Planning Bill

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Schedule 2

Amendments consequential on development consent regime
Amendments made: No. 148, in schedule 2, page 114, line 16, leave out ‘In’.
No. 149, in schedule 2, page 114, line 17, after ‘authorisation)’ insert ‘is amended as follows.
(2) ’.
No. 150, in schedule 2, page 114, line 20, at end insert—
‘(3) In subsection (1A)(b) for “pipe-line which is the subject of a pipe-line construction authorisation” substitute “nationally significant pipe-line”.
(4) After subsection (1A) insert—
“(1B) For the purposes of subsection (1A), a pipe-line is a nationally significant pipe-line if—
(a) its construction has been authorised by a pipe-line construction authorisation, or
(b) development consent under the Planning Act 2008 is required, and has been granted, for its construction.”.’.
No. 351, in schedule 2, page 114, line 21, leave out paragraph 8.
No. 352, in schedule 2, page 116, line 1, leave out paragraph 17.
No. 353, in schedule 2, page 116, line 16, leave out ‘under the Planning Act 2008’.
No. 354, in schedule 2, page 116, line 19, leave out ‘under the Planning Act 2008’.
No. 355, in schedule 2, page 116, line 19, at end insert—
‘21A In section 37 (exemptions from offence under section 35) after subsection (1) insert—
“(1A) Section 35 does not apply to the carrying out of any operations for which development consent has been granted.”
21B In section 61(1) (interpretation of Act) at the appropriate place insert—
““development consent” means development consent under the Planning Act 2008;”.’.—[Jim Fitzpatrick.]
Schedule 2, as amended, agreed to.

Clause 32

Applications for orders granting development consent
Mr. Clive Betts (Sheffield, Attercliffe) (Lab): I beg to move amendment No. 391, in clause 32, page 16, line 25, leave out ‘Commission’ and insert ‘Secretary of State’.
The Chairman: With this it will be convenient to discuss the following amendments: No. 392, in clause 33, page 17, line 14, leave out ‘Commission’ and insert ‘Secretary of State’.
No. 393, in clause 33, page 17, line 15, leave out ‘its’ and insert ‘the’.
No. 206, in clause 66, page 32, line 40, at beginning insert ‘Subject to subsection (1A) below,’.
No. 85, in clause 66, page 32, line 40, leave out from beginning to first ‘the’ in line 3 on page 33.
No. 284, in clause 66, page 32, line 40, leave out subsection (1).
No. 207, in clause 66, page 33, line 2, at end insert—
‘(1A) Where the applicant for development consent proposes, or it is subsequently considered by the Panel that, any order granting development consent should include provisions made in exercise of any of the powers conferred by section 105(6)(a) or (b), the Panel has the functions of—
(a) examining the application, and
(b) making a report to the Secretary of State on the application setting out—
(i) the Panel’s findings and conclusions in respect of the application, and
(ii) the Panel’s recommendation as to the decision to be made on the application.’.
No. 285, in clause 66, page 33, line 3, leave out ‘in any other case’.
No. 293, in clause 75, page 36, line 8, leave out paragraph (a).
No. 208, in clause 75, page 36, line 9, at end insert
‘and neither the applicant for development consent proposes, nor the Commissioner considers, that any order granting development consent should include provisions made in exercise of any of the powers conferred by section105(6)(a) or (b).’.
No. 294, in clause 75, page 36, line 10, leave out ‘, in any other case’.
No. 209, in clause 77, page 36, line 25, at end insert—
‘(1A) If the Council consider that order granting development consent should be made and should include provisions made in exercise of any of the powers conferred by section 105(6)(a) or (b) it shall refer the single Commissioner’s report and a report of its views to the Secretary of State for determination.’.
No. 295, in clause 77, page 36, line 31, at end add—
‘(5) Decisions made under this section shall be subject to approval by the Secretary of State.’.
No. 210, in clause 93, page 43, line 20, leave out ‘66(2)’ and insert ‘66(1A) or (2)’.
No. 211, in clause 93, page 43, line 22, leave out ‘section 75(2)(b)’ and insert ‘sections 75(2)(b) or 77(1A)’.
No. 396, in clause 93, page 43, leave out lines 26 to 29 and insert ‘means the Secretary of State.’.
No. 212, in clause 105, page 50, line 23, leave out ‘sections 106 and’ and insert ‘section’
Mr. Betts: This debate relates to one of the most important issues in the Bill. I have had help with some of the drafting from the Campaign to Protect Rural England. On some aspects of the Bill, I am much more enthusiastic and sympathetic to the Government’s approach than perhaps the CPRE is. Nevertheless, on the issue of who should make the final decision on an application that is being considered by the commission, I have come to a different view from that of Ministers. The amendment, therefore, together with other amendments that relate to later clauses, but are necessary for a consistency of approach, would substitute the Secretary of State for the commission as the final decision maker, as is the case under current town and country planning legislation.
This is a fundamental issue of accountability. The decisions that will be made concerning major projects will be major, which is why we are setting up a new procedure for dealing with national infrastructure projects. By their very nature, they are important matters. More than one individual in the commission will ultimately make the decision, but it is important that individuals are accountable, at least to an extent. They must be accountable in the sense that hon. Members know who they are. I doubt that many people could name a single member of the Planning Inspectorate, and I am sure that once we have a commission and the commissioners have been appointed, not many people in the House will know who any of them are. We know who the Secretary of State is, however, and we know who the Ministers are, if a Minister makes the ultimate decision because the Secretary of State has a particular conflict of interest under current legislation. The Secretary of State can be held to account in a number of ways: a debate in the House; written questions; and oral questions. The general methods that the House uses to hold Ministers to account can be used to hold them to account for decisions on matters that would be considered and recommended by the commission.
