House of Commons
|Session 2007 - 08|
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General Committee Debates
The Committee consisted of the following Members:
Alan Sandall, Committee Clerk
attended the Committee
Public Bill Committee
Thursday 24 January 2008
[Mr. Eric Illsley in the Chair ]
Advice for potential applicants and others
Amendment moved [this day]: No. 232, in clause 45, page 21, line 10, leave out
The Commission may give advice
The Secretary of State may, in connection with securing propriety, by regulations make provision about the giving of advice by an existing government body appointed for this purpose.[Robert Neill.]
The Chairman: I remind the Committee that with this we are discussing the following amendments: No. 233, in clause 45, page 21, line 15, leave out Commission may not under subsection (1) and insert
body appointed by regulations under subsection (1) may not under that subsection.
No. 234, in clause 45, page 21, line 17, leave out subsection (3).
No. 235, in clause 45, page 21, line 25, leave out Commission and insert appointed body.
Robert Neill (Bromley and Chislehurst) (Con): I am delighted to see the Minister back in his place. I know that he has had a busy lunch time. We hope that he remains with us and is not reshuffled or promoted anywhere, after the multi-tasking he was doing on the lunch-time news. We do not want him to go until we have seen the guidance on the Welsh elements of the Bill. We hope that there will not be any drift in the Wales Office in preparing those, for obvious reasons.
To return to the point that I was making, the amendment relates to advice for potential applicants and others. I was discussing a concern that the Campaign to Protect Rural England raised in their written submissions, which has also been raised with us by a number of practitioners in the field.
It is not a problem with the giving of advice and assistance, as I hope that I have already made clear. I do not have any problem with greater use of pre-application discussions, for example, between applicants. It is sensible to involve other affected parties at that early stage, hence our reference to the great success of the Shortlands scheme in the London borough of Bromley, between the constituencies of my hon. Friend the Member for Beckenham and myselfjust to eke out the press release.
The concern raised is over the propriety of the commission being the organisation to give that advice. That concern arises because, ultimately, the commission has to act as the decision maker in the process; it must be the holder of the ring. The commission must maintain the confidence both of applicants and of affected parties, for reasons that we have rehearsed at considerable length, and that I will not repeat.
Against that background, is there a risk that, if the commission is the giver of advice, its impartiality as the decision maker will be compromised? That is why we put forward in our amendment an alternative formulation and suggest that other Government agencies could happily provide that function.
For example, the Planning Inspectorate, the planning advisory service, and the advisory team for large applications already exist. If they were used, and we leave it open in our amendment as to which would be most convenient, there would be the advantage of ensuring that bodies discrete from the decision maker provided advice to applicants. There could not then be even any suggestion of discussions behind the scenes that might be misinterpreted by those who are affected and are unhappy at applications. It would enable the commission, if we are to have one, in spite of our reservations, to be more readily seen than Caesars wife in the matter, so to speak. In essence, that is the reason for the amendments. I hope that the Minister will realise that we are trying to be helpful to the work done by the commission.
The Minister for Local Government (John Healey): The hon. Gentleman is right to probe that area, to be concerned about standards and propriety and to want to be sure that the commissions process for giving advice is as clear and open as possible. I argue, however, that it is a good thing that it will be the commission giving advice about the process to potential applicants because its members will be experts on the application process for major infrastructure projects.
It is obviously of equal importance that any contact and discussion between the commission and potential applicants does not prejudice the decision-making process in any way, that it is seen not to do so and is accepted as not doing so. That is the purpose of the regulation-making power covering the commissions role in giving advice, particularly with regard to the disclosure of that advice more widely and to the public.
By way of practical example, the regulations could require minutes of the commissions meetings or the advice that it will give to potential applicants to be made available to all parties. The commission will, of course, be subject to freedom of information legislation and to the powers of the ombudsman over questions of administration.
I think that the hon. Member for Bromley and Chislehurst will accept that there is rightly further work to do on the nature of appropriate advice, that it is probably better not to put it in primary legislation and that the regulation-making power is important. I hope that he will accept that that will help to ensure that it is clear to everyone that the commission acts impartially, openly, with complete propriety and that it will be seen to do so.
