Letter from the Minister for Housing, Planning and Regeneration to the Chairman of the Committee
Thank you for your letter of 15 May to my predecessor Lord Falconer and your letter of 20 June to me. I apologise for the delay in responding to your letter of 15 May. Before I deal with the questions you posed in your first letter I'd like to address the point in your second letter about the timing of the Procedure Committee's response on whether or not it supported the principle of new parliamentary procedures.
I have now seen the Committee's interim report, and I appreciate that the possible introduction of new parliamentary procedures is a significant step that your Committee would wish to consider very carefully. We too have further considered this matter and I would very much welcome the opportunity to discuss with you our views. I will ask my office to make arrangements for an early meeting.
I will deal with the questions you posed in order. I should also like to clarify a few other points that came up when Charlie met the Committee.
NEW INQUIRY PROCEDURE RULES
I am sorry that Lord Falconer omitted to mention the new Rules to the Committee. I am sure that was a simple oversight. They apply to major infrastructure projects for which consent is sought under existing primary legislation and, specifically, to the projects listed in the schedule to the Rules. Were we to proceed with the new Parliamentary procedures, further Rules would need to be made to deal with those projects subject to the new procedure.
You are correct in thinking that there is a trade-off between the length of public inquiries and the need for Parliamentary procedures. The question is whether changed public inquiry procedures can deliver sufficient savings to obviate the need for Parliamentary involvement. At the moment, our conclusion is that they do not. We have not conducted any formal research into time savings although my officials have estimated that, under some scenarios, the T5 inquiry could have been reduced in length by up to 40 per cent if our package of proposals, including the proposed Parliamentary procedures, had been in place.
TIMING OF THE PARLIAMENTARY STAGE
You raised the question of how long Parliament would have in which to consider designated major infrastructure project proposals. Lord Falconer accepted that the process might take a Parliamentary Session. As you say, the process may not neatly fit into October to July in every case, but we envisage that if a Select Committee was set up it could carry over from one Session to the next.
HUMAN RIGHTS ACT
The human rights most likely to arise will be those under Article 6 (right to a fair hearing before an independent and impartial tribunal). Other Articles, including Article 8 (right to respect for home and private and family life) and Article 1 of Protocol 1 (right to peaceful enjoyment of possessions) may also arise, and will need to be taken into account as circumstances require. Our conclusions in respect of Article 6 have been that it will be necessary for Parliament to proceed in such a way as to safeguard those rights, on the basis that Parliament's decision cannot be reviewed by the Court. The Secretary of State will likewise need to safeguard Article 6 rights in the proceedings before him, but on the basis that his decision can be so reviewed.
As to environmental impact assessment, we intend the necessary Environmental Statement (after vetting) to be placed before Parliament at the commencement of the Parliamentary procedure. Parliament, as the decision maker in principle, will therefore have the necessary environmental information before it when it considers the project, as will the Secretary of State when he considers the detail.
EXTENT OF THE PROPOSALSIMPLICATIONS FOR WALES
The proposals outlined in the consultation paper do not relate to planning decisions for which the National Assembly for Wales is responsible. It is for the National Assembly to decide whether it wishes to introduce new procedures to handle such cases. They have been consulted and my understanding is that they do not wish to introduce such procedures.
A number of points arose in Charlie Falconer's appearance before the Committee which I should like to clarify:
RIGHT OF APPEAL
In relation to question 40, it might be helpful to the Committee if I set out the position regarding the right to make a planning appeal. An applicant for planning permission (who will not necessarily be the landowner), may appeal to the Secretary of State if the local planning authority refuses to grant planning permission, grants it subject to conditions, or fails to determine the application within a prescribed or agreed period. There is a further right of application to the High Court following the Secretary of State's decision on an appeal. If the Secretary of State calls in an application for his own determination, there is no right of appeal against his decision but the right of application to the High Court remains.
GOVERNMENT SUPPORT FOR PROPOSALS
I should also like to clarify the Government's position on individual proposals, which was raised in question 25. The project may have been initiated by an application made by a private body. If it is clearly a major infrastructure project, the Secretary of State may designate it as such. But that would not, of itself, indicate Government support.
The consultation paper gives an illustrative list of the types of projects that might form the basis of any statutory list and makes clear that the Secretary of State could designate Crown development projects (such as major defence projects) which are not currently subject to statutory procedures. Crown development is currently taken forward under the non statutory procedures set out in DOE Circular 18/84 (in England and Wales) Circular 21/84 in Scotland. The Parliamentary procedures would not be applied to Crown development in Scotland.
CHALLENGE TO PARLIAMENTARY DECISION
Lord Falconer promised to write to you about whether a decision in principle taken by Parliament could be challenged in the Courts. Our understanding is that Parliament cannot be challenged in the Courts on any decision it has reached in principle on a major infrastructure project under our proposals.
9 July 2002