Clause
67
Decision-making
by the
Panel
3
pm
Dan
Rogerson:
I beg to move amendment No. 286, in
clause 67, page 33, line 21, at
end insert—
‘(3) The vote of
each member of the panel in respect of each decision shall be
recorded.’.
I
am beginning to feel like a one-man show here.
[
Interruption.
] I apologise; there have been some
excellent responses from the Minister. The amendment relates to votes
being taken within the panel when determining an application. That
raises the possibility
of different commissioners serving on a panel taking
a different view with regard to an application that they are
considering. They may have different areas of expertise and experience,
and it is part of their role to use that experience to consider an
application, to take into account the evidence before them and to reach
a conclusion following discussion. If it were to come to a vote,
the amendment would require each vote on an application to be recorded.
As commissioners may acquire a reputation in certain fields, with the
implication that they hold certain opinions and views, were any trend
to become obvious, it might be suggested that they were prejudging
applications based on a certain point of view. To record the
commissioners’ votes on each application would help transparency
and make it more likely that those who are concerned about how an
application has been handled would have the evidence, or contributory
evidence, in order to call the judgment into
question.
The
amendment is simple. It would not damage the Bill or obstruct what the
Government are trying to achieve in any way, but it would mean that
people concerned about individual commissioners taking individual views
would have the evidence in front of them. It may help the Government,
because it would help to allay any fears by showing that there is no
bias and that the commissioners are considering each individual
application on its merits, with no trends developing at all. It could
work both ways, but whichever way it works, I cannot see how it would
be anything other than helpful, and I therefore hope that the Minister
will consider taking it on
board.
Mr.
Curry:
I normally find myself in agreement with my Cornish
friend, and the fact that this time I am not sure that I do probably
means that the Minister is about to accept the amendment. If the
commission is to work, it must operate on the basis of collective
responsibility, which means that the decisions must be indivisible. The
trouble is that if commissioners get a reputation for voting in a
particular way, like the Bank of England’s Monetary Policy
Committee, the minute that they are appointed to a case, the first
thing that will happen is that their past history will be wheeled out
and presumptions made about how they are likely to react.
I see the
obvious attractions of recording and publicising votes, but I also see
the drawbacks in terms of developing collective wisdom, with individual
commissioners being separated out and comments being made about the
appropriateness of certain appointments to carry out certain tasks. It
is a conundrum to which, happily, I am not in the position of having to
provide an answer, but the Minister is, and I am interested to know
what it is.
John
Healey:
All members of the Committee accept that, as far
as possible, the commissioners sitting on a panel will operate best if
they operate collectively, reflecting the equal role of the members and
the skills that they bring to the table in consideration of any
particular application. At the same time, there are circumstances in
which commissioners will disagree, and it may be that a vote on a
decision will be necessary in order to avoid a deadlock. In those
circumstances, a panel would take a decision by a majority and the lead
commissioner—the commissioner chairing the panel—would
have a casting vote, if there were a tie.
In order to
avoid confusion, significant splits and some of the drawbacks outlined
by the right hon. Member for Skipton and Ripon, the Bill provides that
once a decision has been taken, in the spirit of the ambition to see
the panel and the commission operating collectively, all members of the
panel will be bound by collective responsibility. The proposal to
record and publicise votes in such circumstances would undermine that
principle. I hope that the hon. Member for North Cornwall will not
press the amendment to a
vote.
Dan
Rogerson:
I understand the argument put forward by both
the Minister and the right hon. Member for Skipton and Ripon. However,
it depends where one is coming from on this issue. If we want the
commission to build up the reputation that the Minister is talking
about, it might help to have a collective responsibility, which is
unfashionable nowadays. My concern is that such allegations will be
made anyway. If two or three members of a panel are looking at an
application within a certain sector, it may well be that, because of
their expertise, they find themselves on another panel considering
another application of a similar type. People will start to read into
that. They may say, “Mr. Smith was on the last panel
and that decided that, and this one has decided that.” It might
help if people can base whatever they say on evidence rather than
supposition. I do not think that we can stop potential criticism of the
panel. It is more likely to be unfounded or founded on supposition
rather than the facts. I will not press the amendment to a vote, but
there could be concerns about opacity in the decision taking of a
commission or a
panel.
