If the Government want to do that, they should do so through planning policy statements.

I am grateful to the noble Lord, Lord Jenkin, for raising the issue. While I do not want to attribute this to other noble Lords, I am still quite confused about the hierarchy. When I raised a not completely unrelated issue last week on planning policy statements, the Minister said that they were “fundamentally different” as they are drawn up for different purposes, and distinguished the IPC where the NPS is the primary policy framework. I think that she could see my confusion—we were coming to the end of a fairly long day—and she said that she would write to me. I do not criticise the fact that I have not had a letter yet, as it has only been one or two working days, but we must finish our consideration of the Bill understanding exactly what the hierarchy is. If it is not a hierarchy but a series of completely separate pigeonholes, we need to understand that as well.

My Lords, I want to add my ha’penny-worth to this amendment. My noble friend raises an important point that requires clarification. It is a matter of observation and practice that a great many small issues in local areas run into quite severe difficulties when in general principle they are desirable, even if that does not necessarily mean that they are right. Like the noble Baroness, Lady Hamwee, I have difficulty with the idea that because something is in a national policy statement specifically designed to deal with really big national infrastructure projects, that principle will cascade through the existing guidance so that it has a relationship with regional spatial policies and so on. The linkage between national policy and regional spatial policy, which then cascades down to local planning authorities, is clear. I must admit that, until now, I have largely considered the Bill as very much outside of that field. However, my noble friend has raised a significant issue by asking how far this should apply.

With regard to the power generation sector, this country is likely to move quite seriously into what is known as dispersed generation and we will have a situation where many relatively small projects will produce a significant national effect. However, that will not happen if the projects are stopped at the local level. That is a real issue which needs to be considered because we all know how desirable and necessary these developments are. There are fiscal and other obstacles because at the moment many energy-friendly sources are, in relative cost terms, not particularly competitive. When we have a more effective carbon market, which I acknowledge is nothing to do with this Bill, some of those difficulties may be overcome and we will begin to see real incentives for people to push these proposals forward. At the moment, however, there are local difficulties.

My noble friend is right to put this proposal to the Government because we need to make the relationship absolutely clear. If this is not the right vehicle to deal with the problem, it needs to be thought about in another context.

My Lords, I shall try to address comprehensively Amendment No. 69A, moved by the noble Lord, Lord Jenkin. I shall set the scene for a moment by saying that the amendment would amend the Planning and Compulsory Purchase Act 2004 to ensure that the policy set out in a regional spatial strategy must have regard to national policy, including national policy statements, when development plans are prepared. It would require local planning authorities to have regard to national policy statements in addition to other national policy when preparing their development plans, and would require them to give primacy to policies in the latest national policy statements over existing policies within a development plan.

We understand the concerns and intentions behind the amendment. However, let me explain why we believe that they are unnecessary and, I hope, reassure him and other noble Lords. Under the 2004 Act, regional planning bodies and local planning authorities must have regard to all national policies and guidance when preparing development plans. National policy statements will, by being what they are, naturally fall into the category of national policies and guidance, so there is no need for them to be specifically referenced. Of course, any national policy, including national policy statements, will need to be taken into account in the development of the regional and local plans that follow them. Indeed, there is a statutory requirement, under Sections 5(3)(a) and 19(2)(a) of the Planning and Compulsory Purchase Act, for regional planning bodies and local planning authorities to have regard to national policies and guidance when preparing development plans. Once a national policy statement is established, it should be reflected as appropriate and relevant in development plans, including regional spatial strategies and local development frameworks. In cases where development plans have not yet been updated to take account of a particular national policy statement, any relevant new policy in the NPS should be taken into account by the local planning authority as a material consideration in decisions on development applications. Given that the Planning and Compulsory Purchase Act relates to the decision-making framework for the Town and Country Planning Act, we do not consider it appropriate to put an NPS on the same statutory footing as a development plan.

It would not be wise for NPSs to be given absolute primacy in local plans, which is what the amendment would achieve. The planning system is based on planning authorities having the flexibility to adapt national policies to local situations and local needs. While national policies clearly need to be reflected in local plans, we believe it is better to allow planning authorities to weave national policies, which would include national policy statements, into their local plans in their own way. For example, a local authority for an urban area might interpret a package of national policies, including national policy statements, which were not locationally specific differently from a planning authority for a rural area of outstanding natural beauty. In either case, they will have to have regard to the national policy statement but it will apply differently in their respective areas.

