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I turn to the issues raised by the noble Lord, Lord Jenkin. We have had a related debate on the role of judicial review at different points in our consideration of the Bill and I am sure that he will remember the arguments that we have put forward. He has asked me a slightly broader question: why, as I understand it, we are not providing for an appeal mechanism under the other arrangements that we have. The answer is that we have created a process that is very thorough and is iterative at all stages. When we come to the decision that is made by the IPC, we do not think that at that point it makes sense to create an opportunity for a right of appeal that would reopen the process and would involve the appellant body standing in the shoes of the original decision-maker. Throughout this process we are trying to create something that is rather different from anything we have had before, and which is thorough and robust. We believe, therefore, that judicial review is the best and most appropriate step after that.
The noble Lord also asked about the timetable. He will know that one of our concerns is about creating a process which can be trusted because it is transparent and thorough but which also removes unnecessary delays. The six-week deadline for filing a claim form is, I believe, reasonable, because it will come at the end of a process which has been unusually thorough and different from what we have in the planning system at the moment. We are intent on making sure that those processes are fair. The six-week time limit for putting in a claim will not come out of the blue; there will be issues which will have been very well rehearsed and attitudes which will have been taken, and I think that the timetable is appropriate. However, it is not an entirely new provision: the six-week time limit for challenges is similar to that which currently exists for statutory challenges to certain development control decisions taken by the Secretary of State under the TCPA. We are not creating a new process, as there is a relevant precedent.
Finally, government Amendments Nos. 344 and 345 will remove the need for orders granting development consent to be made under the seal of the commission or the Secretary of State. On reflection, we do not think that orders need to be made under seal, and SIs are not generally made under seal. As such, we do not think it would be sensible to require this in the Bill. However, it remains the case that the IPC may enter into deeds which, by law, still need to be made under seal in the case of a body corporate. The Bill therefore retains the provision relating to seals in paragraph 23 of Schedule 1.
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Amendment No. 345 will also remove the requirement for interested parties to be sent a copy of the order granting development consent. We believe that that would quite simply be an unnecessary expense; interested parties will already receive a copy of the decision letter and statement of reasons under Clause 112.
Lord Jenkin of Roding: Before the noble Baroness, Lady Hamwee, withdraws her amendment, as I suspect she may, let me say that I would like to study what the Minister has said. I am not wholly convinced by her arguments; she rattles along at a fair old pace, and although I try to hear everything she says, it is right that I should study what she has said in Hansard. We may need to come back to this on Report.
Baroness Hamwee: I, too, will study what the noble Baroness has said. She agreed with my points, which has led me to the conclusion that highways, to take one example, would be part of the original application, so I do not see that it is associated development. However, I think we can pursue this outside the Chamber if I am still getting it wrong. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 338 not moved.]
Clause 112 [Reasons for decision to grant or refuse development consent]:
[Amendments Nos. 339 to 341 not moved.]
Clause 113 [Orders granting development consent: formalities]:
[Amendments Nos. 342 and 343 not moved.]
Baroness Andrews moved Amendments Nos. 344 and 345:
On Question, amendments agreed to.
[Amendment No. 346 not moved.]
Baroness Andrews moved Amendment No. 347:
The noble Baroness said: I shall endeavour not to rattle through this group of amendments. I am not trying to make it more difficult for noble Lords to follow the argument, and I will try to slow down. We have been taking rather big bundles of amendments, with the consent of the Committee.
This group of amendments is by way of a response to the recommendations of the Delegated Powers and Regulatory Reform Committee concerning the formalities for making orders granting development consent and parliamentary scrutiny regulations affecting the framework for decisions on applications.
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3.30 pm
I shall deal first with the committee’s recommendations on formalities for orders and the amendments for accepting them. The recommendations relate to Clause 116, which confers on the IPC and the Secretary of State limited powers to include legislative provisions in an order granting development consent. These powers are likely to be exercised to facilitate transport projects, particularly in the case of railways. The legislative powers may be exercised also where land is being compulsorily acquired and provision needs to be made in relation to compensation, or where provision has to be made for the mitigation of injurious effects of public works in connection with the statutory defence to nuisance proceedings.
Clause 217 currently provides that an order granting development consent is not exercisable by statutory instrument. There is generally no requirement that an order be laid before Parliament, although in relation to certain special types of land the order is subject to the special parliamentary procedure. In its 12th report of this Session, however, the DPRRC recommended that orders made in exercise of the legislative powers should be contained in a statutory instrument. It recommended that such an instrument should be laid before Parliament, but should not be subject to any parliamentary procedure.
By way of background, I inform the Committee that the proposal for orders containing legislative provisions to be made by the Secretary of State by statutory instrument would not represent a radical departure from existing procedures. Orders under Sections 1 or 3 of the Transport and Works Act, Sections 14 or 16 of the Harbours Act 1964 and compulsory works orders under the Water Industry Act 1991 must all be made by statutory instrument, because such orders may contain legislative provisions.
