Planning Bill

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Clause 49

Acceptance of applications
Amendments made: No. 360, in clause 49, page 24, line 41, at end insert—
‘(ba) that development consent is required for any of the development to which the application relates,’.
No. 361, in clause 49, page 25, line 1, leave out ‘it’ and insert ‘the application’.—[John Healey.]
Robert Neill: I beg to move amendment No. 203, in clause 49, page 25, line 8, leave out ‘from a local-authority consultee’.
The Chairman: With this it will be convenient to discuss the following amendments: No. 204, in clause 49, page 25, leave out lines 10 to 14.
No. 205, in clause 49, page 25, line 17, leave out ‘and 43’ and insert ‘, 43 and 44’.
Robert Neill: The three amendments all hang together. They build on what the Government and almost all the witnesses recognised as the important issue of ensuring that there is a robust consultation procedure, which we seek to strengthen. The clause requires certain tests to be met for the application to be accepted, because requiring the applicant to demonstrate the robustness of the consultation is important. From what the Minister has said, I think that the Government accept that principle.
We think that it would be right and proper to apply the same requirements that currently exist for local authorities to the community generally. Although there will frequently be an overlap, one can think of many cases in which representations from members of the community will be of a different kind to those made by the local authority. That requirement would not add to the time scale, but it has the useful purpose of requiring the applicant to apply their mind to the issues raised by community objections. It is also important that they are seen to apply their mind to such things, which is a useful discipline that could result in time being saved later. We also think it right and proper, and much more consistent with good practice under domestic and European law, that reasons should be given for the views that applicants take.
Amendments Nos. 203 and 204 would extend the requirement to members of the community. Amendment No. 205 would require the applicant, as well as taking account of the objections, briefly to set out their responses, which would demonstrate that the applicant has applied their mind to what all the consultees have said. They can set out their stance succinctly, and it need not be an onerous task. That would help with the crystallisation of issues for the next stage of the process, and it would help the process to be seen to be fair and transparent.
John Healey: The hon. Gentleman and I share a concern to see good, thorough consultation as part of this stage of the process of dealing with applications. If I clarify how the clause works, perhaps he might be reassured.
2 pm
The wording in clause 49 simply means that representations from the relevant local authorities about how well the promoter has consulted the local community should be given particular attention by the IPC for two reasons. First, as my hon. Friend the Member for Sheffield, Attercliffe pointed out, local authorities have a unique knowledge about their area, a democratic mandate and experience of how best to ensure that local people are involved and that their views are taken into account. We want to ensure that that special experience and knowledge is captured and made available to the IPC.
Secondly, the Bill therefore puts a specific duty on promoters to consult the relevant local authorities when they are working out how to consult the local community that may be affected by their proposals. Local authorities will have been involved in the promoter’s planning of the pre-application consultation from an early stage. They will know what the promoter committed to doing during that process and will be in a strong position to pass judgment and comment on how effective the consultation has been.
For those reasons, it is appropriate that the IPC has regard to the local authority’s views, as proposed in the clause as drafted.
Robert Neill: I do not disagree with anything that was said about local authorities. I spent 16 years on a local authority and I am a pro-local authority person. However, I do not entirely see why it should not be practical to look beyond the local authority at other people, too. The Minister did not respond to the fact that in some cases, but not in others, the views of the local authority and of the residents will coincide. I would not want the—perhaps unintended—consequence of advantaging one set of consultees at the expense of another, which would be unfair.
I will not press the amendment to a Division, but I hope that before Report the Minister will reflect on how we can take account of the valued input of local authorities and also ensure fairness to individuals, residents associations or other representative groups. If only a small part of a local authority’s area is directly affected, there may be different perspectives that should be given equal weight. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 49, as amended, ordered to stand part of the Bill.

Clause 50

Notifying persons of accepted application
Dan Rogerson: I beg to move amendment No. 179, in clause 50, page 25, line 42, leave out ‘28’ and insert ‘56’.
The Chairman: With this it will be convenient to discuss the following amendments: No. 264, in clause 50, page 26, line 6, at end insert—
‘(7A) The publicity of the application shall include, as a minimum, advertising the application for two consecutive weeks in a newspaper circulating in the locality of the application and in the Gazette.’.