There are other safeguards. The Secretary of State has powers to make changes to a regional spatial strategy where a planning authority has ignored a relevant NPS in its preparation. With respect to the preparation of local development frameworks, documents are reviewed by an independent examiner who must be satisfied that they accord with national policy. Recommendations made by the examiner are binding. The Secretary of State also has the power to direct local authorities to make changes to documents and can, ultimately, call in the document and prepare it herself.

National policy statements are aimed primarily at providing a framework for the IPC to take decisions on major infrastructure projects. In addition, the planning White Paper indicated that national policy statements may also set out policies of relevance to local planning authorities taking decisions on smaller infrastructure applications, particularly with regard to renewable energy. The recent consultation on the national renewable energy strategy outlines the Government’s proposals for meeting the UK’s share of the EU-wide target for renewable energy. The consultation document on the strategy made clear our proposals for delivering renewable energy consents via the NPS and the town and country machinery, which I have just outlined. It makes clear the important role that planning plays and what we expect from good planning. Building on current policies, it sets out a number of ways in which improvements could be made to how renewable energy projects are planned and consented.

I should say to the noble Baroness, Lady Hamwee, that NPS preparation will take account of existing government policies, including PPSs where relevant. Once a national policy statement is completed the relevant PPS may need to be updated, as appropriate, to reflect the national policy statement. I hope that reassures the noble Lord and that he will withdraw the amendment.

My Lords, as always, I am extremely grateful to other noble Lords who joined in the debate and supported the thoughts behind these amendments. In the light of what has been said, the Minister should recognise that there is confusion and that this needs to be resolved so that there is greater clarity about the relationship between the proposed new national policy statements and all the other planning instruments at the different levels of local government that the planning system has to work to. I shall certainly study carefully what the noble Lord, Lord Patel of Bradford, has said. He spoke very quickly and, if one is getting on in years, it is not always easy to follow everything, but I shall read carefully what he said.

The noble and learned Lord, Lord Boyd of Duncansby, referred to the concept of the hierarchy and, as the noble Baroness, Lady Hamwee, said, there has to be a measure of local option. If you are going to make local government mean anything, it has to be in a position to make decisions. It is a question of what are the influences that will lead it to make a decision in a particular way. Where the IPC is dealing with infrastructure projects at the highest level, the same principles should apply at the local level. However, I am not entirely clear that the existing planning law provides for that. Throughout the Bill one has been very conscious of the influences of nimby. When I was Planning Minister at the Department of the Environment there was another one, NOTE—“not over there either”.

One has to recognise that there are often legitimate and powerful local pressures that will frustrate what most people would regard as being a national imperative. Somehow one has to deal with that. I always come back to the Hampshire experience of a plan for dealing with a major waste incinerator. There was total uproar and the plan was rejected. Waste incinerators generating power are useful instruments for both dealing with waste and generating power. Hampshire then set about a process of massive consultation within the county and, in the end, came up with a proposal which had sufficient support to get through. But behind it all there was, even then, a clear national policy that this ought to be encouraged and ought to happen. It was that which enabled it to drive the process forward and that is what I am asking for here.

I shall study what the Minister said and I hope that I will come to share his optimism that this will happen. Some of it will depend on government action independently of the Bill but following it, when the planning policy statements, the planning guidance and so on come to be revised. There will be an opportunity to make sure that the policies in the NPSs are properly reflected in the planning documents as they go down the line. It may take a little time but it is probably the right way. The amendment may not be the right way, in which case I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Clause 37 [Applications for orders granting development consent]:

moved Amendment No. 70:

moved Amendment No. 72:

moved Amendments Nos. 73 and 74:

moved Amendments Nos. 76 and 77:

moved Amendment No. 78:

moved Amendments Nos. 80 and 81:

moved Amendment No. 81A:

My Lords, I support one aspect in particular of Amendment No. 81D, which would extend the right of entry to carry out archaeological investigations. I have to get what I can for the heritage, where I can. What the amendment proposes is entirely consonant with PPG16, which, when it was originally introduced, made an enormous difference in giving archaeologists the opportunity to investigate sites where development was proposed. I think this would be useful, and I hope my noble friend will think likewise.

My Lords, I hope I can give both my noble friends sufficient assurance on the points raised by the amendments. Essentially the group of amendments tabled by my noble friend Lord Berkeley seeks to change the current provisions in respect of the rights of entry to land set out in Clause 52, particularly those in respect of the right of entry in connection with a proposed application for an order granting development consent.

The amendments would add a provision that land may be entered for the purpose of investigating, as well as surveying, the land in connection with an application. In relation to a proposed application, they would add a provision for rights to enter land in the vicinity of the land that is the subject of the application, if it could be adversely affected by the proposals. They would also provide that a person authorised to enter on land should, as well as surveying, be able to carry out ecological or archaeological investigations and give them the power to place on, leave on and remove from land apparatus for use in connection with the exercise of any of those powers.

