House of Commons Hansard Debates for 20 Feb 1992

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"That time" is the time at which the Bill comes into force. In other words, the subsection is a specific formula which allows any Secretary of State to amend any instrument made under an Act, perhaps a long time ago, which comes within the scope of the Bill. We are talking about retrospectively changing legislation, and not even by means of a new statutory instrument. I still object to the measure in principle. I am afraid that the words that the Secretary of State used are far from reassuring, although they may have been designed with that objective. Alas, I find the reverse.

Mr. Peter Bottomley : I have come late to this part of the Bill, but has the hon. Gentleman got it the right way round? Reading subsection (4)(a)(iii), it strikes me that the Secretary of State's power is to give effect to a provision contained in an Act of Parliament. It does not seem to relate to making an order which does not seek to fulfil the purposes of an Act of Parliament passed before this Bill gave the Secretary of State the order-making power. Or have I misunderstood?

Mr. Spearing : I will intervene in the hon. Gentleman's speech, if I may Madam Deputy Speaker. As I understand it, the provision gives the Secretary of State power to change legislation retrospectively when an Act comes within the scope of the Bill. Therefore, any legislation that sets up a railway, tramway, waterway, inland harbour, barrage or anything similar would surely come within the scope of subsection (4)(a)(iii). Therefore, once the Bill is enacted, the Minister will surely have strong retrospective powers. That is entrenched in the Bill.

Mr. Bottomley : My reading is that the Bill gives the Secretary of State power to give effect to a provision in an Act of Parliament. Subsection (4)(a)(iii) does not enable him to destroy a power created in a previous Act of Parliament. The Bill gives the Secretary of State the power to reinforce an Act and make it effective.

Mr. McLoughlin : The Bill allows an order to overcome provisions in a local act of local significance, as an order can overcome a private Bill. In Committee, hon. Members expressed anxiety that the original powers were far too wide and could overcome any legislation. Today we have sought to tighten and tidy up the powers in response to the points made in Committee.

Amendment agreed to.

Amendments made : No. 21, in page 2, line 31, after revocations', insert

of statutory provisions of local application'.

No. 22, in page 2, line 34, at end insert

and for the purposes of this subsection "statutory provision" means provision of an Act of Parliament or of an instrument made under an Act of Parliament.'-- [Mr. McLoughlin.]

Mr. McLoughlin : I beg to move amendment No. 23, in page 3, line 6, at end add--

(6) An order under section 1 or 3 above shall not extinguish any public right of way over land unless the Secretary of State is satisfied--

(a) that an alternative right of way has been or will be provided, or

(b) that the provision of an alternative right of way is not required.'.

Madam Deputy Speaker : With this it will be convenient to take amendment No. 6, in page 3, line 6, at end add

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(6) An order under section 1 or 3 above shall not extinguish any public right of way over land unless the Secretary of State is satisfied that a reasonably convenient alternative right of way exists or will be provided.'.

Mr. McLoughlin : The amendment fulfils another promise which I gave in Committee to consider whether further provision was necessary in the Bill to protect footpaths and bridleways which may be affected by works proposed in orders under clauses 1 or 3 of the Bill. As I told the Committee, I should prefer to base a provision about this on section 251 of the Town and Country Planning Act 1990 because that example allows the Secretary of State some discretion in deciding whether the circumstances of a case justify the provision of an alternative right of way. However, I understand that the Rights of Way Review Committee favours amendment No. 6, proposed by the hon. Member for Southport (Mr. Fearn). This is based on section 14 of the Highways Act 1980 and would mean that in any case where an order under clauses 1 or 3 included a provision for extinguishing a right of way it would be necessary to provide a reasonably convenient alternative route if one did not already exist.

While I have much sympathy with those who are concerned to protect our footpath network, I consider that the hon. Gentleman's amendment is a little too inflexible. It would clearly not be sensible to oblige an applicant for an order to incur the cost of providing a diversion if it would not be used. I gather that, because of this restriction, the definition of "reasonably convenient" has been stretched somewhat when new roads have been built. But the amendment is a bad way of proceeding. Our amendment is much clearer. We shall, of course, issue guidance to applicants about how rights of way issues will be assessed, and I shall be happy to consult the Rights of Way Review Committee about that in due course.

