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That brings me to my amendment, which would delete subsection (2) of Clause 118. The clause deals with the purposes for which land may be compulsorily acquired, and appears to have been pulled together from various Acts, with particular reference to the nature of the projects involved. For these reasons, it is expressed very broadly and provides little guidance on the justification of the use of powers. It is on that guidance that I seek the Minister’s help. It relies on the meaning of the word “required” in Clause 118(2)(a), which was used in the compulsory purchase powers provided in Section 226(1)(a) of the Town and Country Planning Act 1990, along with the requirement that the land should be “suitable”. The reference to the compelling case in the public interest is a reference to the test applied by the High Court in considering challenges to the confirmation of CPOs. Again, it does not help to establish the justification for exercising specific powers relative to the project under consideration by the decision-maker.

A further example of the vagueness of this provision is that there is no indication of the timescale over which the powers may be exercised. As the Minister

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will know, most similar powers have a life of three years, but hybrid Bills and orders under the Transport and Works Act 1992 may seek longer periods, which will be granted only if justified. The purpose of my amendment, therefore, is to seek more information from the Minister on how this part of Clause 118 will be implemented.

The Minister of State, Department for Transport (Lord Adonis): All these amendments relate to the range of issues that can be covered by an order granting development consent. Our principle of action in relation to them all is simple: the IPC should be able to make provision in development consent orders for all the matters required to develop a nationally significant infrastructure project.

Clause 116 and Schedule 5 itemise a large number of such matters and the noble Baroness, Lady Hamwee, went through quite a number. However, I can assure the Committee that they are all rooted in matters that are already available in current legislation on infrastructure development and which experience has shown are necessary for promoters to build the infrastructure for which consent is being given.

The specific provisions have been drawn very closely from Schedule 1 to the Transport and Works Act 1992 and from the Harbours Act 1964, although all the other existing consent regimes have had an influence on the provisions of both Clause 116 and Schedule 5.

Amendments Nos. 359A and 360 to 368 raise the issue of matters ancillary to development. The test of whether something is ancillary to a development depends on the functional relationship between that matter and the development. A certain amount of common sense needs to be applied to the question, but, in general terms, something will be “ancillary” if it is needed for a development to proceed in practical terms. As with existing Transport and Works Act orders, there should be flexibility for development consent orders to cover these matters and other particular issues relevant to an application. The key here is flexibility, without which the single consent regime will not work.

I have a table which I can pass to the noble Baroness, Lady Hamwee, and the noble Lord, Lord Dixon-Smith, of all the matters itemised in Schedule 5 on page 162 of the Bill, a number of which the noble Baroness went through. They are closely modelled on existing provisions. I will write to the noble Baroness and the noble Lord, as well as to the noble Lord, Lord Jenkin, who takes a keen interest, and other Members of the Committee, with a whole list of the powers and show how they are drawn, but I shall run through a few to give a flavour of our approach.

The first paragraph in Schedule 5—

“The acquisition of land, compulsorily or by agreement”—

is modelled closely on Schedule 1 to the Transport and Works Act 1992 and Schedule 2 to the Harbours Act 1964, because the compulsory acquisition of land is almost always required for the construction of a nationally important infrastructure project. Such orders are very common provisions in Transport and Works Act and Harbours Act orders. They have been used recently in the case of, for example, the River Tyne

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(Tunnels) Order 2005, the Network Rail (Thameslink 2000) Order 2006 and the London Gateway Port Harbour Empowerment Order 2008.

The second paragraph in Part 1 of Schedule 5—

“The creation, suspension or extinguishment of, or interference with, interests in or rights over land (including rights of navigation over water), compulsorily or by agreement”—

is again modelled closely on Schedule 1 to the Transport and Works Act 1992 and Schedule 2 to the Harbours Act 1964, because interference with rights over land is a common provision in Transport and Works Act and Harbours Act orders. The three examples that I gave in respect of the first matter—that is,

“The acquisition of land, compulsorily or by agreement”—

all apply in relation to the second.

Paragraph 4 of the schedule—

“Carrying out specified excavation, mining, quarrying or boring operations in a specified area”—

is closely modelled on Section 5 of the Gas Act 1965, because it is a specific consent required from the Secretary of State where mining operations are planned in the vicinity of an underground gas storage facility. It would not make sense for promoters of nationally strategic important infrastructure projects to require this power from the Secretary of State when the relevant consideration can be handled by the IPC.