I understand that the amendments are based on provisions that are common in orders made under the Transport and Works Act 1992. Most recently, for example, Article 21 of the Felixstowe Branch Line and Ipswich Yard Improvement Order 2008 contains provisions similar to those my noble friend proposes. However, I emphasise that there is a clear difference between what Clause 52 seeks to achieve and such TWA orders as the one I have mentioned, in that TWA orders grant consent for works to be carried out. As such, they are the end product of the application process, and will already have undergone detailed examination to decide exactly what works should be carried out and where.

Having framed my response to the amendment in those broad terms, I shall now address the specific points raised by my noble friend. Amendment No. 81A would add a provision that land may be entered for the purpose of investigating it. I reassure him that we believe the amendment is actually met: the word “surveying” is sufficiently broad that it encompasses the meaning of “investigation”.

Amendments Nos. 81B and 81C would apply in relation to a proposed application and add a provision for rights to enter land in the vicinity of the land that is the subject of the proposed application, if it could be adversely affected by the proposals. We think that that is too wide a power for such an early stage in the process—that is, before an application has been made. The precise detail of the works may change during the examination stage, and the final order may be different in important respects from what was envisaged at the pre-application stage.

I draw my noble friend’s attention to Clause 96, which makes clear that the examination procedure rules may provide for the examining authority, alone or with others, to enter on to land, including land owned or occupied otherwise than by the applicant, for the purpose of inspecting it as part of the examining authority’s examination of the application. Rules under Clause 96 can therefore provide for the IPC to enter land, including land neighbouring the land that is the subject of the application, to determine what the impacts of the works will be and how they should be mitigated. I hope that meets his second point.

Amendment No. 81D would provide that a person authorised to enter on land should be able to carry out ecological or archaeological investigations and place on, leave on and remove from land apparatus for use in connection with the powers in Clause 52(3). I have two points in relation to that. First, as I said earlier, “survey” should be understood broadly. I reassure my noble friends that it can certainly mean archaeological and ecological surveys. Secondly, I note that Clause 52(3) concerns the power to,

“search and bore for the purpose of ascertaining the nature of the subsoil or the presence of minerals or other matter in it”.

That “other matter” means any other subsurface matter, including any archaeological features.

Clause 118 and Schedule 5 provide that development consent orders can make provision relating to matters ancillary to development, which can include the sorts of provisions about which my noble friend is concerned—for example, carrying out surveys or taking soil samples; the removal, disposal or re-siting of apparatus; and mitigation of the adverse impact of development on property. Therefore, at the stage when consent is granted, full rights of access to relevant land can be authorised.

I believe that this fully meets the intentions in my noble friend’s amendment. The Bill brings together a number of different consent regimes, as he knows. In doing so, it is necessarily similar to each in some ways and different in others. However, the provisions are robust and thorough, and effectively address the needs of promoters. I hope he agrees with me on that, and that he will be able to withdraw his amendment.

My Lords, I am grateful to my noble friend for that detailed explanation. She gives me quite a lot of comfort, but I still worry. At an early stage when people are trying to develop a project and they know they have to do a full EIA that will be subject to the most detailed examination, not only by the people granting permission but by the opposition, they should be able to get on to adjacent land and do their measurements. I recall, when I was working on the Channel Tunnel and the terminal at Folkestone a long time ago, that there was the prospect of a major landslide in that area. There were landslides all the way along that coast, not on land that the company was trying to buy but on land above it. If it had not been able to get on to the land above it, take the necessary measurements and leave the equipment in there, it could have been severely criticised at a later date.

I will read with great interest what my noble friend has said and see whether I am satisfied that it gives as good a basis for going forward with an application as the Transport and Works Act might do. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 81B to 81D not moved.]

Clause 54 [Acceptance of applications]:

moved Amendments Nos. 82 and 83:

moved Amendment No. 85A:

My Lords, we have three amendments in this group. I support what underlies the amendment tabled by the noble Lord, Lord Berkeley—it also underlies my Amendment No. 88—although local authorities are going to have a pretty short time. It is right to ensure that interested parties have opportunities to comment but I would not want any constraints to result from the shortening of deadlines, which would make the process more difficult.

My Amendment No. 88 would provide that,

“written representations shall be published on receipt by the Examining Authority”.

The words “on receipt” may be a bit too restrictive, but I hope that this will prompt the Minister to tell us that regulations will have something to say about this. Currently—I keep saying “currently”, as if we are abolishing the whole of the current process, but of course we are not—in the non-IPC regime, objectors, supporters and applicants have a chance to see the other representations that are made, which makes the process open and inclusive. I believe that that should be replicated in the IPC process.

