Clause
7
Consultation
and
publicity
Robert
Neill:
I beg to move amendment No. 186, in
clause 7, page 4, line 9, at
end insert—
‘(1A) The
Secretary of State shall provide for early public participation, when
all options are open and effective public participation can take place,
within a transparent and fair
framework.’.
The
Chairman:
With this it will be convenient to discuss the
following: Amendment No. 90, in
clause 7, page 4, line 10, leave
out first
‘such’.
Amendment
No. 91, in
clause 7, page 4, line 10, leave
out second
‘such’.
Amendment
No. 92, in
clause 7, page 4, line 11, leave
out—
‘as the
Secretary of State thinks
appropriate’.
Amendment
No. 93, in
clause 7, page 4, line 13, leave
out ‘subsections (4) and (5)’ and insert
‘subsection
(4)’.
Amendment
No. 187, in
clause 7, page 4, line 13, leave out
‘subsections (4) and (5)’ and insert—
‘the rest of this
section’.
Amendment
No. 244, in
clause 7, page 4, line 13, leave out
‘and (5)’ and insert ‘(4A), (4B) and
(5)’.
Amendment
No. 188, in
clause 7, page 4, line 13, at
end insert—
‘(2A) The
consultation period shall not be less than 12
weeks.
(2B) The publicity
arrangements shall include advertisement in one or more national
newspapers and the Gazette, placing the proposal and relevant
supporting material on the Secretary of State’s website and
giving notice to
Parliament.’.
Amendment
No. 94, in
clause 7, page 4, line 14, at
end insert—
‘(za) options
seriously entertained by the Secretary of State as contributing to a
draft or amended statement for the purposes of this
Act.’.
Amendment
No. 189, in
clause 7, page 4, line 19, at
end insert—
‘(4A) If the national policy statement
relates, in whole or part, to England the Secretary of State shall
consult Natural England, the Historic Buildings and Monuments
Commission for England, the Environment Agency and the Local Government
Association.
(4B)
If the national policy statement relates, in whole or part, to
Scotland, the Secretary of State shall consult the Scottish Executive,
the Scottish Environment Protection Agency, Scottish Natural Heritage
and the Convention of Scottish Local
Authorities.
(4C) If the
national policy statement relates, in whole or part, to Wales, the
Secretary of State shall consult the Welsh Assembly Government, the
Environment Agency, the Countryside Council for Wales and the Welsh
Local Government
Association.’.
Amendment
No. 245, in
clause 7, page 4, line 19, at
end insert—
‘(4A) The public
shall have a minimum of 13 weeks from the publication of notice of the
Secretary of State’s intentions to make representations upon the
proposal.
(4B) The draft of the
proposal shall be accompanied by an Environmental Report under the
Environmental Assessment of Plans and Programmes directive and, if
necessary, a draft Appropriate Assessment under the Habitats
Directive.’
Amendment
No. 95, in
clause 7, page 4, line 20, leave
out subsection
(5).
Amendment No. 55,
in
clause 7, page 4, line 23, at
end insert—
‘which must include
publicising the consultation in formats accessible to people with
disabilities.’.
Amendment
No. 190, in
clause 7, page 4, line 23, at
end insert—
‘(5A) The
publicity to be taken under subsection (5) shall include advertisement
in a newspaper circulating in the locality, the display of one or more
site notices at the location and placing copies of the proposal and
relevant supporting material for inspection by the public at one or
more places in or convenient to the
location.’.
Amendment
No. 191, in
clause 7, page 4, line 23, at
end insert—
‘(5B) If
subsection (5) applies, any authority required to be consulted under
section 8 shall also be consulted on the
proposal.
(5C) If subsection
(5) applies, the Secretary of State shall consult any parish or town
council (if in England) or any community council (if in Wales) whose
area includes the location or is within 10 miles of the
location.’.
Amendment
No. 246, in
clause 7, page 4, line 25, at
end add ‘with or without
modifications’.
Amendment
No. 160, in
clause 7, page 4, line 25, at
end add—
‘(7) Where a
national policy statement refers to a geographically specific part of
the country, the Secretary of State must, in arranging publicity under
subsection (2), arrange for publicity to be made available in at least
two local newspapers in the relevant area, where
published.’.
