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It rather begs the question of what sort of applications the single commissioner will be hearing. I know that the noble Baroness tried to answer that earlier. If they are so insignificant—the significant ones will be done by the panel—why can they not go through the normal planning process that we have already? The example used by the Minister when she was thinking on her feet was a road junction. That should not be for the IPC to decide; it should be for the normal planning practices that we have currently. That begs the question raised by my noble friend Lord Dixon-Smith about mission creep. “This one is too difficult locally; let’s put it in for the IPC to decide”. At some stage, we need to know exactly what the IPC will be deciding. The small ones maybe should not be decided by a single

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commissioner, because they are by their very nature not significant infrastructures. That issue is raised under the amendment.

Baroness Hamwee: With Insignificant and nationally significant infrastructure projects, the noble Earl has taken us into the territory of the national policy statements. I shall not follow that, but he has made me think about how the commission will function. It must be the case that, whether it is a single commissioner or a panel, there will be the need to discuss matters that arise, as colleagues in any situation do; they will want to test comparative matters and talk about how procedures are going, and so on. I can see a role for the council, and I am beginning to wonder whether there is not actually a bigger role for the council. I apologise to the noble Lord, who has done so much work on this. I hope he had the assistance of a word processor in finding every reference to the council, because it would have taken ages otherwise. As the noble Earl said, as the Bill stands, I do not think that we should lose the council. I can see its function.

My Amendment No. 254 is in this group. The benefit of reading things again and again, but then hearing other people talk about them, is that suddenly things fall into place. I now understand what that is about. The noble Baroness need not look for it, because I am not going to move it when we come to it. My question has been answered.

9 pm

Baroness Andrews: It is incredibly reassuring to know that noble Lords do not need a Minister to answer questions. On many of the issues that we have discussed, we could have done without anyone at the Dispatch Box. I am glad that the noble Lord, Lord Cobbold, has provided an opportunity to discuss the role to the council and I congratulate him on his assiduousness in drawing the amendments together. I have sympathy in terms of the potential confusion that the term “the council” raises. Although I cannot get rid of the concept of the council, because it is important in concept and in practice, I am happy to discuss what we meant. In fact, that has already ably been done by the noble Earl, Lord Cathcart, in rather better language when he talked about peer review, because that is part of this. As one looks at the need for collective judgment, one can see a role for these groups of people.

Why have we put forward this organisational model? The term “council” is understood to be a permanent and fixed group of people who undertake what is usually a supervisory function. The concept of the council as set out in paragraphs 6 to 10 of Schedule 1 is not that at all. It is not a layer of bureaucracy, but an important part of ensuring that the right decisions are made in the right way, with the right sort of expertise and judgment available.

I do not wish to reiterate what was said earlier, but essentially we have been talking about the IPC consisting of about 35 commissioners of different skills. At various times the chair and the deputy chair will be able to draw upon that expertise in different ways. They will

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need to be able to bring people with particular skills for particular purposes—and sometimes for different purposes. Those groupings of between five and nine commissioners will, in effect, be the councils of the commission.

The main task of these small groups will be to take the final decision on any application which has been decided in the first instance by a single commissioner. I resist the temptation to try to explain even more clearly than I did earlier about the example of the road junction. I will write to noble Lords, because it is important to spell out that issue. However, the noble Lord was not quite accurate. The single commissioner will bring a report and recommendation to the relevant council of commissioners for their final judgement.

Regarding the point of the noble Baroness, Lady Hamwee, the collective wisdom of the council can be applied to other roles. A council of relevant commissioners will also advise the chair in the first instance as to whether it is appropriate for a single commissioner to take the application, or whether, in light of the complexity of the issue, a panel of three commissioners is needed to take the decision. If appropriate, we can envisage a fixed group of commissioners who might be appointed to decide a particular category of infrastructure—for example, highway cases. In addition, different groups of commissioners with a combination of skills might be appointed on a case-by-case basis.