No. 265, in clause 50, page 26, line 6, at end insert—
‘(7B) The application shall be made available for inspection by the public at a reasonably convenient location within the vicinity of the application site and on a website.
(7C) The public may obtain paper and electronically recorded copies of the application for no more than the cost of copying the material.’.
No. 266, in clause 50, page 26, line 10, at end insert—
‘(8A) The deadline referred to in subsection (8) shall be not less than 28 days from the first publication of notice of the application.’.
Dan Rogerson: Never let me be accused of being inconsistent, Mr. Illsley.
Amendment No. 179 relates to the time periods available to objectors in notifying the commission of their objection. The Bill as drafted specifies 28 days. For the reasons that we discussed earlier, and may well return to, that may be too short a period.
I am mindful that the IPC’s work load will be about 40 applications a year and it may well increase. I would hate it to become very busy, as lots of applications are submitted in mid to late December and late July, so people in the community receive notifications at a time of year when they may be otherwise occupied. That might sound as if I am cynical and deeply suspicious of these processes, but my reading of the Bill is that the notification period in clause 50(5) is not up for negotiation with the commission, but is set by the applicants themselves.
I find it rather odd that the applicant decides how long people have to register an objection, but if that is to be the case, 28 days is overly generous to them in dictating that period. I hope that the Minister will consider the matter again. It is very important, as it is a real opportunity for people whose concerns have not been met at the pre-application stage to get involved at the application stage, and to ensure that all the evidence that they have to bring to bear is put forward. It is a crucial question, and I hope that he will be slightly less rigid at this juncture.
Robert Neill: I do not disagree with the principle of the hon. Gentleman’s point. I am always willing to try to be an honest broker between him and the Minister. If we split the difference in this case, between 28 and 56, we do indeed arrive at 42 days. That is perhaps the only logical justification for 42 days that I have yet heard since it was produced. We may have answered the question of my right hon. Friend the Member for Skipton and Ripon, and found a reason, for once, for the figure of 42 days which is principled as well as pragmatic.
Even at an advanced hour, there is occasionally the opportunity for a degree of flexibility and charity. I know that the Minister is a charitable man at heart. The amendments would be a concession to the smaller people, which would do no harm at all to the Government’s objectives, and would not hurt anyone. Against that background, I hope that he reflects favourably on them.
John Healey: We are breaking some interesting political ground this afternoon. The Tories are triangulating and trying to stake out common middle ground, and the Liberal Democrats are being consistent.
I agree with that it is important that people who are affected by an application have suitable and sufficient time to formulate any representation that they want to make to the IPC. As things stand, I believe that 28 days is the appropriate length of time for interested parties to do that. I will try to explain why.
First, let us not forget that, by the time an interested party is formally notified of an application, they are likely to know a great deal about the proposals in the application. It is highly unlikely that it will be the first that they have heard about it, or that it will be the first time that they turn their mind to it. Instead, the application process will have been preceded by an extensive period of consultation and discussion at the pre-application stage, which we considered in part 5. By the time an application is submitted, people who may be affected will be well aware of any problems that they could have with it. In that context, 28 days is an appropriate length of time for them to respond. Of course, the period can be longer if the applicant thinks it necessary.
As the hon. Gentleman said, amendments Nos. 264 to 266 would put some minimum standards for publicising an application in the Bill. I ask him to bear it in mind that the Bill already allows for the Secretary of State to make more detailed regulations about how publicity should be carried out. In particular, subsection (7) gives the Secretary of State powers to prescribe minimum standards for publicity and notification.
Amendment No. 266 would impose a deadline of at least 28 days, by which representations relating to an application must be submitted. That would apply to those who are not notified directly by the applicant, but who respond to the publicity. Regulations are better placed to deal with the issue in a more detailed way, and they will do so. We have deliberately allowed for flexibility in the regulations under subsection (8) so that the deadlines by which people must make their representations take account of different circumstances. I give the hon. Gentleman the reassurance that we have no intention of using that flexibility to set a deadline of fewer than 28 days.
Robert Neill: Will the Minister also assure me that the type of issues covered in amendments Nos. 264 and 265 are the sort of things that regulations should cover?
John Healey: Yes.
