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Mr. Andrew Lansley (South Cambridgeshire): I am a bit confused. Does new subsection (5) refer to the notice issued by the agency under new subsection (3), the notice issued by the applicant on appeal to the Secretary of State under new subsection (4), or both? Mr. Morley: I will return to that point in a moment because it would be worth first considering amendment No. 33, which would add a 28-day time limit for the agency to proceed with the application. That is parasitic on amendment No. 32, which would remove the Secretary of State's power to prescribe appeal procedures and time limits on the regulations. The hon. Gentleman asked to whom that applies, and it is the Secretary of State who can prescribe appeal procedures and time limits for the regulations. As the hon. Member for Leominster said, the amendment would impose a time limit of 28 days. That limit would be restrictive, because it might produce a mismatch in timing between when an applicant appealed to the Secretary of State and when the agency could proceed with the licence. That might be inappropriate to the time scales of the appeal, the conditions that the Secretary of State would set, and the time at which the agency could proceed with the licence. I hope that that clarifies the point. The hon. Member for South Cambridgeshire (Mr. Lansley) raised a specific point about new subsection (5) on the applicant's notice of appeal. I hope that those explanations are satisfactory. Mr. Wiggin: It would be helpful for the Secretary of State if the applicant had to serve notice within 28 days. I believe that, during the recent storms, the power companies had to be notified of all compensation claims within a month. Mr. Lansley: On that vexed question, the one-month limit was particularly unhelpful in the storms last October, as many of my constituents found. Happily, we have managed to secure compensation for many of them anyway. Does my hon. Friend agree that if an applicant has a right of appeal, it should be exercised relatively quickly rather than being allowed to stretch into the distance? I would not be surprised if the Secretary of State were to choose 28 days when he comes to prescribe the matters. Mr. Wiggin: I am extremely grateful for my hon. Friend's intervention. I have constituents with the same problem and I am more than happy to accept that 28 days may not be the most appropriate period. Mr. Morley: In all circumstances? Column Number: 093 Mr. Wiggin: It is perfectly reasonable for the Secretary of State to specify a period. The purpose of the amendment is to obtain clarity about that period. I hope that the Minister will assure us that the point will be taken seriously. Mr. Morley: I may be able to provide some helpful reassurance to the hon. Gentleman. The period is not set in stone in the Bill, for the reasons that he gave. There may well be circumstances in which 28 days is not appropriate, but I can assure him that it is proposed that the appropriate period set by the Secretary of State will be 28 days. Mr. Wiggin: I am extremely grateful for that reply. I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Norman Baker: I beg to move amendment No. 192, in
The Chairman: With this it will be convenient to discuss amendment No. 200, in
Norman Baker: The amendments relate to the wording in clause 15 that is repeated in clause 23. I raise this matter as one of natural justice. Under the system set out, applicants have the initial choice as to the type of abstraction licence for which they apply. However, the agency may require an applicant to apply for a different type of licence, or for some types together. The applicant has a right of appeal to the Secretary of State against the agency's decision. That is the basis on which the clause is established—so far, so good. The Secretary of State is the impartial person who decides between the two parties and, under new paragraph (a) at the top of page 17, he or she
Again, there is no problem with that sensible arrangement. It is the next part of the sentence that worries me:
That rather wide power seems to be given to the Secretary of State for no good reason, unless the Minister can justify that. I shall illustrate what I am concerned about. Let us say that someone has a dispute with their landlord over the common right of passage and they appeal to an independent body. That body says, ''We're not really interested in your right of passage. We're going to make a ruling about who is responsible for the roof'', although that is not the subject of the appeal at all. I wonder why the Secretary of State needs that decision-making power. It seems fundamentally unjust that the Secretary of State can rule on something that no one has raised, and that there is no right of appeal against that and no opportunity for any representations to be made by the agency or, indeed, the applicant. That seems to go against the rules of fundamental natural justice, so I should like some explanation from the Minister as to why the power is in the Bill. He keeps going on about all these safeguards and the belt-and-braces powers that the Column Number: 094 Secretary of State has, but he will accept, in terms of justice, that each one must be considered and justified in its own right. If it has not been justified in its own right, it should not be in the Bill. Simply giving the Secretary of State carte blanche powers on every aspect of the Bill is not the way to approach it.Mr. Morley: Straight away I can assure the hon. Gentleman that there is no question that any part of a licence could be changed on appeal unless the applicant had had a full opportunity to make representations. That will not be arbitrary. There will be no variation, and bits will not just be dismissed without people being allowed to have their say on that. In addition, the Secretary of State is subject to judicial review in the normal process of any decision making, even on an appeal process such as this. The amendments would change the applicant's appeal process, which is provided for in the Bill, and would remove the provision that the Secretary of State may allow or dismiss the appeal, or vary any part of the agency's decision, whether or not the appeal relates to that part of the decision. I understand the hon. Gentleman's argument that checks and balances are needed on both sides. There needs to be an appropriate balance between the power of the Secretary of State, the rights of the applicant and the powers of the agency, but the amendments would throw that balance out. As the hon. Gentleman says, the amendments would narrow the Secretary of State's powers in relation to decisions on appeal. That would limit the Secretary of State's ability effectively to direct the appeals procedure. It would also mean in practice that every appeal would relate to every aspect of every decision. That is bureaucratic and unnecessary, and it would mean—this is important in regard to the checks and balances affecting various interest groups—that abstractors could, if they wanted, rely on technicalities, to the disadvantage of proper water management. They would effectively decide what could be changed.
9.30 amSuch a state of affairs cannot be right, because it upsets the balance of the appeals process and the powers and duties of the Secretary of State and the Environment Agency. Although I understand what the hon. Gentleman says on the matter, the balance of responsibility and accountability is right. Narrowing the powers of the Secretary of State would make the appeals process more difficult and shift the balance unfairly towards the applicant. Norman Baker: I am happy to admit when I have been convinced by an argument, but I am sorry to say that on this occasion I have not been convinced. First, the Minister says that there will be a full opportunity for representations to be made in the event that the Secretary of State decides to vary something that is not part of the appeal. I see nothing in the clause that allows the applicant any say in such a matter. The applicant will have responded to the agency's notice, commented on it and appealed in the appropriate terms; the notice, therefore, is the thing on which the applicant will have had an opportunity to comment. Column Number: 095 There will have been no opportunity to comment on any matter outside that, although the Secretary of State is to be permitted to use his powers on such a matter, by the phrase
How can the applicant be said to have a right to comment on something that is not part of the decision? It is not logical. To start the roundabout again: if the Minister is saying that the Secretary of State, who wants to comment on or make a decision about something that was not dealt with in the appeal, can invite both the agency and the applicant to make comments on the matter, that is different—I could support that—but that is not set out in the clause. Secondly, the Minister has alluded to judicial review. Of course, that is a backstop that is always available, but it is not a justification for allowing sloppy legislation to be passed. The passing of the Bill without comment from us would be a material fact when a court came to decide whether to uphold a request for judicial review, so that argument is not a legitimate one. Thirdly, I understood the Minister to be arguing that abstractors would be able to rely on technicalities, and that therefore it would be up to the Secretary of State to correct the ineffective notice served by the Environment Agency. If the Environment Agency serves notice correctly, there should be no technicalities for the abstractors to rely on. It is incumbent on the Environment Agency to get the notice right, and it is not for the Secretary of State to act as some sort of back-up sweeper to correct its errors.
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