It will be interesting to hear from the Minister precisely how the commission might be accountable. If a Member tables a question asking for reasons why a particular decision has been reached, will the Secretary of State answer it, or will it be passed on to the commission? How can a commission answer a parliamentary question? We have struggled sometimes, when dealing with agencies, to get questions actually responded to properly. Some of those decisions will be very important, such as where a nuclear power station is located or whether one should be located in a particular place at all. We need to understand the nature of accountability.
I have great respect for my hon. Friend the Minister for Local Government. He has taken the matters that have been raised very seriously. However, the Government must understand that it is not only groups such as the Campaign to Protect Rural England that have concerns. Many of my colleagues on this side of the Committee also share this type of concern.
If I ask my colleagues who are not fortunate enough to be members of the Committee for their impressions about what the Bill does, they say that it takes away accountability from politicians and passes it to a quango. However, it is a fact that there are good things about the Bill, such as the attempt to take major decisions on major infrastructure projects by using a better process—I believe that it is a better process. The fact that it is often characterised as being undemocratic is largely down to the fact that the Secretary of State is removed from the process at the end.
Alun Michael (Cardiff, South and Penarth) (Lab/Co-op): My hon. Friend makes a good case in his examination of what the Government propose. I look forward to hearing the Minister for Local Government’s reply. However, is part of the problem the fact that advice to Ministers is often excessively inhibiting in terms of the application of common sense? I say that with the experience of having had to make decisions on planning appeals, when sometimes the advice of officials was that one could not even look at the application in proper terms. Therefore, something more clinical that allows the application of judgment within a context set by Ministers might be a way of reintroducing common sense into the examination of such matters.
Alun Michael: Two aspects concern me. One is that the degree of detail regarding a major or serious application might require such an enormous amount of commitment from Ministers that the situation would be rendered almost impractical. The other is about the sort of advice that tends to become excessively protective about what might be said about how a decision has been taken. That constricts the process with which Ministers have to engage at present when dealing with detailed and complex applications.
Mr. Betts: I take that point, and I also accept the point about the amount of information that the Secretary of State would have to consider. There are obvious time constraints, but that applies some pressure to limit the number of projects that go through the process. Most of us are keen to see that there should not be an open house for a large number of projects.
With regard to the number of decisions, Secretaries of State will, of course, have to take such decisions on a range of issues that have gone into the planning appeal system. They will not be kept out of decisions on planning matters. The slight irony is that Secretaries of State will make decisions on all sorts of relatively small projects, but not the biggest ones. Today we have looked at the nature of the projects that will go through the new process. Essentially, when we go through clauses 13 to 26—I am giving a quick rÃ(c)sumÃ(c) here—small projects go through the traditional planning route, and larger ones take the new route through to the IPC. The same projects will be considered, but some will be large and some will be small. In many cases, the small projects will end up with the Secretary of State and the large ones will not. There is something strange about a situation in which the smaller and less important a project is, the more likely it is that Ministers will be involved.
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Despite the intervention of my right hon. Friend the Member for Cardiff, South and Penarth about the basis on which decisions are made, Secretaries of State can come to a different view from inspectors under the current planning regime. That is presumably because they can look at things in a different way. During the evidence hearings, we had a good discussion about the expertise that commissioners would need. One thing that they need is an understanding of how the public regard things. That is not the most important matter in planning decisions, but Secretaries of State appear to be more able to apply a wider understanding of matters than planning inspectors when reaching decisions.
It is a case in point that Brighton and Hove Albion football club probably would not be looking forward to a new ground if the decision had not gone through the Secretary of State. I am sure that the Secretary of State made that decision in an entirely proper manner, but came to a different decision from the planning inspector. I was in Snowdonia national park last year and saw the reopening of an old railway line. My understanding, again, is that the Secretary of State—the Deputy Prime Minister at that time—overturned the inspector’s decision. That railway line will be a major tourist attraction and an advantage to the area, but it would not have reopened if the planning inspector’s decision had stood. The Secretary of State saw the matter in a slightly wider and rounder context.
Ministers can come to a proper view and they hold a role that is different from that of the planning inspector, due to their particular knowledge and experience. They come to decisions that are, presumably, also different to those that a commission would make. There are examples of when having the involvement of a Secretary of State proved beneficial. I am sure that Ministers will not say that the decisions of those Secretaries of State were wrong. If they were right, surely there is an advantage in having them in that role. I will not take up too much of the Committee’s time, but these are important matters.
I have heard the counter-argument that it is wrong for Secretaries of State to take decisions because they can be the applicant and the eventual determiner of the application, but that is not true in most cases. I would be interested to hear my hon. Friend the Minister say how many of the cases that will go to the IPC are likely to have the Secretary of State for Communities and Local Government as the applicant. We had a good discussion on clause 13 and I got assurances that even new examples of projects would fall within the categories listed under clause 13(5)(a) to (e): energy, transport, water, waste water and waste. My understanding is that even if the applicant were a Secretary of State, in those cases, they would be the Secretary of State for Transport, the Secretary of State for Business, Enterprise and Regulatory Reform, or the Secretary of State for Environment, Food and Rural Affairs.
Quite possibly, the Secretary of State would not be the applicant at all, because while they would be responsible for the national policy statement on nuclear power stations, for example, it would be likely that a private company would be the applicant. In how many cases is it likely that the applicant will be the Secretary of State for Communities and Local Government?
Robert Neill: The hon. Gentleman makes a powerful case and I agree with his point. Perhaps he might also consider that his logic is reinforced, while that of those who object to his amendment is undermined, by the situation in London. The Mayor of London was given planning powers through the Greater London Authority Act 1999. Some of us made the objection that the Mayor might find himself as the judge of a matter in which he was the applicant and the promoter. The Government took the stance that that was not a problem because it was highly unlikely that the Mayor himself would ever be the applicant, and it was more likely that the applicant would be Transport for London, which is part of the empire that he controls, but not him.
