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The amendment would prevent witness anonymity orders from being made in magistrates’ courts. Magistrates’ courts include the youth court. Real concern would be felt about the impact of the amendment on youth courts. Although some serious offences committed by young offenders are dealt with by the Crown Court, it would not be appropriate as a matter of policy to require defendants under 18 to be tried in the Crown Court to obtain a witness anonymity order. I refer noble Lords back to our debates during the passage of the Criminal Justice and Immigration Bill on young people appearing in the Crown Court.

We think that the current position should continue under this emergency Bill because there may be offences, including cases involving the test purchase of drugs by undercover police officers, that could be tried quite appropriately in the magistrates’ court using anonymous evidence. Indeed, you could argue that the defendant might be disadvantaged if such cases had to be sent to the Crown Court—for example, if the case took longer to come to court.

The noble and learned Lord, Lord Mayhew, asked whether I was aware of any difficulty with the operation of courts in New Zealand and the fact that there is no provision for the equivalent of magistrates’ courts in that country to use witness anonymity. I am not aware of any such information. Clearly, we have had little time to consider these matters, but we have been very much helped by the framework of the New Zealand legislation. As the noble Lord, Lord Kingsland, said earlier, however close our ties are to New Zealand, the circumstances in our two countries can be different. But clearly we will have a little time now to do some more exploration of the experience in that country.

Lord Lloyd of Berwick: Surely that is the whole point. We need a little more time to consider how this would work in relation to magistrates’ courts.

Lord Hunt of Kings Heath: I was just about to turn to the noble and learned Lord. Although he was not able to speak at Second Reading, his intervention here

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is none the less extremely welcome, even though he is arguing against the point that I am making. I hope that he did not mind our reading the short extract from his letter at Second Reading, but we could not find him to ask whether he would find that acceptable. I am glad that he does not seem to object.

I acknowledge that the issues raised by noble Lords here today are very real and valid, although the Government believe that, none the less, there is a strong case to allow magistrates’ courts to be able to make decisions in relation to witness anonymity orders. We all agree that this needs further consideration. I am certainly prepared to examine the issue in more detail over the coming months, to consult noble Lords and to reach a considered view on the appropriate way forward in time for the fourth Session Bill.

There is no argument that this matter requires further consideration; the question is whether, in the light of that, we retain the Bill as it is or agree to the amendment moved by the noble Lord, Lord Thomas, and exclude magistrates’ courts in the short interim period. My argument for suggesting that the Committee does not go down that path is that essentially we have sought, in the construction of this Bill, to take things as they are—the status quo—and to ensure, as the noble and learned Lord, Lord Lloyd, rightly suggested, that we have the safeguards necessary to ensure that this complies with ECHR considerations. On that basis I argue that, as this vision of witness anonymity has applied to magistrates’ courts in the past, we would be sensible to allow that to continue in the interim. None the less, I accept that we then need to have a serious discussion on the future with noble Lords and other interested parties in time for the arrival of the substantive Bill before your Lordships’ House.

Lord Thomas of Gresford: I am grateful to the Minister for his assurances, but one registered case in a magistrates’ court and one in a youth court really tells it all. Whether those cases would have succeeded in the light of Davis is a matter for simple speculation.

Lord Hunt of Kings Heath: Surely I would be damned if I did and damned if I did not. If I had said that there were hundreds of cases, the noble Lord would say, “Shock, horror, we must stop it and take it out”.

7.15 pm

Lord Thomas of Gresford: I do not follow the logic of that, I regret to say. What is lacking is any evidence on which the Government’s policy is based. There is no evidence of need and none of a request or requirement from the magistrates’ courts for this sort of anonymity to be extended to them. The Minister says that he knows that it has been used twice. That may be simply an aberration; I suggest that it is. But the Government are now crying out for this policy in an emergency Bill as something that is so essential that we have to rush it through in a day in the House of Commons and in two days here, with all the stages being taken now.

Lord Hunt of Kings Heath: I am sorry to interrupt the noble Lord, but it is not the Government who have rushed suddenly to put a new provision into the Bill. We are talking about a position in which this currently

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has applied to magistrates’ courts. It is the noble Lord who is rushing to make a precipitate decision on which we have not had time for careful consideration.

Lord Thomas of Gresford: Exactly—we and the Minister have not had time for careful consideration, yet he is clinging on to the extension of anonymity to magistrates’ courts based on two cases. Two cases!

Lord Hunt of Kings Heath: The noble Lord keeps talking about an extension. This is not an extension; it is there already.

Lord Thomas of Gresford: I have outlined already why we are dissatisfied with these provisions. I look forward to further discussions in the coming year. It seems to me that we should all have a trip to New Zealand to find out what the situation is there.

A noble Lord: On a one-way ticket!

Lord Thomas of Gresford: That is very kind. I might take up that offer, provided that the noble Lord will pay for it.

