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The noble Lord said: I can deal with this amendment briefly. It concerns an anxiety expressed by local government, and it is right that the matter should be aired in the Committee. Our suggestion that the Government should not designate as a national policy statement a statement made before the date specified in the amendment would avoid any temptation for them to avoid all the processes required when putting forward a new national policy statement. We have suggested that statements made before that date two years ago must be presented as new national policy statements and, therefore, they would be subject to a full review, to include sustainability appraisal and full consultation, before they can be designated.
Perhaps the noble Baroness can allay my anxieties, but the Bill seems to allow the Secretary of State to designate existing policy statements, however old they may be, as national policy statements without the need for further appraisal. That cannot be right. I have seen statements on planning applications which were in an entirely different form from what we are now led to believe will be the form of a national policy statement under the Bill. I hope that the noble Baroness can express her views.
Other amendments relating to Clause 12 are grouped with this one. I will leave it to the noble Lords who have tabled then to speak to them and shall not attempt to introduce other arguments at this stage. I am merely concerned about the use or, I suspect, the misuse of very old, existing policy statements. I beg to move.
Earl Cathcart: At Second Reading the Minister said that,
“Individuals and local authorities will be able to have their say on how the assumptions and difficult choices made at national level could have implications in their local areas”.
“We will ensure that where the draft NPS is locationally specific, local peoples’ views are taken fully into account in the final NPS”.
- “we want there to be a proper national debate about the need for key infrastructure ... to boost opportunities for public participation”.—[Official Report, 15/7/08; cols. 1161-63.]
The Minister went on to explain the clear procedures that must be followed before policy becomes a national policy statement. That is all excellent stuff, provided that it is applied to all national policy statements.
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It seems quite extraordinary that under Clause 12 a Secretary of State can just dust down an old policy, regardless of how old it is or whether any or all of the correct procedures and legislation have been complied with. Doing this may well undermine the very credibility of that national policy statement.
We have tabled Amendment No. 95, which would remove Clause 12(3), because we do not believe it is good enough that the Secretary of State should be allowed merely to take account of pre-commencement consultation, regardless of when it was carried out and how thorough it was. There needs to be up-to-date and relevant consultation.
As the Bill stands, there seem to be no checks or balances to ensure that correct procedures have been carried out and that legal requirements have been complied with for all, not just some, national policy statements. That is why various amendments are tabled to Clause 9 calling for affirmative resolution, the approval of both Houses and a Joint Committee of both Houses of Parliament once consultation and publicity requirements detailed in Clause 7 have been complied with. Those amendments would ensure that the correct procedures had taken place for all, and not just some, national policy statements. Once approved by both Houses, an NPS would have the force of law and therefore be very difficult to contest in the courts, but we will deal with those amendments later in Committee. In the mean time, the Minister may be able to clarify something when she responds. If the Secretary of State designates an old policy as a national policy statement, will it still have to go through the parliamentary requirements as laid down by Clause 9?
At Second Reading, the noble Lord, Lord Greaves, said that,
- “if people are dissatisfied with the system and it is in disrepute, they will go to judicial review and the courts and the system will be clogged up”.—[Official Report, 15/7/08; col. 1229.]
I agree with him. If the Government persist with the imperfections in Clause 12, they will create a rod for their own back and, instead of speeding up the planning process, the flawed NPS will be subject to endless legal challenges: judicial review, the UK courts, the European courts because directives have not been complied with, and the European Court of Human Rights because there was not, in the Minister’s words, a national debate and people’s views were not taken into account.
We understand that the Government intend to adopt the 2003 air transport White Paper as the national policy statement in respect of aviation policy. I should probably declare an interest: I have flown this year; I flew last year; and I shall probably want to fly again next year. I have no particular axe to grind and I understand the arguments for expansion, but that policy is now five years old. If it were adopted as a national policy statement, there would be endless legal challenges, and I shall briefly give a few examples.