Given that the provision is underpinned by a commitment to make the process as transparent and unquestionably proper as possible, I hope that the hon. Gentleman will be willing on the basis of that reassurance to wait until the details of the regulations are specified. In preparing those regulations, we will discuss and consult widely because that is the way that we are most likely to get a framework of regulations that meets his concerns and can command the confidence of those who want to see the commission acting properly.
Robert Neill: I am grateful to the Minister for the way in which he has dealt with that and am reassured. I hope that in the consultation it might be possible to look, among other things, at how the bodies that I have mentioned and others operate. I am glad that he recognises the sensitivity and importance of the issue and, with that reassurance, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Robert Neill: I beg to move amendment No. 13, in clause 45, page 21, line 13, after representations, insert
including oral submissions and cross examination of witnesses.
The Chairman: With this it will be convenient to discuss the following amendments: No. 20, in clause 79, page 37, line 23, at end add
(4) Subject to subsection (3) above, nothing in this section shall restrict the rights of interested parties to make oral representations or cross-examine witnesses..
No. 328, in clause 80, page 37, line 36, at end insert
including receiving requests to be heard orally pursuant to section 84..
No. 21, in clause 82, page 38, line 19, leave out is to and insert may.
No. 267, in clause 82, page 38, line 20, after written, insert and oral.
No. 22, in clause 82, page 38, line 20, at end insert
subject to the right of interested parties to make oral representations and cross-examine witnesses..
No. 268, in clause 82, page 38, line 20, at end insert
and the carrying out of a site visit.
No. 269, in clause 83, page 38, line 42, after representations, insert
whether personally, or by its counsel, solicitor or agent.
No. 270, in clause 83, page 38, line 42, at end insert
and to call and to cross-examine witnesses.
No. 271, in clause 84, page 39, line 12, after representations, insert
whether personally, or by its counsel, solicitor or agent.
No. 23, in clause 84, page 39, line 12, at end insert and to cross-examine witnesses.
No. 272, in clause 84, page 39, line 12, at end add
and to call and to cross-examine witnesses.
No. 319, in clause 84, page 39, line 12, at end add
(4) Any deadline fixed under subsection (1) shall not be less than 56 days after the day on which the date of the open-floor hearing is announced..
No. 24, in clause 85, page 39, line 23, leave out from beginning to second the in line 24.
No. 273, in clause 85, page 39, leave out lines 23 to 25.
No. 88, in clause 85, page 39, line 25, at end insert
but where a local planning authority requests that a party be cross-examined, the Examining Authority will be obliged to grant the request;.
No. 25, in clause 85, page 39, line 39, leave out subsection (7).
No. 274, in clause 85, page 39, line 43, leave out exceptionally.
No. 275, in clause 85, page 39, line 44, leave out necessary and insert appropriate.
No. 276, in clause 87, page 40, line 45, at end insert and.
No. 277, in clause 87, page 41, line 3, leave out from application to end of line 5.
Robert Neill: It looks a bit of a mouthful, but essentially the point that we seek to deal with in this regard is an important one that we will return to elsewhere in the Bill. We have already flagged up the fundamental importance of the ability to have oral submissions and the cross-examinations of witnesses, and we differ with the Government on that. I know that the Minister has said, in relation to other aspects of the Bill, that there will be scope for the commission to allow cross-examination and oral submissions in certain cases. I take all that on board, but we do not regard it as adequate. This issue is so fundamental that it should be a right, not something that is at the behest of the commission. That is the fundamental difference between our position and the Governments. The reason for this is profound: people could be affected not only in their personal lives, but in their livelihoods, their professional situations and their proprietary interests in land.
In certain circumstances, the commission will be able to issue a development consent order that includes the compulsory acquisition of land. It seems to us absolutely inconceivable that a person confronted with that possibility should not have the rightnot just the discretionto present their case in the way that they choose. They should be able to do so themselves or through the representative of their choice, to ask the questions that they want to ask and to test any evidence that is called to support the proposal that could deprive them of their land.
Where we do agree, we are anxious to stress it. Subject to that right, the commission should be able to control cross-examination through the test of relevance, as do planning inspectors. As will be remembered, we have already rehearsed our alternative construct. If policy issues are decided in the national policy statements, it will not be necessary to go down the route of the terminal 5 inquiry, which had the longueurs of repeated cross-examination trying to reopen the issue of whether there should even be an airport.