This is a serious matter. What I fear is that the magistrates’ courts, having been informed that they have this power, will start to use it and that police officers in all sorts of stupid little cases—ASBOs and things of that sort—will start asking for anonymity for their witnesses. That is inappropriate when we are concerned with a principle of open justice—that a defendant should see his accuser. That has been underlined as essential to a fair trial by the Judicial Committee of this House. I do not propose to press this amendment to a vote but I shall participate in any further discussion on this topic in the near future. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 15 not moved.]

Clause 12 agreed to.

Clauses 13 to 15 agreed to.

House resumed: Bill reported with amendments; Report received.

Bill read a third time.

Lord Hunt of Kings Heath: My Lords, I beg to move that this Bill do now pass. In doing so, I express my grateful thanks to all noble and noble and learned Lords who have taken part not only in our discussions today and at Second Reading but at the meetings held between the Front Benches of the two main parties and with other noble and noble and learned Lords. These have been very constructive discussions. I am extremely grateful to all noble Lords for their co-operation in enabling this emergency legislation to be passed through your Lordships’ House. I reiterate that we take very careful note of all the points that have been raised in our debate and look forward to a constructive engagement with noble Lords over the next few months.

I wish that the Ministry of Justice’s budget was sufficient to take us all to New Zealand but, alas, I

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doubt it. Certainly we will look carefully at what experience we can garner from other countries in order to enhance our debate when the substantive Bill comes to us in the next Session.

I conclude by apologising again for the problem identified earlier today of the late notice of government amendments. I very much regret that and hope that, none the less, the House will understand that this has been done under great pressure. The opportunity to consider the Bill in substantive form in the next Session at least provides some reassurance.

Moved, That the Bill do now pass.—(Lord Hunt of Kings Heath.)

On Question, Bill passed, and returned to the Commons with amendments.

Business

7.21 pm

Baroness Royall of Blaisdon: My Lords, we are about to move on to the Planning Bill. I know that the timing has generated much frustration and anger. Noble Lords might well regard it as bad planning. I can assure noble Lords that the timing is not out of disrespect, either to noble Lords or to the Bill. Any anger expressed inside or outside the Chamber should be directed at me and not at my noble friend, who fights tenaciously for the Bill and proper timing.

The reality is that by retaining the Second Reading today I have angered some noble Lords; if I had moved it I would have annoyed other noble Lords. Thirty-seven noble Lords are down to speak. If an advisory time of seven minutes is followed, the Second Reading will take five to six hours. Because of the extraordinary timing, while recognising that it is proper and usual practice for those who have spoken in a debate to be there for the winding-up speeches, I am sure that on this occasion it would be understood if a noble Lord had to leave.

Planning Bill

7.22 pm

The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Andrews): My Lords, I beg to move that this Bill be now read a second time.

I thank all noble Lords who will speak in the debate today. I am very grateful that, despite the late start, so many are committed to the Bill and willing to make their expertise available to the House. I consider this to be the beginning of our conversation. I want to make myself available during the passage of the Bill. I shall be here most of the summer. We can continue our discussions on it in many different forms. I look forward to that because we are discussing an important Bill which will have a profound impact on our ability in the future to make use of scarce and unpredictable resources.

The Bill has three sections: the first deals with nationally significant infrastructure; the second makes

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further changes to existing planning regimes; and the third deals with the Community Infrastructure Levy. I will focus primarily on the first part because, with no disrespect to the second and third parts, I think that is probably where most of our debate will lie in the House.

There is a wide degree of consensus that the present system is quite simply not fit for purpose. Parts 1 to 8 are therefore about modernising our planning system so that we and future generations can meet the challenge of climate change while also meeting rising demand, which is generated, as we all know, not least by an ageing population. We have to ensure that there will be sufficient, reliable and affordable power to heat our homes, power our technologies, industries and vital services; and to guarantee sufficient clean water and sewage systems, and efficient transport for goods and services.

In the simplest form, and on that scale, infrastructure means providing for the fundamentals of a sustainable society and economy, and doing so in a way which is accountable, careful, affordable and transparent. In turn, it also means ensuring that national benefits are balanced fairly against local impacts.

Changing the planning system to meet these challenges—and to ensure it becomes greener in the process—means a major and essential break with the past. Let me explain why that is necessary. I take as an example the need to provide for future energy security. That is particularly salient at a time of rising fuel prices. We need to plan for energy security and therefore for diversity of supply. In the next few years we will have to replace generating stations with a capacity of 17 gigawatts. That is 22 per cent of the UK’s electricity generating capacity.

To achieve this, we are consulting on proposals that will deliver 30 to 35 per cent of our electricity from renewable sources by 2020. The timescales for energy are no less than timescales for water, waste, and transport. They are long term and complex, and the implications of failure of foresight and delivery are profound. We need to invest and to take decisions now on individual projects if we are to meet those deadlines and national needs.