The main effect of requiring orders of the Secretary of State to be made by statutory instrument would be to apply the procedural requirements of the Statutory Instruments Act 1946, which cover numbering, printing, publication, citation, classification—as local or general—and sale.We fully accept that these procedures are appropriate in the case of orders granting development consent containing legislative provisions. What is more, we agree with the Delegated Powers and Regulatory Reform Committee that it is an omission for there to be no express requirement in the Bill for Parliament to be notified of changes to legislation which it has previously enacted.
We have given careful consideration to precisely how the committee’s objectives might most sensibly be achieved. The Transport and Works Act 1992 requires that a copy of the order, and associated plans and books of reference, be deposited in the office of the Clerk of the Parliaments. As noble Lords will know, the Clerk is, among other things, the custodian of the records of Parliament stored in this House. His records include a collection of plans and books of reference in connection with schemes authorised by private Acts. The House of Lords Record Office should therefore continue to maintain a comprehensive record of key documents relating to major transport schemes.
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We do not want the commission to separate the legislative provisions from the other provisions in an order such as the granting of development consent, which would be unhelpful to the Clerk and introduce unnecessary complexity if there were required to be two orders in respect of a single project.Amendments Nos. 347 to 349 will therefore insert a requirement in Clause 113 that an order including legislative provisions be made by statutory instrument. A copy of the order must be deposited in the office of the Clerk of the Parliaments along with the latest version of any plan submitted to the commission by the applicant and the statement of reasons for the decision to grant development consent.
Amendments Nos. 355 and 357 relate to the correction of errors in an order containing legislative provisions. The amendments insert into paragraph 1 of Schedule 4 provision equivalent to the new subsections inserted into Clause 113 by Amendment No. 348. The effect is that a development consent order containing legislative provisions will be able to be corrected only by means of another statutory instrument.
Amendments Nos. 391 and 392 insert into paragraph 2 of Schedule 6 provision equivalent to that inserted by Amendments Nos. 355 and 357, so that non-material changes to development consent orders required to be made by statutory instrument may be made only by a further statutory instrument. Amendment No. 393 inserts equivalent provision into paragraph 4 of Schedule 6 in relation to changes to and revocation of such orders.Amendments Nos. 449 to 451, which amend Clause 217, make it clear that the affirmative procedure for parliamentary scrutiny does not apply in relation to orders granting development consent.
Amendments Nos. 352 to 354 insert additional words into Clause 114 to specify the day on which the six-week time period for filling a claim form begins to run in the case of an order made by statutory instrument that corrects, changes or revokes a development consent order. This is the day on which the order making the correction, change or revocation is published.
Amendment No. 453 is our response to the other recommendations of the Delegated Powers and Regulatory Reform Committee, relating to the new development consent regime. This amendment relates to Clauses 101 and 102, which set the framework for decisions on applications for orders granting development consent. These two clauses confer on the Secretary of State the power to prescribe in regulations additional matters to which regard must be had when decisions are taken. As the Bill is currently drafted, negative resolution procedure is specified for scrutiny of any such regulations.
The committee has pointed out that regulations under Clauses 101(2) and 102(2) would set out a significant part of the framework within which decisions will be taken. For example, regulations could be made that would require the commission to have regard to matters relating to design in particular cases or to matters relating to the preservation of any listed buildings. We agree that regulations made under this power would be significant and therefore in line with the committee’s recommendations, Amendments Nos. 451 and 453 adopt the affirmative resolution procedure for
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On Question, amendment agreed to.
Baroness Andrews moved Amendments Nos. 348 and 349:
348: Clause 113, page 58, line 7, at end insert—
“(5A) If the order includes provision made in the exercise of any of the powers conferred by section 116(5)(a) or (b), the order must be contained in a statutory instrument.
(5B) If the instrument containing the order is made by a Panel or the Council in the name of the Commission, the Statutory Instruments Act 1946 applies in relation to the instrument as if it had been made by a Minister of the Crown.
(5C) As soon as practicable after the instrument is made, the appropriate authority must deposit in the office of the Clerk of the Parliaments a copy of—
(a) the instrument,
(b) the latest version of any plan supplied by the applicant in connection with the application for the order contained in the instrument, and
(c) the statement of reasons prepared under section 112(1).”
On Question, amendments agreed to.
[Amendments Nos. 350 and 351 not moved.]
Clause 113, as amended, agreed to.
Clause 114 [Legal challenges relating to applications for orders granting developmentconsent]:
Baroness Andrews moved Amendments Nos. 352 to 354:
352: Clause 114, page 58, line 40, at end insert “or, if the correction is required to be made by order contained in a statutory instrument, the day on which the order is published”
353: Clause 114, page 59, line 3, at end insert “or, if the change to the order is required to be made by order contained in a statutory instrument, the day on which the order making the change is published”
354: Clause 114, page 59, line 10, at end insert “or, if the change or revocation is required to be made by order contained in a statutory instrument, the day on which the order making the change or revocation is published”
On Question, amendments agreed to.