The Secretary of State for Transport is far less directly controlled by the Secretary of State for Communities and Local Government than Transport for London is by the Mayor. If such an argument was valid for the Greater London authority, it is even more valid in this instance. I hope that the hon. Gentleman will take that argument as something that reinforces his point. There is a precedent of the Government conceding to his argument.
Mr. Betts: I take that intervention as reinforcing my point, subject to anything that my hon. Friend the Minister might say to correct it. I will take the argument at face value.
Under existing planning law, it is possible for the Secretary of State to be the applicant and the determiner. It is quite possible for the Secretary of State for Communities and Local Government to put in a planning application for a new office building, an alteration to an existing office building, or any other project. However, just because the Secretary of State could be the applicant under current planning legislation, and will remain the applicant for all but major projects and the determiner in such circumstances in the future, we should not amend the whole of existing planning law and remove the Secretary of State as the final arbiter for appeals within that legislation. Because, for the occasional project, a Secretary of State could be the applicant and the determiner, is there really a case for removing the Secretary of State, in every circumstance, from being the final arbiter on these most important projects?
I am not sure that the case has been made for why these major projects should be treated differently from every other appeal on every smaller planning application that is made. If the fundamental argument is that the Secretary of State should not be the applicant and the determiner, in how many cases, realistically, will the Secretary of State be the applicant? Probably one, occasionally, out of the 40-odd that will be appear before the commission each year. If that is the only reason behind the approach, for all other reasons—accountability, the general view that is taken of the Bill, consistency, and the fact that the Secretary of State just might bring to bear a different viewpoint that might occasionally mean that a decision of the commission is changed—I hope that my amendment will be given careful consideration.
Robert Neill: I congratulate the hon. Gentleman on tabling the amendment and on putting forward an extremely cogent and powerful case. It is hard to say much more than that my hon. Friends and I agree with it. The case is compelling. I urge Ministers to think again about this because it harks back to the concern that many of us have expressed almost from the beginning of our consideration of the Bill. The good in the Bill—the idea of the separation of national policy from the consideration of specific sites to save time at inquiries, and the virtue of the single consent regime—could all be undermined by a lack of public confidence arising from an ultimate lack of accountability.
From the public’s point of view, it is desirable that the decision maker should be capable of being put on the spot. That is precisely the point that the hon. Gentleman made. The Minister, even acting quasi-judicially, can be put on the spot in this House. If Ministers get a reputation and it is perceived by the public and, let us be blunt, by the Prime Minister and others, that they are too often put on the spot, they will not remain Ministers for much longer. There is a discipline on Ministers, when exercising even quasi-judicial powers, to make sure that they get things right because they can be put on the spot either by hon. Members or in the courts.
There will also be a professional discipline on members of the IPC to get it right, but the big difference will be the public perception of whether that discipline is exercised clearly and transparently. We can have as much confidence as we would hope that members of the IPC will get things right, but that is not the same as the fact that the ultimate arbiter is someone who is elected. Ultimately, if we dislike a decision enough, we can kick out the person who reached it or their party. When we are talking about decisions that profoundly affect the lives of those immediately concerned, that seems to be right and proper, which is why we strongly support the amendment moved by the hon. Member for Sheffield, Attercliffe and hope to have a chance to vote for it.
Our amendments in this group are less ambitious in scope, but if, for any reason, the hon. Gentleman’s amendment does not succeed, we will want to return to them. If one looks at subsequent clauses in the Bill that are linked to this, such as clause 66, one sees that there is a dangerous circumstance in which it will be possible for the commission effectively to disapply certain legislation when making its decisions. The point of our amendments is to address that and change it consistently throughout the Bill.
Amendments Nos. 206 and 207 set out the scheme of what we are seeking to do. They would insert in clause 66 a new subsection (1A) so that if it was proposed that a development consent order would apply, modify or exclude legislation—that power will reside with the IPC—such cases should be decided by not the IPC, but the Secretary of State. It seems to us that that represents a more middle view than the hon. Gentleman’s amendment. Even if the Government persisted in giving the ultimate power of decision to the IPC, it cannot be right constitutionally, never mind in terms of accountability, for an unelected and unaccountable body to have the power to apply, modify or exclude legislation that has been passed by the House. The decision to exclude or modify legislation passed by the House should be taken only by someone who can be put on the spot in this House and who is directly accountable to it, and that means the Secretary of State. I hope that the Committee will go further by accepting the hon. Gentleman’s argument that that should apply across the board, but we think that the power is a striking example of how transparency and democratic accountability will be seriously undermined if we leave the provision as it is.
Dan Rogerson: I support the comments made by the hon. Member for Sheffield, Attercliffe, who raised a question that concerns many Members in the Committee and others in the House. The ultimate test will be when constituents come to us regarding one of these applications and ask what the next stage is and how things will work. They will be surprised to find that, ultimately, the decision does not rest with the Secretary of State, which is what they are accustomed to. The hon. Member for Bromley and Chislehurst also made some strong points in that regard.
The amendments in this group that we tabled propose a different way of giving the Secretary of State the ultimate responsibility for taking such decisions. I certainly support the hon. Member for Sheffield, Attercliffe and hope that he will continue to press the Government on the issue.
Alun Michael: I want to challenge one of the points that was made by the hon. Member for Bromley and Chislehurst. He said that the pressure in the current system is pressure on Ministers to get things right, but I suggest that that is not actually true. The pressure on Ministers is to play safe and anticipate the legal challenges that might arise if they do not get the procedure right. That is an inhibition, rather than an encouragement to come up with the right decision, and that is why, along with one other issue that I shall address in a moment, there is a need to reconsider how we have been doing things up to now.