First, if such a policy were being considered today, the proposals would first need to be subjected to a strategic environmental assessment to comply with EU directives which became law in this country by regulations in 2004—hence our Amendment No. 93. The aviation national policy statement would need to comply with those directives or risk legal challenge.
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Secondly, the Freedom of Information Act came into force in January 2005 but it was not until July this year that the Information Commissioner reported. The report was peppered with criticisms of the Department for Transport’s constant obstruction and prevarication in dealing with requests for information. Would that lead to legal proceedings? Perhaps it would.
Thirdly, the Aarhus convention was ratified in 2005. The full title is the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. It lists airport development as one of the activities on which the public must have proper access to information, defined participation rights in the decision-making process and proper recourse in law. In so far as the UK Government had not ratified the Aarhus convention at the time of the air transport White Paper but have now done so, they have significantly greater obligations in these respects than they did in 2003. Legal proceedings? Maybe.
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Fourthly, on the pre-aviation transport policy consultations, the Secretary of State, Hazel Blears, at Second Reading in the other place, said:
“National policy statements will be subject to debate across the country”.—[Official Report, Commons, 10/12/07; col. 29.]
The consultation on aviation in 2002 was not national but confined to areas around the airports. Even so, nearly 500,000 responses were received, and over 90 per cent were opposed to the Department for Transport’s proposals. It is questionable whether the consultation complied with the Minister’s statement that the Government would ensure that, when the draft national policy statement was locally specific, local people’s views would be taken into account in the final statement.
Fifthly, on climate change, I know that the Minister has agreed to look at that issue again, which is welcome, but if the 2003 aviation and transport White Paper is adopted as a national policy statement, air transport policy as it stands might ride roughshod over the requirement to comply with climate change provisions. As aviation is the fastest growing contributor to carbon emissions it can be argued that the current aviation policy is at odds with the climate change provisions.
Sixthly, the current aviation policy impacts directly on people’s human and property rights. If people feel that their basic human rights have been trampled on, there may be proceedings in the European Court of Human Rights. There is doubt that the process set out in Clause 12 will be compliant with the ECHR.
Seventhly, the European habitats directive protects some of our most important habitats. If people feel that that is not being considered there may be legal challenges. Currently no recognition is given to the fact that this process must comply with that directive.
Eighthly, earlier in Committee the noble Lord, Lord Howarth, tabled an amendment on the need for national policy statements to appraise our built heritage, scheduled ancient monuments and important landscapes. In replying
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- “will be invited to submit a local impact report once an application has been accepted”.—[Official Report, 8/10/08; col. 267.]
That will not happen if the 2003 aviation policy is adopted as a national policy statement because the applications have already been made. We heard in that debate how at Stansted more than a dozen listed buildings will be demolished and that at Heathrow, according to John McDonnell, a Labour Member in another place, 10,000 of his constituents face losing their homes, including listed buildings and three primary schools. That is another highly emotive area of conflict and dissatisfaction.
Those are just some of the problems and pitfalls that I foresee if the Minister persists in using old policies as national policy statements. I have used aviation as my template but the argument could apply equally to other national policy statements. For national policy statements to work they need to be robust, have genuinely ticked all the boxes and not be open to legal challenges. Clause 12 should be deleted or amended to state that such policy statements should not be adopted as national policy statements until they fully comply with all the requirements for appraisal and consultation as set out in the Bill. It is not just opposition parties that are against dusting down old policies and adopting them as national policy statements. There was opposition from the Minister’s party in another place. At Second Reading, John McDonnell said:
“Any attempt to incorporate the aviation White Paper into a policy statement would be an abuse of power”.—[Official Report, 10/12/07; col. 89.]
Paul Truswell said that that was,
The current aviation policy does not affect me. My opinion does not really matter, but the policy affects tens of thousands of members of the public and organisations that feel aggrieved. It matters to them. I have tried to point out the pitfalls should the Secretary of State be allowed to adopt an old policy document as a national policy statement. As the noble Lord, Lord Greaves, said, the system will get clogged up in the courts and the objective of speeding up the planning process will fail unless the Minister ensures that all national policy statements are planning documents of the highest order.