Amendments Nos. 96 and 97 take us to the interpretation section for this chapter. My noble friend Lord Greaves talked about county and district councils at the last stage of our proceedings at a different point in the Bill, although it was under this chapter. He raised a point about the punctuation. The Bill refers to,

“a county council, or district council,”.

My noble friend rightly questioned the significance of the commas. I notice that when Hansard reported the debate, it did not use commas, saying,

“a local authority means a county council or a district council in England”.—[Official Report, 16/10/08; col. 903.]

It may have known something that we did not. The Minister acknowledged that there might be some ambiguity and said that she was concerned to ensure that no unnecessary confusion was caused by the punctuation. It is confusing, but, more than that, for all the purposes of Chapter 4, local authorities should mean both county councils and district councils. Of course, if there is only a unitary, then it is that unitary that, in most cases, will be regarded as a district authority. Where there are two tiers, then both tiers should be involved.

My Lords, this group of amendments deals with the issues relating to the examination of applications. Amendment No. 85A in the name of my noble friend Lord Berkeley seeks assurances that there will be a sufficient gap between the deadline for the submission of the local authority’s local impact report and the end of the examination process to give the applicant and other interested parties a reasonable opportunity to comment on its contents. He has raised a serious question and I am glad that he has done so. Before I deal with the amendment, noble Lords might find it useful if I set out why the Bill provides for the commission to invite the relevant local authority or local authorities to produce a local impact report in the first place.

We are absolutely clear that local authorities—the democratically elected representatives of the local community—should have a clear and important role in the new process, particularly ensuring that national decision-makers, including the proposed Infrastructure Planning Commission, take proper account of relevant local and regional factors and considerations. The Bill provides local authorities with an important role, representing their communities in the new process and ensuring that the local community is adequately consulted.

Local authorities will be consulted by the promoter of a project before they submit an application under the provisions of Part 5. The IPC will have to have regard to any report on the adequacy of the promoter’s consultation—a very important point—received from a local authority consultee when deciding whether to accept an application. Local authorities will be interested parties to the examination of an application.

In addition, Clause 59 requires the IPC, on accepting an application for development consent, to invite the relevant local authority or local authorities to produce a report of the likely impact on their area of the proposed development being applied for. Clause 102 then requires that the commission must have regard to the local impact report when making its decision. Clause 103 requires the Secretary of State to do just the same in cases that she decides—for example, where she exercises the power of intervention.

In drawing up this notion of the local impact report, we saw it as a serious undertaking. We wanted to give local authorities the longest time possible, as these will be detailed documents. They will reflect the impact of the development on the local development plans. They will reflect the comments of the communities themselves, which is why the deadline is the same as that for the completion of the examination of the application by the commission.

I understand my noble friend’s concerns that the applicant and certain other interested parties must not be excluded from commenting on the content of the local impact report. They should at least have the opportunity to comment on the local authority’s provisional views. I accept that the provisions of Clause 59(6) may inadvertently suggest that the applicant may be kept in the dark about the views of the local authority, so I am happy to give my noble friend Lord Berkeley the assurance that I will consider this further, ahead of Third Reading.

Amendment No. 88, in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Greaves, would require the examining authority to publish all written representations. Noble Lords will know, because we have rehearsed this many times in our consideration of the Bill, that access to written representations is central to our aim of making the examination process more open to the public. The Government believe that many issues that need to be examined and decided by the IPC can, in principle, be settled through exchanges of written evidence, particularly technical issues.

Those exchanges will speed up the process, reducing the need for often lengthy and, frankly, repetitious oral evidence-giving. That will also improve the analysis of evidence, by allowing technical questions to be tested in greater depth, and make the process much more accessible to members of the public, as it would be easier to understand the issues without having to attend or, indeed, to be represented at an often lengthy public inquiry. We therefore expect that interested parties would be given reasonable opportunities to comment on written representations, including those made by local authorities. The Government are clear that the procedural rules made by the Lord Chancellor under Clause 96 will cover the disclosure of written representations and correspondence to interested parties. I hope that that will take care of the concerns of the noble Baroness.

I do not think it appropriate to specify those sorts of matters in the Bill, for obvious reasons. However, I can certainly assure the House that we intend that written representations should be made available to interested parties: that, after all, is the key to the process. I am not sure that we should necessarily publish all the material or circulate it to all parties. There could be a huge amount of material, which might come in different formats and so on.