In our judgment, at the application stage, there should be a debate simply about the merits of the particular site. That could be controlled in the same way as it is in other judicial circumstances. I will not bang on about this point because we have made it
It is important that there is a balance between seeking efficiency in the process and respecting the rights of individuals. The right to a fair hearing has been enshrined in common law almost since mediaeval times. It is also consistent with human rights legislation. The Secretary of State has signed the usual certificate saying that the Bill is compliant with the European convention on human rights. However, we suspect that if there is no clear right to cross-examination in the Bill, it will be a potential charter for more and more challenge through judicial review. In terms of planning, it will be the usual lawyers who are making the money. That is not a threat, but a statement of reality. Those who feel aggrieved and do not think that they can get a fair crack of the whip through the commission process will feel pressed to go to court to seek a remedy.
To use an analogy, the Government are falling for a false economy. They think that they will save money by making the process quicker by this prohibition. We think that it may make the situation worse through the amount of challenges and the damage that will be done to the commissions reputation for being independent. That is why we tabled the amendment, which is mirrored in other amendments that we are proposing throughout the Bill. It would ensure that even at that early stage in the process, part of the advice to the applicant or, crucially, to other interested parties is about making representations on the application. The Bill should spell out explicitly the right to make oral submissions and cross-examine. That is the point of principle that we seek to flag up through the amendment.
Dan Rogerson (North Cornwall) (LD): I support the hon. Gentlemans argument for the protection of the right to cross-examination. He has a lot more experience of that than me, but I have appeared before a planning inspector as a witness on behalf of a dedicated band of constituents. I was up against two barristers: one from the Environment Agency and one from a water company. It was great fun.
I stand to speak to amendment No. 319, which I tabled.
John Healey: I understand the hon. Gentlemans previous involvement in the process, but does he accept that having fun is not one of the objectives set out for the IPC in the application process?
I return to the issue of the time that objectors have to participate in various stages of the process. Based on our previous discussion about the pre-application stage, I appreciate that the Minister said there would be an incentive for the applicant to ensure that the consultation is as thorough as possible to prevent later delay in the application stage. I can see his point, although it pains me to admit it.
At the application stage, however, it certainly is not in the interests of the applicant for the objectors to have plenty of time to put their point across. Amendment No. 319 therefore refers specifically to the period in which any potential objector has the right to notify the IPC or the applicant that they want to be heard at an open-floor hearing. That is a crucial part of the process for the objectors, because it is where they can get their point across and make their voice heard; if for any reason, the time scale was not appropriate, it would mean that they missed out on that chance. That would be hugely to the detriment of any sense of fairness in ensuring that the application was considered properly, and anyone who had that experience would be very disillusioned with the process.
I hope the Minister agrees that we should consider a longer time frame for this crucial issue to ensure that people can appeal to have their views heard at an open-floor hearing.
Mr. Clive Betts (Sheffield, Attercliffe) (Lab): I will speak briefly to amendment No. 88. I am not convinced by the argument that everybody and anybody should have the right to cross-examine. It has been suggested that that right exists now under planning law, but the vast majority of planning applications are considered by the planning committees of local authorities, where the right to cross-examine does not exist. Indeed, the format of procedure that the commission is likely to adopt will be adopted by committees now. Individuals will be allowed to state their case and they may be asked questions by members of the committeea form of cross-examinationwho will then reach a view.
It is up to the commissioners whether they adopt that form or allow cross-examination, as the proposal states. However, a category in the interpretation clause 92 at the end of chapter 4 specifically defines a relevant local authority as a recognised interested party throughout the process of the hearings.
To meet concerns about the potential removal of democratic accountability and the voice of the people, my amendment recognises that the commission will conduct the hearings as it so choosesthere is no automatic right for everyone to cross-examinebut that representations from local authorities should be treated differently because they are different and distinct. Therefore, if a local authority representing its community in a democratic, elected way, asks for the right to cross-examine, it should be allowed to do so because it is a different and distinct organisation, as the Bill recognises.
John Healey: We discussed most of the issues and principles that the hon. Member for Bromley and Chislehurst raised at some length in our debates on parts 1 and 2. I also dealt in detail with some of his concerns in the memorandum that I submitted to the Committee two days ago. I shall try to deal with a couple of the main points that he made when moving his amendment. He is right in his observations about the present system and the extent to which there are rights at present. As I have said, rather than simply importing the 2005 rules relating to major infrastructure and basing a system entirely on them, we are trying to create a new system of examination for considering nationally significant infrastructure projects.
