TUESDAY 7 MAY 2002
Mr Nicholas Winterton, in the Chair
LORD FALCONER OF THOROTON QC, a Member of the House of Lords, Minister for Housing, Planning and Regeneration, DTLR, examined.
(Lord Falconer of Thoroton) Thank you very much. Can I also endorse what you said about our very helpful and constructive meeting last week in relation to discussing these issues. Can I thank you for inviting me to take part in the inquiry. As far as the proposals are concerned, we believe that there are a very few major infrastructure projects, no more than one a year, although maybe in the year two might be going at the same time, which are of national strategic importance. We believe that these should be dealt with separately from the more ordinary planning application and what the red document, which is part of the Planning Green Paper documents, proposed was that that sort of major infrastructure project be dealt with whereby the Secretary of State would determine whether or not it was one of the designated major infrastructure projects. It would then be considered by Parliament who could either approve or not approve the project. That would be done by order or motion passed in both Houses of Parliament. If Parliament approved the proposal there would then be an inquiry in the locality which would discuss how the major infrastructure project was to be done, not whether. Upon advice having been received from the planning inspector by the Secretary of State, he would then decide finally whether or not the proposal went ahead. What underlies the proposal is that there are these very few important projects where it is important that the national Parliament have a view in relation to them but also that a process be adopted which balances the rights of the people affected to be heard against the need for a conclusion to be reached in principle as to whether or not they should go ahead. In the red document we indicate that it is for Parliament to decide what procedure it should adopt in relation to considering the proposals before the order or motion is debated in each House of Parliament. We suggest, and it is only a suggestion because we do not think it is for us to decide, that something like the Regulatory Reform order process might be a suitable process, but some of the responses we have had indicate that might not be the best sort of proposal because it might not be long enough in certain cases and also the Regulatory Reform proposals are for uncontentious proposals whereas some of these proposals would be contentious. What we are keen to do is to engage in a debate with the relevant authorities to try and work out what is the best sort of process, one which allows for Parliament to come to a proper decision about it but also one which allows people affected to be heard. We think it has got to be a process where Parliament feels able to take the decision and it has also got to be one that people do not think takes too long because one that lasts for nine or ten years, which is the sort of Terminal 5 process, is not one that would have credibility. Equally it is one that has got to engage with the area affected.
(Lord Falconer of Thoroton) Because we think there are those very, very few projects where it is appropriate that the national Parliament should decide them. The national Parliament has been deciding these sorts of projects in quite recent times and the obvious one is the Channel Tunnel Rail Link which is a major national infrastructure project that was approved through the process of the Hybrid Bill procedure. That took place during the 1990s. It involved Parliament in both Houses voting ultimately on the Bill after a Committee procedure had been gone through. It was in effect Parliament deciding whether or not the Channel Tunnel Rail Link should go ahead. I think that shows (a) that Parliament is able to make those decisions and (b) that there are a very few of those sorts of cases where Parliament should make the decision. I do not think it breaks with the process that the Transport and Works Act proposed because even the Transport and Works Act involves Parliament voting on the principle of major infrastructure projects.
(Lord Falconer of Thoroton) Yes, I do, but on the basis that Parliament must have the resources to take such advice and call such evidence as it regards as necessary and appropriate properly to inform itself of the issues in relation to the particular project.
(Lord Falconer of Thoroton) This procedure is envisaged only to apply to England, it is not envisaged to apply to either Northern Ireland or Scotland. It is an English ----
(Lord Falconer of Thoroton) England and Wales, yes.
(Lord Falconer of Thoroton) Talking again about England and Wales it could be a power plant. One of the examples that I have given is Sizewell B which was a very major inquiry some years ago, it was in 1981, it took six years. That was a huge plant in East Anglia. I could envisage that would be one of the sorts of things that would be suitable for the major infrastructure project proposals.
(Lord Falconer of Thoroton) Planning is a devolved matter and therefore I think I would be wise to stay out of that.