Amendment
No. 247, in
clause 7, page 4, line 25, at
end add—
‘(7) The Secretary
of State shall give reasons for designating a statement as a national
policy statement, including his reasons for not following any
representations
made.’.
Clause
stand
part.
The
Chairman:
I call Jacqui Lait—sorry, Robert
Neill.
Robert
Neill:
We thought that we would use our substitution,
Mr. Illsley. What I can promise is that I will try not to
use the absence of my hon. Friend the Member for Beckenham to get in a
football joke while she is gone.
I want to assure you,
Mr. Illsley, that although the number of amendments is
almost as great as the number of goals that West Ham would normally
expect to score in the course of a season—self-deprecation is,
of course, very important—those amendments largely hang together
and the concepts behind them are fairly straightforward, so I will not
need to be terribly long.
This group of
amendments is about strengthening the consultation and publicity
elements of the Bill. It follows on in large measure from some of the
evidence that we heard from a range of witnesses during the oral
evidence sessions. I hope that the Minister will accept that the
amendments are designed to strengthen and improve the Bill; they are
not designed to be
obstructive.
Coming
back to our starting point in relation to the national policy
statements, the underlying rationale of the amendments is that, because
of the importance of the statements and their potential impact not only
on the general public good but on individual communities and
individuals, it is crucial that certain minimum standards of publicity
and consultation should be set out in the Bill. In our view, not only
is that morally right but it is politically right. For reasons that we
gave in earlier debates, that would make it more likely that they will
command public acceptance and legitimacy. It is also practically right,
because it would make it less likely that there will be the types of
legal challenge that cause delay. Frankly, it would also strengthen the
position of the Government and the commission if they were faced with
such legal challenges.
It would be in
everybody’s interests, frankly, to strengthen the Bill. Although
the current clause makes some provision for such publicity and
consultation through regulation, it is better to strengthen what is set
out on the face of the Bill. It still leaves flexibility, but we want
to strengthen
it.
3
pm
Amendment
No. 186 deals with a point that I raised with some
witnesses and which other witnesses volunteered during evidence, namely
the Aarhus convention on access to information, public participation in
decision making and access to justice in environmental matters. The
Government accept this as a benchmark that should be achieved as a
matter of good practice. It relates to the potential for any legal
challenge involving European and human rights issues and it seems to us
that it is good and right to incorporate this.
The amendment would insert a
new clause to provide for early public participation, when all the
options are open and effective, and a fair and transparent framework.
That may sound a little like motherhood and apple pie, but it is in the
convention to which the Government signed up. We have lifted the text
from articles 6.4 and 7 of the convention, so we cannot see how the
Government should have any difficulty with the amendment as it is
something to which they, as a matter of policy, adhere. Putting it in
the Bill should proof it against potential challenge and would also
make realistic the commitment to participation and an acceptance too
that we take the environmental impacts of these important
infrastructure projects seriously when looking at the
balance.
The remaining
amendments can almost be taken as a package.
Amendment No. 187 seeks to lay down certain minimum consultation
periods and so it broadens the
areas within the subsection to which application is required. We then
set out minimum standards in relation to a consultation period of not
less than 12 weeks. We do not think that is at all unreasonable in the
circumstances. Secondly we set a minimum level of publicity. None of
this is difficult or onerous. It is the sort of formulation that is
well known and accepted in planning law and planning practice. It will
not create vast expense but it is the sort of thing that is accessible
to individuals and local communities who may be affected by the Bill.
In the overall scheme of things it would not create any massive delay,
but would give people a decent chance to be aware of what it is and get
their tackle in order if they want to make
representations. Amendment
No. 189 would provide that the main environmental agencies and the
devolved Executives are consulted specifically on national policy
statements. The Environment Agency in its written submission and
evidence was concerned that it should be in the loop. It seems only
right, too, that bodies such as the Historic Buildings and Monuments
Commission and the Local Government Association should be involved.
Partnership and close working with local government is something that
the Government often stress as being important. If such applications
are to go smoothly, it is far better to have them involved at the
earlier stage and to give them the assurance that they will be
involved. It is not just a question of good intentions and practice;
they would have the comfort of knowing that they have the right to be
involved. I suspect that that reduces the risk of challenge. In (4A)
and (4B) it is proposed that we make the parallel arrangements for the
devolved Administrations, whose rights ought equally to be
respected.