I hope that the hon. Member for Southport will not feel it necessary to press his amendments as I have given an assurance that I will meet the wishes of the Rights of Way Review Committee.

Mr. Snape : I shall be brief. I wish to ask the Minister whether the rights of way referred to in an amendment include rights of way over water as well as over land. I do not expect him to give me an instant reply, but if they do not, that would sit rather oddly with Government amendment No. 33, which specifies that rights of way over land include rights of navigation over water, and paragraph 10 of schedule 1, where rights of way over land are specified as including rights of navigation over water. I hope that those who, if not walk on the water, sail on it, are not to be treated worse than those who enjoy rights of way over land. I should be grateful if the Minister would clarify that point.

Mr. Fearn : In view of what the Minister said, I have no wish to press amendment No. 6. Earlier, I raised a point about the disabled which has still not been dealt with. It may come under this amendment. I should be grateful if the Minister could answer the point now.

Mr. Andrew F. Bennett : The hon. Member for Southport (Mr. Fearn) may not want to press amendment No. 6, but my name was added to it and I believe that it has some merits over Government amendment No. 23. The term "reasonably convenient" would be useful in the Bill. I am certainly conscious that the Rights of Way

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Review Committee includes the Ramblers Association and other bodies that are experts on footpath matters, at least nationally. However, such bodies tend to depend on volunteers. In some parts of the country, they do not have the coverage that they or I would like, so one finds that often footpath matters have to be taken up by someone who does not know all the details of the legislation.

If "reasonably convenient" is included in the Bill it will be a good hint or guide to anyone pursuing a case that he has a line of argument or attack when a closure or diversion is proposed by an organisation. There is a great deal of difference between providing an alternative and providing a "reasonably convenient" alternative. The Minister ought to make it easy for people who may be affected by legislation to appreciate the rights and arguments that they can use without needing to consult national bodies which are experts on such matters or seek legal advice from a lawyer.

The Minister should reconsider the matter to find out why the phrase "reasonably convenient" cannot be on the face of the Bill, because it is the sort of phrase that a lay person will understand. It is important that legislation is easy for people to understand if it diverts footpaths.

The Minister says that he cannot accept amendment No. 6 and insert those words in the Bill because it would mean that an alternative path would have to be made, even if no one used it. The Minister knows that, if no one uses a path, it is easy for it to be closed. A notice is served and no one objects to the closure if no one uses the path. Therefore, there is no difficulty. If people use a path, it is not satisfactory to put in an alternative. It is important that it is a reasonably convenient alternative.

I hope that, if the Minister does not accept amendment No. 6 now, he will consider whether the words can be inserted in the House of Lords--I know that he is keen for no amendments to be made there--so that people outside who have to work with this legislation and who are not experts will get a hint from the wording of the Bill. 8 pm

Mr. McLoughlin : To answer the hon. Member for West Bromwich, East (Mr. Snape)--as I was not able to do in an intervention--rights of way over water are in effect rights of navigation. Both are covered by the Bill.

The hon. Member for Southport (Mr. Fearn) asked earlier about the rights of disabled people, and he also asked me about their rights in relation to the provision of crossings which may be affected by closing the rights of way over railways. When we consider crossings, we bear in mind rights for disabled people. We try to accommodate them. They do not have many rights at level crossings of any description at present, because of the roughness of the ground and the rail tracks. However, I am sure that that will be improved as a result of earlier amendments, because it will obviously be taken into consideration, although it is a matter for the operator to decide. The hon. Member for Denton and Reddish (Mr. Bennett) asked me to consider his amendment more fully. Of course I shall consider it in the light of the representations that he has made. I am prepared to meet the Rights of Way Review Committee to discuss what it is proposing and to try to achieve some agreement. If we

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cannot get agreement, it may well be pursued in another place, but I hope that we can achieve a general agreement which will satisfy the people involved.

Mr. Andrew F. Bennett : If the Minister hopes to have a further meeting before the legislation moves to another place, can he tell us the timetable in another place? Is it true that the Bill has to be finished by 16 March?

Mr. McLoughlin : I shall deal with this place and worry about the timetable here. I hope that we can make progress tonight. On that understanding, I hope that the hon. Gentleman will not press his amendment.

Amendment agreed to.