My Lords, I used the word “published” quite deliberately. It is important that interested parties should define themselves, rather than be defined by another body. These days, with the use of the internet, publication is quite easy. Could the Minister consider that aspect? I acknowledge that it is probably a matter for procedural rules, but I would not like to let this go by as if I agreed with that part of her comment.

My Lords, I am not at all surprised that the noble Baroness rose to her feet at that point. There are practical difficulties and the procedural rules have to be as generous and sufficient as possible, but let me think how we might best address that issue. The IPC would certainly have to present whatever was available for public inspection, while anyone could submit an FOI request for representations, but there is clearly a matter of principle here and I will certainly be in touch with the noble Baroness about it.

I hope that I can clarify the meaning of “local authority”, but I am afraid that there is nothing in my long speaking note about the offending commas. Amendments Nos. 96 and 97 would clarify that the meaning of “local authority”, for the purposes of the Bill, includes both the county councils and district councils. I explored this and must defer to counsel’s drafting, but I am reassured that the intention is to provide that the meaning of “local authority” applies to both county councils and district councils. For example, where a county council and a district council are affected by the development, both will be invited to prepare a local impact report and both will be statutory consultees. I hope that putting that on the record is sufficient to reassure noble Lords that the point is properly addressed and that nobody will be in any doubt. I hope that it is sufficient, in short, for these amendments not to be pressed.

My Lords, I am grateful to my noble friend for her positive answer. I thank her for what she said and look forward to further discussion, perhaps before Third Reading. It is always tempting to say that everything must be consequential with a Cabinet Office 12-week consultation period at every stage, but one then begins to lose the whole point of this process, which is to speed things up a bit. I am grateful and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 66 [Panel member continuing though ceasing to be Commissioner]:

moved Amendment No. 86:

My Lords, I thank the Minister.

On Question, amendment agreed to.

Clause 80 [Single Commissioner continuing though ceasing to be Commissioner]:

moved Amendment No. 87:

moved Amendment No. 89:

My Lords, I enthusiastically support the amendments. The noble Viscount used some very important terminology, including “evidence”, “test” and “witness”. “Evidence” is not just more or bigger representation; it is qualitatively quite different and it is proper that it should be tested. Witnesses are not just more people making representations. They speak to the evidence. There is little more that I can add, but the brevity of my remarks is qualitatively different from their strength.

My Lords, I am very pleased to have the opportunity to address these issues, and I am sorry that the noble Viscount was discomforted by the groupings last week. It is excellent that we have been able to separate out and have a specific debate on the issues that he raised. He brings a huge range of experience in planning law to bear on the Bill, and, as the noble Baroness, Lady Hamwee, said, he raised some extremely important questions on process.

I was comforted by the great good sense that the noble Viscount demonstrated by not wanting to revert to the present system. We can get a better system, including one that tests evidence properly and more effectively, by not returning to the present system. I absolutely understand his need to have something on the record—which enables me to spell out some of the processes that we are intent on. Before I address the amendments, I should like to set out the context of how the hearings themselves will work, so that we can see that in relation to the two extremely important instances raised. I quite agree that acoustic engineering and the measurement of noise is a fine science and is not something that, with the best will in the world, can be solved by amateur guesswork. The same can be said of his other example.

Clause 92 provides that the examining authority must arrange an open-floor hearing if at least one interested party informs it within the deadline notified to the parties by the examining authority that it wishes to be heard. It also provides that each interested party is entitled, subject to the examining authority’s powers of control over the conduct of the hearing, to make oral representations at an open-floor hearing. The amendment would widen the purpose of these hearings by entitling all interested parties to call witnesses to give evidence. I hope to be able to assure the noble Viscount that the Bill, and particularly the procedural rules, will meet his concerns.

I shall first briefly describe the new process of examination, which allows for a series of opportunities for interested parties to provide both written and oral evidence. I want to reassure the noble Viscount and the chairman of the Bar, to whom I have spoken, that the Bill provides for the proper consideration and testing of all evidence presented. We have laid a great deal of emphasis on written representations. All interested parties will have the opportunity to submit evidence in written form. We would expect much of the evidence from applications to be given in written form as such evidence would reflect the technical nature of much of the development application. The two examples which the noble Viscount gave illustrate why it would be helpful for people who will be affected by an application to understand some of the considerations, measurements and methodologies that have gone into making these judgments. It will also speed up the process of considering an application. It will make the process more accessible to members of the public as it will make it easier to understand the issues without having to turn up physically at the public inquiry.

My Lords, will the Minister make a distinction between the procedural matters of allowing examination and the testing of evidence and dealing with vexatious people, which is in the Bill? She knows that I feel the weight of what is in the Bill and the lead that the commissioners will take from what is spelt out. There seems to me to be an imbalance in those two things.