Lord Cameron of Dillington: I rise to speak to the stand-part debate on Clause 12. I start by repeating my mantra that these national policy statements are hugely important. They are a big step forward and are different from anything that has gone before. If they properly pass all the tests of democracy, they will be the key to making the IPC an effective and respected body. They will make the Bill work. National policy statements decided at a national parliamentary level with national consultation are a new development for our planning system, and they are a good idea. Whatever process was gone through for previous documents—PPGs, PPSs or White Papers—they were not examined by the Commons and the Lords or by the public in the knowledge that they were going to rule the decisions of the IPC on a range of bad-neighbour projects.
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Baroness Hamwee: Six of the amendments in this group are tabled in my name. I shall start with Amendment No. 91, which stands on its own. The Minister and I have exchanged e-mails about it. It relates to Clause 12(1)(b), which states that,
If Clause 12 stands part, I propose that rather than referring to other statements, they should be included in whole or in part in the national policy statement. To allow reference to them could lead to a lack of clarity and certainty. There would be a temptation to be just a little bit sloppy and to abbreviate a bit too much. It is hugely important that the NPS should be clear for consultation purposes and when it is being implemented by the IPC.
My other amendments propose that, rather than making use of a statement issued before commencement, the relevant period is between January next year and commencement—I do not know whether the Minister can tell us when commencement is likely to be—to ensure fresh consultation, appraisal, parliamentary scrutiny and so on in line with the intentions of the Bill. Like others, I am very concerned about the prospect of a pretty elderly White Paper, the air transport White Paper 2003, being converted without national consultation, with the sustainability and climate change debate having moved on.
I appreciate the assurances given by the Minister, John Healey, when this was debated in the Commons, but this is an instance where we do not need to be caught up in the “I would not have started from here” syndrome. Like others, I believe that it would be overhasty for Clause 12 to apply. Specifically, on Clause 12(3), which would allow the Secretary of State to take account of pre-commencement consultation, does the Minister believe that on any matter that may be the subject of an NPS there has been consultation adequate for the Bill and for the ministerial assurances that we have had, especially given the way that consultation and designation processes have developed during the course of debate on the Bill?
I sum up Clause 12 as undermining the statements and assurances that the Government have made. It seems to be saying, “PS. But we will get on with it come what may”. I am sure that is not what is in the Minister's mind, but it is hard not to read it that way, despite the good faith that has been expressed.
Lord Boyd of Duncansby: I have two quick points to make. I confess that I do not know enough about the 2003 air transport policy to know whether it would
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- “before the commencement day, or ... sets out national policy by reference to one or more statements issued ... before the commencement day”,
and allows pre-commencement consultation and publicity to be taken into account. Clause 5(2) defines national policy statements, and Clause 5(4) states:
“A statement may be designated as a national policy statement for the purposes of this Act only if the consultation and publicity requirements set out in section 7, and the parliamentary requirements set out in section 9, have been complied with in relation to it”.
So it is quite clear that the safeguards are there.
Whether the air transport policy fulfils those conditions is another matter, which we can debate at a different time, but I am alarmed at the prospect of Clause 12 being removed altogether. For example, I am aware that at least the preparatory steps for consultation and publicity for the nuclear national policy statement have begun. BERR is undertaking the strategic siting assessment consultation at present. If Clause 12(3) were to be removed, there is a least an argument that the Secretary of State would be unable to take into account that consultation and publicity process, which is already being undertaken. Is that the intention of the Conservative Front Bench? It would be alarming if we were to go back to year zero, as it were, now, given the challenges that we face. We need to improve our infrastructure rather rapidly.
Lord Tyler: Despite the safeguards to which the noble and learned Lord, Lord Boyd, referred, which are to some extent contained in other clauses, I confess that the whole of Clause 12 fills me with alarm. I share the concerns of the noble Lord, Lord Cameron, and the noble Earl, Lord Cathcart. It is rather extraordinary that the Government, at all stages of the Bill in both Houses, have said that this is a new, improved and greatly enhanced system that we are going to engage in in future. Yet we could treat previous examples as though they had gone through this process.