Amendment,
by leave,
withdrawn.
Clause
67 ordered to stand part of the
Bill.
Clause
s
68
and 69
ordered to stand part of the
Bill.
Clause
70
Single
Commissioner to handle
application
Question
proposed, That the clause stand part of the
Bill.
Dan
Rogerson:
I want to return to the issue of the single
commissioner and would like to vote on clause stand part.
To delete
clause 70 would have a fairly drastic effect on the function of the
single commissioner. As far as I can see, single commissioners should
not be considering applications of national importance. Having moved
away from the issue of democratic accountability, I will not go over
again the arguments about whether the infrastructure planning
commission is a beneficial part of the Bill, but I will say that if we
are going to have such applications considered, it should be done by a
group of commissioners rather than a single
one.
Mrs.
Lait:
I am somewhat torn between both arguments. On
balance, however, the practical potential impact of having a single
commissioner who is sick or who has to pull back from presiding
overrides the argument that the Minister makes for what is a
relatively small application. Evidence was cited to us about the north
Yorkshire grid application and substations being held up for many years
for all sorts of reasons. Even a small application for a substation
would be affected.
We have also been given an
example about roundabouts on the A1. It may be no surprise that I, too,
am familiar with those roundabouts. I can imagine that any proposal to
replace them with whatever might be the right solution at those
junctions would be controversial. There is an interesting debate to be
had on whether such projects are of national significance and whether
it is more appropriate for the IPC or the Planning Inspectorate to deal
with them. If such projects are to be classified as projects of
national significance, and they are controversial, then however speedy
the process could be under the system that we are trying to achieve
with our amendments or under the Government’s system, we need
more than one commissioner on even the smallest project.
The likely consequence is that
although the number of applications might stay the same, the number of
applications that the commission can deal with in a year will go down.
That backs up the arguments that we have long made that the number of
commissioners appointed and the deadlines that are implied will clog up
the system and not speed up the decision-making process. I therefore
support the objection of the hon. Member for North Cornwall to the
clause and will join him in voting against it.
Question put, That the
clause stand part of the
Bill.
The
Committee divided: Ayes 11, Noes
5.
Division
No.
14
]
Question
accordingly agreed to.
Clause 70 ordered to stand
part of the
Bill.
Clauses
71 and 72 ordered to stand part of the
Bill.
Clause
73
Single
Commissioner continuing though ceasing to be
Commissioner
Amendments
made: No. 374, in clause 73, page 35, line 22, after
‘until’ insert ‘—
(a)’.
No. 375,
in
clause 73, page 35, line 23, after
‘application’ insert ‘,
or
(b) (if earlier) the ex-Commissioner
ceases to be the single
Commissioner.’.
No.
376, in
clause 73, page 35, line 25, after
‘until’ insert ‘— (a)’.
No. 377, in
clause 73, page 35, line 27, after
‘application’ insert ‘,
or
(b) (if earlier) the ex-Commissioner
ceased to be the single Commissioner.’.—[John
Healey.]
Clause
73, as amended,
ordered to stand part of the
Bill.
Clause
s
74 to 78
ordered to stand part of the
Bill.
Clause
79
Examining
authority to control examination of
application
3.15
pm
Dan
Rogerson:
I beg to move amendment No. 296, in clause 79,
page 37, line 21, leave out paragraph
(a).
The
Chairman:
With this we may discuss the following:
Government amendments Nos. 378 and 379, and 382 to
384.
Amendment No.
397, in clause 96, page 44, line 29, leave out paragraph
(a).
Government
amendment No.
385.
Dan
Rogerson:
I am sure that the more experienced Members who
are used to wading through Bills will understand the use of the word
“frivolous” in this context, but I must admit that it
raised some concerns with me. I would be interested to hear how the
Minister defines “frivolous.” I can understand that were
commissioners to receive a note saying, “Dear commissioners, you
are a bunch of”—one can insert the Anglo-Saxon or Welsh
word of choice—they might regard that as frivolous and seek to
disregard
it.