(Lord Falconer of Thoroton) At the moment these proposals do not relate to Crown development at all, so this is only in respect of non-Crown development proposals.
(Lord Falconer of Thoroton) Could I check that. At the moment we should proceed on the basis that it only relates to non-Crown developments in the first instance.
(Lord Falconer of Thoroton) Yes. The current position is that those Crown projects are not caught by normal planning law. I think the way that one should proceed at the moment is on the basis that these proposals that we are making apply to applications that would otherwise be caught by the normal planning procedures.
Chairman: Thank you very much.
(Lord Falconer of Thoroton) Yes.
(Lord Falconer of Thoroton) Yes.
(Lord Falconer of Thoroton) Because it is Crown land or because it is nuclear?
David Hamilton: Because it is nuclear power and it is also a reserved matter.
(Lord Falconer of Thoroton) Indeed. Can I make it clear that the proposals here that we are talking about are only how it would affect the planning system in England. If there are separate issues like Crown development or special rules in relation to nuclear power these proposals would not bite because they are only dealing with the planning law issues. I want to, as it were, steer away from those controversial areas and say what we are talking about is proposals for major infrastructure projects in England and Wales which would otherwise get caught by normal planning law.
(Lord Falconer of Thoroton) If you look at the document it envisages the possibility, which is regarded as a remote possibility, that after Parliament had approved it in principle, as a result of the planning inquiry it became apparent there was some insuperable obstacle to the scheme going ahead. So suppose, unbeknownst to anybody, the land was not appropriate and that became apparent in the planning inquiry, it would be wrong that Parliament's decision in principle to go ahead should fly in the face of the detailed inquiry by the planning inspector.
(Lord Falconer of Thoroton) That would normally be the case. I cannot rule out completely other circumstances because one can envisage unexpected events occurring in the world, for example, which might make it inappropriate to go ahead with a particular proposal. I do not want to speculate but you can all imagine circumstances, for example, where a particular mode of travel suddenly became totally unacceptable to everybody. That is an extraordinarily unusual thing to think of but I do not want to completely box in future ministers as to what the position might be.
(Lord Falconer of Thoroton) First of all, the point about does Parliament have the expertise to do it. Remember, the people who actually gave the advice as planning inspectors in all of these major planning inquiries were, dare I mention it, lawyers. So Roy Vandermeer QC is the Terminal 5 inquirer, Sir Iain Glidewell, High Court Judge, is the Terminal 4 inquirer, Sir Frank Layfield is the Sizewell B inquirer. These are people sitting and listening to material and then forming a view as to whether or not on the basis of that material it should go ahead. It is not being decided by, as it were, a nuclear physicist or a road economist. You may not think this is a fair way of describing it but in those cases it was a reasonable man deciding on the basis of the material he heard.
(Lord Falconer of Thoroton) It is a matter for Parliament to decide what the appropriate procedure would be. I envisage a procedure which would be closer to a Select Committee type hearing than a Private Bills hearing. In Private Bills the promoter is represented by counsel, the objectors are represented by counsel, they call witnesses and cross-examine each other. I would envisage a procedure whereby the Committee decides what evidence it wants to hear, what advice it wants to get from experts, it uses its secretariat and/or experts to decide for it what the crucial issues are, and it basically develops whatever is the appropriate investigation it thinks will most assist it in reaching a conclusion by which it can assist the House.
(Lord Falconer of Thoroton) It would be again a matter for Parliament to decide whether or not that Member of Parliament, or the group of Members of Parliament affected, should be on the Committee. I suspect it might be they would conclude they should not be on the Committee. That Member of Parliament or Members of Parliament would plainly have the opportunity to give evidence before the Committee as the Committee thought appropriate, but if you take Terminal 5 the actual material opposing Terminal 5 came from a whole range of bodies, some of them very well supported both in terms of manpower and in terms of money. So I think you would find there would be a whole range of bodies in something like Terminal 5 where the Committee could draw on their expertise to get a view about it. I would not envisage specific additional resources for the individual MP or MPs in whose constituency the project was.