Perhaps I may give an example of how I think it will work, bearing in mind that the implementation process is very much in its early days. Let us assume that a developer brings forward an application for a port development. The chair, or delegated deputy chair, looking at the range of expertise and experience in the 35 commissioners, might have already put together a council of the most appropriate people to decide in the first instance how the application should be treated. If the decision is that the application can safely be left to a single commissioner, the same council would in all probability take a final decision. The case would be referred to it by the single commissioner on recommendation. I said “probably” because we cannot set this in stone. It will be for the common sense and judgment of the chair and deputy chair to decide how this works. The council that makes the final decision could, indeed, include different commissioners if that were appropriate.

If the decision is that the case needs three commissioners to scrutinise complex matters of evidence and so on, those three commissioners could be drawn from the same council. But that need not necessarily be the case if other people with particular skills were needed on that panel. The result will be not the fixed concept of a single council but a series of small councils, sitting at any one time and undertaking different functions. The benefit is that that will produce the opposite of the rigid bureaucracy that one could imagine would be created if everything had to be referred upwards to a single council of 35 commissioners. This allows flexibility and fluidity, and it allows the expertise of commissioners to be moved around. They can be deployed more fluidly and that, in turn, will ensure that they are as effective as possible. It allows for proportionate action and decisions in relation to

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the relative complexity of the applications, and it allows the maximum use of resources. In short, it gives us better value for money.

As I said, if there were to be a fixed council, I would have some sympathy with the amendment in the name of the noble Lord, Lord Cobbold, because it would be rigid and a waste of time and talent. In this way, the most appropriate skills can be marshalled in relation to different development projects, and there will be collective judgment in instances where a single commissioner has been charged with the initial decision. This combination means that we will have high-quality, impartial decisions, and the appropriate skills will be applied as and when necessary. I hope that that satisfies the Committee that this is a sensible and proportionate way to proceed with the IPC.

Baroness Hamwee: Before the noble Lord responds, I wish to say that he made a very good point about terminology. It is a very confusing term and the Minister had to explain it to us. I urge the Government to try to think of an alternative. “Committee” may be the word to choose because it is much more readily understood. It would be a great pity to start with a new body whose component parts were not immediately obvious to the people who had to deal with it.

Lord Cobbold: To me, the strange thing is that it is not just one council. The noble Baroness has just said that there would be a separate council for each speciality, and it is the complexity of the structure of the council that I find very difficult to take. If the councils are making all the decisions, what role is the commission playing? In effect, the councils are sub-committees of the commission, are they not? Is all that complex structuring necessary?

Lord Jenkin of Roding: Before the noble Lord withdraws his amendment, perhaps I may intervene as we are in Committee. The noble Baroness, Lady Hamwee, made a very good point. It is highly confusing to have what I can only describe as a chameleon-like council which can change its composition and colour at any time. It would be a sort of moving body. Those who have to deal with the commission will find that very confusing and perhaps the Government could come up with another description. The Minister made a very good point: there is a need for something between the whole commission and a single commissioner—if there is to be a single commissioner. However, “council” sounds a great deal more permanent than this body, because this body takes different forms at different times, and that could be extremely confusing. I am grateful to the noble Lord for allowing me to intervene.

Lord Cobbold: I thank noble Lords for taking the suggestion seriously and I hope that it will be given further consideration along the lines put forward by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Jenkin. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 13 not moved.]



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Lord Jenkin of Roding moved Amendment No. 13A:

13A: Schedule 1, page 143, line 4, leave out sub-paragraph (2)

The noble Lord said: I apologise that this is a manuscript amendment. I can only plead that the lawyers—working very late, as so many lawyers do—got the amendment to me after the Public Bill Office had closed on Friday, so I could not table it until this morning. The Public Bill Office seemed to think that I would be in order to move it as a manuscript amendment.

The issue is comparatively simple. Paragraph 7(2) in relation to the council reads:

“The chair may at any time end a person’s appointment as an ordinary member of the Council”.