My Lords, I am thinking aloud—I think that is allowed at the Dispatch Box now and again—but the vexatious reference is probably included in the Bill because it is normally provided in statute. However, how one conducts the detail of examination is left to the instruments, which allow us to spell it out in detail. However, if I can find a better explanation, I shall provide it to the noble Baroness in writing.

My Lords, the House, and probably the public at large, will be greatly enlightened by what the noble Baroness has said. It certainly deserves to be carefully read. I do not think that anything like this has been spelt out before. Consequently, this must have been worth while. The only thing on which I urge her to reflect is that it is much more likely that these sorts of things can be properly thrashed out at a specific issue hearing than at an open-floor meeting, because the subject matter is of a nature that would make it not an open-floor meeting but a cleared-floor one almost immediately. These are very technical and difficult subjects which bore most people to death. Therefore, it is much better to deal with them under Clause 90 than at an open-floor hearing. I shall read what she said. If, as I believe—she nodded—this is the first time this matter has been spelt out, it will be of much more general interest than just to me and those who have taken part in this debate. I thank her very much for giving us the advantage of her explanation. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 93 [Hearings: general provisions]:

[Amendments Nos. 90 and 91 not moved.]

moved Amendment No. 92:

moved Amendment No. 94:

moved Amendments Nos. 98 and 99:

My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion I suggest that Report begin again not before 8.29 pm.

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

rose to move to resolve, That this House deplores the way that the Social Security (Miscellaneous Amendments) (No. 4) Regulations 2008, laid before the House on 15 September, cut the backdating period for pension credit, housing benefit and council tax benefit in most cases from 12 months to three months, and were:    

(a) presented with inadequate evidence to support the policy; and

(b) laid during the Summer Recess to come into force on the day Parliament returned, thus not allowing Parliament to consider them before they came into effect; and

calls on Her Majesty’s Government to revoke the regulations because they are likely to increase the number of evictions, and cause particular hardship to older pensioners and those with mental health impairments (SI 2008/2424).

The noble Baroness said: My Lords, this Motion is couched in unusually fierce terms, but I believe that the criticisms of both the manner in which these regulations were laid and the policy they encapsulate are justified. I shall speak briefly about both the policy and the process. I am well aware of the time constraints of this dinner-hour debate, although I think I am right in saying that there is no formal time limit.

Among other things the regulations reduce the backdating rules for the payment of pension credit, housing benefit and council tax benefit from 12 months to three months, although the Government have now agreed for a short period to stage the reduction of the backdating period for working-age claimants to six months for housing and council tax benefits.

The Merits of Statutory Instruments Committee, of which I am proud to be a member, has issued its sternest warning—that the instrument may imperfectly achieve its policy objective. I shall come back to just what that policy objective is in a minute. The committee’s view was reinforced by the powerful report of the Social Security Advisory Committee, which recommended unequivocally that the change of policy should be abandoned, as it was in 2000.

The reason for the recommendation is clear. During its own very short consultation, in the shocking absence of a formal consultation by the department, the SSAC had an unprecedented number of responses from all over the country and from such well respected organisations as Citizens Advice, the Child Poverty Action Group, Crisis, Centrepoint, Age Concern, the RNIB and many others. They also included many local authorities from relatively affluent areas, such as that covered by Cambridge City Council, to the poorer areas covered by, for example, Bradford Metropolitan District Council, and scores of housing associations, which were all alarmed by the impact that the change would have on their clients. They all point to the weakness of the department’s evidence base for the change in policy, leading the SSAC to say:

“We have concluded that the department has offered neither adequate evidence to support its case for change nor a convincing proposal for mitigation of the potential negative impacts of the change”.

The Government even admit that their own data in this field are inadequate. To an inquiry by the Child Poverty Action Group to the housing benefit strategy division, the answer was:

“You asked about figures. Prior to April 2007, no information was collected from local authorities on the number of claims for backdating or the amount of backdated benefit paid out to HB/CTB claimants. Following the introduction of a new data source, this information will become available in the future, but at the moment, there is insufficient data to be able to estimate the number of claims or the amount spent on backdating”.

No wonder the department did not want to risk a formal consultation with stakeholders, which should be the driver of policy, as the Merits Committee made clear. Even the department recognises that there may be impact on some customer groups, but it thinks that publicising the change of policy and encouraging take-up will be good enough to mitigate the change. So why are the Government hell-bent on changing the backdating rules, against the advice of all the groups that are, as it were, at the sharp end? The Government say that the change is needed as part of a wider simplification package to make the administration of the benefits less complex and better target resources. That is welcome in itself, but it is not relevant to most of the people who need the benefits.