However, there
may be standard letters—for example, those that are completed by
several objectors. Will letters that people are handed in a town centre
and asked to sign, and things of that nature, be considered frivolous?
The examining authority might seek to use the word
“frivolous” to disregard some objections, or it could be
argued by the applicant that something should be considered
frivolous.
The
purpose of the amendment is to draw attention to the use of the word.
It may be that I am unaware that it is standard practice to include it,
and that there is a clear definition of it, but I would welcome hearing
from the Minister what the definition
is.
Robert
Neill:
Following on from the hon. Gentleman’s
point, in other legislation and in common law, definitions of, for
example, frivolous and vexatious litigants are well enough known. Is
this the same sort of context? It obviously is not entirely the same,
but is the frivolous part intended to be the same, and in what
context?
Will
there be any scope for appeal? One is hoping that there would be,
because the people who might make frivolous representations are exactly
the sort of people who may end up seeking judiciary review applications
and being obstructive. I hope that the Minister can give some
clarification of that. I understand that that is what the Bill is
trying to achieve.
I note also that in subsection
(2)(b) regard is to be had
to
“any guidance given
by the Secretary of State, and any guidance given by the Commission,
relevant to how the application is to be
examined.”
Will
the guidance from the Secretary of State be guidance to the commission?
I assume that that is the case. Will the guidance from the commission
be to itself, or will it also be to those appearing before it? Can the
Minister give us any idea as to what sort of matters might appear in
the guidance? Will there be consultations on the guidance? How will
they be published, and what legal status will they have? What is the
timetable?
John
Healey:
“Frivolous” refers to a
representation that the person who is making it knows in advance has no
merit. The amendment would make it unclear whether the IPC is required
to consider frivolous representations during the examination of an
application. Although we all share the aim of ensuring that IPC
examinations are thorough, efficient and accurate, we should agree that
frivolous representations, which may be irrelevant, pointless or
patently of no merit, have no place in the system. I hope that the hon.
Gentleman is reassured that the IPC should not use that as a means of
excluding people from submitting evidence that has merit. Were it to
try to do so, the normal procedures of administrative law would apply
to the IPC, just as they do to any other public body. Those who believe
that their evidence has been unreasonably disregarded in that respect
could also make use of the mechanisms for legal challenge set out in
clause
104.
Government
amendments Nos. 378, 379 and 383 to 385 would strengthen the
thoroughness of the IPC’s examination by ensuring that parties
do not try to wreck the proceedings by using vexatious representations.
They are consequential amendments to clauses 92 and 96 and were tabled
to ensure consistency throughout the Bill in the treatment of vexatious
representations. It should not be too difficult for the IPC to identify
when representations become vexatious—there will be a large
quantity of repetitive, burdensome and unwarranted representations in
which the intention is not so much to explain the issues as to try to
do down or subdue the other parties.
Government amendment No. 382
concerns a different matter. As the hon. Member for Bromley and
Chislehurst has pointed out, it will allow the Secretary of State to
prescribe the form and manner of a relevant representation for the
purposes of clause 92 to facilitate the clear and efficient
communication of information and objections. The amendment would ensure
that the IPC can quickly identify the key issues that underline an
application in order to concentrate its examination on the most
important and relevant underlying
issues.
A
standardised method of communicating representations could also make
the examination of the main issues more effective, which is the purpose
of the amendment. There will, of course, be consultation before we
finalise the proposals, and although it may be possible for the IPC to
specify those things through its own procedural rules and powers, it is
appropriate in this case that the Secretary of State should specify
them rather than the IPC. The reason is that the
decision whether a representation is relevant is the gateway to a
participant being included as an interested party to the examination
with the rights to be heard that flow from that. The hon. Member for
Bromley and Chislehurst is nodding his head, and I think that he
recognises the significance of the
amendment.
