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[Amendment No. 263 not moved.]
Clause 79 [Single Commissioner continuing though ceasing to be Commissioner]:
[Amendment No. 264 not moved.]
Clause 81 [Single Commissioner to examine and report on application]:
[Amendments Nos. 265 to 267 not moved.]
[Amendment No. 268 not moved.]
Clause 85 [Examining authority to control examination of application]:
Lord Dixon-Smith moved Amendment No. 269:
269: Clause 85, page 45, line 2, at end insert—
“( ) Subject to subsection (3), nothing in this section shall restrict the rights of interested parties to make oral representations or cross-examine witnesses.”
The noble Lord said: I feel that I should apologise to the people in the Public Gallery, who must have found that part of our proceedings rather difficult to understand. We should be clear that we are badly
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Lord Dixon-Smith: They are heroic, but they are beginning to demonstrate some of the flaws of the planning system itself. This part of the Bill deals specifically with how applications are to be examined and we have a number of detailed points that we wish to raise.
Although the examining authority may disregard representations in certain circumstances, Amendment No. 269 makes clear the absolute right of interested parties to make oral representations or to cross-examine witnesses without restriction. Amendment No. 270 would make sure that people who had commented in writing during the preliminary public consultation were among those who were invited to the examining authority’s meeting. We accept that this may raise some practical difficulties, but if they are already on the record, they should not be so great.
Amendments Nos. 271 and 272 to Clause 85 are also designed to allow oral as well as written representations to be considered, while Amendment No. 273 would make the authority’s examination of representations subject to the right of interested parties to make oral submissions and to cross-examine witnesses. Amendment No. 277 would allow the calling and cross-examination of witnesses about specific issues, and allow the same at open-floor hearings. Amendment No. 281 would remove Clause 92(4)(a), which gives the examining authority the power to decide whether cross-examination is permitted. The power is not appropriate.
Amendment No. 282 would leave out Clause 92(7), which establishes the principle that any cross-examination would be by the examining authority, save in exceptional cases. I have had a conversation about this with the noble Viscount, Lord Colville, who has much experience in planning inquiries. He has a concern which I hope the Minister will take into account. If the members of the panel of the commission who are examining an application undertake the cross-examination themselves, he suggests that any decision would be open to a claim for judicial review—whether it would succeed is another matter. If one party or the other—the applicant or the person objecting to the application—does not like the cross-examination, he could accuse the member of the panel of being an interested party in the examination because he also had to judge it. That point needs to be considered. The noble Viscount suggested that rather than members of the commission undertaking the cross-examination, they could employ independent counsel to undertake the cross-examination on their behalf. However, having put that into the debate, it is for the Minister to consider.
This is a large group of amendments and I have outlined what they are. I understand that the Minister might be able to give us assurances on some of these matters which might curtail the debate. I do not have any desire to curtail the debate, but we need to make progress. I beg to move.
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Baroness Hamwee: I have a number of amendments in this group and I am afraid that I may speak at a little more length, particularly on the issue of cross-examination.
I appreciate that it is for the examining authority—a single commissioner or panel of commissioners—to determine how to examine the application, and oral representations and cross-examination are not ruled out. I do not need assurances that they are possible, but the Bill does not give much encouragement to them, and the commissioners will take their cue from what will be the Planning Act 2008.
What I have to say will be familiar to the Minister. I was grateful to her for agreeing to meet the chairman of the Planning and Environment Bar Association with me. He feels—I am sure that he speaks for colleagues because he made it clear that he was not there, as it were, in a trade union capacity—that if there is to be an Infrastructure Planning Commission—I do not think that there is a prospect that there will not be—it must work as well as possible. That means, among other things, being fair and being seen to be fair because of issues of confidence among the public and scrutinising applications rigorously.
