| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
I return to the amendments of the noble Lord, Lord Cobbold, and that spoken to by the noble Baroness, Lady Hamwee. I have criticised the use of the word “council”. I can understand that something between a panel, which may be just three people, and the full commission is needed, but “council” seems to have an entirely wrong connotation. Apart from anything else, it is not a permanent body, but a group of commissioners who may be appointed ad hoc for a particular inquiry. A completely different body of commissioners may be called the “council” at the inquiry dealing with the next application. The noble Lord, Lord Cobbold, has drawn our attention, with huge persistence, to the fact that this is the wrong word. Whether it is left to the commission to decide, as the noble Baroness’s amendment would have it, or whether the Government should recognise in the schedule that there will be something between the single commissioner, the panel and the full commission, it needs to have a name that conveys
6 Nov 2008 : Column 364
2.30 pm
I serve and have served on a number of bodies where the council is the governing body. Many charities will be run by a chairman and council. There are many others. My noble friend on the Front Bench is familiar with a local authority. Local authorities have an elected council, a body which exists until the whole lot is removed. It is not a peripatetic body, or a peripatetic name for a number of different bodies that may be appointed under the procedure of the Bill. I hope that the Minister might have another look at this between now and Third Reading, because the use of “council” in these circumstances is a misnomer. It is not a council as one recognises in any other walk of life.
Lord Dixon-Smith: My Lords, there is no doubt that “council” has a particular connotation, which does not apply in this instance. The amendment of the noble Baroness, Lady Hamwee, which leaves the subject open, is probably preferable to the rigidity of the Bill. I wonder whether this group would be not more executive than a council, but even “executive” would not describe its function with sufficient accuracy. The only thing on which I think we shall be able to agree is that we do not like the title. It is a little unfortunate. If we could find something better on which we could all agree, it would be an improvement.
The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Andrews): My Lords, we all have a sense of déjà vu and frustration about this. The noble Lord has pursued the matter assiduously and I wish that I had a solution, because it will become increasingly clear that, for different reasons, I do not.
I will address the amendments in turn. The noble Lord, Lord Cobbold, wishes the Bill to include reference to the council in Clause 1. The noble Baroness, Lady Hamwee, and the noble Lord, Lord Greaves, ingeniously suggest a way of improving the terminology. I have tabled a number of amendments in response to concerns raised in Committee about the scope of the power of the chair to end a commissioner’s appointment to the council.
The noble Lord, Lord Cobbold, has consistently raised concerns, both here and in discussions outside the Chamber, that the first appearance of “the Council” is not until Clause 60. Our previous debates were to clarify the role of the council. I am pleased that we now know that it is not a superfluous body, but exists to do a very important job. As he said, several councils could sit at the same time.
The noble Lord feels that, as the council takes decisions on nationally significant infrastructure projects under certain circumstances, it should be put up front in Clause 1. Our problem in doing so, and this is not a Jesuitical argument, is that such a clause would not follow the normal conventions of legislative drafting.
6 Nov 2008 : Column 365
We are afraid that it would lead to greater confusion about the role of the council, because the council is essentially part of the operational structure of the IPC. When we set up bodies such as this in legislation, detail on how it will operate is nearly always set out in the schedules. Schedule 1, which is about the IPC, is clearly referenced in Clause 1. It would not make sense to isolate the one activity represented by the council and put it in Clause 1, as the noble Lord suggests. It belongs in the schedule, because it is part of describing how the IPC will work. I am sorry to disappoint the noble Lord on that, but it is sensible to keep things as they are.
I turn to Amendment No. 6, in the name of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Greaves. It was argued in Committee—the noble Lord, Lord Jenkin, has eloquently done so again—that the term “council” could cause confusion as a council is more generally understood to be a fixed body whereas, under the Bill, the council will instead be a more fluid body for different purposes. I fully understand that. The terminology of the Bill was very much an issue for debate at earlier stages. It was felt that “the Council” was still the best expression for the IPC. “Committee”, another obvious candidate, was considered, but it was felt that it might cause confusion with the panels of the IPC, which people might see as being committees of the commission—the noble Lord, Lord Cobbold, picked up that point previously. Using “council” therefore seemed to solve the problem. It may not be perfect. We have thought very hard about it and I have shared my concerns with noble Lords. We looked at the possibility of replacing the terms in the Bill—replacing “Council” with “Committee”—but it would have generated well in excess of 70 amendments, which we felt was inappropriate at this stage.