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My hon. Friend the Member for Sheffield, Attercliffe rightly referred to the decision taken by my right hon. Friend the Member for Kingston upon Hull, East (Mr. Prescott), the former Deputy Prime Minister, to reopen a railway in north Wales.
I remember that application and the discussion around it particularly well—not just because I am a north Walian and I know that part of that county, but because I was Secretary of State for Wales at the time and followed the deliberations and the decision of the then Deputy Prime Minister with great interest. I think that he made the right decision, but it was also a decision that took a certain amount of courage because, as my hon. Friend said, a Secretary of State took a different decision to that recommended by an inspector. Indeed, the opinions on both sides of that particular debate were very strong indeed. Rather than taking the courageous step of re-examining the issue and trying to make the right decision, the easy option would have been to say, “I will do what the inspector says because that is the safe option and no one can criticise me for it”.
I suggest to the hon. Member for Bromley and Chislehurst that the pressures in the system actually relate to safety. Another type of inhibition that Ministers may face is the way in which actions can be misinterpreted. When I was Secretary of State for Wales there was an application where the pros and cons did not make sense on paper, and I was advised by officials not to visit the site because it would be interpreted as becoming involved with the details. In that particular case, the argument was whether granting planning permission for a single house at the end of a row would create a precedent for opening up further applications for development in the open countryside. When driving through that particular area, as I did after ignoring the advice I had been given, it became clear that although on a plan the area seemed to be the next stage into the open countryside, the next site to the appeal site was a hill that was so steep a house would have to be hung off it to build there. Absolutely no precedent at all was being created; it was simply an obvious infill site. As I said, the hon. Gentleman is wrong to suggest that all the pressures are in the direction of good decision making. It is greatly to the credit of Ministers that often they pursue the idea of taking the right decision against the play-safe advice.
Mr. Richard Benyon (Newbury) (Con): Of course I defer to the right hon. Gentleman’s experience in these matters, but in his intervention on the hon. Member for Sheffield, Attercliffe he seemed to suggest that the process could on occasion swamp a Minister’s ability to take a decision. He also suggests that to take the right decision, a Minister often has to show some courage. To pursue the logic of that argument, he is saying that we should not go down the proposed path because of process and the likelihood that Ministers would lack courage. I have a slightly more generous view of human nature and of the strength of the will of the electorate. I also believe that a Minister’s superiors would get rid of poor Ministers who lack courage and that Ministers should improve the process so better decisions are taken. Am I being naive?
Alun Michael: The hon. Gentleman is of course being naive, but he is also doing what Members of Parliament do best: jumping into the middle of an argument to avoid understanding the full logic of it. I was about to continue the point about the system not acting in the way that naive Conservative Members seem to believe to develop a point about the complexity of issues.
Another application with which I had to deal was the final stages of whether the New Forest should be declared a national park. At that time, I was dealing with the matter as Minister of State at the Department for Environment, Food and Rural Affairs rather than as a Secretary of State, so I was not under quite the same pressure as a Secretary of State, who has to focus for a considerable time on the complexities of a major application; nevertheless it involved carving out lots of time trying to understand complex issues and arguments that had continued for about 40 or 50 years—it was a long, drawn-out process. I had the benefit of the inquiry report and so on, but I had to study a great deal of detailed information to apply logic to what the outcome should be.
I therefore suggest that in balancing the accountability issues it asks an awful lot of Ministers for them to deal with the whole of a major application, because the bigger the application and the more serious the issues the greater the detail. In such circumstances, there is an alternative, which has merit: the principles are decided by Ministers and a body is established to consider the details and decide whether those principles will be fully applied in respect of a big, complex application.
I agree with my hon. Friend the Member for Sheffield, Attercliffe, who made a strong case for ministerial accountability. However, sometimes the pressure of playing safe combined with the complexity of taking major decisions does not necessarily result in a satisfactory process and that must be weighed in the balance with my hon. Friend’s conclusion. I shall be interested to hear how our ministerial colleagues came to their conclusion to introduce the Bill.
Mrs. Lait: I support my hon. Friend the Member for Bromley and Chislehurst and the hon. Member for Sheffield, Attercliffe and add my congratulations to those of others on his common-sense approach to the proposal. I was particularly struck by the irony of the Secretary of State having to make decisions on small but controversial planning applications but not having any responsibility for the large ones, although the Minister will probably tell us that they will have been dealt with by Parliament under the national policy statements procedure.
This debate brings us back to the responsibility of Parliament, which the Bill ignores. The Government are taking away the role of Members of Parliament to hold Ministers to account on matters that are of deep and immediate concern to the electorate.
The point is not just about small decisions being taken by the Secretary of State but about how we hold the IPC to account. I do not want to put words in the Minister’s mouth but I suspect that he will say that the IPC has to provide the Secretary of State with an annual report. That is hardly the same as a written question, an Adjournment debate or bringing Ministers to the Floor of the House to answer for their decisions.
Another, slightly mischievous, thought crosses my mind on the matter of small but controversial planning applications. Despite our concerns that an ever-increasing number of planning applications will go to the IPC and bearing in mind the discussion that my hon. Friend the Member for Clwyd, West had about offshore wind farms, it could be in the interests of developers to put together a project rather than a development so it does not have to go to the Secretary of State but is, theoretically, dealt with more speedily under the IPC process. In that case, our constituents would feel doubly offended that they had no right of recourse to the House on planning applications, many of which should have been decided by the Secretary of State.
Mr. Jones: I am interested in my hon. Friend’s example, which is not far-fetched. My constituency seems to have been targeted by different wind farm developers who make separate applications and large tracts of it are being covered by wind turbines. I can see the attraction to those developers of putting together a concerted application so that it can be dealt with by the IPC rather than having to go through the planning process and suffering the opprobrium of local people.
Mrs. Lait: My hon. Friend is absolutely right.
The Minister for Local Government (John Healey): He is not.