Dan Rogerson: I am grateful to the Minister for his reassurance that there will be further regulation on these matters. I understood that subsection (8) related to the form of publicity, but if the Minister is saying that in determining that, greater consideration will be given to the time frame, it is very helpful. The process must be seen to be fair and objectors might find it somewhat odd if it were the applicant setting the period for response rather than the commission. However, on the basis of the Minister’s assurances, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 50 ordered to stand part of the Bill.
Clauses 51 and 52 ordered to stand part of the Bill.

Clause 53

Initial choice of Panel or single commissioner
Dan Rogerson: I beg to move amendment No. 299, in clause 53, page 27, line 28, leave out from beginning to ‘must’ and insert ‘The Secretary of State’.
The Chairman: With this it will be convenient to discuss the following amendments: No. 300, in clause 53, page 27, line 41, leave out ‘and’.
No. 301, in clause 53, page 27, line 42, at end insert ‘, and
(d) the relevant local planning authorities.’.
No. 302, in clause 53, page 28, line 1, leave out ‘or’.
No. 303, in clause 53, page 28, line 2, at end insert ‘, or
(c) by the relevant local planning authorities.’.
No. 305, in clause 54, page 28, line 8, leave out from beginning to ‘may’ and insert ‘The Secretary of State’.
No. 306, in clause 54, page 28, line 23, leave out ‘or’.
No. 307, in clause 54, page 28, line 24, at end insert ‘or
(c) by the relevant local planning authorities.’.
No. 304, in clause 54, page 28, line 26, at end add—
‘(6) A person making a decision under subsection (2) must publish a statement setting out the reasons for their decision.’.
No. 308, in clause 57, page 29, line 28, leave out from beginning to ‘must’ and insert ‘The Secretary of State’.
No. 309, in clause 57, page 29, line 39, leave out ‘and’.
No. 310, in clause 57, page 29, line 40, at end insert ‘and
(d) the relevant local planning authorities.’.
No. 311, in clause 57, page 30, line 3, leave out ‘or’.
No. 312, in clause 57, page 30, line 4, after ‘Commission’, insert ‘or
(c) the relevant local planning authorities.’.
No. 313, in clause 57, page 30, line 5, at end add—
‘(6) The person appointed to make appointments under subsection (1) shall do so on the advice of the Council.’.
No. 314, in clause 58, page 30, line 15, at beginning insert
‘The Secretary of State may in consultation with’.
No. 315, in clause 58, page 30, line 16, leave out ‘may’.
No. 316, in clause 58, page 30, line 17, leave out ‘the chair’ and insert ‘the Secretary of State’.
No. 318, in clause 58, page 30, line 19, leave out ‘may’.
No. 317, in clause 58, page 30, line 20, leave out ‘the chair’ and insert ‘the Secretary of State’.
No. 288, in clause 71, page 34, line 25, leave out subsection (2).
No. 289, in clause 71, page 34, line 31, leave out ‘and’.
No. 290, in clause 71, page 34, line 32, at end insert ‘and
(d) the relevant local planning authorities.’.
No. 291, in clause 71, page 34, line 35, leave out ‘or’.
No. 292, in clause 71, page 34, line 36, at end insert ‘or
(c) the relevant local planning authorities.’.
Dan Rogerson: As far as I am aware, this group of amendments does not have any relation to time scales of 28, 56 or 42 days.
The amendments relate to the choice of whether a panel or a single commissioner should be appointed to consider an application. I would like to put it on record that I have concerns about the single commissioner process in any case. We are talking about very complex considerations.
We have heard already that the commission will be established in such a way as to represent a broad cross-section of areas of technical expertise and experience. That is a noble aspiration, regardless of my position on the commission as a whole. If that is the reality, it will help the commission to do its job. However, if one person is asked to be the repository for all of that experience and knowledge with regard to one application, I think that they will struggle. That is why I tabled an amendment that has not been selected for debate because it concerns a clause stand part issue with regard to clause 70 and the use of single commissioners. Perhaps we will return to that matter later.
2.15 pm
The amendments focus on two issues. First, they would give responsibility to the Secretary of State for choosing between a panel and a single commissioner. If we are to have the facility of having a single commissioner, it is not particularly onerous for the Secretary of State to make that choice on the advice of the commission’s council. However, we think that it is important, as part of the process of being seen to be fair, that the Secretary of State should have some involvement in making that decision and choosing who will serve on that body.