The noble Baroness, Lady Hamwee—bless her heart—has ingeniously proposed a different solution, by providing that the IPC and Secretary of State could agree to call the council by a different title if they so chose. The IPC and Secretary of State can agree to do that without provision in the Bill. While I am very grateful for her helpful suggestion, I am genuinely frustrated that the proposal is unworkable, because paragraph 6(1) of Schedule 1 provides that:
“There is to be a body of Commissioners to be known as the ... Council”.
The effect of Amendment No. 6 would be that, while the Secretary of State and the IPC might agree to call the body something else, in strict legal terms it would continue to be the council. It would therefore not require third parties to call it by a different name; as a matter of law, it would continue to be the council.
That would have the strange result that the Secretary of State and the commission could call the body something different from everybody else. One can only imagine the confusion, for example, if—God forbid—there were an application for judicial review of an IPC decision. The parties to the proceedings could call the council by the different name agreed by the Secretary of State and the commission, but the courts would be required to follow the legal interpretation. An already
6 Nov 2008 : Column 366
We have thought about this, and we have come up with a solution that I hope will provide some reassurance. Ministers will now set out the purpose of the council very clearly in guidance under the Bill, and will ensure that information on the IPC’s procedures and structures is widely available, such as on the IPC’s website. We will explain the terminology and ensure that people understand that this is a fluid concept. In fact, it will be explained by its functions, and putting it in guidance will ultimately be the most practicable thing to do. I can see that that may not satisfy noble Lords, but it will in effect address the problem and will not cause the complications which the solutions so generously offered in the amendments would bring.
I hope that I turn to a happier note, with our Amendments Nos. 7 to 15, which respond to concerns raised in Committee that the chair of the commission has too wide a scope to remove ordinary members from the council. The noble Lord, Lord Jenkin of Roding, was particularly concerned that there was potential for abuse of that power and that people who might be a thorn in the flesh would be too easy to remove.
As debated in Committee, our aim is that the council will be a fluid body. We want to provide the chair with the flexibility to change the council to meet different circumstances and challenges, so we need to provide that the chair can employ the right range of skills for each particular issue that comes before the council. I have looked carefully at what the noble Lord has said and agree that he has raised some important points, and therefore we have put some safeguards in place.
The government amendments require that before exercising the power to end the appointment of a commissioner who is an ordinary member of the council, the chair or, if delegated, a deputy chair, must first consult and have regard to the views of the other relevant members of the council, the chief executive and any other commissioner that the chair or deputy chair thinks it appropriate to consult. This means that at least six people—the chief executive and minimum five members of the council—must be consulted before any decision is made to end an appointment of an ordinary member of the council. This builds on the provisions set out at paragraph 9 of Schedule 1, which currently apply when making a new appointment to the council.
I think that the noble Lord has said that he feels that those proposals meet his point. I hope that they do. As I say, they are intended only to allow the chair to be as flexible as possible, with the resources available to them.
Lord Cobbold: My Lords, I thank the Minister for that response, but it is very disappointing. I am grateful to the noble Lord, Lord Jenkin, for his support and to the noble Baroness, Lady Hamwee, for agreeing that the present use or concept of the council is misplaced and that we should find an alternative to that. In the event that we cannot do so and are left with the council, we should make more of a thing of this issue
6 Nov 2008 : Column 367
Amendment, by leave, withdrawn.
[Amendments Nos. 4 and 5 not moved.]
Schedule 1 [The Infrastructure Planning Commission]:
Baroness Andrews moved Amendments Nos. 7 to 15:
On Question, amendments agreed to.