(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.
(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.
(Lord Falconer of Thoroton) That is right.
(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.
(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.
(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.
(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.
(Lord Falconer of Thoroton) Very much so.
(Lord Falconer of Thoroton) Are you talking about the whole process from beginning to end?
(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 anti - not every single one but all the major arguments - had 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.
(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 say - although I must say I was not concentrating very hard at the time - in 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.
(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.
(Lord Falconer of Thoroton) Yes.
(Lord Falconer of Thoroton) Yes.
(Lord Falconer of Thoroton) You mean in local planning?
(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 conflict - and if there was any conflict, then I would have thought one could not then sit on the committee - I 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.
(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.
(Lord Falconer of Thoroton) Yes.
(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 it - not 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 question.
(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.
(Lord Falconer of Thoroton) Yes, there is a right of appeal, that is absolutely right, but only against refutable, not against grant, so the only person who has a right of appeal is the landowner, not the person who has been granted the right to do the application.
(Lord Falconer of Thoroton) Not under our present system.
(Lord Falconer of Thoroton) Maybe in Scotland, but not in England.
(Lord Falconer of Thoroton) As to your first point, I understand entirely what you are saying, but what we say to that is that because we have a democratically based system we are saying that, as a matter of principle, it must be right that on those national issues where planning comes into play the national democratic body should decide, rather than simply the local one. That is the point of principle. On your second question about have we got advice on human rights and does it comply with the European requirement on the environmental impact assessment, yes, we do have advice on that. What I said to the Chairman when we met last week was that the Committee and the Department should share the advice that there is, so that there is a properly informed basis upon which these legal issues can be looked at, as it is very important that there should not be a question about the legality of all this. The advice is that it can be done in a legal way, but it does not involve any European structure coming in to overrule, or anything like that, what Parliament might decide. There would not be the ability to appeal to the European Court of Justice, as it were, in relation to any conclusion reached. Dare I say, not yet. That is not envisaged in our proposals.
(Lord Falconer of Thoroton) I do not think there could be, because broadly normally what Parliament does can only be challenged in certain very limited circumstances. I do not think there could be. Perhaps I could write to the Chairman, to ensure that we are on the same wavelength in relation to that.
(Lord Falconer of Thoroton) I have.
(Lord Falconer of Thoroton) Those comments are on the whole suite of documents, they are not just on this one. At the heart of his point is the point that the document did not adequately focus on the issue of what is a planning system for. I think he is right in that respect. We did refer in the introduction to what the planning system is for. The planning system is to promote sustainable development. I think he is right to say that in any legislation that we pass in relation to the planning system as a whole, we should make it absolutely clear what the overall purpose of planning is. I do not think that undermines the conclusions of the Planning Green Paper, but I think he is absolutely right to say that you have to have four-square on the face of the legislation what the overall purpose of planning is. I do not think any of the remarks that he made were specifically addressed to that, but he has said - taking up Iain's point - that you have to be very careful to make sure that you do comply with environmental impact requirements and human rights requirements when you fashion this particular procedure, and I am sure he is right about that.
(Lord Falconer of Thoroton) Exactly, yes.
(Lord Falconer of Thoroton) Yes.
(Lord Falconer of Thoroton) In principle, yes.
(Lord Falconer of Thoroton) Exactly, or some totally unforeseen event that I cannot even think of. Yes, that is right.
(Lord Falconer of Thoroton) I think there has to be a process whereby those who are affected by the principle have an opportunity to have their point of view put before Parliament, which is the procedure that Parliament adopts. Separately, their individual interests on the how have to be dealt with in the public inquiry that follows. That combination - namely, a right to be heard here and their individual interests to be heard when the detail is addressed in the public inquiry - should satisfy the law.