There are potential issues about people being unhappy with certain commissioners. We are talking hypothetically about a new body, but the longer commissioners serve on the panel, the more their track record and particular areas of expertise will become apparent, and that is an important part of the process on which someone else can express a view. On that basis, I hope that that someone would be accountable. I will not rehearse the debate about how accountable the Secretary of State is with regard to planning, but it would only be right and proper that the Secretary of State makes the decision on who would consider each application.
I also tabled amendments in this group that deal with the ability of the local authority to be consulted on that. A local authority will have people in its planning department who keep a close eye on the track record of individual commissioners and might have a view on what each commissioner could bring to the panel. That does not mean that they could be chosen because an interest might incline them to be for or against an application, but because they have reassured the local community through their local authority that they have the broad range of skills necessary to consider a complicated application. Therefore, I think that the Bill would benefit from the ability of the local authority to have some input in that decision.
I have concerns about the use of single commissioners, but we will no doubt return to that when we deal with later clauses. I would, however, be interested to hear the Minister’s justification for having an internal decision within the commission to decide whom to appoint to each project. There could be a perception that unfortunate things were going on within the commission, so it would be more transparent to have the Secretary of State make that decision. The basis behind the amendments is that the Secretary of State should be responsible for allocating the personnel to consider each application and that the local authority, in particular, should be able to contribute to that decision.
Robert Neill: I broadly support the thrust of the hon. Gentleman’s comments and associate myself with them. I also hope that the Minister, in his response, can assist us a little more by fleshing out the sort of circumstances in which it is envisaged that the single commissioner procedure would be used, because I share the hon. Gentleman’s misgivings about it We have flagged that up earlier in debate, so I will not repeat it now. However, I would like to note just what the Minister sees as the justification for it, in what circumstances it would be used and what the practical effects will.
Mr. David Curry (Skipton and Ripon) (Con): I am also a little bothered about that. The principle of the Bill is to isolate certain questions relating to large infrastructure projects and the purpose of the commission is to bring together a range of expertise. The Minister said that that had to cover expertise in human relation and in dealing with communities as well as expertise on the material substance of project, such as nuclear or transport issues. Therefore, unless we will have a renaissance man or woman on the panel, a single person will find it difficult to have the necessary range of expertise, which is very wide. There is social as well as technical and economic expertise that will deliver this. I find it almost a contradiction in terms to set up a commission specially to handle these large projects and then to say that one person can deal with it. That seems curious.
Secondly, commissioners can be taken ill. If there is a single panel and that person becomes ill or is involved in an accident or has pressing personal circumstances, it is unreasonable that the whole process should be halted while that is sorted out. Nor would it be possible to ferry in a new commissioner to do it without having to recapitulate all the evidence because otherwise it would be wide open to legal challenge. Surely it makes sense on the pure grounds of an insurance policy to have a number of commissioners so that if one of them has an accident, is taken or there is a problem, the other commissioners can carry on without there being any doubts about the range of expertise that is still available to the trial. I presume there will be some rules at some stage about what happens if a commissioner has to be absent from some parts of a proceeding and whether they can come back and carry on or would have to count themselves out.
Thirdly as the hon. Member for North Cornwall said, commissioners will inevitably begin to acquire individual reputations. Planning inspectors have individual reputations now. People ask, “Who are we going to be heard by?” They do have different performances. People will inevitably prefer one commissioner over another because they seem more sympathetic and deal with matters in a different way. It is equally important that there should never be any taint that the person appointed should have some particular affinity with the sector that is being dealt with. All those three items seem to indicate that we might have a streamlined panel, but there has to be a minimum range of expertise to enable it to carry on in the circumstances in which events of one sort or another buffet it.
The Minister may say that in the early stages there would be no question of a single panel with a single commissioner. But precedents will be set and there will be the first cases. I am sure that it will make sense for the early cases to be heard by a group of commissioners, not least so that a sort of case law is built up and established practice is built up in which people have confidence. By the time they are getting their 56th application for a nuclear power station, which is a long way down the line, they could say that so many other decisions have been taken that it takes on more of a routine and predictable character.