I could go through the list. I hope that I have thereby satisfied the Committee that we are seeking to move to the IPC the power to give consents on matters ancillary to developments. It is closely modelled on the existing regime that applies in legislation governing consents in particular areas, of which the most important examples are the Transport and Works Act 1992 and the Harbours Act 1964. However, I shall circulate the whole list to Members of the Committee. If they wish to engage in a dialogue with me about specific items in it before Report, I would be glad to do so.

Lord Jenkin of Roding: The Minister slid very quickly over the provisions that I quoted from Clause 116. I listened to what he said about the ancillary matters which are dealt with in the schedule, and I would be most grateful to have the letter. However, I am told very firmly that, in the Transport and Works Act, if there is any question of amending the law, which is what the two provisions really mean, an order will be laid before Parliament and subject to the negative resolution procedure. I suspect that that would be a much more acceptable approach in this case. If that is thought to be too time-consuming, why cannot we at least have a Minister taking responsibility for changing the law? Giving this power to the commission is a novelty. If the Minister can convince me that that has been put into previous legislation, I shall listen with interest to what he says, but he did not say so when he first replied.

Lord Adonis: I was dealing first with the issue of the ancillary matters for which consent can be given alongside a development consent order. The noble Lord is now anticipating the second part of this debate, which relates to the exercise by the IPC of legislative powers. These are distinctly different issues. The first concerns the range of matters, as set out in Schedule 5, over

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which the IPC has power when granting consent on matters ancillary to a development consent order. The noble Lord raises the point that I now wish to come on to—that is, the ability for the IPC to exercise so-called legislative powers.

These provisions are again modelled closely on the powers already available to the Secretary of State in making orders under Section 5 of the Transport and Works Act 1992 and are an essential part of the single consent regime. The issue is whether existing powers that reside with the Government should be available to the IPC. It might be worth taking a moment to reflect on why the 1992 Act and the Harbours Act 1964 contain the legislative provisions that we have incorporated into the Bill, before I come to the issue of safeguards, which the noble Lord, Lord Jenkin, has, quite rightly, raised.

In the past, promoters of nationally significant infrastructure projects have found that there are statutory provisions regulating existing infrastructure that they propose to upgrade or improve. In particular, railway infrastructure is frequently covered by one or more private Acts of Parliament, which gave the original promoters of the railway the ability to construct it in the first place. Often the provisions of the existing legislation are inconsistent with proposals to upgrade or improve infrastructure. For example, Network Rail might be under a statutory obligation to provide or maintain a certain infrastructure—for example, a bridge or a footway—that would be incompatible with the provisions to upgrade a railway.

It is also commonly necessary when authorising railway projects under Transport and Works Act orders to apply certain provisions of public Acts with suitable modifications. This may be because the legislation in question would not otherwise apply to the projects, but it should desirably do so, or because its application needs to be adapted to give a sensible outcome. Most typically, this has arisen in the context of compulsory purchase and compensation provisions, but it has arisen in other contexts as well. It was with precisely this problem in mind that Parliament previously granted the Secretary of State the extensive powers in Section 5 of the Transport and Works Act 1992, including the ability to make an order that can,

under that Act. The 1992 Act also permits the Secretary of State to make amendments, repeals and revocations of statutory provisions of local application as appear to him to be expedient in connection with an order.

The Harbours Act mentioned by the noble Baroness, Lady Hamwee, makes similar provisions in respect of local Acts in relation to harbour developments. Clause 116(5) is based on the wording in Section 5 of the Transport and Works Act 1992 and the similar provisions in the Harbours Act. As we have seen in Part 3, many types of project to which the 1992 and 1964 Acts apply will, in future, be classified as nationally significant infrastructure projects and, as such, will require development consent under the Bill. Clause 32(2) has specifically excluded the 1992 or 1964 Act orders

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from authorising development of those projects. That will prevent the use of orders under those Acts to amend legislation in relation to such projects.

However, it is because we recognise precisely the points raised by the noble Lord, Lord Jenkin, about the powers being exercised by an independent body that we have provided for a number of safeguards in the Bill to ensure that these essential powers are not used inappropriately or without proper scrutiny. First, and most basically, the only pieces of legislation that can be altered are those that the promoter includes in the application. The IPC will not be able to make orders on a subject other than those in the application.