Clause 9

Schemes of national significance

Mr. McLoughlin : I beg to move amendment No. 86, in page 5, line 8, at end insert

unless that provision gives effect to modifications of the proposal which have themselves been approved by a resolution of each House of Parliament passed on a motion moved by a Minister of the Crown'.

Madam Deputy Speaker : With this it will be convenient to discuss amendment No. 85, in page 5, line 8, at end insert--

(5A) Where the findings of any public inquiry held under section 11 of this Act are inconsistent with the proposals approved by a resolution in accordance with this section an order shall not be made unless a draft of it has been laid before, and approved by a resolution of each House of Parliament.'.

Mr. McLoughlin : Amendment No. 86 would enable the Secretary of State to invite Parliament to vote for a new resolution relating to a scheme of national significance in circumstances where he wanted to modify the order in such a way that it would conflict with the terms of the original resolution approved by Parliament. Although we would expect that to be a rare occurrence, we think that circumstances could arise when--probably following a public inquiry and in the light of the inspector's subsequent recommendations--the Secretary of State would want to make changes to the order which were not wholly consistent with the terms of the resolution.

As clause 9 is currently drafted, it would be impossible for the Secretary of State to make those changes, even if there was a broad agreement that they were desirable or necessary, without starting the whole authorisation process from the beginning. We think that that is too inflexible and could militate against good decision-making, because the Secretary of State might be tempted to turn down desirable modifications in the interests of making progress with the project.

The amendment would mean that the Secretary of State would be able--subject to Parliament's approval to a new resolution--to modify the order in a way which properly reflected the outcome of the inquiry and the inspector's recommendations. However, before going back to Parliament, the Secretary of State would have to proceed in accordance with the procedures in clause 13(3). That would involve notifying every person who would be affected by the modifications to the scheme and giving those persons an opportunity of making representations to him.

In certain circumstances--for example, where new statutory objectors insisted on a right to be heard--the

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public inquiry would have to be reopened to examine the proposed changes. It might also be necessary for the applicant to prepare a supplementary environmental statement. The Secretary of State would almost certainly want to publish the Inspector's report at the same time as he announced that he was minded to make changes to the order.

Assuming that the Secretary of State was satisfied, following the outcome of further consultations, that the amendments should be made, he would table a new resolution, which would be debated in each House. He would also arrange for all relevant supporting documents to be deposited in Parliament. The timing of the debates would be a matter for the business managers but would have to allow Members of this House and the other place sufficient time to have read the additional material, including the inspector's report, and to have received representations from the public.

I hope that the way in which we have moved forward meets some of the concerns expressed by members of the Committee, and that the hon. Member for Southport (Mr. Fearn) will not press amendment No. 85, on the basis that our amendment achieves what he wants but does not fetter the Secretary of State's discretion.

Mr. Fearn : I am afraid that I must still press my amendment No. 85, because I wish to release public inquiries from the straitjacket which seems to surround them, even with the amendment tabled by the Government. That straitjacket will be worn if clause 9 is unamended. Many organisations, such as the Council for the Protection of Rural England and the National Trust, are concerned that clause 9 has reversed the procedure recommended by the Government in their consultation paper. They believe that Parliament would have inadequate information on which to base its considerations. Since detailed objections will not have been heard, Parliament will be in no position to judge the reasons for public decisions or concerns. What is even more serious is that it is inevitable that, once Parliament has blessed a project in principle, the terms of reference of any public inquiry will be severely constrained. That will give rise to frustration on the part of objectors and to limitations on the scope and value of any public inquiry.

The danger is that public perception of the impartiality of public inquiries will be affected. Such inquiries command public confidence because inspectors are seen to be genuinely impartial and feel free to make recommendations which have radical or minor significance. The Secretary of State has recognised some of the difficulties by moving his amendment, but that does not go far enough. Under my amendment, if a public inquiry makes a recommendation which is inconsistent with the original recommendation passed by Parliament, the Secretary of State must bring the matter back before both Houses for approval, even if the draft order is consistent with the original resolution. In other words, Parliament will have the opportunity to debate and vote on the scheme again when in full possession of all the facts and evidence and has knowledge of public opinion. I listened intently to what the Minister said about his amendment, but it does not go far enough. My amendment will put the matter right.

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Mr. McLoughlin : I do not see what point the hon. Gentleman's amendment would serve. If Parliament has already agreed in principle, I see no point in Parliament agreeing to it again. Parliament should be consulted if there is a major change, but it should not be asked to confirm something to which it has already agreed.