Dan
Rogerson:
I am grateful to the Minister for his
reassurance that the provision will not be used to discount evidence
frivolously. I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Amendment
made: No. 378, in clause 79, page 37, line 21, after
‘are’ insert ‘vexatious
or’.—[John
Healey.]
Robert
Neill:
I beg to move amendment No. 409, in
clause 79, page 37, line 21, at
end insert
‘or’.
The
Chairman:
With this it will be convenient to discuss the
following amendments:
No. 410, in
clause 79, page 37, line 22, leave
out from ‘statement’ to end of line
23.
No. 429, in
clause 85, page 40, line 8, at
end insert
‘or,’.
No.
411, in
clause 85, page 40, line 10, leave
out from ‘person)’ to end of line
11.
No. 413, in
clause 107, page 51, line 17, leave
out ‘or is incidental
to’.
No. 419,
in
clause 107, page 51, line 20, leave
out subsection
(3).
No. 412, in
clause 109, page 51, line 32, leave
out from ‘provision’ to end of line
34.
Robert
Neill:
We seek clarification on clause 79, and we return
to the important issue of cross-examination once again. Amendment No.
409 would insert the word “or”, which may not seem much
in itself, but it deals with the compulsory purchase element of the
matter, and we think that it would provide greater clarification.
Amendment
No. 410, to move on slightly, would leave out from
“statement”, because the current clause may be too
restrictive. We do not disagree with the ability to restrict extraneous
material, which has been our stance throughout. I see the hypothetical
danger of somebody saying, “I want to go on to the merits of
nuclear power, beyond what the national policy statement says.”
Will the Minister give us an idea how the clause will work in practice,
which will assist us?
The
Chairman:
Order. In view of the time for which the
Committee is likely to sit, and to give the hon. Gentleman time to
collate his thoughts, the Committee will take a 15-minute refreshment
break, on the basis that we have now sat for almost two and a half
hours and are likely to sit until the votes in the Chamber this
afternoon. The Committee cannot sit for four hours without a break, and
it would be as well to take that break now.
Dan
Rogerson:
On a point of order, Mr. Illsley. I
realise that the Government Whip may be seeking to catch your eye, but
I wonder whether it would be better to finish proceedings today at 4
o’clock, as the convention has been up to now. We could press on
until that juncture, subject to what other hon. Members
think.
The
Chairman:
Order. The Committee is suspended until quarter
to four.
3.27
pm
Sitting
suspended.
3.45
pm
On
resuming—
Robert
Neill:
May I say, Mr. Illsley, how grateful I
am to you for your perspicacious decision to adjourn the Committee for
a short
time?
I
hope that I can deal with the amendments quite briefly. It is clear to
anyone that they are on compulsory purchase. Taken together, amendments
Nos. 409 and 410 would reverse the exclusion from the ambit of the
clause of issues relating to compensation for the compulsory
acquisition of land, so that they are not disregarded by the examining
authority. The subsequent amendments follow that pattern elsewhere in
the
Bill.
The
reason for that is the importance to the individual of the compulsory
acquisition of land. It seems right that an individual should be
entitled to make representations to the authority examining such a
proposal to protect the small person who may have real worries about
it. If the Minister can reassure me that there are other mechanisms by
which such problems can be satisfactorily vented, I shall be interested
to hear
them.
If
the Government are saying that compensation is irrelevant and not to be
regarded, how can that be reconciled with the provision elsewhere in
the Bill that one ground for departing from a national policy statement
is if the local impact would outweigh the benefit? That is a balancing
act. If it is decided that that the impact of a proposal outweighs its
benefit, surely the financial consideration might be significant. A man
might come along and say, “This will put a firm out of
business”. It is not unreasonable to seek some quantification on
that. What is the rationale for the argument that compensation should
be excluded? Will the exclusion be automatic, or will the examining
authority have discretion, as appears to be the case? If so, how will
that discretion be
exercised?
Mr.
