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Baroness Miller of Chilthorne Domer: I strongly support the interest of the noble Lord, Lord Dixon-Smith, in this subject. I am very grateful to him for raising an issue that otherwise might have been in danger of passing us by. I think it is a very important issue. The issue he raised about whether the department should be judge and jury in a case, of course, is particularly significant. Few applications—even for wind turbines which I suggest are relatively benign, although I know that quite often the noble Lord takes a different view regarding land-based wind turbines—provoke such strong feelings from the public as energy generation installations.

I know that some Members of the Official Opposition have been questioning the Government on this issue—the Government have not made a statement—but if we were to envisage the building of new nuclear power stations, which we certainly do not support at this time, I would not want to see any planning system whereby the department was judge and jury. With that in mind, I think this is a very interesting question.

The second reason why I support the noble Lord in raising this issue is that the planning system is already sufficiently opaque to the public. The system is not friendly to the public even in straightforward applications, even though local authorities may try to make it so. A planning application can be considered and determined by the local authority and then appealed, and it can then be sent to an inspector who makes a different decision which is called in by the Secretary of State. The public have to come to grips with the system, and they often know how it works.

Part of that system will be changed by the Bill currently being considered by your Lordships' House. As the noble Lord has pointed out, there is a parallel system which could further confuse the issue. On an issue as contentious as power generation, I wonder

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whether the Government think it appropriate to have this parallel system. I must re-emphasise how grateful I am to the noble Lord for raising the issue.

6.15 p.m.

Baroness Miller of Hendon: I congratulate my noble friend for discovering this point and raising it today. I say to the noble Baroness, Lady Miller—who said she thought that she might have missed it—that this Lady Miller most definitely would have missed it if it had not been raised by my noble friend. The Minister will undoubtedly have had the benefit of all the brains of the officials behind him who have been looking into the town and country planning legislation. No doubt he will present us with an answer today, but whether it will be the definitive answer that will make my noble friend happy is another matter. We shall listen with interest to his reply on this very interesting and important point.

Baroness Carnegy of Lour: When the Minister replies to this interesting debate, will he tell us whether he is absolutely convinced that, in this respect, he is right to certify that the Bill is in accordance with the convention on human rights? I seem to remember that one of the great upsets in the whole issue of human rights occurred in Guernsey, I think, on a planning issue; it concerned someone in Guernsey wearing several hats at once. It is difficult to see how a certificate can stand up for an area that does not want a development. In the circumstances proposed here, I begin to see why Scotland does not want to join this particular club. I do not think that it applies in Scotland.

Lord Whitty: The noble Lord has raised some very interesting points. However, taken in parallel with the Bill presently being discussed in the Chamber, Clause 150 is intended to bring more into line the changes which we are introducing into planning generally with those in this Bill as regards energy projects. The noble Lord says that the clauses are effectively the same. The changes that we are introducing are creating a system that is more coherent and more streamlined in relation to major energy projects. The usual complaint about energy projects is that the planning system takes far too long and not that it excludes people. We are therefore seeking to streamline the system in parallel with other major projects being dealt with by the other Bill.

The noble Lord raises the question of whether we could have two different systems of planning. In fact, it is not entirely confined to these two systems of planning; there are different systems of planning for different aspects of the projects. Most road and railway transport projects are dealt with somewhat differently from more general planning structures. Of course, there have been times when the Department of Transport and the Department of the Environment have been the same department, and times when they have not.

The research of the noble Lord is impressive, in going back to 1962, when probably the reference to a Minister meant something different than it would

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now, given the current structure of the departments. The noble Baroness is correct in saying that the archivists in the DTI have material on the matter that goes back for some time. The important role of central government with regard to energy has been recognised for a very long time. I am glad to short-circuit the weekend researches of the noble Lord, as they could have gone on for some considerable time. I am informed that that involvement in overhead lines has been going on since 1899, for example, and in power stations since 1909. I hope that I have saved him some work there.

We have a separate system, which has recognised the importance of energy supply for that long. Since that early period, the industry has been municipalised, privatised, nationalised and re-privatised. I do not see that there is necessarily an argument for departing from the system at this point because we are now dealing with a privatised system. Nor do I believe that it is conclusive to say that there is a conflict of interest in relation to the DTI's role, because the issue is dealt with in the same way as it was for transport projects under part of the DETR. We had to ring-fence the planning dimension, and the same applies to the DTI in energy matters.

Here I can refer, legally speaking, to the judgment in the Alconbury case, when transport and environment were under the same ministry. In that case, the House of Lords delivered a judgment in May 2001 that there was nothing wrong with the Secretary of State in that situation being both policy-maker and decision taker. It is not necessary to go into all the details of the case, but that was more or less a parallel system to the one that applies now. In that sense, the compatibility of the legislation with the European Convention on Human Rights does not really apply.

As for Scotland and the issues raised by the noble Baroness, Lady Carnegy, the situation in terms of special planning regimes for utilities is no different. The role of central government is performed by Scottish Ministers supported by the Scottish executive. That is referred to in Sections 36 and 37. There has not been any change in devolution in that respect; the latest change applies in England and Wales, but the basic system is similar in Scotland. That is not always a conclusive argument for retaining it in England and Wales, but I am not convinced by the tidy-minded solution suggested by the noble Lord, Lord Dixon-Smith, who wants to bring all planning systems into a single structure. In any case, on the clause that we are debating, we are, if anything, moving in his direction by moving towards the same terms and towards precisely the same form of legislation for both a general planning structure and this structure in relation to major projects.

I am not convinced by the arguments made by the noble Lord, but I hope that he will be convinced by mine. Whether the broader arguments are returned to in a separate context, the clause should nevertheless stand part.

Baroness Miller of Chilthorne Domer: Before the noble Lord replies, I have a question for the Minister.

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Is his parallel with major road projects a reasonable one? Major road projects are obviously public projects to be used by the public. Generating plants, as envisaged under this clause, will be developed by the private sector. Therefore, I cannot really see that the parallel is fair.

Lord Whitty: There are two aspects to the matter. One is that the product of the energy will be used by the public in the same way that the energy is used by the public and in the same way that publicly provided roads are used by the public. Of course, we also have privately provided roads, such as the north Birmingham relief road, which are subject to the same planning procedures. However, I am addressing whether the DTI can be judge and jury in the case that we are discussing. That has been considered a problem in relation to transport provision, but in the Alconbury case your Lordships' Judicial Committee found that there was no fundamental objection to such a provision. I argue that the same applies in relation to DTI and energy projects.

Baroness Miller of Hendon: My noble friend Lady Carnegy raised the question of whether or not the measure was compatible with the convention. I heard the Minister say that he believed that it was compatible with the convention. I wish to raise one small point in that regard. The Minister said that, once the Motion was tabled that Clause 150 should not stand part of the Bill, undoubtedly officials were busy consulting former Acts and so on. When considering whether the Bill was compatible with the convention, was consideration given to whether a body should be judge and jury in a case? I do not assume that one would even have thought of that when asked to consider whether the measure was compatible with the convention. My noble friend Lady Carnegy made a valuable point in that regard.

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