That leads me to argue that there should be a right for the parties to require an oral hearing and the right to ask questions to test the evidence. I would say to my noble friend that at that point I have a dash not a comma, but I think that that amounts to the same thing. Cross-examination is not simply something narrow and legalistic: it is an important tool to test the basis of views that are being put forward. Assertions have to be tested by informed questions. It is not a matter of an expression of view: this is about ascertaining how well founded are the propositions being put to the commission. Are they rational, are they on a secure basis, and so forth? As has been said several times, including this afternoon, these applications will be highly complex and difficult. There will be expert evidence. We know that not every expert agrees with another—if every expert were correct then they would all agree—so there are matters to be tested. Fairness requires that parties should be able to test each other's case. The promoter will spend a great deal on putting the case together. Is it fair to the applicant not to be able to question those who oppose the application? Understandably, there will be differences between, for instance, the applicant and local residents, whose interests are very different but who will seek on the basis of the application to make assertions that will need to be tested. Noble Lords who have been members of a planning committee will have had many examples of objectors to an application casting as widely as possible for arguments against it.
5.45 pm
I know that the Government are hugely concerned—it is really the rationale for the proposals—not to lengthen the procedures, but testing the evidence need not unduly lengthen them. It will be open to the commissioners to curtail cross-examination. Judges have the right to curtail it if they feel that it is going nowhere and is not truly a cross-examination. Although Clause 92(8) permits the commissioners to refuse to allow representations
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The reality is that questioning by the parties will frequently be needed. It is not practicable to expect the examining authority to ask all the questions. Questioning expert witnesses to probe their evidence requires an enormous amount of preparation, skill and experience—although the latter can be gathered. In case the noble Baroness throws this back at me, I accept that at an early stage in our discussions I said that the commissioners could be trained, but practically speaking it is not possible to train them to the level of experience, for instance, that members of the Bar have gathered over their career. The commissioners will need guidance from an appropriately qualified expert on what areas to test. They are not likely to have at their disposal the guidance of specialists, who are essential to brief an advocate engaged in such testing.
I do not think that the Government have got their head around the massive cost of providing the examining authorities with the teams of experts they would need if they were to take responsibility for all the testing of evidence. There is also the risk to fairness of process that such assistance is not open to scrutiny.
The point was made to the Minister, privately before today, that in the development plan examinations, the procedures introduced following the 2004 Act, it is for the inspector to decide the procedure. I understand that initially inspectors tried to exclude questions from the parties to the process but came to realise fairly quickly that from time to time they needed their assistance.
Clause 92(7) says that the examining authority may think that,
The term “exceptionally” must mean something. It can only be there to make it more difficult for the examining authority to allow anyone else to ask a question. It must decide not only that questions are necessary, but that this is an exceptional case among the applications going to the IPC. If it is necessary to allow questions in a relatively high number of IPC cases, is it “exceptional”? The approach will by definition prevent the examining authority having the tools required to test the objectives I have mentioned.
I need not say nearly as much on the other amendments. My points underlying Amendment No. 283 apply across the raft of amendments. Amendment No. 275 is about publication. Amendment No. 280 is about the time for notifying the examining authority of a wish to be heard at the open-floor hearing; I propose 56 days for some of the practical reasons voiced in other contexts this afternoon. If practicalities are not observed, then unfairness can arise. Amendments Nos. 285 to 287 are about oral representations; I think that I have probably covered the point. I will not speak to Amendment No. 290, so the Minister need not respond to it. I look forward to hearing what she has to say on a serious aspect of the IPC’s procedure.
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Baroness Andrews: This is indeed an important series of amendments in an important part of the Bill. We all agree that we want to ensure that this process—the opportunity for local people to make their voices heard—is clear, transparent and satisfies its purposes. I shall group some of the amendments, and hope that I can address and reassure Members of the Committee.
Amendments Nos. 269, 271 to 273 and 285 to 288 address similar points around written and oral representations, and the judgment between them. I shall first explain why we have emphasised in the Bill the use of written representations. We are talking in the context of applications coming to the IPC which will be technical and extremely complex. There is a real role for written evidence. Yes, the noble Baroness has said that we are concerned to have a speedier process, but that is not the overriding force driving this process. It is driven by the need for effective consideration, which, in the testing of evidence and the gathering of information, will enable everybody satisfactorily to look back and say, “Yes, they did a good job. They had the information they needed before them and the judgment was based on proper evidence”.