If the
Minister is in a receptive mood, amendment No. 245, which should
perhaps refer to (4D) and (4E) rather than (4A) and
(4B), would give the public a minimum period in which to make
representations. Thirteen weeks is not unreasonable because, sometimes,
national policy statements will involve complex issues both of law and
fact. Thirteen weeks is not an unreasonable period for people to be
able to make meaningful representations. In the overall scheme of
things, it would not create massive delays. Better 13 weeks for the
public to get their act together than the length of time it takes for a
judicial review on the basis that there was inadequate consultation to
begin with.
The
amendment would stress the importance of the environmental report and
the appropriate impacts directive, and would take account of the
importance of the environmental assessment of plans and programmes
directive and, when appropriate, the habitats directive. The Government
sign up to and endorse those directives, so we are simply asking them
to adopt what they regard as good practice and policy. It would not be
terribly onerous for them to take the measures on board.
On amendment No. 190, we come
back to the Minister’s point that there will be certain
instances in which national policy statements will be location-specific
or, at least, they will create a shortlist of locations. The amendment
would apply the same logic and established techniques that I mentioned
to ensure that there are advertisements at a local level, and that
local publicity is meaningful rather than rarefied at a national
level.
Amendment No. 191 is connected
to amendment No. 190, but it stresses the importance of consulting not
only national local authorities and the devolved bodies, but the local
authorities that would be directly affected by such cases. If there are
only three or four locations for, say, an airport, port or power
station, it is surely right and sensible to entrench the rights of the
local authorities affected to be consulted.
Amendment No. 246 would make
explicit measures that seem to be in the Bill on the scope to modify
proposals after consultation. There ought to be that scope. I am sure
that the Minister will want to take on board and amend proposals when
sensible and cogent points are made by consultees, and the amendment
would give him the opportunity to do so.
Amendment No. 247 states what
most people would, I hope, regard as good practice. Certainly, the
measure would be consistent with the approach generally adopted in
judicial or quasi-judicial matters, which is to say that it would give
the people involved a right to a reasoned decision. It
states:
“The
Secretary of State shall give reasons for designating a statement as a
national policy
statement”
if people have
exercised their right to make representations to the contrary. When the
Secretary of State makes a decision, as is his or her right, it seems
only just and fair that they give a reasoned decision as to why. The
measure would not be onerous or complicated, but it follows from the
good practice that one expects, and which is increasingly enshrined in
both domestic and European law.
We hope that the Committee does
not see the amendments as obstructive; rather, we are seeking to
improve the Bill. I hope that they find favour with the
Minister.
Mr.
Betts:
We are discussing this group of
amendments slightly later than I had anticipated, so I shall be yet
more brief than I originally intended. I shall speak to amendments Nos.
90 to 95.
I am sure
that I shall not tempt my hon. Friend the Minister down the road of
amendment No. 94, which suggests that the Secretary of State might
publish options that were “seriously entertained” as well
as the final view that he or she arrives at on any statements and
revisions. I am sure that if my hon. Friend went that far, he would
have every Secretary of State in the Cabinet and several civil servants
sticking pins in his image because of what they had to give away from
discussions held before they reached their final decisions.
I wish to probe the Minister a
little particularly on amendments Nos. 90 to 92, which deal with
subsection (2). Precisely what do the words mean? Subsection (2)
states:
“The
Secretary of State must carry out such consultation, and arrange for
such publicity, as the Secretary of State thinks
appropriate”.
Why is that
different from what I suggest in my amendments, which would have
subsection (2) simply say that the Secretary of State must carry out
consultation and
publicity?
Why does
the subsection state:
“as the Secretary of State thinks
appropriate”?
Perhaps the words are irrelevant and
otiose, and need not be in the clause, because the Secretary of State
will carry out the consultation and arrange for the publicity that
people will generally consider to be reasonable and appropriate. I
accept that we cannot prescribe in detail every situation, or the
details of the publicity and consultation that will be appropriate to
every policy
statement.
What do the
words
“as the Secretary
of State thinks
appropriate”
actually
mean? Are they significant? Do they mean anything in practice? If they
do not, why are they there? If they do, is it possible to conceive of a
situation in which the Secretary of State might think that no publicity
and no consultation were appropriate? Technically, that would be an
entirely logical reading of that form of words. I presume that we will
get the Minister to say that that is not what is intended. If it is not
what is intended, why do the words make it a logical
possibility?