Chairman: I am grateful.
(Lord Falconer of Thoroton) I think these proposals only ever get to Parliament after a major promoter - Government or whoever - had thought that they were worth while. Ultimately the parliamentary process and the public inquiry that follows is, I think, adequate to examine the proposal. What Sir Iain is proposing, what you are picking up, is you are saying a commission, then the parliamentary process, then the public inquiry. I wonder if that just seems too much. I suspect it might do.
(Lord Falconer of Thoroton) Yes.
(Lord Falconer of Thoroton) Again, it will be for the parliamentary committee to decide how it hears the evidence. Parliament I believe to be entirely capable of making sure that interests affected have an opportunity to put their point of view. It is the principle that is being addressed then. The special interests can then be dealt with in the public inquiry.
(Lord Falconer of Thoroton) Yes, I said that, I did indeed.
(Lord Falconer of Thoroton) Yes.
(Lord Falconer of Thoroton) The private bill procedure, as I said in answer to the Chairman, basically involves the process whereby all the parties have the right to be represented by counsel; every witness who is called, by whoever party, is then cross-examined by counsel for all the other parties. That is going to be, I would have thought, a wholly inappropriate procedure for parliament to be deciding on the issue "In principle should this go ahead?" In private bills what is happening is that the absolute detail of the project is being dealt with, undertakings have to be given where the committee is worried about, for example, the precise size of the window frames in a particular place. A semi-court process of the private bill procedure is wholly appropriate for that, but I do not think it is appropriate for the sort of principled issue that we are talking about here.
(Lord Falconer of Thoroton) They do deal with principle, most certainly, but they also deal with detail. That is why the process is a much more -----
(Lord Falconer of Thoroton) Very much so, and it is entirely appropriate when you are dealing with the absolute detail of an individual's home, level of compensation, precisely where the particular project is going to go, that he or she should be represented by lawyers and it should become a semi-court case, but I do not envisage this process being a semi-court case.
(Lord Falconer of Thoroton) That is a planning inquiry now.
Mr Swayne: Absolutely, but would you envisage that sort of development as being one to which these procedures would apply?
(Lord Falconer of Thoroton) Dibden Bay is a very good example it seems to me. Assume - and I do not know whether it would or would not be a major national infrastructure project covered by this - the Committee over the period of a Parliamentary session would address the issue in principle having regard to the environmental impacts and the other broader impacts on road traffic, for example do we think there should be this major port development there? What you would not have to decide is what the precise level of traffic on the roads to Dibden Bay would be. What you would not have to decide is the precise number of flora and fauna that might be affected. You would have a range of what the possibilities would be and you would then make up your mind in the light of those issues. What is going on at Dibden Bay at the moment - and this is absolutely no criticism of the system - is that it is a planning inquiry that is expected to last well in excess of 12 months. The most detailed issues are being looked at on size, space, design, the precise number of flora, the precise number of fauna, the precise effect, traffic surveys have been done, and what is going on there is a very, very, very detailed court case in effect. That is not what one would envisage the Parliamentary procedure would involve. If one went down to Dibden Bay and saw what was going on there, one would see quite quickly the difference between a Parliamentary procedure and what is going on in Dibden Bay because one would see immediately that the principle could be addressed without reference necessarily to all of those details which have a great impact on how you implement but not the question of whether.
Mr Swayne: Perhaps we should take up that suggestion.
(Lord Falconer of Thoroton) I put it very diffidently.
Chairman: Subject to a very nice day it might take us away from Parliament! Could I come on to Iain Luke.
David Hamilton: Where is Dibden Bay?