Secondly, the form of the draft order will be based on model provisions that will be set out for the Secretary of State by order under Clause 33. These are likely to be similar to the model provisions currently set out in the Transport and Works (Model Clauses for Railways and Tramways) Order 2006. Members of both Houses will be able to scrutinise those model provisions and force a parliamentary debate on them, providing the precise oversight that the noble Lord, Lord Jenkin, seeks to ensure applies.

Thirdly, as the Committee will see from the provisions of Clause 116(8), this provision will prevent any development consent order containing provisions that make or modify by-laws or criminal offences. We do not believe that it would be appropriate for an independent body to make such orders.

Fourthly, the decision-maker will be able to approve the application and make an order only when that is in accordance with the relevant national policy statement. Any provisions in a development consent order relating to existing legislation will be only those that are in line with government policy—policy for which the Government are fully accountable to both Houses.

Fifthly, where the IPC intends to use the powers in Clause 116(5), it will be required first to send a copy of the draft order to the Secretary of State. If the Secretary of State thinks that the terms of the order would contravene Community law or any of the convention rights, he has a power in Clause 117 to direct or require the IPC to change the terms of the order to prevent such contravention.

The noble Lord, Lord Dixon-Smith, has tabled an amendment that would delete the safeguard. I presume that it has been tabled as a consequential amendment to his Amendment No. 306A. I say to him that, for precisely the reasons that we have been discussing this afternoon, Clause 117 provides a crucial means by which the Secretary of State can exercise control against any possible misuses of legislative powers that could bring this country into conflict with our international obligations. In general terms, we believe that it is a vital step to ensure that there is thorough scrutiny of any use of legislative powers on any matter.

After the noble Lords, Lord Jenkin and Lord Dixon-Smith, and the noble Baroness, Lady Hamwee, have had a chance to look more closely at the matters I have set out, and before Report, I should be happy to discuss the matter further with them. We believe that, subject to transferring the granting of development consent orders to the IPC, there are adequate safeguards. On the specific issue of the IPC’s ability to take into

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account existing statutory provisions in making its decisions, oversight provisions already exist in respect of both the Secretary of State and Parliament where orders to this effect are being made.

The Lord Bishop of Liverpool: I am grateful to the Minister for giving way. I seek some clarification. On the authority and power being given to the Infrastructure Planning Commission, the Minister said that the fourth safeguard was the national policy statement. Therefore, the IPC operates under an authority granted it by the NPS. I draw the Minister’s attention to Clause 101, which sets out the parameters of the decision-making of the panel and council. Subsection (3) states:

“The Panel or Council must decide the application in accordance with any relevant national policy statement, except”.

Then, in subsection (7), the exception is,

It seems to me that what is being argued is that there is to be an exception to the national policy statement. Who determines the benefits or losses to the project or the community? We are given no suggestion about that in the legislation. However, it shows those of us who are concerned about the authority accruing to the Infrastructure Planning Commission that not only is it able to set aside certain orders, it can also set aside the national policy statement. Can the Minister give an undertaking to rethink that proposal as well?

Lord Adonis: It cannot set it aside. This is an issue that it must weigh. The whole purpose of the IPC is to weigh the balance of pros and cons of an application when one is made, but it must do so in accordance with national policy statements.

The Lord Bishop of Liverpool: An exception is stated explicitly in Clause 101(3). It is difficult to understand what the grounds for those exceptions are. I am simply asking for some clarification about the exception granted to the national policy statement and therefore to the Infrastructure Planning Commission.

Lord Jenkin of Roding: The right reverend Prelate has raised an interesting matter, and I shall study what the Minister has said about it. However, I come back to subsection (5). The Minister did not seem to recognise that there is a difference between the earlier Acts that he quoted—where the Secretary of State has the power to amend, alter, modify and so on—and the Bill, under which this unelected body would have that power. To rely, as the Minister has done, on the earlier legislation is a grave mistake, because this does not say that. In those cases, the Secretary of State makes an order and, for some of them, under the Transport and Works Act 1992, he must then put an order before Parliament.

I understand that the Government’s purpose here is to accelerate the process, something that has been recognised on all sides of the Committee as desirable and, indeed, necessary. However, changing the law should not be a function of a body like the IPC. At least, it should not do so without the consent of the Minister; that should be part of the formal process. It

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is insufficient to say, “the Minister may scrutinise”, or “Parliament may scrutinise”. Parliament cannot do anything about it under the law. If Parliament had more powers—over the national planning statements, as I have argued previously—that might make a difference. Currently, however, this is all made by policy being promulgated. Scrutiny by itself, without any powers, is not enough.