Many of the respondents to the SSAC consultation suggested better ways of simplifying benefits. The chief executive of Homeless Link in London made a very good point when she said:

“The recent controversy over a ‘tidying up’ of the 10p tax rate shows how proposals which seem to be a neat simplification and to affect relatively low numbers can, when they hit low income groups, have a wider and unanticipated impact”.

Another curious reason given by the department is that it wants to reduce the intrusion into a claimant’s financial affairs. That simply does not hold water. If claimants were unhappy about such an intrusion, why would they claim in the first place when they know that it is part of the process?

I shall now look briefly at why these particular benefits are backdated at all, when other benefits cannot be backdated. The rationale for the 12-month backdating of pension credit was that it was a new benefit that was only brought in five years ago and was not widely known about. The Government believe that this is no longer the case. However, there are still many pensioners, possibly as many as four out of 10, living in poverty who are not claiming pension credit, in spite of government efforts to reach people who may have an entitlement. That is something the Government themselves have admitted. They also admit that the change in backdating rules could affect older claimants more and those with mental health problems or physical disabilities. In passing, it is worth pointing out that the Households Below Average Income report, which was published by the department on 10 June this year, points to an increase in pensioner poverty in 2006-07, most of the older pensioners, not surprisingly, being women.

Citizens Advice says that it is often called in when pensioners are literally running out of savings for everyday living, and it says that the 12-month backdating can be a lifeline for such people. There are two other groups of pensioners whose circumstances mean they do not immediately engage with the benefits system when they could be eligible; those whose partner dies, with all the upheavals that brings, and those who suddenly find themselves looking after grandchildren, perhaps following a family break-up. In the last instance, unless the new backdating rules are abandoned, this will almost certainly lead to more child poverty.

I turn now to the perhaps more pressing effects of the change of policy on working-age claimants of housing benefit and council tax benefit. In 2006-07, citizens advice bureaux dealt with over 8,000 inquiries relating to housing benefit backdating and over 5,000 inquiries relating to council tax benefit backdating. Those benefits, by their very nature, are targeted on the most vulnerable, because of the requirement to show good cause before a claim is even considered; and ignorance of the system is not good cause. Many groups make the point that housing benefit is different from other means-tested benefits, because it is paid to meet a defined liability rather than day-to-day living expenses, and it therefore requires more flexible backdating provision. If the benefit is paid direct to the landlord in arrears, there is often a delay before the claimant knows that their benefit has ceased and that they have to take action to reclaim. Even if the client is found to be missing just the odd week or two of housing benefit several months before help is sought, that is enough to tip the client into arrears and possible eviction. Court proceedings for eviction are often the trigger for a client to seek advice. Is it really going to save the public purse if the most vulnerable are made homeless?

Those people have been easily identified as being those who, on the whole, lead chaotic lives and who may have mental health problems, learning or language difficulties, those who may be victims of domestic violence, those on remand in prison, those sectioned under mental health legislation and those who have been in hospital. Those made homeless through these tougher backdating rules will have to be rehoused, unless they are to end up on the streets; no wonder so many housing associations have expressed alarm. There is, of course, a special concern where children are involved, as they will be, with all the knock-on costs to education, health and children’s services that this will entail.

I shall now turn very briefly to the process by which these regulations came into force. They were tabled during the Summer Recess to come into force on the first day back, thus not allowing Parliament the chance to debate them before implementation. Yes, technically, it is within the rules, because praying time for negative instruments only starts when Parliament is in session, so in theory instruments can be voted down and the policy halted. But when the Government know that an instrument is particularly contentious, one cannot help feeling that they were trying to sneak it in under the radar. Tabling a controversial statutory instrument during a parliamentary recess to come into force on the day that Parliament returns makes a mockery of one of the main purposes of Parliament, and certainly of opposition parties, which is rigorous scrutiny of the Executive.

The Merits Committee report was extremely critical of the fact that the usual comprehensive impact assessment was not carried out so that we could all be convinced that the change in the backdating rules was a worthwhile exercise. In the end, the committee decided that none of the reasons that the Government seemed to be putting forward as the policy objective fitted in with one of the main aims of the Department for Work and Pensions, which is,

“working to end poverty in all forms”.

If there were ever a time to change the backdating rules for these vital benefits, now is not the moment. It will affect the most vulnerable in our society when unemployment is rising rapidly and debt problems are mounting. There is no evidence of joined-up government thinking about the impact that this change of policy will have more widely. We on these Benches urge the Government to think again about these regulations, even at this late stage, and to revoke them as soon as possible. I beg to move.