Mr. Andrew F. Bennett : In certain circumstances, the situation could change. There could be a general election and a different Parliament might be involved. That would make it a different issue. [Interruption.] If the Whip, the hon. Member for Sheffield, Hallam (Mr. Patnick), wishes to intervene, I shall be happy to give way. If he wants us to stay here a long time, I shall also be happy to oblige. I point out to him that I moved an amendment very quickly, and I could move another series of amendments quickly. However, if the Whip wants to prolong the debate by making such interventions from a sedentary position, I shall oblige by continuing to talk.

Mr. McLoughlin : The hon. Gentleman has said that, if a general election takes place or if there is a change in the political circumstances, Parliament might want to review the matter. I take that point, but it would be open to the Secretary of State not to make the order.

Mr. Bennett : It would be left to the Secretary of State to decide to make the order, but I am sure that the Minister is well aware that issues such as this do not necessarily divide the House on party political lines. What divides hon. Members who are more interested in conservation from those who are not sometimes depends on whether they represent urban or rural constituencies.

If the public inquiry is to have the chance to air the issues, and if we are concerned about the democratic process, those on the inquiry will not only try to influence the inspectorate, but they should also try to influence the whole country. If strong arguments emerge at that inquiry, Parliament may want to take them into account.

The Minister has a dilemma with the Bill. All we can do is see how in practice it will work. I suspect that, sooner or later, Parliament will give approval to something as a result of initial consideration, and an inquiry will be held and various points will be starkly brought out. The Minister, believing that Parliament has already approved the matter, will want to give the go-ahead. However, if Parliament were tested, it might decide that as a result of the public inquiry, circumstances had changed.

Amendment agreed to.

Clause 11

Inquiries and hearings

Mr. Simon Hughes (Southwark and Bermondsey) : I beg to move, amendment No.113 in page 6, line 19, after heard', Insert subject to section 11(7) below.'.

Madam Deputy Speaker : With this is will be convenient to take the following amendments : No.114, in page 6, line 20, at end insert--

(2A) The Secretary of State may give a person who makes an objection in accordance with rules under section 10 assistance with legal and administrative costs incurred before, during and after an appearance before a person appointed by the Secretary of State.'. No. 115, in page 6, line 34, at end insert

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and (c) any community or environmental group which is representative of any local authority area in which works authorised by the proposed order are to be carried out ;'.

No. 116, in page 6, line 35, leave out paragraph (a)' and insert paragraphs (a) and (c)'.

No. 117, in page 6, line 38, at end insert

and for the purposes of paragraph (c) above, community and environmental group means conservation, archaelogical, art or environmental or similar group.'.

No. 118, in page 7, line 4, at end add--

(7) No person shall be appointed by the Secretary of State without approval being sought from the community and environmental groups under section 11(4)(c).'.

Mr. Hughes : Such is the bizarre nature of our business that I sprinted over to the House an hour ago thinking it was time to move my amendment. I have had time to watch two television programmes since then.

Mr. Snape : The hon. Gentleman should have been listening to the debate.

Mr. Hughes : I have been in and out of the Chamber.

The amendments have three interrelated aims. Amendment Nos. 113 and 115 attempt to widen the number of people who are consulted about an application. Amendment No. 114 seeks to give groups financial assistance when they appear before a public inquiry. Amendment No. 118 will give the local community some say in the selection of inspectors at a public inquiry. I hope that it is clear to the House that the theme which connects the amendments is a desire to give community groups a greater say in planning applications.

Traditionally, much of the private business that has gone through the House has been of relevance to London Members. One of the strongest arguments against changing the procedures governing that business and transferring much of it from the House is that we spend a great deal of time dealing with railway and underground legislation that has specific relevance to Members representing London. The King's Cross Railways Bill, for example, has occupied much of the House's time.

I have been here for nine years, and in most of that time, we have passed one or more private Bills that have affected Southwark and Bermondsey. It is often a difficult battle to try to get the legislation right and to force the promoters to accept a change. Therefore, in many senses the idea of replacing a parliamentary debate and Committee stage in two Houses with a public inquiry is a welcome one. However, the proposal has defects, and I hope that the Minister will be sympathetic to my amendments.