Given what we have just been discussing about this moveable body—this chameleon-like body—at first sight it might seem a reasonable thing for the chairman to be able to do. He may want to remove one member of the council and perhaps appoint another. However, it has been represented to me that that could lead to potential abuse with quite serious implications. Under the Bill, a single commissioner can be appointed to handle a particular application, as we have seen, and in cases dealt with by a single commissioner the procedure concludes with the submission of a report to the council. But the power of the chair to remove a commissioner from the council could be used, for example, to remove an individual who has adopted a consistent approach in opposing the grant of development consent for a particular type of nationally significant infrastructure project. One hopes that the people appointed to the commission will not be people who come with preconceived ideas, but such things might happen.

I believe that reassurance is required that this power will not be used, because the noble Baroness has made it absolutely clear that the commissioners must have a tenure so that they are not subject to the fear of removal if they make unpopular decisions. Yet this sub-paragraph seems to suggest that a member of the council might be subject to such pressures by the chairman—not by external forces. That anxiety has been raised with me and it is appropriate that I should raise it in this Committee this evening. I beg to move.

Baroness Andrews: The noble Lord has pleaded pressure of time for his manuscript amendment and I shall plead pressure of time for my response. In the context of the grouping on the function of the council, it makes perfect sense for me to say that the power to which he has drawn our attention is another of those powers which simply allow the chair or the deputy chair to be as flexible as possible with the resources available to them in the shape and competence of commissioners. To withdraw that flexibility would make it very difficult for the council to function, so clearly we have a problem with the amendment. Whether it would be used to remove awkward people or people with vested interests or whatever, the problem which has been identified would come under the nature of abuse.

In the light of everything that we have said—the noble Lord cited me—the choice of commissioners would be undertaken very carefully. Anything approaching a vested interest or a track record of opposing particular sorts of infrastructure would be precisely the kind of thing that we would take care to avoid. The code of

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conduct and the register of interests, which would flush out conflicts of interest, would take care of the potential for abuse which is possible. Given that we have not had time to think about what the noble Lord has said—it is an important point—I hope he will allow me to write to him and to take the point in the context of some of the other things that we have discussed this evening.

9.15 pm

Lord Dixon-Smith: The noble Baroness has dealt perfectly adequately with the appointments procedure and consideration of track records. She seems not to have dealt with the issue of someone who, shall we say, evolves or develops, perhaps for very good reason—certainly for very good reason to themselves—and becomes a thorn in the flesh to the chairman. My noble friend has raised an important issue which I hope that the noble Baroness will be able to deal with. If she would copy her letter to my noble friend to me, I should be very grateful. People change in the light of experience. That will be significant and, sometimes, extremely awkward.

Lord Jenkin of Roding: I am extremely grateful to my noble friend on the Front Bench who, with his customary perspicacity, has recognised the substance of my case. I must apologise profusely to the noble Baroness, because she had very little notice of the amendment. She certainly did her best with it, but that is the problem with manuscript amendments. I also thank her most warmly for her offer to give it consideration and to be in touch with me. There may be a point in her officials meeting the Law Society, which has put that proposition to me. I will discuss that with the Law Society tomorrow but, in the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 14 to 18 not moved.]

Baroness Andrews moved Amendment No. 19:

19: Schedule 1, page 147, line 13, leave out “must be” and insert “is”

The noble Baroness said: I think that I can be fairly swift with the amendments. They are technical and relate to provisions in the Bill concerning the application of the commission’s seal and execution of contracts and instruments.

The first amendment changes the wording of paragraph 23(1) of Schedule 1 in line with current drafting practice relating to the authentication of seals. The provision was meant to set out the method of authentication that is necessary and sufficient. It was not intended to require a specific person to authenticate every application of every seal, but that is what the words “must be authenticated” in paragraph 23(1) suggest. Therefore, “is” is being substituted for “must be” to avoid anyone being misled.