I accept
the argument that because one cannot be absolutely prescriptive in an
Act of Parliament about the nature of consultation and publicity for
every situation. In the end there may have to be a test of what is
reasonable in the courts or through a judicial review. But, again,
thinking ahead to that potential test, if the subsection had my
wording, which simply says that there should be consultation and
publicity, the test would be whether the consultation and publicity
were such that the venerated man on the Clapham omnibus—I
suppose that these days it could be a woman—would think it
reasonable in the
circumstances.
However,
as the subsection is worded now, that would not be the test that would
be put to a judicial review. The test would be whether the Secretary of
State has been reasonable in coming to the view that he or she thinks
is appropriate, which is different. It is not whether the man in the
street thinks that something is reasonable but whether the Secretary of
State has come to a reasonable decision about what he thinks is
appropriate.
I am
trying to tease out the difference in that regard, and whether there is
something slightly sinister behind the restrictive nature of what the
consultation might be and what the Secretary of State might think,
which might be totally different from what outside groups that expect
to be consulted might think, or whether the subsection is, in fact,
almost irrelevant—that is, it is a nice form of words and we can
discount their meaning because we can presume that Secretaries of State
will behave reasonably, as judged by the man on the Clapham
omnibus.
Dan
Rogerson:
I have tabled two amendments in this group. One
is on a significant matter, and one is just to make a point that was
made to me by somebody who had looked at the Bill. Amendment No. 55
concerns publicising the consultation in formats accessible to people
with disabilities. It seeks to ensure that the consultation is in an
appropriate form for everybody. I am sure that the Minister will say
that that is Government practice anyway, and that we are very good at
doing it, but the fact that organisations that represent people with
disabilities suggested the
amendment would tend to indicate that they do not feel that that is
necessarily always the case. I hope that the Minister will bear that in
mind when considering this group of
amendments.
Amendment
No. 160, which may seem rather specific, refers to two local papers.
The matter was raised with me by someone else who looked at the Bill.
Of two local papers in an area, one might have a much higher
circulation than the other, and it may be possible to meet the
provisions of the Bill by advertising in the paper that is not as
widely read as the other one. That is the issue that was raised with
me. It is a relatively minor point, but it is important to make it
because it is essential to ensure that consultation documents and
advertising reach all members of the community and amendment No. 55 may
be helpful in that respect.
The hon. Members who have
already spoken to their amendments raised some important matters and
made some very good points and I look forward to the Minister’s
response to them.
3.15
pm
Mr.
Jones:
I speak briefly in support of amendment No. 189,
which would include in the Bill a list of statutory consultees, and
especially to subsection (4)(c), which relates to the National Assembly
for Wales.
The
amendment is particularly important because in the fullness of time the
Committee will consider new clauses containing framework powers in
favour of the Welsh Assembly, which will empower it to make primary
legislation in connection with the Wales spatial plan and local
development plans in Wales.
If those clauses are enacted,
the Welsh Assembly will obtain primary legislative competence in
respect of a large and important area of planning law in Wales and it
is therefore likely that planning law in Wales will start to diverge
significantly from that in
England.
As we are
talking about national planning statements it is essential that the
need to consult the Welsh Assembly Government is stated in the Bill,
especially with regard to the developments in Wales in terms of primary
legislation..
Mr.
Llwyd:
Most, if not all, of the amendments are reasonable
and have led to an interesting debate. Like the hon. Gentleman, I will
speak briefly to amendment No. 189 and the need to consult the Welsh
Assembly Government, the Environment Agency, the Countryside Council
for Wales and the Welsh Local Government Association when a national
policy statement relates in whole or in part to
Wales.
I am sure the
Minister will say in response that the Environment Minister from the
Welsh Assembly Government would be party to the whole thing in any
event, but it would be as well to have it in the Bill and to have a
statement from the Minister to that effect, including references to the
other statutory consultees, as it is an important
matter.
John
Healey:
If there is anything sinister in
the difference in the wording, as my hon. Friend the Member for
Sheffield, Attercliffe suggested, I am unaware of it and it is
completely unintended.