Mrs. Lait: But our purpose in trying to get this sort of information out of Ministers is precisely to test whether our suppositions are right and whether there is a robust reply to them. For example, it is not beyond the bounds of possibility for a new nuclear power station to be built in Dungeness, which would indeed be a nationally significant infrastructure project. A wind farm is already going up not far from there and there could be another application for a wind farm. We are still discussing the size of hazardous waste facilities and with the development of technology there could be applications for smallish facilities to be built into the nuclear power application.
It would not be difficult to put together a series of developments that would go to the Secretary of State if they were taken singly, but put together as a project would have to go through the IPC, when we would not be able to raise the issue on behalf of our constituents. If the Minister could answer all our questions about the role of Parliament and Ministers’ responsibilities we would be exceedingly grateful.
John Healey: I welcome you back to the Chair, Sir John.
This large group of amendments tries to do two different things: one block, tabled by my hon. Friend the Member for Sheffield, Attercliffe and others would make the IPC a recommending rather than a decision-taking body, requiring the panel of the IPC or a single commissioner to report their recommendations to the Secretary of State for his decision. The other block of amendments would allow the IPC, in certain circumstances, to take decisions but not when orders that granted development consent included the application, modification or exclusion of other legislation.
My hon. Friend was right to say that this is one of the most important parts of the Bill. The arguments have had a good airing both this afternoon and in our debates on parts 1 and 2, as my hon. Friend acknowledged, and he made some clear and important points. I am glad he accepts that Ministers with a planning role act in a quasi-judicial way; he also recognised that in that capacity Ministers’ decisions cannot be challenged or overturned in Parliament as that is for the courts.
My hon. Friend’s main concern, however, was that under the Bill as drafted, the IPC can take decisions in a limited number of cases and Ministers cannot be questioned. His argument was that at present Ministers can at least be questioned in the House but he was concerned about whether the IPC could be questioned.
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Clearly, there are differences. It would not be possible to call the IPC to account on the Floor of the House, but there are ways of doing so and some of my hon. Friends are used to doing just that with bodies such as Ofsted.
If the House accepts our proposal to set up a special Select Committee, that Committee could regularly be active in requiring the chair and the commission to account for the decisions that they take, rather than simply explaining the work that may be periodically set out as decisions included in an annual report.
As with Ofsted, it is possible to table parliamentary questions that demand answers directly from the IPC. I say “directly from the IPC”, but of course the convention of the House is that answers are routed through Ministers. Nevertheless, the answers are given by the bodies. When I was Minister responsible for statistics, I performed that function regularly with the Office for National Statistics. If the answer is in a letter to any hon. Member, that information and explanation is printed in Hansard. It is available to all hon. Members via the House’s procedures. It is not the same, but there is considerable scope for holding the IPC directly to account for its work and decisions.
Mr. Benyon: Is the Minister not simply saying that a Minister is, therefore, a mouthpiece for an organisation, rather than the accountable person at the end of the line with whom the buck stops?
John Healey: Not precisely. In the case of the Office for National Statistics, I was not even a mouthpiece in respect of questions that were properly for the national statistician. I was the postbox, and, in many respects, the post boy. The questions came to me; I passed them to the national statistician. I got the answers back, then passed them on to the Member of Parliament.
In the context of planning, it is not that the Minister is the mouthpiece. The House can challenge Ministers to explain decisions that they take in their planning capacity. It is not for Parliament to challenge or to overturn those decisions. Any challenge or overturning of a decision that a Minister takes in their planning capacity must be done through the courts. The same would be the case for rights to challenge and methods to overturn any decision that may be taken by the IPC.
Alun Michael: The example of statistics that my hon. Friend has just referred to is quite illuminating in the context. Does not he agree that, in acting as a postbox for the Office for National Statistics and in transmitting those replies on to Members of the House, he would have been informed and aware both of the concerns being raised by hon. Members, and of the answers being given, independently, by the Office for National Statistics? Did he not find that experience useful when he came to deal with the Statistics and Registration Service Bill not many months ago, when, as a Minister, he was accountable for the legislation going through the House? The relationship is not merely one of passing pieces of paper, it is an intelligent engagement with an independent body pursuing things that have been decided by Government or Parliament.
John Healey: I did, indeed. My right hon. Friend knows that well, as he also served on the Statistics and Registration Service Bill Committee, for which I am grateful to him. I found that useful in that context. As the Minister responsible for the Office for National Statistics, I did not answer those particular parliamentary questions for the national statistician, but I did answer those that were a matter of statistics policy.
My right hon. Friend says that that is an illuminating comparison, as it is, in some ways. Planning policy would remain a matter for Ministers, although the accountability and explanation of the IPC’s work and decisions would be a matter for itself, in operational terms.
Robert Neill: With all respect to the Minister and to the right hon. Gentleman, is there not a world of difference, to the people concerned, between a decision about statistics policy and a decision to put a nuclear power station in their neighbourhood? That is really what it comes down to at the end of the day.
John Healey: Of course there is, but at the moment we are trying to test out, within the established procedures of the House, what the House could decide to do, within the framework of the proposals we make relating to the Bill, to hold this important body to account to explain the very important decisions that we are charging it to make. Of course there is a world of difference. I do not use the comparison in any way to belittle the importance of what we are discussing. I am trying to cast some light on what may be possible. I hope that the hon. Gentleman can accept that. I see him nodding, and I am grateful to him for that.
Alun Michael: Opposition Members should be careful about belittling the importance of that matter. The suggestion made by Conservative members of the Statistics and Registration Service Bill Committee when we were debating the independence and the processes was that it was pretty nuclear in terms of its importance.
John Healey: My right hon. Friend is right in his recollection of the rather odd and slightly inconsistent approach taken, not by Conservative members of this Committee, but by some of their colleagues.