I listened to the earlier debate about the timetable to which the Government are working. I noted that the Minister was careful not to talk about the timetable in the other place. I understand that the Government are not keen to accept amendments in this place, but I hope that if the Minister considers that they contain good ideas, he will redraft them and re-present them as Government amendments tabled in another place.

8.15 pm

Amendment No. 115 would add to clause 11 as another category eligible to give evidence at a hearing

"any community or environmental group which is representative of any local authority area in which works authorised by the proposed order are to be carried out".

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The amendment is designed to ensure that such groups are included in any inquiry, but that those groups have links with the area in question. A traditional complaint about public inquiries is that too many interest groups try to muscle in. Often those groups may represent general environment and community interests, but have no specific area interest.

Under the Bill as it stands, the only people to be consulted are those directly affected by the compulsory acquisition of land under application and the local authority. I want to make it abundantly clear, by adding a third category, that area community groups should also be included.

I have sought to define what I mean by environmental and community groups in amendment No. 117, which lists them as any

"conservation, archaeological, art or environmental or similar group."

Such groups should exist within the relevant local authority area that is affected by a prescribed order.

Sometimes community groups feel that their local authority does not adequately represent their views--some feel that more strongly than others. The London Underground Bill is now in another place between its Committee and Report stages. When the Bill was in Committee in this House, the tenants association of the Canada estate of Rotherhithe petitioned the Committee and sought to persuade it that there was a risk to the well-being and structure of the estate if the line ran directly under it. The association managed to secure the agreement of the Committee that a survey should be carried out. The tenants association then put its case to the Committee in the other place--I was witness at both Committees. It did not succeed in persuading that Committee, and it felt that one of the reasons for that failure was that the local authority, Southwark, withdrew its original petition of support. As a consequence of that decision, the tenants association felt let down and felt that it could not rely on the authority.

It would be a bad state of affairs if the only way in which community groups could be represented was via a local authority that, for one reason or another, might not want to represent their interests.

The other simple purpose of the amendments is to ensure that those groups who represent certain interests are those that relate to the specific area affected. The Minister will be aware of the Thameslink proposal which will cross London north to south. That proposal will have severe implications in terms of demolition around the Borough market in Southwark by London Bridge station. Listed buildings, including the hop exchange in Southwark street, are also under threat.

The residents association in the Southwark cathedral area has been conscientious in looking after the interests of the area, as has the North Southwark community development group. Their concern about that Bill rightly prompted the suggestion that this Bill could be amended in this way. They speak for many groups around the country in relation to many Bills or public inquiries. I hope that their case will be heard.

Amendment No. 114 deals with financial assistance. As the Minister and his Department know, local groups often cannot hire professionals to pay for promotional expertise to present their case. Extremely high costs are often involved in public inquiries. People lose wages or salaries

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through taking time off work and community groups must pay for documents that provide evidence. The amendment seeks to build in an entitlement to financial assistance.

I recently asked the Minister's Department whether the families of those who died and those who survived the Marchioness tragedy could have legal assistance in giving evidence to the inquiry on river safety that the Government have announced. So far, the answer has been no. The families feel aggrieved about that.

The fact that people do not have financial assistance in planning inquiries is a common cause of complaint. It is a great unfairness because on one side there are public authorities, Government Departments, British Rail and London Underground ; on another there are private companies to which huge amounts of money are available, and sometimes rich individuals ; a third group is composed of individuals, often on low incomes, or community groups with no significant resources, representing areas where the residents have low incomes. It is about time we had a fair system, and this would be an appropriate time to achieve one.

On amendment No. 118, one of the problems of the public inquiry system is that no one other than the Secretary of State has a say about who the inspector should be. I do not wish to complain about any particular inspector. In my nine years as an MP, I have been to many public inquiries and I did so in my previous job. However, there should be some arrangement to ensure that, where possible, there is consultation on the inspector and that a list of possible inspectors is available, in the same way as we have lists of approved contractors for local authorities. In that way, inquiries could be made to ensure that the inspector meets the approval of the community as a whole.

All inspectors could then be approved and selected. Just as in industrial tribunals, where trade unions and employers each traditionally nominate a member and there is an independent member, so there should be some say in ensuring that the planning inspectorate is fair and representative.

