Examination of Witness (Questions 20-39)
LORD FALCONER OF THOROTON QC
TUESDAY 7 MAY 2002
20. Can we move on to talk about this issue of where the boundaries lie in terms of mass of detail and the principle. You mentioned earlier in your introduction the difference between agreeing something in principle and agreeing the location. How would you see that working?
(Lord Falconer of Thoroton) In some cases I suspect that the proposal which would come before Parliament would be one where there is only one place this particular thing could go, in which case Parliament would have to address it on that basis. In other cases, I suspect the issue would be, should there be additional runway capacity at a particular airport, and it would then be for Parliament to decide whether in principle that should occur and then let the public inquiry which followed decide precisely where the runway could go. I think it would depend on a case by case basis, but I do not envisage Parliament getting into the nitty-gritty detail of how many lanes should there be on the sliproad, for example, because surface transport might become relevant in an airport terminal inquiry. I do not envisage Parliament, as it were, trying to form a view between conflicting views about precisely how deep the foundations need to be, which is what the Terminal 5 inquiry had to deal with. The issue for Parliament should be, in principle should there be a fifth terminal at Heathrow; in principle should there be another airport in this particular part of the United Kingdom.
21. There are examples where there is only one place for it or more or less only one place for itfor example, you could not have the Channel Tunnel in my constituency, or if you did it would be a very long tunnelbut where the principle really is about the location, how would you separate that out in terms of how far Parliament would go? I can see what you mean by the exact details of the specifics but how far would they go?
(Lord Falconer of Thoroton) If somebody was saying in that location, you could never build a new runway, or in that location you could never build the particular structure you want, I think Parliament would have to form a view about whether that assertion was right or wrong. If the argument being advanced was the impossibility of doing it, it would have to look at it. Equally, if a particular place was specified as the place for a new airport, arguments which might be advanced to Parliament would be, "No, you have got the wrong place for the airport, it should not be in that bit of County X, it should be in that bit of County Y", and even though the proposal is for the airport in County X Parliament would have to look at what the alternatives were if that was a material consideration in determining whether in principle it had to go in County X. I think the critical point is that in most cases it is possible to identify what the issue of principle is. It is possible to separate the detailed issues, and what that principle issue would be in the individual case will depend, but it is usually able to be isolated.
22. So Parliament would take the principle issue and the details would be for the local inquiry?
(Lord Falconer of Thoroton) That is right.
23. Could I go back to one of the matters Mr Burnett raised. He talked about the three stages but having read this document and other papers, I do not think your proposals as they stand make any mention of a role for Parliament, Lords and Commons, in the first stage of the new process, that of formulating general policy decisions by the Government. Do you not think that Parliament should be involved perhaps through committee consideration of a draft policy position?
(Lord Falconer of Thoroton) You are absolutely right in what you say. The paper does not envisage a particular parliamentary procedure for policy statements. The position currently is it is for the executive to produce policy statements, of course they can be debated in Parliament and Parliament can consider them through Select Committees, et cetera, but we are not envisaging changing that basic process in relation to the initial policy statement that might proceed the use of this application.
24. This is clarifying the matter in our minds: so what you are saying is, you are not going to allow for what I would describe as a draft policy statement or position which could then be considered through some form of Select or other Committee of the House?
(Lord Falconer of Thoroton) There might be a particular case where that was appropriate but, no, we are not envisaging that as being part of this process. We are envisaging the policy statement which would proceed a subsequent application under this procedure as being entirely separate, so there would be no special rules which would apply to that; it would be like any other policy statement that a Government made at a particular time, namely it would be for the Government of the day to decide how it was done, how it announced it to Parliament and what particular parliamentary process should be gone through. But assume no legislation was required, it would not normally be something which would require the approval of Parliament.
25. In your opening statement you indicated this new procedure could be used perhaps once a year, or there might be two such processes going on at the same time, how much advance notice might there be given to such a proposal? What criteria will the Government use in deciding whether to designate a project? Will a decision to designate actually indicate Government approval of the project?
(Lord Falconer of Thoroton) It will vary, obviously, from time to time as to how much notice will be given, but I would expect there would be significant notice before Parliament got it. I cannot envisage that it would suddenly come very quickly to Parliament without much warning unless there were special circumstances, because it is unlikely that a project of the sort of importance we have been talking about would not be one which had not been planned and discussed for some considerable time before.
26. It will not come out of the red, or I would say "out of the blue"?
(Lord Falconer of Thoroton) I would not have thought so. The examples we have given of Terminal 5, Terminal 4, Sizewell B, were all projects which were much discussed before the formal planning procedures were started. If it was designated a major infrastructure project by the Secretary of State, it is hard to imagine that would not indicate governmental support for the project. I cannot rule out it would not, it might be there was some project which had been so, as it were, hotly debated for so long that it might be appropriate for the Secretary of State to designate it a major infrastructure project in order to allow Parliament to have a debate about it and examine it in the way we envisage here, but I would have thought in most cases if the Secretary of State designated it a major infrastructure project within this procedure, that would indicate Government support.