Robert Neill: I appreciate the serious intent with which the Minister raises the matter, but may I make one final point for him to take on board? Occasionally a Secretary of State will come to a decision that is different from the recommendation of the inspector. That may be the courageous thing to do, as the right hon. Gentleman said. But the whole point is that it is very clear to the public that the Secretary of State has done that. The public might well conclude that it was a pretty tight decision under those circumstances. I do not criticise a Minister who does that, but it is there, it is on the record and it is very accountable.
If it is within the IPC and it is dealt with by the panel or by an individual commissioner, how do we know whether the commissioner decided to go against certain technical or expert advice that he had in-house? If it is a decision of the panel, how do we know whether the chairman of the panel dealt with it on his casting vote or something like that? It is not a small thing. If people can review the decision, see that it was tight and that the Secretary of State chose, perhaps bravely, to go down a different route and can be questioned about that here in this House, albeit that it is subject to the rules of being quasi-judicial, is that not a significant difference in transparency? How, if the Minister is right, will we achieve a similar degree of transparency about the decisions and the reasoning processes of the IPC ?
John Healey: I am glad that we are moving off the question of statistics. I hoped I had left that behind when I left the Treasury.
The Chairman: So did I.
John Healey: We are both suffering from a blast from the past.
I do not accept that there is a difference in principle between a decision that a Secretary of State may take in a planning case where they happen to agree with the inspector, and a decision where they disagree. The important question the hon. Gentleman was posing was how open and how clear will the process of making the decision that the IPC undertakes be, and how clear will it have to be about the reasons for the decisions that it comes to. We come on in part 6 to the process of considering applications and making decisions. On the question of being clear about the reasons, the IPC will be required to publish an explanation of the decisions it reaches, and its reasons for doing so. That will give those with an interest plenty of opportunity to understand the IPC’s stance.
Jeff Ennis (Barnsley, East and Mexborough) (Lab): Just to add my two penn’orth on this point, the main difference with the Secretary of State’s involvement under the new model, with the involvement of the IPC in major planning decisions, is that it will be front-loaded through the national policy statements. He will set the framework within which the IPC must work. Not only that, but under clause 6 it will be incumbent on him to review the overall policy contained in the national policy statement at regular intervals. There is therefore a check and balance for the Secretary of State to ensure that the IPC is conforming to the model that he has laid down in the national policy statement.
John Healey: My hon. Friend is right. The national policy statement framework within which the IPC will make decisions, which we have set out, will be very different to the regime within which the Secretary of State and the planning inspector currently operate. That is recognised on both sides of the Committee as an important element of the new system and it creates a different basis upon which decisions will be taken.
As my hon. Friend quite rightly said, there is not just a front-loading of ministerial involvement. There is a significant strengthening and front-loading of parliamentary involvement because of the role that Parliament will play in developing national policy statements.
I turn to some of the substantive points that my hon. Friend the Member for Sheffield, Attercliffe and others have raised. There was a question over whether Secretaries of State will be left, as they are now, to make decisions on certain smaller projects, but not larger ones. It is precisely because these projects are bigger and nationally more significant that the current system is not up to dealing with them. It is because of that that we believe that we need a new system together with the IPC. I will come on to some of the reasons for the IPC in a moment. It is because there are relatively few nationally significant infrastructure projects and because they are reasonably predictable that we can be confident that we can set out clear, detailed national policy statements to cover them.
Nationally significant infrastructure projects are different from commercial developments and large-scale housing developments, which the Planning Inspectorate and the current Town and Country Planning Act regime will continue to deal with. There is a substantive difference with the few, more predictable national projects that we envisage, for which we can set out national policy statement frameworks within which decisions should be taken and which Parliament will have a very strong role in developing.
In setting out the national policy statements, we can do what my hon. Friend the Member for Barnsley, East and Mexborough mentioned and set out the basis for separating policy making from decision making. Policy making is properly the province of Ministers, along with Parliament. Decision making is an area for an independent, expert panel through the commission.
Those projects that will still be dealt with under the current regime, such as commercial housing developments, which are exercising my hon. Friend the Member for Sheffield, Attercliffe, come in all shapes and sizes and vary considerably, as the collected experience from all of our constituencies would demonstrate. They are much more difficult to capture in the new framework. It is more difficult to set out detailed policy statements that cover all such cases. That means that the Secretary of State might occasionally need to call in certain cases due to an exceptional set of circumstances or because policy issues are raised that require a decision for clarification.
In our view, there is a good reason why there should be a distinction between bigger projects and smaller ones. Rather than the latter undermining the case for the former, that distinction allows us to make the proposals to treat them differently.
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I hesitate in some ways, Sir John, because I have already gone over the principal benefits that we believe will come from an independent IPC. I have stated them in some detail in giving evidence and in the scrutiny part of the Committee stage. Suffice it to say that in summary, the benefits are three-fold. We believe that the IPC will increase the speed and efficiency of decision making.
Mr. Betts: I have trouble listening to what my hon. Friend is saying, particularly about the greater certainty that the policy statements will give to the commission when it looks at individual projects. Can he foresee any circumstances in which the policy statement might not be absolutely comprehensive? For example, there might be gaps in it whereby the commission would have to arrive at an interpretation of policy if there is a dispute between the parties about what the policy is. Does he see the danger that, under those circumstances, we could end up with a situation where policy is made by the commission without any review of that decision by the Secretary of State?
John Healey: The intention of the system is clear. Policy making is rightfully for Ministers together with Parliament. The Bill specifically provides for circumstances where the policy is deficient, either because it does not cover the required areas or because it is out of date. The second principle benefit of the IPC is the belief that it will improve the quality of the decisions taken. Thirdly, it will improve clarity and transparency within a system that currently, and my hon. Friend dwelt on this, could include a situation where the same Secretary of State is responsible for policy, interested in the promotion of particular applications and is ultimately the decision taking authority. It is likely to be less a matter for the Secretary of the State of my own Department, and more common in the areas of transport.