Written evidence will speed up and clarify an application because it will reduce the need for often lengthy and repetitious oral evidence. Primarily, however, it will also improve the analysis of evidence and allow technical questions to be explored in greater depth. It therefore makes the process a bit more accessible to members of the public, not least because they do not have to attend a public inquiry but can access the exchanges in other ways.
That said, I stress that the Bill sets out clear and explicit rights to be heard. I heard the noble Baroness saying that the Bill does not encourage that. I think that she was talking about cross-examination in that context. However, I believe that the Bill really encourages the right to be heard in very different ways. The emphasis on written representation set out in Clause 88 is subject to the requirement to hold specific oral hearings, which are set out in Clauses 89, 90 and 91. That, along with the open floor hearings to which I referred, is about being fair and being seen to be fair to people who in previous situations may not have been heard at all for different reasons.
Clause 88 requires the examining authority to hold oral hearings to probe specific issues where it considers that it is necessary to ensure its adequate examination or to ensure that an interested party has a fair chance with its case. Each interested party would be entitled to make oral representations at this hearing. I stress that the decision by the examining authority to hold an oral session cannot be arbitrary. Interested parties will be able to make representations to the commission about how the application should be examined at the preliminary meeting, including whether they would be adequately or fairly treated by a purely written process. They would be able to make subsequent representations that exchanges of written evidence had not properly settled an issue. The examining authority will have to take all these representations into account before it decides whether a hearing is necessary. If it concludes that a hearing is needed, it must hold one.
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Clause 90 also requires that whenever an application seeking authorisation of compulsory purchase arises, the examining authority must hold an oral hearing into it. Any affected person would be entitled to make oral representations at that hearing. Certainly, the new step, and perhaps most importantly Clause 87, will require the examining authority to hold an open-floor hearing wherever an interested party notifies it by the deadline that they desire one. It is not discretionary. If they want an open-floor hearing, they will get one. That means that under the Bill interested parties have a right to be heard. They have a right to make oral representations. This is obviously subject to the examining authority’s powers to control examinations; for example, to disregard representations which are frivolous or vexatious, as set out in Clause 85. Those sorts of powers are perfectly standard. However, the IPC will not be able to use that provision as a means to exclude people from submitting evidence which has merit. The normal procedures of administrative law apply just as much to the IPC as to any other public body. Anybody who believes that their evidence has been unreasonably disregarded would be able to make use of the mechanisms for legal challenge.
As I said, Clause 94 ensures that should a party be prevented from making an oral representation for whatever reason, they can still make a written representation. Therefore, we will provide a more rational and transparent process to test what will often be very technical evidence.
As regards oral representations to be made by agents, Amendments Nos. 276 and 278 seek to make clear that representations at issue-specific and open-floor hearings can be made personally or by a counsel, solicitor or agent. In essence, they establish a right to be represented at hearings. I can offer reassurance here. The best possible motives lie behind making hearings more open and accessible; namely, that parties do not need to employ expensive, professional advocates to participate on an equal footing with other parties. However, we emphatically do not prevent them from employing someone to represent them if that is what they want. Nothing in the Bill prevents an interested party asking to be represented, and being allowed to do so. I hope that is reassuring.
The noble Baroness made a very eloquent and passionate defence of cross-examination. Amendments Nos. 277, 279 and 281 are designed to give interested parties the right to call and cross-examine witnesses, in addition to being entitled to make oral representations at hearings. Amendment No. 282 is consequential and Amendment No. 273 is also relevant.
6 pm
I understand what the noble Baroness is saying, and I have heard what has been said by other parties about the importance of cross-examination. I do not deny that it has an honourable place in our planning system. But this is an opportunity for us to think clearly and critically about what cross-examination is about. It is simply one mode of testing evidence. When the noble Baroness talked about time, she was right that we are trying to make the process a bit more streamlined, so that we can avoid repetitious activity
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We do not want to replicate those risks. We do not want the new process to mean that only those with the deepest pockets have the loudest say. As the noble Baroness said, we want to achieve the best possible testing of evidence. It is much more sensible for the commissioners charged with examining an application to probe and test the evidence themselves via direct questioning, rather than outsourcing it to other advocates and getting them to do it.
