Mr.
Ruffley: I am grateful to the Minister. The last part of
his remarks is interesting and important. He describes a symmetry
which, in a perfect world, would operate to ensure that one part is not
unreasonably vetoed, because of the knowledge that, at some later date,
they could be paid back in kind. On the basis of the Minister’s
explanation, the unanimity might actually have a deterrent effect. If I
could use an analogy from cold war nuclear strategy, it is mutually
assured destruction; that is a flight of fancy that I am importing to
our debate.
On a serious
point, on the basis that the Minister is right, and I think that he
probably he is, I am content to withdraw the
amendment. Amendment,
by leave,
withdrawn. Amendment
made: 299, in
clause 60, page 80, line 24, after
‘to (6)’ insert ‘or (8)’.—(Jim
Fitzpatrick.)
Mr.
Ruffley: I beg to move amendment 257, in
clause 60, page 81, line 19, at
end insert ‘, or (c) a dispute
about the costs of policing to be met by the aerodrome
manager.’.
The
Chairman: With this it will be convenient to discuss the
following:
Amendment
296, in
clause 60, page 82, line 3, leave
out ‘thinks’ and insert ‘reasonably
believes’. Amendment
297, in
clause 60, page 82, line 15, at
end insert ‘provided
that the Secretary of State believes that the amount of such payment in
respect of costs is reasonable and proportionate having regard to all
the relevant
circumstances.’. Amendment
298, in
clause 60, page 83, line 27, at
end insert ‘provided
that the Secretary of State believes that the amount of such payment in
respect of costs is reasonable and proportionate having regard to all
the relevant
circumstances.’. Government
amendment
300. Amendment
255, in
clause 60, page 83, line 39, at
end insert ‘and, for the
avoidance of doubt, any such appeal shall not be restricted to the
judicial review of the Secretary of State’s
decision.’. Government
amendments 301 and
302.
Mr.
Ruffley: The amendment seeks to clarify the drafting. In
subsection(2) of the proposed new section, “24AM Meaning of
dispute about security planning”, there are two examples of
areas relating to disputes about security planning. Subsection(2)(a)
is “a
dispute about the contents of an aerodrome security
plan”,
and
subsection (2)(b) is
“a dispute about
the implementation of an aerodrome security plan for the
aerodrome.”. However,
what we do not have in subsection (2) is clarification of disputes
relating to the costs of policing to be met by the aerodrome managers.
Amendment 257 seeks to insert clarification, a new little (c), which
makes it clear that disputes can relate, not just to the contents or
the implementation of an aerodrome security plan, but to any dispute
about the costs of policing to be met by the aerodrome manager. The
reason that it does need to be spelt out is the real concern that we
have already heard about from aerodrome operators—and even
airlines, but mainly aerodrome operators—regarding the costs of
policing.
The Minister
might suggest that my amendment, which defines disputes and relates to
costs, is actually caught by subsection 2(a)—in other
words,
“a dispute about
the contents of an aerodrome security plan”.
He might have a point,
but I think that it is worth spelling out on the face of the Bill that
disputes do, in fact, relate to the costs of policing to be borne by an
aerodrome manager, because the Yorkshire Post, using rather
colourful language, suggested that it was a terror tax.
The payments
that this part of the Bill implies, are payments that are going to be
extracted from private businesses, aerodrome operators, and in that
sense it can be called a tax—it is a tax of a kind. Whenever
imposts are levied on private individuals or corporate entities, we
have to be careful to ensure that the extraction of money is open and
transparent. I know that the Minister will want to assure us that the
Bill gives more transparency than the current regime. We know that that
comfort is needed because of the plethora of representations that
members of the Committee—certainly on this side—have
received about the lack of transparency and the apparent inability of
some police forces to explain exactly what it is that they are charging
for. The amendment flags up that important point.
I shall turn
to amendment 296. The Bill gives the Secretary of State a power to
intervene in a dispute even if there has been no formal referral of
that dispute to the Secretary of State by one of the parties affected.
For him to intervene, the Secretary of State must only think that there
is a dispute—“thinks” is the word in the clause.