2.45 pm
Lord Dixon-Smith moved Amendment No. 16:
16: Schedule 1, page 139, line 20, at end insert—
“11A (1) The Secretary of State must appoint a person as the Solicitor to the Commission.
(2) The Solicitor to the Commission—
(a) is to be a barrister in England and Wales, an advocate in Scotland or a solicitor of the Senior Courts of England and Wales or a solicitor in Scotland;
(b) is not to be a Commissioner;
(c) is to be a member of the Commission’s staff.
(3) The Solicitor to the Commission shall advise the Commissioners on the exercise of their functions and in particular shall seek to ensure that the consideration of development consent applications is lawful and fair.
(4) The Solicitor to the Commission’s terms and conditions of service are to be determined by the Secretary of State.”
The noble Lord said: My Lords, when we think about how the commission will work and consider applications—and, more importantly, how the applicants themselves are to develop applications and present them in a fair and equitable way—the Bill as it stands is open to some question. The difficulty right at the beginning for any applicant is that they have to undertake a public consultation. Anyone who has been in the public relations business knows that if you want to get a particular answer you can go a long way towards predetermining it by how you ask the question. There is a broad suspicion—I put it no stronger than that—that applicants for planning permission and nationally significant infrastructure projects who have to undertake public consultations on applications will load the way in which they produce that system so as to colour the answer in their favour. It would in fact be remarkable if that did not happen but, if it were to happen, there is no question but that at some point someone would
6 Nov 2008 : Column 368
Amendments Nos. 91 and 95 deal more specifically with the issue of the public examination of the application by a panel of commissioners or a single commissioner. Here the doubts are somewhat similar; there is no question but that at that point the cross-examination of witnesses in public hearings must be seen to be unbiased. The danger is that it might not be. One cannot afford to have a situation in which a request for an order for planning permission is granted when someone can say that the commission—the panel or the individual members—undertaking the cross-examination asked questions of members of the public appearing in the public session in such a way as to predetermine the answers. There is no easy answer to dealing with that issue, but it is a vital matter of public confidence; the public must have absolute confidence in this system if it is not to be distrusted.
I am sorry that the noble Viscount, Lord Colville, is not in his place, because he is much more of an expert in these matters than I am. He apologises, but he is involved in a consultation with a regulator; that date was set in his diary before the dates were set for this Report stage and there was nothing he could do to get here in time. Much as I might wish to do so, I could not keep my speech going long enough to enable him to arrive, nor would the House thank me if I did so.
There is a vital issue of public confidence in the system. We have to ensure that the system not only is fair but is seen to be fair. Probably the people with the most expertise in this field—and there are a lot of them about—are the planning lawyers. I do not fancy myself as an advocate for what I would call the planning lawyers union, but they are very experienced and good at what they do and I would be surprised if one or two of them did not finish up on the commission. Of course, that is up to those who will ultimately undertake the appointments, but it might solve the problem. However, the solution that we have suggested of an independent legal adviser to cover these matters is likely to be seen as more equitable and fair in the interests of both sides of the argument.
The issue is very much about public confidence in the system. Whatever we might have thought about our earlier debate, that was the principle behind the amendment that we moved. In the scale of things, this is a much simpler and more straightforward issue to understand. It is important to get the public outside to believe that the system is not loaded against them. Regrettably, there is already a large concern that the system that the Government are proposing will ride roughshod over all difficulties and objections and will speedily reach conclusions without particular consideration of equity. The Minister has gone a long way towards allaying that concern in her remarks. Government Amendment No. 94 also deals with this issue, albeit in a slightly different way. I look forward to hearing her reply, which I hope will cover exactly how she sees this paragon of unbiased and unprejudiced virtue working. I beg to move.