Mr. Peter Bottomley : In tribunals, people cannot pick those who will hear their case. They may be part of an organisation that helps to nominate people, but they cannot have their unfair dismissal case heard if people are allocated.

Mr. Hughes : That is a perfectly valid point, but there is a difference. Represented groups at tribunals participate in the process, whereas there is no participation process in relation to Government- appointed inspectors, and no one else has a say. If we are in favour of open planning processes, giving the only right to appoint an inspector to the Government of the day cannot be the fairest way to proceed. The amendment seeks to suggest a fairer way. I should be grateful for a positive response from the Minister to that amendment, as to the others. I am ever hopeful, and I hope that, even if the Minister cannot give me all that I seek now, he will say that it can be achieved before the Bill is enacted.

Mr. McLoughlin : I am sorry to disappoint the hon. Member for Southwark and Bermondsey (Mr. Hughes). He will be holding his breath for a long time if he is waiting for a positive response to the points that he has raised today. I was a little surprised to hear the hon. Gentleman's admission that he had come to the Chamber an hour

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earlier and, on seeing that his amendments were nowhere near being reached, went to watch television rather than following the progress of the Bill. This is the first time that the hon. Gentleman has made an appearance at the Bill's Committee or Report stages. For those of us who have been following the Bill from the outset, it comes as a surprise that the hon. Gentleman expects a positive response. On amendment No. 114, the case for the public funding of objectors attending public inquiries has been presented many times in recent years. However, the Government remain of the view that those participating in public inquiries can reasonably be expected to meet their own costs. Although local objectors have every right to express their individual or collective views in defence of their interests, it would not be right to provide public funds for that purpose. Any funding scheme would involve a process of selection that could give rise to an accusation of bias and call into question the Secretary of State's impartiality in deciding the schemes. That could arise either from the Secretary of State's choosing to distribute funds among objectors or because he was seen to be favouring objectors over prospective developers.

Furthermore, to make an exception for the purpose of the Bill from the long -established policy against paying objectors' costs would be an undesirable precedent with potentially far-reaching implications. It would inevitably lead to similar claims being made by objectors at public inquiries into other work schemes, and the scale of the potential costs to the taxpayer is self-evident.

Mr. Cryer : Is not the Minister in a good position as regards clause 10? Happily, the Committee amended clause 10 to allow him to make a statutory instrument subject to anulment. Subsection (5) says :

"Rules under this section may make different provision for different cases".

That means that rules can be a useful guide and could be set as a statutory instrument. Therefore, the Secretary of State would not be seen to be being dragged into individual allocations. Assistance would be provided according to rules and he could then single out, under the rules, poverty-stricken tenants groups, for example, and exclude the fat cats from the corporations who wish to object. That would create a basis of fairness.

Mr. McLoughlin : I am not sure whether that is a commitment that Labour Members may want to make. I have expressed the Government's position --we do not see funds being made available for those cases. The hon. Gentleman may be right. As the Bill stands, the hon. Gentleman could increase public expenditure in that area and those cases if he so wished.

Mr. Snape : If the Minister is conceding defeat at this early stage in the election proceedings, that is a significant matter. Perhaps he should be back in his constituency knocking on a few doors in case the defeat washes him away.

Mr. McLoughlin : I am fairly confident that those schemes for objectors will not be funded for a considerable time, irrespective of the outcome of the general election, whenever it may happen. We serve no useful purpose by debating the outcome of an election. No one knows what will happen, but I am fairly confident that we shall remain on this side of the Chamber and the Opposition will remain on theirs.

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I should like to explain to the hon. Member for Southwark and Bermondsey the advantages of the Bill as opposed to the old system of private Bills. Groups will not have to prove locus standi, and the costs of appearing at a public inquiry are far lower than those of appearing in Parliament. The Bill will give many more opportunities to groups that wish to present a case to a public inquiry than the present private Bill procedure does. I am sure that the hon. Gentleman will accept that.

The other amendments seek to establish a statutory role for community groups. How can a community group represent a local authority area? That is a job for a local authority and Members of Parliament. I was surprised at the hon. Gentleman's somewhat dismissive attitude towards what the Southwark authority had done, bearing in mind that the Liberal Democrats usually stand so firm behind the rights of local councillors, and state that they are the best people to make decisions, come what may. He does not seem to want to follow that policy through.

8.30 pm

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