There again one runs into the objections from objectors who say, “Hang on. This is our application. This is my backyard and I am concerned about that.” I should be grateful if the Minister could outline in what circumstances a single commissioner would hear the entire case. Would that be down the line when a significant body of case law had been built up? What would be the provision if that single commissioner were incapacitated so that the proceedings were brought to a halt or significantly delayed?
I was asked for specific examples. Two might suffice in this context. They could be smaller projects on the strategic road network or electricity transmission and distribution system. Such projects may not be particularly large or complex—for example, they may be improvements to a key road junction—but because they are critical to the operational effectiveness of the network as a whole they are nevertheless of national significance and therefore a matter for the IPC. We considered in parts 3 and 4 what constitutes a nationally significant infrastructure project.
Dan Rogerson: I accept that there will by comparison be schemes that are smaller than others. However, by their very nature if they are of nationally significant importance they will be bigger than the average planning application to the local authority. There will be people in the area who are affected by them who will be interested in who will determine the application, as the right hon. Member for Skipton and Ripon said. What I am trying to say is that it is all relative. Does the Minister agree?
John Healey: No. It is not all relative. It is not a matter of size. Projects may be appropriately determined by a single commissioner not because they are big or particularly complex but because they are part of infrastructure such as an electricity or road network that is of national significance. That is what brings them into the ambit of the IPC. However, some applications could be heard by a single commissioner and not require the sort of commission panel that an application for a new nuclear power station, for example, might justify.
Mr. Curry: The Minister and I both represent Yorkshire constituencies, so I assume that we are equally familiar with the A1. The hon. Gentleman, and you, Mr. Illsley, will know that there are three major roundabout improvements in north Nottinghamshire and south Yorkshire, which are intended to solve a problem that I have never encountered in all the time I have been driving up and down the A1. Are those projects key small parts of a national network? How would the Minister classify them? If applications for those roundabout improvements were made after the Bill became law, how would he classify them in terms of their relationship to the A1, which has been a national link since the Romans built it?
John Healey: The right hon. Gentleman would not expect me to pre-empt a decision on a hypothetical situation. The A1 is clearly a network of major national significance, but how an application or project may be treated will be determined by the criteria set out in the Bill rather than in view of any observation that I might make.
The Bill provides that projects can be examined by a single commissioner who would not take the decision alone but submit a report with recommendations to the council of the commission. In all circumstances a group of commissioners rather than a single commissioner would take the decision for the commission.
Dan Rogerson: The council then becomes a more crucial body, which we have not explored in depth. Can the Minister confirm that the council would be chaired by the chair of the commission? There is a facility in this part of the Bill for the chair of the commission, who has a vital role in the commission as it is currently structured, to appoint himself—or herself—to be the person who considers that application. The chairman takes a decision to appoint himself to be the single commissioner, then conducts the inquiry, handles the application, makes the recommendation and chairs the commission as well. That might be a rare, hypothetical situation, but it is possible.
John Healey: A chair who adopted all those roles would have to be a super-workaholic. It is likely to be the proper role for the chair to chair the council or, in some circumstances, that could be undertaken by one of the deputy chairs of the commission.
The purpose that underpins these clauses is ensuring that we have a way of considering any application that is proportionate to the complexity and the demands of the case.
2.30 pm
I turn to the question of appointments being a matter for the commission. I will explain why I take the view that they should be a matter for the commission rather than for the Secretary of State, as proposed by the hon. Gentleman. Under the circumstances in which an application would be received, the commission and, in particular, the chair of the commission will be much better placed than the Secretary of State to make decisions about whether it should be handled by a panel or by a single commissioner, and, subsequently, whether it would be appropriate, for example, to switch to a panel rather than a single commissioner. Adding to the Bill the requirement for a statement of those reasons would be adding a paper exercise.
The hon. Gentleman’s central point is that it should be the Secretary of State and not the chair of the commission who should make such decisions. I think that the Secretary of State would accept that they do not know the details of each particular case. The commission will have all the documentation, including the reports on the pre-application consultation; it will know the issues that need to be resolved; it will know how complex the issues are; and, from the experience that it will build up, it will have a good sense of the appropriate way of dealing with such issues. In practice, if it were up to the Secretary of State to take such decisions, they would almost certainly have to rely on the advice of the commission. In addition, these are essentially practical decisions and so not appropriate for the Secretary of State.