That is a bit weak. The Secretary of State wakes up and
“thinks” that there is a dispute. It is an unusual word
to find in legislation and it leapt out at me, so I proffer the
deletion of “thinks” and the insertion of
“reasonably believes”. That makes clear that the
Secretary of State cannot skittishly or coquettishly think that there
is a dispute before using his or her powers to intervene.
Broadly the
same point is being made in amendments 297 and 298. The relevant
proposed new subsections may require a party to take steps to resolve a
dispute and clearly include a requirement to make a payment. As the
amendments say, we need to be
clear “that
the Secretary of State believes that the amount of such payment in
respect of costs is reasonable and proportionate having regard to all
the relevant
circumstances.” Finally,
amendment 255, in my name and that of my hon. Friend the Member for
Hornchurch, is a probing amendment to ensure that it is clear that
appealing a Secretary of State’s decision will not be restricted
to
judicial review. It may have been a fault on my
part, but I was not clear where in the appeal mechanism a formal
judicial review form of appeal would operate. I would be grateful if
the Minister could clarify that for me, given my all too unforgivably
hazy understanding of how that appeal mechanism would relate to
judicial review. In that spirit of honest inquiry, I proffer these
amendments and look forward to the Minister’s
response. Jim
Fitzpatrick: Amendments 257 and 296 both relate to
disputes. The first concerns the cost of policing and the other deals
with the initiation of dispute proceedings. Amendment 255 considers the
right of appeal. Amendments 297 and 298 both relate to how the
Secretary of State apportions the costs of resolving a dispute
concerning an airport security plan to those parties in dispute.
Government Amendments 300 to 302 clarify, revise and ensure consistency
of approach. I will look at each of those in
turn. Amendment
257 would allow disputes about the cost of policing to be raised in the
context of the provisions relating to security planning. It is worth
stating from the outset that the Bill already allows parties to raise
disputes about the costs of policing. We recognise that it is
absolutely essential for airport operators and the police to be able
formally to dispute costs. This is why we have made provision for this
in the Bill.
Proposed new
section 29A of schedule 5 of the Bill allows airports, police forces
and police authorities to dispute the terms of a police services
agreement. The PSA is the document that will contain information about
payments to be made by the airport to the police, and the services that
the police will provide in exchange for these payments. But although we
are clear that stakeholders must be able to dispute the cost of
policing, we do not believe that they should be able to do this before
they have agreed whether or not a dedicated police presence is actually
required at the airport. This is what this amendment would
require—what it is seeking—and, with respect, we do not
think that it would make much
sense. The
airport security provisions as drafted require stakeholders to adopt a
logical process when planning and delivering security at airports.
First, risks and threats to the airport are assessed and set out in a
risk report. Secondly, stakeholders agree on what security measures are
necessary to mitigate these threats, and these are set out in an
airport security plan. Thirdly, if the airport security plan shows that
a dedicated police presence is necessary to mitigate one or more of the
threats to the airport, a police services agreement is drawn
up. Stakeholders
are able to access dispute resolution proceedings at both stages two
and three of this process. At stage two, when the airport security plan
is being drawn up, the current provisions already allow stakeholders to
dispute whether a dedicated police presence is actually needed to
mitigate any given threat. This is provided for at subsection 24AM of
clause 60. Once the airport security plan is agreed, it will be clear
whether a dedicated police presence is actually required at the
airport. If it is, stakeholders can proceed with stage three, which is
the process of drawing up a police services
agreement. On
occasion, it may not be possible to reach agreement as to policing
costs. The provisions therefore allow stakeholders to dispute the costs
of policing, by accessing
the dispute resolution proceedings attached to the PSA provisions. These
are contained at subsection 29A of schedule 5 of the
Bill. Structuring
the dispute resolution proceedings in this way ensures that parties
must agree whether a dedicated police presence is actually required at
the airport before parties start becoming involved in discussions about
costs. I hope the hon. Member for Bury St. Edmunds will be reassured
that there are provisions in the Bill that will allow stakeholders to
take disagreements about the costs of policing to dispute but at the
appropriate
stage. The
suggested wording change in amendment 296 to section 24AO implies that
without the substitution of the word “thinks” with
“reasonably believes”, that the Secretary of State might
somehow act unreasonably in making a judgment as to whether a dispute
might exist in relation to an airport security plan. With respect to
colleagues opposite, this represents a misunderstanding about how the
Secretary of State is required to carry out statutory responsibilities.