I return to the question at the heart of my hon. Friend’s concerns—that of how the IPC will be accountable. I will try to set out a number of ways in which that will be the case and I hope that he will reflect on them and feel reassured. First, the IPC will always, and only, operate within the legislative framework set by Parliament, and within the policy framework set out by Ministers and scrutinised by Parliament in the national policy statements. As I have said, it will be required to give reasons for any decisions that it takes, and it will account to Ministers and to Parliament for its performance and for those decisions. The commission’s annual reports will be available to Parliament via Ministers.
We have suggested a special Select Committee to deal with national policy statements and elements of the new system, and it will be able to call the chair of the commission to give evidence before it—something that I am sure all members of the Committee expect to happen. The commission will be subject to freedom of information provisions and, in the case of maladministration, to the parliamentary commissioner for administration. Ultimately, the Secretary of State can remove a commissioner from office if he or she is satisfied that the circumstances meet the criteria set out in the Bill.
The second group of amendments deals with the IPC’s powers to apply, modify or exclude legislative provisions. Perhaps I could first attempt to reassure the Committee that this is not a swingeing new power to amend the legislation. It is a narrow and confined area of competence for the IPC. The sorts of primary legislation that we envisage the IPC will need to discharge its primary function of allowing the development consent are Private Acts of Parliament in relation to transport projects, many of which, as hon. Members will know, date from the 19th century. There will also be some byways and other provisions.
I appreciate that this is a controversial area. As it underpins some of our later deliberations as well as these amendments, I would like to try to demonstrate why the IPC needs these powers and emphasise the safeguards that are in place to ensure that they are used appropriately. We believe that putting the IPC in charge, not just of examining applications, but of the decisions that are essential to speeding up the process on national infrastructure projects, will improve the quality of those decisions and make the system clearer and more transparent. Those points lie at the heart of our proposals.
The problem is that the sorts of infrastructure projects that we are talking about are different from many other sorts of projects. Particularly with railways and ports, alterations to existing infrastructure—often built under the authorisation of Local Acts of Parliament in the 19th century and sometimes earlier—cannot be made without minor changes to existing legislation. As soon as anyone starts to develop or plan the concepts, they run up against the statutory provisions that regulate the existing infrastructure and would not permit those works to take place. Almost from the word go, questions about minor amendments to legislation are integrally bound up with the preparation and consideration of any planning projects for major infrastructure. That is particularly clear with railway infrastructure, where no alterations can be made to such infrastructure and therefore no further projects can be built on such land, unless the original Acts of Parliament are changed.
I understand the argument of some hon. Members that we should treat those cases as a special case and have the IPC report them and its consideration of applications to Ministers, but I hope that hon. Members will accept that were we to do that, we would be back where we started. We would lose the advantages of the single consent regime and the potential benefits that lie in creating the IPC and giving it this decision-making role. We would have a functionally separate process for the consideration of the application and for the derivative legislative changes and we would have separate responsibilities for those two areas. In other words, we would not have an independent planning commission, but an extension of Ministers. That would not speed up the decision-making process because we would have the same two-stage process with two separate bodies going over much of the same ground, separately and sequentially. We would not get improved decisions because the commission would be just a reporting body to Ministers; a sort of souped-up Planning Inspectorate. Finally, we would not have greater clarity regarding roles and responsibilities because Ministers would be setting policy and still taking decisions to deliver it.
Robert Neill: I do not understand how what the Minister has just said about delay and undermining the IPC fits with his earlier observation that the power to amend or disapply legislation is narrow and confined. If it is narrow and confined, it is likely to be used in a very discrete set of circumstances. I do not see how either two parallel structures or inordinate delay will be created. If Ministers are efficient and it is simply a question of a recommendation being made to them, that is not unscrambling the whole of the IPC. I hope that he does not misunderstand that, and I should like to know the basis for his suggestion. Surely, Ministers can come to a swift decision on a narrow and discrete, but important, constitutionally sensitive point.
John Healey: I repeat that the IPC will absolutely have a narrow, confined and well specified competence within which to exercise the powers. I am tackling the proposition in the amendments that when there are to be primary legislative changes as a result of an application, the application and the changes should automatically be referred to the Secretary of State for decision. That would be a two-stage process, with two bodies going over the same ground and losing the greater efficiency, speed and certainty of the decision-making process.
We are back where we started. I said that I would spell out some of the safeguards that I hope will reassure hon. Members. The use of the IPC’s legislative modification powers must be contained within an application for a particular infrastructure project. The application must be in the form of an order that has been drafted according to model provisions in the Bill and must be in accordance with the national policy statement. The draft order must be submitted to the Secretary of State, who may demand changes if the modifications would contravene European Union or human rights legislation.
Given those reassurances and comments, I hope that hon. Members feel that we have had a good, important debate and will not press their amendments to votes. If they do, I urge my hon. Friends to resist.
Mr. Betts: I thank my hon. Friend for thoroughly addressing the issues that I and other hon. Members have raised, and for doing so in his usual helpful and thorough fashion. However, he has reassured me only partially, because his explanation about the IPC’s accountability is that it will be partially accountable. I am not convinced that it will have the same accountability for its decisions as the Secretary of State would have.
I understand that Ministers’ recommendations and parliamentary votes will determine the national policy statements within which the IPC must operate, but I would be happier if the Secretary of State were to oversee that that is properly done on an individual application. I am still struggling with the fundamental reason why having the Secretary of State as the final arbiter would cause a considerable problem, and I am not fully reassured on that. I shall not press my amendment to a vote, but I think that we will have to return to this on Report, because it is a big issue, and I expect that other hon. Members will want to enter the debate. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Robert Neill: I heard what the hon. Gentleman said. I hope that I am keeping myself in order, but at an appropriate point I would seek to press our amendment No. 206.