Therefore, the Bill sets out a way of proceeding for the IPC that strengthens the pre-examination process; tries to identify and deal with issues that might be contained in the proposals up front rather than leave them to be argued over at great length in the inquiry stage; draws on a national policy statement so that matters of policy do not become the meat and drink of the inquiry; makes much greater use of written representations while ensuring that oral hearings will be heard when necessary; and aims to test, probe and assess the evidence through direct questions led by the IPC rather than by cross-examination. Such cross-examination is normally conducted by hired third-hands and lawyers who are only available to those with deep pockets, particularly in long inquiries. We have already seen and discussed the situation where even a local authoritythe borough of Hillingdonran out of money and was unable to maintain its involvement in one of the Heathrow inquiries.
To be clear about the new rules and the suggestion that they somehow will not provide a tried, tested and established system and that we should simply use what is currently in place of the IPC, I suggest that no major infrastructure project has yet been dealt with under those rules. As we sit at the start of 2008, we can anticipate that it might well be 2009 before the first major infrastructure project is put forward as an application, and that would be on the table as a matter to be dealt with by the Planning Inspectorate under the current system. Therefore, it is not as if we have a tried, tested and established model that we could be confident is up to the job.
Cross-examination might have a place in hearings and can be a useful method for testing and probing evidence and ensuring that peoples concerns are properly established. However, as I have said to the hon. Gentleman, to somehow equate the right to be heard and have views registered with the right to cross-examination is to make a profound mistake.
Also, cross-examination has its problems. It can be costly and time consuming, and it can be difficult to estimate how long that part of the process might take. It can add to the uncertainty for all involved in any inquiry for which it is the major method for trying to establish the facts. It can be legalistic, adversarial and, therefore, intimidating, particularly for ordinary members of the public who perhaps have neither the experience nor the access to the sort of resources that are required for professional cross-examination.
For those reasons, it is better to have an IPC process that allows for cross-examination but is nevertheless essentially predicated on the view that the commission will lead the evidence testing in a similar way to how Select Committees conduct their business, with which we are familiar as Members of the House. Of course, the commission will also have access, should it require it, to additional expert advice.
On the subject of those who may be subject to compulsory purchase orders as part of the consent order regime and process for a major project, again we are taking a slightly different approach to the current system, but one that helps us to achieve our objectives while ensuring that there is sufficient reassurance and rights for those who might be affected. First, the Bill explicitly gives parties subject to CPOs the ability to trigger an oral hearing, and a right to be heard at that
Robert Neill: If the property of those parties is likely to be subject to compulsory acquisition and they are to have the right to an oral hearing, what mechanism will there be to guarantee them not only the ability to put their point of view, but to challenge the basis of the assertion on which compulsory acquisition is sought? It is terribly important for whatever form we have that someone who may be going lose their land, perhaps for the greater good, has the chance to challenge. That, almost invariably, involves testing and probing the evidence put.
John Healey: Indeed. I think that I made it clear a moment ago that the responsibility for testing and probing will rest with and be led by the commission, but it may involve cross-examination. Clearly, any party giving evidence at an oral examination would want to try to ensure that the right questions and testing were undertaken by the commission. It can use cross-examination if it wishes. The framework that we have set out emphatically does not rule that out if it is necessary.
There are two principal reasons for which cross-examination might be necessary. The first helps to address the hon. Gentlemans point, and the second is equally important. Cross-examination may be necessary to ensure that adequate testing and representations have been made to the commission, and an interested party potentially affected by a CPO may have views on that. However, if cross-examination is necessary to ensure the representation of interested parties, clause 85 allows that to happen and for the commission to ensure that it happens. I hope that that is a sufficient explanation.
Robert Neill: The Minister makes it sound reasonable, but we are concerned that things will not work out that way in practice. That is why we regard the matter as one of important principle.
It is suggested that cross-examination is somehow useful only to those with deep pockets. The reality is that the situation will probably be the reverse. The ability to cross-examine is likely to be most important to the little people, as it will probably be the only means by which they will be able to get their case across and to challenge. They will not be able to have a detailed written submission put in by an expert in the same way that the applicants and the big battalions will be able to do. Their ability to have their say and to ask questions is probably more important. So it is, in fact, a protection for the little people, rather than the well resourced.