The well established rules of natural justice already require the
Secretary of State to act reasonably in using any statutory power. For
this reason, the suggested amendment is
unnecessary. Amendments
297 and 298 both relate to how the Secretary of State apportions the
costs of resolving a dispute concerning an airport security plan to
those parties in dispute. The Government believe that it is only right
that the taxpayer should not be responsible for meeting the costs of a
dispute. Rather, costs associated with resolving the dispute, for
example, the costs of providing experts to assist in its resolution,
should be met by the parties in dispute. In apportioning costs to a
party or parties, the Secretary of State will have regard to whether
those involved have acted reasonably. In other words, costs will not
necessarily be split equally between parties. In making any decision as
to the costs that should be met by disputing parties, the Secretary of
State will naturally judge whether his decision is reasonable and
proportionate, having considered all of the relevant circumstances.
This is the way in which any Secretary of State executes his legal
responsibilities; it is unnecessary to prescribe this approach in
legislation. 6.15
pm Amendment
300 makes express provision that the Secretary of State may not, as
part of any determination on an ASP, require any other party to make
payments to the chief officer of police for the relevant area. This is
to ensure consistency in relation to the provisions concerning the
content of ASPs. Amendment 255 to proposed section 24AR seeks to ensure
that those delivering measures in an airport security plan are able to
appeal any decision made by the Secretary of State in relation to a
plan on the ground that it may not be a correct decision. If the right
to appeal the Secretary of State’s decision were to be limited
to judicial review, the decision could be challenged only on a limited
basis. In the main, the factors that could be considered would be as
follows: first, whether the Secretary of State was acting within his or
her powers; secondly, whether fair procedure had been applied; and
thirdly, whether the decision was reasonable in the sense of whether it
amounted to an abuse of power. Indeed, we heard part of the definition
of judicial review from the hon. Member for Oxford, West and Abingdon
in relation to another part of the Bill.
The Government
fully agree that the Secretary of State’s determination should
be challengeable in the High Court on the grounds that, given the
available evidence, a more appropriate decision about an airport
security plan could have been made. That is why proposed subsection
24AR(1) is included. Without an express provision for appeal to the
High Court, the right to challenge a decision by the Secretary of State
would be restricted to judicial review. I am aware that some members of
the Committee are far better acquainted with the law than I am; they
will not need me to tell them that the amendment would result in a far
more limited right of appeal than that included in the
Bill. As
a matter of law, there is no doubt that the clause would not restrict
appeals against the Secretary of State's decision to that of judicial
review. Given that the present drafting already achieves the outcome
intended by the amendment, the Government’s view is that the
amendment is unnecessary.
Government
amendment 301 simply revises the existing phrasing. Amendment 302
ensures that a consistent definition is applied wherever variants of
dispute relating to airport security plans are referred to in clause
60. I invite the Committee not to press amendments 257, 296 to 298 and
255.
Mr.
Ruffley: I am grateful to the Minister. He will understand
that by their very nature the amendments are probing. Indeed, as a
former lawyer in administrative law, I am aware of the Wednesbury
principles on unreasonableness and the rest of it, and that Ministers
have to abide by the rules of natural justice as developed in
administrative case law. Through the amendments, we were seeking to get
the Minister to confirm how the dispute resolution procedure and the
judicial review of decisions would operate. He gave a most eloquent
exposition of how the clause will operate. I beg to ask leave to
withdraw the amendment.
Amendment,
by leave, withdrawn.
Amendments
made: 300, in
clause 60, page 83, line 27, at
end insert— ‘(4A) Subsection
(4)(a) does not apply in relation to security measures taken by the
chief officer of police for the relevant police
area.’. 301,
in
clause 60, page 84, line 7, leave
out
‘modifications
specified in the order’
and insert
‘specified
modifications’. 302,
in
clause 60, page 84, line 18, at
end insert— ‘“dispute
about security planning for an aerodrome”, “dispute about
the contents of an aerodrome security plan” and “dispute
about the implementation of an aerodrome security plan” have the
meanings given by section 24AM(2) to (4);’.—(Jim
Fitzpatrick.) Clause
60, as amended, ordered to stand part of the
Bill. Clause
61 ordered to stand part of the
Bill.
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