6.15 pm
The Chairman: Indeed. I was about to say that a large number of the amendments that were grouped with amendment No. 391 will come up later in relation to other clauses. If Opposition Members wish to press any of them to a Division, it would be helpful if they let me or the Clerk know. It should probably be the Clerk, as I may not always be in the Chair—it could be my co-Chairman. If you would let the Clerk know which amendments you wish, at the appropriate time, to press to a Division, that would be entirely in order.
Robert Neill: I am grateful, Sir John. I have given that indication and will be content to be guided as to when we can register a vote on the matter.
The Chairman: Indeed.
Robert Neill: I beg to move amendment No. 227, in clause 32, page 16, line 31, at end insert—
‘(e) be accompanied by evidence that the applicant has taken all reasonable steps to secure conformity with the Local Development Framework policies of the affected local planning authority and where applicants have departed from local policy, an explanation for any such departure.’.
I shall endeavour to be concise. The amendment deals with a separate issue, but it and amendment No. 201, although separately listed, are in large measure linked. We are concerned to ensure proper and appropriate consistency in the handling of applications. In addition to the requirements and specifications that are already listed in clause 32(3), we seek to add, via a new paragraph (e),
“evidence that the applicant has taken all reasonable steps to secure conformity with the Local Development Framework policies”,
and, if the applicant has departed from that, an explanation for any such departure.
That is consistent with the Government’s approach of seeking to front load as much as possible, so that issues of controversy and debate are flagged up at the earliest possible stage. Several witnesses raised with us in various ways their concerns about how the national policy statements regime and the way in which statements are handled will or will not satisfactorily interface with existing policy documents and frameworks. We seek to clarify that at an early stage by requiring the applicant to say whether he can comply and, if not, set out his reasons.
I understand why there may be a departure from that for a major piece of infrastructure, but it is far better to have it flagged up in advance so that it can be effectively dealt with in the pre-application hearings, which we will discuss later. I hope the Minister accepts that the amendment will strengthen the working of the Bill and that he will respond favourably to it.
John Healey: I had regarded the amendment as over-prescriptive. I had not quite understood it, but I think I now divine the hon. Gentleman’s underlying concern. It seems to be to ensure that controversies and local views are, to use his words, flagged up early and, ideally, in advance of the application process.
The amendment is over-prescriptive principally for this reason. Once a national policy statement is established, it should, of course, be reflected in relevant local development frameworks or regional spatial strategies. However, the hon. Gentleman will know well, given his experience, that local development frameworks do not necessarily respond immediately, and such a framework may not have the opportunity to reflect and take into account the provisions of a national policy statement. Instead—this deals with his underlying concerns rather than meeting the terms of his amendment—the Bill requires any promoter to consult local authorities that will be affected by the proposals and to have regard to their views. During that consultation process, local authorities will be able to raise all relevant local concerns and controversies, enabling the promoters to take account of their views early and in advance of the application process. That will enable applications to be better prepared before being submitted. The Bill allows local authorities to bring up relevant concerns both at the pre-application stage and during the inquiry phases.
I hope that the hon. Gentleman will accept that his concerns are met by provisions and that the terms in which he proposes the amendment may be too prescriptive and not help his cause.
Robert Neill: I am grateful to the Minister for setting out the position clearly. I am grateful to have that on the record, and against that background I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Robert Neill: I beg to move amendment No. 201, in clause 32, page 17, line 5, leave out ‘section 42(5)’ and insert ‘sections 37, 42 and 43’.
The good news is that this will be the last that hon. Members hear from me—for a little time, at any rate. The amendment follows on from the principle that I referred to, which is about embracing the Government’s argument about front-loading as much of the work as possible. We are seeking to enhance the consultation and publicity at the early stage of the application. The amendment would extend the scope of the consultation report that is required to be provided to consultation under clause 37 and to publicity under clause 43, as well as what is in clause 42, which can broadly be referred to as the community consultation element. We do not have a problem with that. It seems sensible that there should be early community consultation, and to a high and robust standard—I think that that is the phrase that the CBI used in its evidence. However, we think it appropriate that the report that sets out how that has been gone about should embrace all the elements of consultation that have to take place. That would include the local authorities under clause 37 and the way in which publicity has been gone about under clause 43.
We are seeking to make the consultation report more comprehensive at that early stage. That seems sensible. Again, it would be likely to concentrate the minds of applicants and would ensure consistency. It certainly appears to be consistent with, for example, the approach adopted in clause 49(5), to which our explanatory statement refers. There is a desire on our part to seek clarity early on. That would add to the efficiency that I hope we and the Government want to achieve, even if we might sometimes disagree about the means.
John Healey: We wanted to give special weight to the consultation under clause 42, rather than spreading the importance of it more widely. That is why clause 42 requires that a statement be drawn up setting out how the applicant proposes to consult the local community—a statement on which local authorities must be consulted—and provides for it to benefit from guidance from both the commission and the Secretary of State as to what should be in it.
However—this deals with the hon. Gentleman’s wider concerns—the applicant must have regard to responses to the consultation and publicity under all three provisions to which his amendment refers. Similarly, the commission must have regard to the adequacy of the consultation representation made by a local authority consultee as part of the evidence and information that it has towards the end of the pre-application process. I hope that that gives him sufficient reassurance.
Robert Neill: As ever, I am grateful to the Minister, particularly for the spirit in which he approached that, and do not think that there is any difference between us with regard to intent. We will come to issues such as the model guidelines in due course and I hope that we can build in the appropriate safeguards, without making them too prescriptive, to ensure that those matters are ticked off. Against that background, I will not seek to press the amendment to a vote and am grateful once more to have the Minister’s assurance on the record. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 32 ordered to stand part of the Bill.
Clause 33 ordered to stand part of the Bill.
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