27. I am a bit ambivalent about the whole suggestion because I have been involved in planning decisions for many years, and on the one hand the most contentious issue could be where to site a little playground, and on the other hand, at the other extreme, looking at the decisions about where to site an airport. What you are saying is that the role of this Committee is absolutely crucial to how we take the process forward because we could actually be helpful in deciding what would be the procedure within the House and how it is dealt with.
(Lord Falconer of Thoroton) Very much so.
28. We would take all of this on board and decide what was the best way to take it forward. I do not know that all the membersI do not mean here but in the Housewould agree with that because they might not want to be involved in making that kind of major decision. So I think we would have to know an awful lot more about the whole thing before we reached decisions. One of my major concerns is, how can the public be assured that the process is independent and unbiased? I think whatever decision is reached, it must be completely open and transparent so the public can be reassured that it is.
(Lord Falconer of Thoroton) Are you talking about the whole process from beginning to end?
29. No, the process of the second stage, how the House of Commons would deal with the proposal.
(Lord Falconer of Thoroton) I think that the public would be only reassured that the process was fair and unbiased if, first of all, the process by which Parliament examined the proposal before votes in each House made people believe that all the arguments, both pro and antinot every single one but all the major argumentshad been aired in front of the relevant Committee. Secondly, they would need to be sure that what the Committee said in response to that did represent an unbiased view of the arguments both ways. Thirdly, whether or not they viewed the whole process as being unbiased, would depend upon the standing of Parliament.
30. The next part of that is the whipping process. People already believe, even if there is a free vote, the Government whips and Opposition whips are about. I have always believed that planning should be an unwhipped decision, no matter whether it is before the smallest parish council or Parliament. How can we demonstrate to people that is the case?
(Lord Falconer of Thoroton) First of all, I strongly agree with you that any of these proposals should be unwhipped. That is how it happens in local authorities where the planning committees sit, even though there are party members on the planning committees, even though the individual members of the party may know a particular scheme has the support of the local authority, nevertheless they are unwhipped, and throughout large parts of the country people have faith that the planning committee does approach it in an unbiased way. I think that people could easily, and I am almost certain they would, come to the same conclusion in relation to the way Parliament addressed these issues. I never heard people sayalthough I must say I was not concentrating very hard at the timein relation to the Channel Tunnel Rail Link, "That has just gone through because the Government of the day supported it." I understand the position to be that the votes on the Channel Tunnel Rail Link showed a massive majority in favour of it made up of all sides of the House, but there were also people who voted against it and they were not only people who lived in the particular vicinity of the proposal. I think from the local authority experience and from the Channel Tunnel Rail Link experience, it is possible to convince people that Parliament would address these issues on an unbiased basis. It is incredibly important that they do.
31. I think that to be completely open and transparent the members of the Committee should have to declare any special interests in any area surrounding it, or any company involvement, et cetera, et cetera, if it was a Committee procedure with the members making the decisions. Do you agree?
(Lord Falconer of Thoroton) Again, I would have thought yes in principle, because I can think of nothing more undermining than if a conflict of interest emerged for a member of the Committee after the Committee had given a report.
32. And would it also apply to the decisions on the floor of the House?
(Lord Falconer of Thoroton) Yes.
33. Rosemary and I, from north of the border, share a common background although neither of us are lawyers because we have been involved in these sort of issues. Obviously the issue is making sure that members involved are not influenced and can take these decisions with balanced evidence in front of them.
(Lord Falconer of Thoroton) Yes.
34. At the end of the day, how would the executive act to stop excessive lobbying? That is obviously an issue which goes on all the time in those circumstances.
(Lord Falconer of Thoroton) You mean in local planning?
35. Local planning. I have never been involved at this level, but I take it that if there were huge projects under way and I was sitting as a member of a committee people would try to influence my views by lobbying.
(Lord Falconer of Thoroton) If it was made absolutely clear that the matter had to be addressed on the basis of the material put before the Committee. If it was made absolutely clear, as Rosemary suggested, that there would be absolutely rock-solid declarations of any conflictand if there was any conflict, then I would have thought one could not then sit on the committeeI think it is possible for it to be made clear that these matters are matters dealt with on an unbiased basis. As I said in answer to Rosemary's questions, I think in the vast majority of planning authorities people do have confidence that they are addressed on an unbiased basis. I know that there are places where people say the contrary in particular places, but one of the things that you can say about our planning system, if you compare it with quite a lot of other planning systems, is that it has a high reputation for propriety. I see no reason why the process that we are proposing could not equally have the same reputation for propriety.
36. Just so that there is no doubt, can I put this actual question. Should Members serving on a committee on a proposal be required to sign an undertaking that they have no personal or constituency interest in it, as is currently the case in fact on opposed bill committees? You implied just now and also earlier in an answer that you gave that if anyone did have such an interest, they would not serve on that committee.
