Consultation and publicity
(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 States 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 States 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.
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 seasonself-deprecation is, of course, very importantthose 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 everybodys 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.
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
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 Ministers 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 omnibusI suppose that these days it could be a womanwould 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 irrelevantthat 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 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 Ministers response to them.
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 Billthe production of national policy statements, the pre-application hearings and the hearing of applicationsensures that that is the case in these provisions and the effect of the hon. Gentlemans amendments would be negligible.
Robert Neill: Is the Minister saying that it is the Governments 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 commitmentthis is a shared interest with Opposition Membersthat 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.
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,
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.
Amendment, by leave, withdrawn.
Clause 7 ordered to stand part of the Bill.
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