(Lord Falconer of Thoroton) That is a very interesting point but what underlies it is the proposition of whether Mr Roy Vandermeer or Sir Iain Glidewell or Sir Frank Layfield, QC and High Court judge, are better able to judge the question of public support than Parliament would be. One of the critical issues Parliament would have to address - and it would not just be the Committee, it would be a vote in both Houses of Parliament before the matter could go ahead - would be the issue is there adequate public support to justify this proposal going ahead, which is essentially a political with a small "p" issue. What the inquiries are doing is they are looking at is whether on the basis of planning law and practice and on the basis of the evidence one hears should this go ahead? There is obviously a critical issue there but there is also the wider political with the small "p" issue that you have identified - is this something that looked at overall the public thinks should go ahead? I think Parliament, if you have a democratic system of planning, is the body that should decide that in these few major infrastructure projects we are talking about.
Chairman: Quite clearly the Minister is indicating that we should make more journeys from this place to take evidence on site. Lord Falconer, we are most grateful to you! John Burnett?
(Lord Falconer of Thoroton) Yes. You are absolutely right to emphasise that this cannot be a superficial inquiry nor would I envisage an inquiry that lasted over a period (it would not be sitting all the time obviously) between October and July as a superficial inquiry. Remember what happens at these planning inquiries. It is in the promoters' interests all the time to say -
(Lord Falconer of Thoroton) So you will know that if the "whether" is an issue the worse the surface transport, the worse the noise, the worse the design is, the more there is a factor in the balance against. So, equally, the better the surface transport, the less bad the noise is, the better the design - It is always in everybody's interests in all of these inquiries to pile up the minuses or pluses depending on what side you are because the "whether" is the issue. If instead of the whether being the issue it was the how, then you would find much of the detail moved from the first stage to the second. I do not underestimate for one moment the difficulty of distinguishing between the two but it can be done and it is not right to say you could not have a properly detailed inquiry in a Parliamentary session.
(Lord Falconer of Thoroton) Of course I would be prepared to consider it. These are very reputable individuals and bodies putting it forward. I just wonder is it not a bit too much to say you would have the Commission looking at it, and they would presumably have to go through some semi-judicial process, then you had Parliament looking at it which involved the committee stage and then the debate in both Houses of Parliament, and then a public inquiry. That feels to me to be too heavy a procedure. It feels to me that it would take too long and it could lead to too many possibly contradictory results. Of course we will consider the proposal but I wonder if there is added value in that.
(Lord Falconer of Thoroton) One session. This Committee wrote and said to me that on one view the Parliamentary scrutiny would last four days - on one view - which is not what we remotely envisage. I envisage a process whereby Parliament at the outset is presented with the application and a proper summary or the detail of all of the objections and it then decides for itself what the right process for letting people come forward is and then what the process should be for investigating the issues. In a sense the Parliamentary session starts at a point where the issues are joined in that you have got the application and you have got the objections. Parliament must then decide how it hears evidence, lets those views be put, and investigates them, and that whole process after receipt of objection and support would take about a Parliamentary session. It might be shorter because it might be a much more simple issue but I cannot envisage that it would be that much simpler.
(Lord Falconer of Thoroton) Exactly, that is right.
(Lord Falconer of Thoroton) I go back to the point about impartiality. If you have got a system based upon the democratically elected representatives, then you are always going to have the problem about impartiality because the democratically elected representatives also in part form the government, so if the government is supporting something, just like the local authorities supporting a particular scheme, that is a problem we have always got, but I think we should stick with the democratically based planning system so you are never going to get away from that particular problem.
(Lord Falconer of Thoroton) You could be the determiners of English planning applications. The other issue about the bottomless pit, a lot of local authorities have said to me in England (I do not know what it is like in Scotland) that they are frequently - threatened is the wrong word advised that if they do not allow a particular planning application they might end up with a planning inquiry that will cost them lots and lots of money. That problem does not arise if Parliament is considering it. There is an issue about the resources of the committee or committees that would be considering these and although it is not a matter for me it is plain that the scheme could only work if the committees that consider it are sufficiently resourced to, for example, instruct or call experts as they see fit in order to advise them on particular issues. So there will be a resourcing issue but I do not think it will be a resourcing issue which gives rise to a bottomless pit of funding. It must be the case, however, that committees considering these issues have enough resources to properly inform themselves.