All the evidence—not least the Barker and the Eddington reports which laid the foundations for the Bill and which documented the scale and implications of failure—shows that the current planning system simply will not allow us to do that. Those failures come about due to a number of factors. First, there is no clear policy framework. Policy-making and decision-making are hopelessly confused. The function of the planning inquiry should be to interrogate individual projects, to assess local impacts, and to decide whether they should be built in the place and manner proposed. However, in practice, inquiries into individual projects are frequently hijacked by the wider and more contentious debate into the merits of national policy, and by whether any sort of infrastructure should be built at all.

Secondly, there are numerous overlapping consent regimes. Heathrow Terminal 5 required 37 applications under seven pieces of legislation. The London Array wind farm project, which has the potential to provide

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1 gigawatt of green energy—that is £750,000 homes—required applications under five pieces of legislation. Some parts of the application were decided by local planning authorities and others by Ministers in CLG and BERR. The inquiry processes for each of these regimes are different, resulting in confusion, duplication and delay. The delays affect renewables and progress towards a low-carbon economy. On average, it takes 20 months for a large onshore wind farm to get planning permission.

Thirdly, applications are sometimes not well prepared, let alone challenged or even consulted on at the local level. Promoters simply do not engage early enough or closely enough with interested parties and local communities.

Fourthly, the inquiry processes are sometimes slow, intimidating and inefficient not just because of different regimes, different systems and different rules, but also because of an overdependence on cross-examination as the only way to test evidence. Sometimes loud voices are the only ones that are heard.

Fifthly, further delays are introduced where, as is frequently the case, more than one Minister is involved in taking the final decision. These decisions, contrary to what is popularly believed, are not open to challenge in Parliament; they are not accountable directly to a constituency; and they can only be overturned in the courts. They are quasi-judicial decisions.

This complexity means that our planning system breeds delay and acts as a deterrent to necessary applications coming forward when, as the Royal Town Planning Institute says, our competitors are looking to develop streamlined, fast and effective systems. These delays do not, perhaps, prevent those with the most resources having their say, but they make it incredibly hard for those poor in time and expertise to participate.

The result is that we have struggled for years with a system more akin to Jarndyce and Jarndyce than one fit for a modern economy. The system puts the difficult decisions off until the last stage; it forces inquiries to spend enormous amounts of time debating what government policy is, and whether there is a need for infrastructure. The result is costly and there is uncertainty for communities as well as for developers.

We have to deal with this deep structural fault in the system. While there have been plenty of attempts to improve the system through incremental change, it is not surprising that they have brought only limited relief. I hope on that basis that it is clear that this Bill is not just about speeding up the planning system; it is not about making life more comfortable for business; it is about clarifying the different stages of the process of policy-making and planning, clarifying the role of Ministers, and creating a new, more coherent, more effective and more productive process on which we can build our economy and society for the future.

Rather than work chronologically through the Bill, it will be more useful if I talk about how it addresses those failures. First, it identifies for the first time a range of nationally significant infrastructure projects that are so vital to the national interest that there must be a separate process for dealing with them; they are defined in detail in Part 3. Those thresholds have been

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chosen so as to preserve the devolution settlement: where decisions on infrastructure have been devolved to Welsh or Scottish Ministers, this continues to be the case.

Secondly, the Bill clarifies national policy and separates out the policy-making process from the planning process. The Government will, under Part 2, set out a series of national policy statements to the public and to Parliament for consultation and challenge, explaining the need for infrastructure, principles and criteria which will indicate, in some cases, possible locations. These national policy statements will be planning documents of the highest order. National policy statements themselves will reflect existing policies and priorities where relevant, such as the protection of habitats or heritage. They will provide a clear framework for promoters to take investment decisions.

The separation of policy-making from process and the creation of a single process for planning determination is resolved by the creation of an Infrastructure Planning Commission—the IPC—with the task of deciding whether or not individual projects should go ahead. It will consist of experts in a range of fields, including community engagement, planning, local government and the environment. The IPC will work within a clear framework of legal duties set by Parliament and policy set out in national policy statements by Ministers. We anticipate that it will deal with about 45 major infrastructure applications per year and a larger number of smaller projects, such as work on the electricity transmission network. Where no NPS is available, Ministers will continue to take decisions.

Thirdly, the fundamental problem of overlapping consent regimes is resolved in Part 4, which replaces the cat’s cradle of overlapping consents with a simplified consent regime. It sets out that projects classed as nationally significant infrastructure will henceforth require an order granting development consent under this Bill. It disapplies the need for such projects to seek consents under eight other regimes.

Fourthly, the problem of the lack of preparation and poor consultation that dogs the presentation and understanding of development applications, and which leaves communities confused and often alienated, will be resolved by Part 5. The Bill creates not only a clear requirement that all applications must abide by national policy as set out in NPSs, but a new—mark this; it is important—pre-application process that will require developers to consult with the local community, to have regard to what they say and to show that they have done so. Before accepting any application, the Infrastructure Planning Commission will have to make sure that those tests have been met. In deciding this, it will have to have regard to any report by the relevant local council on the adequacy of consultation.


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