Clause 114, as amended, agreed to.
Schedule 4 [Correction of errors in development consent decisions]:
Baroness Andrews moved Amendments Nos. 355 to 357:
355: Schedule 4, page 160, line 32, at end insert—
(a) the decision document is an order granting development consent, and
(b) the order was required to be contained in a statutory instrument,
the power conferred by sub-paragraph (4) may be exercised only by order contained in a statutory instrument.
(7B) If the instrument containing the order is made by the Commission, the Statutory Instruments Act 1946 applies in relation to the instrument as if it had been made by a Minister of the Crown.
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(7C) As soon as practicable after the instrument is made, the appropriate authority must deposit a copy of it in the office of the Clerk of the Parliaments.”
357: Schedule 4, page 161, line 19, at end insert “, or, if the correction is required to be made by order contained in a statutory instrument, the date specified in the order”
On Question, amendments agreed to.
[Amendment No. 358 not moved.]
Schedule 4, as amended, agreed to.
Clause 116 [What may be included in order granting development consent]:
[Amendment No. 359 not moved.]
Lord Patel of Bradford: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
European Council: 15-16 October 2008
3.39 pm
The Lord President of the Council (Baroness Royall of Blaisdon): My Lords, with the leave of the House, I shall repeat a Statement made in the other place by my right honourable friend the Prime Minister. The Statement is as follows:
“With permission, Mr Speaker, I should like to make a Statement about the European Council held in Brussels, which I attended with my right honourable friends the Chancellor and the Foreign Secretary on 15 and 16 October, the main business of which was to consider European actions to stabilise financial markets and how we can work together to reform our international financial systems. The Council also welcomed the co-ordinated interest rate cut by central banks around the world.
“At the heart of our considerations was our shared understanding that the massive reduction in global financial activity and the fracturing of the global financial system has been the result of irresponsible and often undisclosed lending that started in American sub-prime markets. And, while national action is necessary, the root problem can only be dealt with by changes in our financial systems—to recapitalise banks and to reform supervision around the principle of rewarding hard work, enterprise and responsible risk-taking, but not irresponsibility and excess.
“Market estimates suggest that in recent years some $2 trillion of US originated loans—many of them toxic—were bought by EU banks. So, to strengthen our banks, the Council welcomed the comprehensive action on liquidity, capital and funding guarantees of our Government and of the euro-zone countries under the leadership of President Sarkozy, President Barroso and, ECB President, Jean-Claude Trichet.
“The Council also welcomed the joint commitment from the leaders of the G8 countries to hold a leaders’ meeting and agreed the principles and priority areas for global action.
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“Stage one to recovery has been to stabilise financial markets, thereby securing a resumption of lending. In Britain almost £50 billion has been injected as capital into our banks. The Government alone have taken shares worth £37 billion in two of our largest banks. And across the world more than £300 billion has now been approved from public funds to recapitalise the banking system.
“At the heart of the British decision was that medium-term funding was conditional on bank recapitalisation. We also welcome the agreement of the Council that EU countries will provide medium-term state guarantees for new interbank loans.
“I particularly welcome the decision of the European Investment Bank, following my initial proposals at the G4 summit in Paris earlier this month, to mobilise and frontload €30 billion to support new lending to Europe’s, and then Britain’s, small businesses.
“However, confidence today depends also on there being confidence about the future. So we agreed on the need to achieve a reform of the global financial system around five key principles—transparency, integrity, responsibility, sound banking practice and global governance with co-ordination across borders.
“We will submit a detailed set of proposals to the international leaders meeting. I can tell the House today that I will be putting these proposals to all countries, including emerging countries. I have already put them to President Bush. They include insisting on openness and disclosure, with off balance sheet vehicles brought back on to balance sheets, greater transparency around the use of credit derivatives, and a rapid adoption of internationally agreed accounting standards so that value-impaired assets can no longer be hidden; removing once and for all the conflicts of interest which have distorted behaviour and undermined trust, so that credit rating agencies no longer act as advisers to the companies they rate and executive remuneration rewards not excessive or irresponsible risk taking but hard work, enterprise, effort and responsible risk taking; ensuring board members have the competence and expertise to manage the risks for which they are ultimately responsible, and cannot walk away from their obligations; regulation which looks at both solvency and liquidity and ensures that the financial system supports wider economic stability; and a new international architecture for the global financial sector for the years ahead.
“So we want to move to early decisions with our international partners about reform of the International Monetary Fund and Financial Stability Forum, including the creation of an early warning system for the global economy; globally accepted standards of supervision applied equally and consistently in all countries; effective cross-border supervision of global firms, starting with establishing 30 international colleges of supervisors by the end of this year; cross-border co-operation and concerted action in a crisis; and we also want to see greater global macroeconomic co-ordination and, to prevent the return of protectionism, we want to see the reopening of the world trade talks. And I welcome the proposals from Australian Prime Minister Rudd.
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