With respect to the hon. Member for Sheffield, Attercliffe, I do not think that his first point entirely follows, because the type of applications that we are talking about are not of the class likely to be considered by a local authority planning committee. Even in the current situation, they will invariably be called in and there will be a public inquiry. Therefore, there would be a hearing of one kind or another. That is the distinction.
The hon. Gentlemans other point about local authorities, although superficially attractive to those of us with backgrounds in local government, runs into one problem. A situation could occur perfectly easily in
As it is an issue of principleI will not repeat it because we have crystallised the issue in the way that the hearing would seek to doour view is that cross-examination can be sensibly controlled.
John Healey: The hon. Gentleman is right: he has crystallised the issue. Does he not accept that he has done so by testing and probing the position and the representations that I wish to make to the Committee, rather than by cross-examination?
Robert Neill: If the hon. Gentleman were putting himself forward as an expert witness, I might need to cross-examine him in a different format. It is often said, rightly by those who do rather more of this work than I ever did at the Bar, that the more expert witnesses there arethere will be tonnes of experts on these type of applicationsthe more the skilled professional is needed to test, probe and cross-examine. It will not be the little objector who will be subjected to heavy cross-examination, but the expert witness for the applicant who will need to be pushed hardest in cross-examination. It is the little people for whom the measure is most important. Although we want to see all the controls put in place, which we have agreed can be done through a different route, we regard this is as a matter of principle and so will press the matter to a Division.
Dan Rogerson: I was doing something dangerous for a man: I was attempting to multitask while the Minister spoke. I am not sure whether he addressed my point about time issues. Does he have anything further to add about the time frame involved in securing the right to an appeal? I cannot remember the clause, but it is up in the 80s. It has been grouped with this amendment because we are talking about open-floor hearings. I would welcome anything that the Minister can say on that. If he cannot respond, I shall press amendment No. 319 to a vote because it is a crucial issue. It would be a huge problem if someone missed out on that fundamental right.
Mr. Betts: When my hon. Friend responds to that could he also come back to my point about the special position of local authorities and whether he thinks that needs to be reflected further in the Bill? They are clearly given a special position in chapter 4.
John Healey: To answer my hon. Friends point directly, the case is not clear for special treatment in this part of the Bill. The hon. Gentleman is right: questions of timing appear later. They are connected principally with the application process. We are dealing with the pre-application process. I propose to deal with that point in more deal when we get to the relevant clause.
Dan Rogerson: On a point of order, Mr. Illsley. Will we be able to vote on amendment No. 319 when we reach that clause?
Question put, That the amendment be made:
The Committee divided: Ayes 6, Noes 11.
Division No. 11 ]
Question accordingly negatived.
Robert Neill: I beg to move amendment No. 202, in clause 45, page 21, line 21, leave out subsection (4) and insert
(4) The Commission shall disclose a persons request for advice under subsection (1) and the advice given under subsection (1) to a person to the public generally..
The amendment returns to the first issue that we discussed about transparency and the disclosure of requests for advice. I agree with the Ministers points about the importance of transparency and probity in such cases. It is precisely because we set such store by that that we believe it should be in the Bill, rather than having the power as set out in the clause to achieve it by creating regulations. The transparency issue might give rise to legal challenge and so would be better spelled out in the Bill.
There could be circumstances in which objectors or affected parties want to know what has taken place between the commission and applicants, particularly when they are drawing up their own cases. I accept that the Freedom of Information Act 2000 will apply, but sometimes it takes a long time to get information under that process. I am also concerned that sometimes applicants might seek to pressure the commission into not disclosing all of the discussions, sometimes under the guise of commercial confidentiality. The amendment would strengthen the Governments desired position of ensuring that there is the maximum possible openness about pre-application discussions.
Again, this is a Caesars wife point. Because of the important principle that is involved, we think that it
John Healey: In many ways, I think that we had this discussion in the debate on amendment No. 232. I dealt with the same points that the hon. Gentleman made then, and he was good enough to nod and accept them and did not press that amendment to a vote. I would like to invoke a refer-back provision rather than take up the Committees time in discussing this amendment. I hope that he will take the same view with this amendment as he did with amendment No. 232.
Robert Neill: If the Minister is reassuring me that the consultation on the regulations will take the same form as he has already indicated, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 45 ordered to stand part of the Bill.
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