6 Nov 2008 : Column 369
Baroness Hamwee: My Lords, there is a major issue other than public confidence: making sure that evidence is tested. The examining authority must have all the tools necessary, whether directly or indirectly, to ensure that points are made in a way that it can understand and on which it can act where appropriate. The testing of evidence is central to the amendment to which I spoke—I may even have moved it—in Committee and which is here again as Amendment No. 92, in my name and those of my noble friend Lord Greaves and, gratifyingly, the noble Baroness, Lady Andrews. I am sorry—well, not that sorry—that we got there before her. I will not speak to the amendment at any greater length, because the Minister may well have her own explanation and I do not want to steal her thunder. I have probably achieved what I wanted.
On government Amendment No. 94, is it anticipated, as I read it, that there will be just one person who is the source of legal advice? There are two issues: general legal advice to the commission and assistance to the examining authority in dealing with a particular application. I want to be certain that both are covered by the amendment and not just the first. I suspect that a single individual would not be able to cope. Indeed, a single individual at the level that one wants would not necessarily be available. One wants advocates with great experience of this sort of job, but such individuals may not want to take a full-time appointment with public sector pay. We must allow the commission to cherry pick from the range of talent at the Bar. I became a little uncertain about this as I read the amendment and was not wholly sure.
Lord Jenkin of Roding: My Lords, I, too, am puzzled by the proposal in government Amendment No. 94 and I look forward to hearing the Minister’s explanation. The appointment is of,
- “a barrister, solicitor or advocate to provide legal advice and assistance to the Examining authority”—
the commission, the panel or perhaps the single commissioner. Subsection (2) of the proposed new clause states:
“The assistance that may be given by a person appointed under subsection (1) includes carrying out on behalf of the Examining authority any oral questioning of a person making representations at a hearing”.
In other words, where people are concerned to make representations about an application and to challenge the statements that are being made, it will be no part of the role of the person appointed to examine the applicant, as I understand it. They may examine the witness or the,
I cannot help feeling that that arrangement will look very one-sided, but perhaps I have misunderstood what the Government are getting at. All I can say at the moment is that, having studied the new clause, I am not entirely clear how it is supposed to work.
Amendment No. 95, in the names of my noble friends Lord Dixon-Smith and Lord Cathcart, is also in this group. It, too, concerns a person,
Subsection (3) of the proposed new clause states:
“An advocate ... may make oral and written representations to the examining authority and may ask oral questions of any person making representations at a hearing of the examination”.
6 Nov 2008 : Column 370
That seems to cover the same ground, although the amendments are far from identical. One is looking to ensure that there is an opportunity to examine the people who are making the application and to ask whether it has been properly thought through. That must be done in front of the decision-maker.
I referred in our debate earlier to the conference that I addressed on Tuesday. At the conference, a highly qualified lawyer practising in the City made a skilful presentation on the main thrust of the Bill and the new planning process. I was hugely impressed. He had not caught up with all the amendments that were being made in this House, but I do not blame him for that, as that would be a difficult thing to do. However, he laid stress, as we did in Committee, on the need for a forum in which someone can ask oral questions of the applicant and perhaps his expert witnesses. That may come at an earlier stage, but the arrangement is not entirely clear to me.
There was a good deal of discussion in Committee about the oral examination and I was left with the impression that part of the streamlining that the Minister and her department are trying to get will eliminate or substantially cut down the oral examination that may be allowed on an individual application. Again, I may have misunderstood what is proposed, but this group of amendments gives the Minister the opportunity to explain not only what her amendment means—as I said, it is not entirely clear to me—but how she expects the examination will be conducted and when there will be an opportunity for people who want to make representations about the application to cross-examine those who are putting it forward and their expert witnesses. I accept that it may have to be done within a tight timescale. The whole purpose of the Bill is to reach a decision much more swiftly than under the existing cumbersome system. However, it seems to me and to others that to dispense with the opportunity to put oral questions to the applicant and his witnesses is to remove a substantial part of what should be a participative process which will eventually give credibility to the ultimate decision of the IPC.
It may be that I have misunderstood these things and not read them properly. However, having looked at them carefully, I am still somewhat puzzled as to how the Government envisage this process being carried on.
| Next Section | Back to Table of Contents | Lords Hansard Home Page |