Noble Lords should bear in mind that this is the end of a process at each stage of which the applicant and the IPC—before the pre-application hearing, the local impact assessment, the local consultation process and the pre-application stages—will have many opportunities to test out the assertions that are being made both by the promoters and by their adversaries. This will not be the only place in which arguments and evidence are tested. It will be a very specific process, but it will come at the end of a series of iterative processes.
I take the point that we have a very fine profession in the Bar whose job it is to get the best result from cross-examination, but the noble Baroness does the IPC, and the skills that we intend to look for, something of a disservice if she thinks that it will not be able to question and probe to a very high standard the sort of evidence that will come before it. It would also be possible for the individual member of the local community to suggest questions. They may themselves not be able to cross-examine, if they have not reached that stage, but they would certainly be able to suggest questions to the IPC; “Why don’t you ask the appellant on what evidence he bases the traffic flows on road X?”, and so on. There will be interaction. This will be an extremely robust process.
The noble Baroness has raised the issue before—my noble friend Lord Hart raised this—and we are very serious about ensuring that the commissioners have the skills and training that they need to examine effectively. We will look for those generic skills in any case. If they thought it necessary, they could even appoint a counsel to the panel to probe evidence on their behalf. There would be an ability to dig under what they are being told. Nothing of that nature is ruled out in the Bill. I understand that there is an issue about technical expertise being challenged and how we ensure that. I think that there will be sufficient opportunity at this stage, in this way, for the evidence that comes before the commission to be challenged and tested. We also get an openness and a more level playing field for all parties, because the current adversarial system is genuinely exclusive and can shut out smaller, less confident or less well resourced participants.
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The noble Lord, Lord Dixon-Smith, asked whether there was a possibility of legal challenge, because the panel would be seen to be judge and jury. The commissioners will have to act reasonably and impartially—we would expect nothing else—but we will also specify in guidance how they should do their job, and they will have a code of conduct. If they do not meet the high standards that we set, they could be challenged. That is right and proper. However, the scenario posed by the noble Lord is pretty unrealistic, but I will think about that, because he rather sprang it on me. He is perfectly well allowed to do that and I will come back to him on that point.
Cross-examination is emphatically not ruled out. While the commission would normally use direct questioning to test the evidence under Clause 97(7), the questioning could, as the noble Baroness pointed out, exceptionally allow participants to cross-examine where the commission considers that it is necessary to ensure the adequate testing of representations and to allow an interested party a fair chance to put the party’s case. There will be a panel whose job will be to ensure fairness and transparency. It will be on the lookout, on the qui vive, for that fairness to be seen to operate.
Amendment No. 284, in the name of the noble Lord, Lord Dixon-Smith, is about substituting “necessary” with “appropriate”. Amendment No. 283 is about removing “exceptionally”. Both amendments address the basic principle that the panel should test the application by direct questioning and whether that should stand. We have opted for our position because the Bill sets out a way of proceeding for the IPC that aims to probe, test and assess through direct questioning. While we believe that interested parties should be able to cross-examine witnesses in certain circumstances, there needs to be a test of necessity. I hope that we have made full allowance in the Bill for that to be clear to the IPC; where necessary, the IPC should allow the person to have their anxieties and their voice heard properly. That is provided for in relation to the testing of evidence.
Amendment No. 270 on who should be invited to the preliminary hearing requires anyone who commented during the application consultation to be invited. The purpose of the preliminary meeting is to enable those present to make representations as to how the application should be examined and to discuss any other issues that the examining authority wishes. Such meetings have long been held prior to the opening of complex inquiries. Investing time up front is well worth it. The Bill is much about that principle, and I hope that the noble Lord will accept my assurances that the Government have no incentive to short-change anyone.
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