On the question of appointments, it is our intention that every commissioner will be capable of considering each and every application, whether as a member of a panel or as a single commissioner. The correct role for the Secretary of State within that system is surely to appoint members of the commission who have the right qualities. That is the role that schedule 1 will give them.
It is rightly a matter for the chair of the commission to decide which member or members should handle a particular case, subject to the provisions of clause 62 about applications in Wales. The chair of the commission will be the chief executive. They will know which commissioners are available to handle a new application; whether any commissioners have experience that would be valuable; and about any interests that commissioners have that will prevent them from considering an application. It is for those reasons that we are placing this power and this responsibility with the commission rather than the Secretary of State. I hope that the hon. Gentleman will accept those reasons.
Robert Neill: I was hoping that the Minister would help on the other point that was raised by my right hon. Friend about what will happen if a single commissioner is in some way incapacitated. That is not a fanciful situation. A few years back, there was some publicity of a long and complicated copyright case in the High Court. The judge reserved judgment and died before he had given his final judgment. How would we deal with such circumstances?
John Healey: To short circuit that issue, if the hon. Gentleman and the right hon. Gentleman look at clause 74, it has provision to deal with such circumstances.
Dan Rogerson: I am grateful to the Minister for taking the time to consider the amendments. I am not entirely convinced by what he is saying about the Secretary of State having to rely on the advice of the commission. In other debates, we have heard about instances in which the Secretary of State under the current regime has decided not to go along with the advice of the Planning Inspectorate on individual applications. The Secretary of State does have his or her own mind. That issue should be considered together with what we have said about the local authority being able to express a view as to the suitability of a particular commissioner. The local authority is acting not in a vacuum, but as the representative of the local community, so it can put forward the views of the local community to the Secretary of State in those circumstances.
The Minister has sought to advance the principle throughout the Bill that the framework for considering decisions on policy, structure, and regulation is set by democratically accountable politicians, through the relevant Department, the Secretary of State, the Ministers and secondary legislation. The decisions take place within that structure. One can argue that that is the distinction and that it stacks up.
However, I would argue that the decision on who the commissioners are could be regarded as a political one, and, therefore, it ought to rest with the Secretary of State and the person who is setting the framework within which the decision will be taken. For that reason, I am of the opinion that it could be an important question later on.
We may have the opportunity, as we look at other clauses and hold stand part debates, to consider the notion of the single commissioner, and whether it is an appropriate mechanism for hearing an application. The question of who sits on the panel is crucial, and if the decision is taken among the members of the commission, it could bring the whole process into question. I certainly do not want that to happen. Therefore, I seek the Committee’s leave to press the amendment to a division.
Mr. Curry: I have not been able to resist the temptation of looking at clause 74, and it helped, although not that much. It states that if a new commissioner takes over, they can pretend that they were the old commissioner:
“the new single Commissioner may, so far as may be appropriate”—
that wonderful word, which, coupled with “reasonable”, enables Government function—
“decide to treat things done by or in relation to any previous single Commissioner as done by or in relation to the new single Commissioner.”
In the next clause, it states that the commissioner is under an obligation to ensure that he knows what he is talking about. At the very least, there will have to be an interval in which the new commissioner reads himself or herself in. The nature of the applications is such that that will not be done in a weekend with a wet towel. It could cause a significant delay.
Also, people who are concerned about an application will be given a soft target in being able to say, “Well, the new commissioner did not understand all that happened in the past. They seem to have missed crucial things.” It suggests that one should be very cautious before taking the risk of going to a single commissioner, as opposed to three, for example. I think that it is something to return to.
Question put, That the amendment be made:—
The Committee divided: Ayes 5, Noes 11.
Division No. 12 ]
Curry, rh Mr. David
Jones, Mr. David
Lait, Mrs. Jacqui
Neill, Robert
Rogerson, Dan
Betts, Mr. Clive
Clark, Paul
Dhanda, Mr. Parmjit
Ellman, Mrs. Louise
Ennis, Jeff
Fitzpatrick, Jim
Healey, John
Michael, rh Alun
Mole, Chris
Reed, Mr. Jamie
Watts, Mr. Dave
Question accordingly negatived.
Clause 53 ordered to stand part of the Bill.
Clauses 54 to 58 ordered to stand part of the Bill.
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