I hope that the Minister will look at this again, and assure him that we will come back to it on Report. Of course we shall study what he has said and the various precedents. At the moment, however, I am wholly unconvinced.

Lord Adonis: I accept that the noble Lord has concerns, but it seems to me that they in fact go to the whole basis on which the IPC has been established. These powers are in line with all its other powers. The safeguards that are in place we regard as very robust. They include a safeguard for the Secretary of State where the Secretary of State believes that the terms of any order would contravene community law or any of the convention rights. As I say, there is a scrutiny role for the House of Lords. So the noble Lord’s points on decisions that would be made on these matters are no different from the fact that we would be transferring this power in respect of the development consent orders themselves. We can, of course, rehearse these issues on Report.

The noble Earl, Lord Caithness, made some remarks on compulsory purchase orders. We have the ability to issue guidance on compulsory purchase orders. This will give greater detail on how the IPC will treat cases of compulsory purchase orders, which I took to be his concern.

The Earl of Caithness: I am grateful for that response. The noble Lord has the power. Is he going to exercise it and, if so, when? Will he confirm that the basis of compulsory purchase law is now changing in the way that I said?

Lord Bridges: I have not hitherto taken part in this debate, but listening to the interesting exchanges between the Minister and the noble Lord, Lord Jenkin, it seems that the noble Lord has a point. The status of the IPC has inadvertently been revealed. In this case, it is to be an agent of government. That was not my understanding of the original purpose of the IPC.

Lord Adonis: It is not the agent of government. It has to consider applications on their merits, subject to the national policy statements that are issued under this Act by the Secretary of State. The IPC then has to exercise its judgment on the matters before it in the way that any body set up by statute operating under guidance does.

In response to the noble Earl, it is our intention to issue guidance, but I do not know when.

Lord Dixon-Smith: I hesitate to intervene again. This has been a detailed and interesting discussion. I know the Minister is doing his best to be helpful, but

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in being helpful, he has read out a list of qualifications to a part of the Bill that is unqualified. I am aware of the impact on legislation of what is said in Parliament. We need to have some fairly serious discussions, which the Minister offered, before Report in order to try to find out what lies behind this. At the moment, I remain unconvinced that the position is sufficiently clear. Before the Bill departs this place, we need to be satisfied that it is sufficiently clear for there to be no misunderstanding.

The Earl of Caithness: I come back again because there is another point that the Minister has not answered. It is whether Clause 118 changes the presumption about compulsory purchase in the way that I suggested when I spoke to my amendment.

Lord Adonis: Not as far as I am aware, but I shall confirm that matter in correspondence with the noble Earl.

Baroness Hamwee: The noble Lord, Lord Dixon-Smith, said that we need to be perfectly clear about what lies behind all this. In a non-technical fashion, I am perfectly clear about what lies behind all this. I am grateful for the offer of the detailed explanation. I was going to ask for it, but the Minister offered it.

I picked up a couple of things that he said. First, he spoke about Transport and Works Act orders. The word “orders” is important. The noble Lord, Lord Jenkin, forcefully spoke about the constitutional position. The Minister also said that the key is flexibility. What is flexibility if you are the Government is probably too loose when you are the Opposition. Flexibility is the problem as well as the key.

I was not clear from the Minister’s explanation of the ancillary matters whether the current inspectorate would say yes to the different ancillary matters that I went through fairly quickly. When he writes, it would be helpful if the Minister could cover that because if it is not a precise analogy, the Government’s defence is that much weaker. The examples he gave were not ones that I challenged in any of my amendments, and I am not clear that energy and waste matters, for instance, would come within the Transport and Works Act provisions that he was talking about in the direct way that he was dealing with them. I think they are different matters.

5.15 pm

As regards the safeguards he mentioned, the waiving of a statutory provision would have to be in the initial application. However, if I may say so, in terms of what we are questioning here, so what? We could debate model provisions, but those would simply be models in line with a national policy statement. We spent some time considering whether national policy statements should be approved by Parliament. I shall, of course, read carefully what the Minister said, but I am not convinced that his argument is as strong as it might appear on first hearing it.

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