The proposal was framed to make
it clear that responsibility for complicity and consultation about the
decisions and developments of the national policy statements rests with
the Secretary of State. I can assure my hon. Friend that in discharging
those duties the Secretary of State would act reasonably. If he did not
do so, he could be challenged.
The hon. Members for Bromley
and Chislehurst and for Beckenham mentioned the Aarhus convention
several times and I am glad to note the context in which we are
returning to that matter. Essentially, the UK has ratified that
convention and we are obliged to ensure that our domestic legislation
is consistent with it. Public involvement at the three important stages
of the Bill—the production of national policy statements, the
pre-application hearings and the hearing of applications—ensures
that that is the case in these provisions and the effect of the hon.
Gentleman’s amendments would be
negligible.
Robert
Neill:
Will the Minister give way on that
point?
John
Healey:
I knew I was making a mistake by taking a
breath.
Robert
Neill:
Is the Minister saying that it is the
Government’s intention that any regulations that prescribe the
forms of consultation will ensure that the consultation is fully
compliant with the Aarhus
convention?
John
Healey:
Giving people an early and effective opportunity
to have their say is at the heart of the Aarhus convention. We will
ensure that that
happens.
As I have
emphasised, we have a strong commitment—this is a shared
interest with Opposition Members—that proper information and
consultation will underpin the production of any national policy
statement. However, in response to a number of amendments, I do not
think that it is appropriate to set out detailed procedures and
processes in the Bill for the production of information and publicity
or for consultation. That is not least because the accepted standards
for good information and consultation
vary.
Government
consultations often centre on the code of practice on consultation. I
did not know this before this afternoon, but last year we had a
consultation on the consultation code and on whether that guidance
should be revised. As a result of that consultation, we propose to
revise the guidance on consultation in order to ensure that all sorts
of people can be consulted effectively and kept properly
informed.
James
Duddridge (Rochford and Southend, East) (Con):
“Yes,
Minister”.
John
Healey:
No, it is worse than that—I am not reading
from brief.
We would
expect any consultation on national policy statements to reflect that
revised guidance, but it is not available at the moment. I make that
point to underline the view that it is not sensible to specify that
sort of detail in primary legislation because it becomes
rigid,
inflexible and difficult to change. Such detail might not be appropriate
for every type of national policy statement because they will vary from
type to type. On the
concern that the hon. Member for North Cornwall raised with amendment
No. 55, in the spirit of what I have just said and in the spirit of the
code on consultation, it is important that all parts of the public and
all communities are consulted properly on proposals for national policy
statements that might affect them. Certain disabled people have
particular requirements. Those are met through the disability
discrimination legislation and the development of national policy
statements will be subject to the terms and the imperatives of that
legislation. Therefore, it is not necessary to incorporate such
measures in the Bill. Where it is necessary to publicise the proposals
of national policy statements locally, we have determined that it will
be thorough and effective. We will consider the needs of disabled
people in that process. Given that reassurance, I hope that he will not
seek to press his amendment to a
vote.
Before I sit
down, I wish to double back and deal with the point made by the hon.
Members for Clwyd, West and for Meirionnydd Nant Conwy about statutory
consultees. There is provision to specify statutory consultees. I
suggest to both hon. Members that identifying particular statutory
consultees in the Bill is not the best way to do it. However, I can
reassure them that we intend to include the Ministers in Scotland,
Northern Ireland and Wales as statutory consultees on national policy
statements that extend to their respective areas. Beyond that, we will
specify the statutory consultees through regulation. We have the
provision in the Bill to do that and will consult widely on who should
be statutory consultees.
Once again, certain parties
might be appropriate and rightful consultees for certain national
policy statements and others might properly be consultees for all
national policy statements. That will vary and is not an appropriate
matter to be specified in the Bill. I hope that I have been able to
give Members sufficient reassurance and clarity and that they will
therefore not press their amendments to a vote and let clause 7 stand
part of the
Bill.
Robert
Neill:
I am grateful to the Minister for that response and
hope that the Government will deliver in the spirit to which he has
referred. Given what he has said, I am content to withdraw the
amendment.
Dan
Rogerson:
I am grateful to the Minister for the comments
that he made about amendment No. 55 and the need to ensure that
consultation and publicity is accessible in all formats. As we have
that on record, I will not press my
amendment.
Robert
Neill:
I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Clause
7 ordered to stand part of the Bill.
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