Moved to resolve, That this House deplores the way that the Social Security (Miscellaneous Amendments) (No. 4) Regulations 2008, laid before the House on 15 September, cut the backdating period for pension credit, housing benefit and council tax benefit in most cases from 12 months to three months, and were:

(a) presented with inadequate evidence to support the policy; and

(b) laid during the Summer Recess to come into force on the day Parliament returned, thus not allowing Parliament to consider them before they came into effect; and

calls on Her Majesty’s Government to revoke the regulations because they are likely to increase the number of evictions, and cause particular hardship to older pensioners and those with mental health impairments (SI 2008/2424). 28th Report from the Merits Committee.—(Baroness Thomas of Winchester.)

My Lords, in the briefing that I received from Shelter, these words came off the page for me:

“It is no exaggeration to say that these changes will inevitably cause homelessness in a number of cases”.

That certainly got my attention. I am extremely familiar with the problems of housing benefit administration, which can hold things up almost interminably. I am glad to say that the administration of housing benefit has improved a good deal in the past three or four years. Further simplification is a thoroughly good idea.

I was surprised, therefore, to learn that it is still possible that people might need to have their backdating go all the way back 12 months. I asked Shelter and Citizens Advice, which has also carried out good work, through Liz Phelps’s good offices. I received a couple of examples to show how the delays can lead to severe problems. I shall relate a successful story. Shelter stated:

“In late 2007 a housing aid centre case worker had a client in Hackney, a single man with significant mental health issues. He had a large gap in his HB (housing benefit) claim as a result of a failing on the part his support worker”—

you cannot always blame the support worker, as these matters are extremely complicated, but it was the support worker’s fault that the necessary forms had not been completed. The case study continued:

“The housing association landlord”—

I am afraid that housing associations evict people when they are in arrears; that is how it goes—

“had issued a notice to seek possession on the basis of rent arrears. As a result of Shelter’s intervention under the current backdating rules, HB was backdated for the full 12 month period and the landlord withdrew the eviction proceedings”.

I give small praise to the landlord for holding on as long as he did. In the end, that was justified, because he got his money.

In the second case, Shelter had been liaising with the Norfolk Offender Accommodation Forum, which has carried out work in this field looking at remand prisoners, who are entitled to housing benefit for initially up to 52 weeks. Shelter states:

“The chaotic organisation within the prison system may mean that claimants on remand are not able to complete a HB form until after the 3 month period. Resources are further strained in the prison system by the need for a new claim to be made even if the person was claiming HB before being sent to prison. This also has an impact on any partners involved who are also required to make a fresh claim due to a change in circumstances. Even when individuals are finally able to gain access to an advisor, they may be moved to another prison and end up back at the beginning of the process”.

One can see how arrears can accumulate: claimants are not receiving the benefit to which they are entitled because they have not filled in all the necessary forms. If one thing is guaranteed to get someone, after leaving prison, reoffending and back into prison, it is that they do not have a home to go to. They do not have accommodation and there is an impact on their family, if they have one. There are still, and still likely to be, cases where the full 12-month backdating is essential if homelessness is to be prevented in relation to housing benefit. I hope that the Government will look at this again.

My Lords, the noble Baroness has raised an important issue. I am saddened by the Government’s decision to reduce the time that people have to backdate their claims for pension credit, housing benefit and council tax benefit from 12 months to three months. I am particularly worried about the situation of pensioners in this respect. It is disturbing for two reasons.

First, the Government recently changed their policy on pensions to allow women to buy back more years than was previously the case, recognising that many women’s lives, with years spent caring for children or other relatives, meant that they did not have an opportunity to accumulate an adequate pension entitlement without that move. That was a sensitive and humanitarian decision affecting many people who would otherwise have had to manage for years on too little to have an acceptable standard of living.

Secondly, I am saddened because we are in a period when people on low incomes are among those most at risk of being hit by the economic slowdown. Many elderly people have been able to carry out urgent repairs or adaptations to their homes resulting from needs that have often been exacerbated by the fact that they have not received entitlements when they were due. Many have paid off debts with these backdated payments and we know the worry that debt leads to for most older people in this country.

The Government’s rather rigid position of insisting on savings being made elsewhere in the benefits system before consideration can be given to this would mean that other low-income people would need to lose benefits to help those who needed access to these funds. We know that many old people will not seek help until things are really bad and that, without backdating, they will face real hardship. As it is, the take-up rate of benefits among pensioners is abysmally low at a time of high inflation and rocketing prices of essentials such as gas and electricity. As we face a difficult winter, it is hard to understand why the Government cannot rethink, as the noble Baroness said, even at this late stage, a decision that will hurt some of the most vulnerable people among our population.