Chairman: As a member of the Liaison Committee which would initially consider this matter, I can say they would clearly make very strong representations to the House of Commons' Commission which of course is responsible for providing the appropriate money for the activities of the House. I think we have heard what you say.
(Lord Falconer of Thoroton) Again, it would be a matter for Parliament. I would not envisage Members of Parliament in whose constituency or whose constituencies are affected by the particular proposals sitting on the Committee. I would envisage it being perfectly appropriate for that Member or those Members of Parliament to be as partisan as they wish to be in relation to pro or anti the proposals and to express their views to the Committee in relation to it if that is what they wished. Indeed, I would imagine it would be unlikely that the Committee would consider the thing without taking evidence from Members of Parliament affected by the proposals. There would be nothing improper about a Member of Parliament vigorously supporting or vigorously opposing it, whatever he deemed appropriate.
(Lord Falconer of Thoroton) I am saying that. I think David is going further. He is saying would it be improper - and I am saying no it would not - to have a strong view if you are the local constituency MP and, also, would the Parliamentary authorities make available to the Member of Parliament resources if there were an issue? I would have thought not but again it is a matter for Parliament.
Chairman: I am not sure exactly what the position would be but my immediate instinct would be to say to the Committee that there are no additional monies available for an individual Member of Parliament to undertake a particular job relating to his or her constituency.
David Hamilton: But the Member would be able to access any information from other sources?
(Lord Falconer of Thoroton) We had envisaged that the proposals would not be amendable nor had we envisaged that conditions would be attached because different Houses of Parliament could lead to approving different proposals and different conditions which could be contradictory, although it is quite hard to imagine how they could be, therefore we had thought neither amendable nor imposeable on conditions. The Joint Committee does not solve the problem of the debate on the floor of each House producing different conditions because ultimately the decision will have to be made by each House of Parliament not by the Committee. Does that lead to the risk of rejection being greater? Yes it does because it seems to me it would be open to the Committee or either House of Parliament to say we cannot be satisfied about this issue and therefore we reject it, which must be a possible conclusion that they would reach.
(Lord Falconer of Thoroton) Obviously I am not in a position to say when a Bill may be produced, that is a matter for the Government as a whole to decide and make an announcement about in the Queen's Speech, but we would wish a Bill covering planning issues to be brought forward as soon as it is possible to do so. If that Bill covered a major infrastructure project it would not set out what the Parliamentary procedure was save to the extent that it would say what the triggering event was. It would say the Secretary of State can designate a project as a MIPs project. It would then say what the effect of an order or motion being passed by both Houses of Parliament was. It would not say, "And this is the process that has got to be gone through by Parliament before any motion or order is passed", because we envisage that process would be a matter entirely for Parliament to determine itself.
(Lord Falconer of Thoroton) The views of this Committee are obviously incredibly important in relation to how we proceed. From the conversation we had last week and from the conversation we have had now, it is plainly unlikely that the Committee would be in a position by the summer recess to set out in detail what it would propose for a Parliamentary procedure, but we have indicated that we would wish to make a policy statement by the summer recess as to where we were going in relation to all of the planning issues referred to in the Planning Green Paper. It is entirely a matter for the Committee but it would be of some assistance if in very broad terms the Committee were in a position to indicate, even on an interim basis, what it thought the right next stages were. I do not necessarily want you to answer that now but could I put that on the table as our timing in terms of policy statement so that you can make your dispositions accordingly.
(Lord Falconer of Thoroton) I would envisage that we would come back to you if an announcement is imminent (which it will be before the summer recess) and say what we envisage saying for your comment. It is quite important that we act together in relation to it, not form the same view necessarily but keep each other informed about what we are doing.
(Lord Falconer of Thoroton) Thank you very much indeed.