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I shall take an extreme example. Reference has been made, not least by the noble Earl and my noble friend Lady Hamwee, to airport location. I date right back to the Roskill commission on the third London airport, when I was planning adviser to the Royal Institute of British Architects. Everyone in the country felt that the commission had got it wrong because it was not location-specific; it looked at a whole range of locations. Thirty years ago, the commission produced a minority report by the eminent Professor Colin Buchanan that there should be a third London airport, sited at Maplin Sands. Thirty years later, the Mayor of London is suggesting that again.
Lord Jenkin of Roding: I declare an interest, which is in the register, as a consultant to the Thames Estuary Airport Company.
I must correct the noble Lord. The mayor’s proposal is not a revival of the Maplin Sands project; it is for the construction of an entirely new island in the
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Lord Tyler: The noble Lord makes my point for me. What comes around goes around. I accept that it may not be precisely the same site—my geography is reasonable—but the point is made that the arguments that we were engaged in 30 years ago can come around again. That is the only point that I seek to make. Surely no one in your Lordships’ House is suggesting that that statement of policy or that consultation was appropriate to this, so we must narrow down very precisely what the Government have in mind or we could be ranging back.
In the debate on the previous clause, the noble Lord, Lord Turnbull, quite rightly identified the dilemma of, on the one hand, trying to be specific and clear and avoid blight and, on the other hand, enabling communities in a democratic society to take proper decisions about where they prefer a particular development. That is what the Bill is all about. The Minister has very precisely indicated at all stages of the Bill, as have her colleagues in the other place, that this is a new and improved way of dealing with these problems. That is great, but if it is, how can the Government possibly maintain that there can be any element of retrospectivity going back to previous policy statements and previous consultations, because that would suggest that nothing will be improved under the present Bill and that there is no better methodology?
Clause 12 is really most peculiar. In both principle and practice it seems to introduce an element of retrospective legislation, which this House, above all other parts of the democratic structures of our country, has always set its face firmly against. I hope that the Minister will be able to explain in her response to this short debate why the clause is felt to be necessary.
Baroness Andrews: I shall most certainly try to do that, but I do not think that I can improve hugely on my noble friend’s explanation, which was excellent. I did not expect the clause to command so much contention. It is completely benign. There is nothing sinister about it whatever, but the description offered by the noble Lord, Lord Tyler, was the exactly the opposite of what we intend to do. He is right about the NPS being a new way of doing things—it is necessarily so—but he did not understand exactly what the clause seeks to achieve. I am happy to try to make that clear, because I would hate to think that there was ambiguity about this.
In brief, Clause 12 allows for a statement of policy that is issued before the commencement date to be designated as a national policy statement for the purpose of the Bill. The clause also allows the Secretary of State to take consultation and scrutiny carried out before the commencement day into account in deciding if the tests set out in Clauses 7 and 9 have been met. It also allows Ministers to treat an appraisal of sustainability that has been carried out before the commencement day as meeting the requirements of Clause 5(3).
I have listened very closely to what Members of the Committee have said on the clause and the amendments
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I understand the fears expressed by Members of the Committee that somehow here we have an intention to bring existing statements of policy being grandfathered into the new regime and bypassing the high standards that the Bill sets out for NPSs, which are key to the new regime. They must be robust, legitimate and credible. I should like to make it clear that the Bill provides clear safeguards which will ensure that all NPSs are subject to the tests set out in the Bill. I hope that that will satisfy the Committee that the clause is very important.
The production of national policy statements where these do not already exist has got to be a thorough process, but, in all logic, it cannot be a wholly new policy process. Government policies on strategic infrastructure have developed and will develop over time at a different pace in different areas. In some cases, we will need to build on a range of work to develop policy which could contribute to a national policy statement, or a policy statement may have been issued, which appears to be a potential national policy statement, before the commencement date of this Bill.
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