Llwyd:
Am I right in thinking that the reason for striking
out compensation for compulsory acquisition of land from the ambit of
the clause is so that the Lands Tribunal can continue its operation as
the main avenue through which land acquisition compulsory payments are
discussed if there is a default on an agreement? I am trying to assist,
because I, too, am a bit bemused. I suspect that that may be the
reason—so that the Lands Tribunal remains intact as a
body.
Robert
Neill:
I am grateful to the hon. Gentleman for his
valuable and helpful point. If that is right, which it may well be,
does he think that it runs contrary to the idea of having all the
consents brought
together?
Mr.
Llwyd:
That was one of my concerns. The hon. Gentleman is
right to raise the matter, and I am glad that he has. Perhaps, in due
course, the Minister could address that apparent conundrum and confirm
whether it is intended that the Lands Tribunal will operate as it
currently does when compulsory acquisitions of land have to be
effected.
John
Healey:
Perhaps I can come to the concerns of the hon.
Gentleman and the hon. Member for Bromley and Chislehurst in a moment.
I hope that I shall be able to deal decisively with
them.
It is important
not to overlook amendment No. 429 or let it pass without comment. It is
designed to prevent the IPC from refusing to allow representations at
hearings if it considers that they relate to the merits of policy as
set out in the national policy statement.
We have
discussed at some length, particularly in part 2, the importance and
benefit of Ministers setting out a clear policy framework in a national
policy statement, which will be extensively consulted upon and subject
to scrutiny in this House. There has been a general recognition that
there is merit in moving away from the current situation in which
applications and hearings are possible in which the questions of policy
are reopened and examined during the course of the inquiry. I do not
want that to be the case or risk with the
IPC.
I
shall turn to the concerns raised by the hon. Members for Bromley and
Chislehurst and for Meirionnydd Nant Conwy. The Bill prevents
individuals from making representations about the levels of
compensation that they should receive for being compelled to sell
individual pieces of land, or their interests in it. The amendments
would alter that position. I tried to explain this when I gave evidence
to the Committee. If there is a dispute about the levels of
compensation for the compulsory purchase of pieces of land, it is a
matter for the Lands Tribunal, as the hon. Member for Meirionnydd Nant
Conwy surmised, not for the IPC. Nor is it a matter for the Secretary
of State if he, and not the IPC, took the decision on a particular
application.
On
the other hand, amendment No. 412, relating to clause 109, touches on a
different question. If individual levels of compensation rightly remain
a matter for the Lands Tribunal, it is appropriate and
necessary—on reflection I hope that Members will
agree—that the IPC can include in an order granting the
development consent a provision to ensure that the legislation relating
to the assessment of compensation applies to it. It is also appropriate
that compensation for land compulsorily purchased is assessed on the
same basis as generally applies. That is a provision to ensure that
compensation is assessed in accordance with the Land Compensation Act
1973 or the Planning and Compulsory Purchase Act 2004.
Finally, Members know that I
have a lot of sympathy with the aim to create a single consent regime,
with the intention that promoters can include the totality of their
proposed work in a single application. In many cases, applicants will
include in their application works connected to the operational
effectiveness of the new facilities, such as connections to the
national electricity network for a new power station. An electricity
undertaker in such a situation might need to acquire land at some
distance from the power station to put up pylons or as a means to gain
access for overhead line maintenance. The clause simply enables such
compulsory purchase provisions to be included in applications for
development
consent.
Finally,
amendment No. 419 would remove the need for the IPC to be satisfied
that there was a compelling need in the public interest for land to be
compulsorily purchased. I assume that it is either a probing amendment
or a drafting deficiency. Surely Members
would want the IPC to have the ability to issue compulsory purchase
orders only, and would not want it to do so without having to be sure
that there was a case for it in the first
place. I hope that my
comments have been useful and that Members do not feel the need to
press their
amendments.
Robert
Neill:
The Minister is quite right about amendment No.
419; an error slipped into the drafting. I heard what he said, and I
beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Clause
79 ordered to stand part of the Bill.
Clause
s
80
and 81
ordered to stand part of the Bill.
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