(Lord Falconer of Thoroton) I see it as very difficult for somebody with such an interest to serve on that committee, because it is difficult to see how they would be able to convince people that they approach it in a totally unbiased way. I am reluctant to say what the level of commitment needs to be or the steps that need to be taken in order to ensure that there is not such a conflict of interest. I think I should leave that to the Committee to decide what the level is. I think it is very important that it should be clear there is no conflict of interest.
37. I spotted a minute or two ago rather an inconsistency in the argument you were making about stage two and stage one, because these issues will be hugely controversial, will they not?
(Lord Falconer of Thoroton) Yes.
38. If you get to the public inquiry stage and the issues have not been canvassed in great detail in phase one, the public are going to say, "Well Parliament's agreed it. It's a fait accompli. There's nothing we can do. We are hugely frustrated. We haven't really had a chance to be heard." That is why you said, I believe, that there should be significant evidence taken at the parliamentary stage, and I agree with you, but that slightly contradicts what you said earlier to us. I think you were rather optimistic earlier, because in reaching the decision in principle Parliament is going to have to do an enormous amount of work. It is crucial to get into considerable detail on material considerations such as noise, visual impact, employment and so on. As I say, these matters are very controversial. Would you like to go back a little onto the parliamentary stage and elaborate a little further on the extent of what you envisage Parliament going into? It will not be superficial matters. There will be considerable detail that Parliament has to go into.
(Lord Falconer of Thoroton) It will have to look into it with some degree of detail and depth, not going into all those details about how much wider the road should become to get the surface traffic. How long would I envisage the process taking? We have said we envisage this process taking a whole parliamentary session. This is not a week or two's inquiry; it would be spread out over a period of, say, October to July. It might well envisage taking evidence from experts in order to find out what the issues were. It would involve taking evidence from those who promoted the scheme and those who opposed itnot every single proponent and every single opponent, but a range of voices that the committee, in its judgement, felt reflected what the views were. I would envisage it being necessary for the committee to go down to the relevant site or sites to form a view on the basis of what it sees itself as the most suitable or otherwise of those sites, and it might well conclude that there should be a period of time when it actually takes evidence at or near the site. That would be a matter for the committee. It would be a process that would take some months. It is a process which would involve ultimately the committee, on the basis of that hearing, forming a view on the principle. I do not think for one moment that it is not a process that is not both manageable and one that would leave the parties involved feeling that a fair hearing had been given.
Chairman: Thank you, Minister. David Hamilton wants to take up the questioning.
39. Mr Chairman, I am trying to be helpful. One of things I am thinking of was Rosemary's comment about the children's playground and going forward. I can assure you, as someone who has sat on planning committees, they are the worst committees that any councillor has ever sat on, because it was so delicate and so passionate. It was one thing that was always passionate. I can remember things like playgrounds that took a year to go through planning processes. You are now talking about strategically some of the biggest projects that we might be involved in. Chairman, if you will allow me one point, I think it is very important to recognise that within local government there is a secondary remit. For example, if the council is involved in a direct line in everything that they do, then the planning remit is taken out of their hands and taken to an impartial party. It would normally be the Scottish Executive and before that it would be the Scottish Minister. Here we have a situation potentiallyand maybe it is a problem that if you do not have that, you have to consider, because it was one thing that puzzled me and when I was reading the Red Book it puzzled me then toothat here we are as a Parliament where we may be taking a strategy decision on a major issue which can affect the country as a whole. Terminal 5 was one. Eurotunnel was definitely one that could be regarded as very important, especially for the South of England, England as a whole and, indeed, Great Britain. As the party who actually initiates the moves to try to achieve the goal, we are at that point and must also be impartial in the decision that we might have to take if it came back. If we go down this proposal, we are the initiators, but we may also be the people who ultimately make the decision on the detail of what goes forward. Where does the impartiality come in? That is the bit that is missing at any planning application. No matter what planning application you want to look at, national boundaries down to local, it works itself up. I am sorry to take so long, but the only thing I was thinking about was would it then be the case that the European dimension comes into operation? Somewhere in this strategic role that we playbecause it would be a strategic rolehas the Government sought legal advice as to whether the proposal might contravene human rights legislation or European environmental legislation? What advice has it received, if it has?
(Lord Falconer of Thoroton) Stage one of your question is how can we be both the promoter of the scheme and also the judge that decides whether it goes ahead. That is the issue at the heart of our planning system, on which basically the courts have said that does not cause a legal problem, because in this country we have decided that planning should be done on a democratic basis rather than on a judicial basis, so instead of a judge deciding, it is the democratically elected bodies that decide. That is why it is possible for a local authority to promote a particular scheme, to have a majority in the local planning authority and then for that local planning authority committee to decide it should go ahead, because we have decided that it is a democratically based situation rather than one that is based upon the courts.