The second amendment removes paragraph 23(2) from Schedule 1. That provides that a contract or instrument which, if entered into or executed by an individual, would not need to be under seal may be entered into or executed on behalf of the commission by any person who has been authorised by the commission

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for this purpose. As a result of the Corporate Bodies’ Contracts Act 1960 and the Law of Property (Miscellaneous Provisions) Act 1989, that sort of old common form provision is unnecessary in Acts other than those extending to Northern Ireland.

With that explanation, I hope that the Committee will permit me to make those changes to the Bill. I beg to move.

On Question, amendment agreed to.

Baroness Andrews moved Amendment No. 20:

20: Schedule 1, page 147, line 17, leave out sub-paragraph (2)

On Question, amendment agreed to.

[Amendment No. 21 not moved.]

On Question, Whether Schedule 1 shall be agreed to?

Lord Dixon-Smith: The problem with raising this at this stage is that, having dealt with the first group of amendments, we have effectively dealt with the question of whether the schedule should stand part of the Bill. In those circumstances, I do not intend to pursue the matter.

Schedule 1 agreed to.

Clause 2 [Code of conduct]:

[Amendments Nos. 22 to 24 not moved.]

Clause 2 agreed to.

Clause 3 [Register of Commissioners' interests]:

[Amendment No. 25 not moved.]

Clause 3 agreed to.

Clause 4 agreed to.

[Amendment No. 26 not moved.]

Clause 5 [National policy statements]:

Lord Dixon-Smith moved Amendment No. 27:

27: Clause 5, page 2, line 36, leave out “may” and insert “must”

The noble Lord said: We move to the important business of national policy statements. There is no question but that they are a good idea, but it is important that they do not emerge in areas that are not laid out in Clause 14(6). Hence we decided to table this amendment, which would change the Secretary of State’s duty in this regard. If it were accepted, it would secure and limit the powers of the Secretary of State, who could not dream up another source of national policy at some point in the future.

Amendment No. 29 would bring forward the list from Clause 14(6) to Clause 5 to ensure that the national policy statements cover only those areas. Amendment No. 31 is another attempt to prevent mission creep. The Secretary of State should not have an open-ended power. It is better that the intentions are laid out clearly in the Bill from the beginning and that a clear process is established. All the amendments are quietly designed to ensure that the Bill as we pass it remains in the form in which it is passed, assuming of course that we pass it. That has yet to be seen.

Amendment No. 51 specifically recognises flood risk in particular locations. One tends to think of flood risk exclusively in the context of rivers that burst their banks, but we need to remember that most of our nuclear power stations are on the coast and are all

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susceptible to rising sea levels. The thought of a nuclear power station being inundated in half a century’s time, even if it is out of action, is unacceptable. A large load of radioactive material being lapped by the sea would not be tolerable for anyone. We need to think very carefully about that, particularly in view of the potential for the site-specific nature of proposals for nuclear power that have been made. It is fine if the nuclear power station is on the top of a cliff. It is quite another thing if it happens to be, say, Dungeness, which is on the end of a long spit of very low-lying land, all of which is susceptible to rising sea levels. A similar thing could be said about Sizewell and possibly other power stations. Identifying flood risk is important, because precautions will unquestionably be required.

That deals with the substance of the amendments. I shall be interested to hear what the Minister has to say. I beg to move.

Lord Berkeley: I have two amendments in this group, but it might be easier if I consider the amendments in numerical order. I have a few comments to make on the amendments proposed by the noble Lord, Lord Dixon-Smith. Amendment No. 27 is good and I have a lot of sympathy with it. Many Members of the Committee have spoken about the importance of national policy statements, which are fundamental to achieving a policy framework within which different types of projects can be delivered and, we hope, passed by the new system.

On Amendment No. 29, I cannot understand whether the noble Lord, Lord Dixon-Smith, wants to confine the policy statements to energy, transport, water, waste water and waste. It seems to me that policy statements are required for everything. Under Clause 14, if I have counted correctly, there are 16. Perhaps I misunderstood the noble Lord, but we should need a policy statement for nuclear power stations just as much as for waste or something like that. I probably have misinterpreted what he said, but perhaps he could clarify that.


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