| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
3 pm
Baroness Andrews: My Lords, this is an important group of amendments, and I am grateful for the support for our amendment from across the House. Two important points have rightly been made. These processes must be seen to be fair, and must work in such a way that everyone feels that they have had their say and been listened to properly, that the evidence has been tested thoroughly and that the judgment is sound and on the basis of the best possible evidence. Confidence in the process and ensuring that the evidence is properly tested, and that there are the skills and tools available to do that, are extremely important.
When we debated this in Committee, I sensed that there was growing understanding and support for the Bill’s proposal to charge the commissioners with examining
6 Nov 2008 : Column 371
However, it was apparent across the House, not least behind me, that there were concerns that the commissioners might not always have the appropriate skill and expertise available to them to question parties in the same way that experienced advocates could, to dig under the evidence, and that they might need support to do that. It was argued in the debate led by the noble Baroness, Lady Hamwee, that the requirement for commissioners to consider that cross-examination may be allowed only “exceptionally” might make it more difficult for them to allow cross-examination, and that what we had inserted as a “safety valve” might not function as such.
Members of the Committee asked me to provide assurances, and to come back on Report with a better story and some amendments. I hope that I have done that. First, however, Amendment No. 16 of the noble Lord, Lord Dixon-Smith, and the noble Earl, Lord Cathcart, provides that the Secretary of State must appoint a solicitor to the commission for the purpose of advising it on the exercise of its functions, ensuring in particular that the consideration of applications is lawful and fair.
The new clause proposed in Amendment No. 95—which is, of course, closest to where we are—provides that the chair of the commission may appoint a qualified lawyer to act as an advocate to the examination, provided the solicitor of the commission considers them to be a suitable person to act in that role. It further provides that the advocate to the examination can make oral or written representations to the examining authority, and may ask oral questions of any person making representations at a hearing. It also provides that the solicitor to the commission may appoint a suitable person to assist the advocate. Amendment No. 91 is consequential to that.
I understand that noble Lords are seeking assurances that our approach to examining evidence is workable. In that context, I shall go over the opportunities that those coming forward will have to make an oral case. The noble Lord, Lord Jenkin, asked me to explain how that would work in practice. Most representations to the IPC would be written. They would be so technical that, by the time they had reached that stage, a lot of the discussion and argument on principle may be in-house. There is a good case for prioritising written representations to clarify technical issues.
However, there are two separate opportunities for oral hearings. First, there can be specific oral hearings on any one of a number of topics that are germane to the application. Secondly, and this is unique, there are
6 Nov 2008 : Column 372
As I said before, we expect that all commissioners will be provided with appropriate training to carry out their functions, including training in the techniques of testing evidence: questioning, listening and asking the right questions in the right way. However, I absolutely took the noble Lord’s point that commissioners might sometimes need the support of a professional advocate to ensure that the right evidence is tested in the most effective and revealing way. That is what our new clause in Amendment No. 94 is about.
To answer the first point of the noble Baroness, that clause will provide that the chair to the commission may appoint a barrister, solicitor or advocate to provide legal advice and assistance to the examining authority—that could be a panel or a single commissioner—where the examining authority requests it. However, it cannot be a single person. Needs will differ, the scope will differ and the nature of the examination will differ. A counsel with experience in engineering projects or in dealing with different types of witnesses may be required. We have therefore left it as fluid as possible.
The noble Lord, Lord Jenkin, asks how it will work. Essentially, the advice and assistance that may be provided must be determined by the panel itself when it specifies its needs. It will certainly include the ability of the advocate in question to conduct oral questioning at a hearing, on behalf of the panel, of anybody who comes before it; it may be the applicant himself, or someone from the local community. His function is to probe the veracity and test the quality of argument and the quality of evidence provided. I hope that that addresses the concerns raised.
Our amendment will ensure that the assistance of the advocate would be available should the examining body feel it requires some extra support and forensic skill. It also provides that the chair will have the final say as he or she will have the ultimate responsibility for the deployment of the commission’s resources. We are building in that discretionary power.
On Amendment No. 16 to Schedule 1, the main purpose of the solicitor to the commission would be to provide advice to the commissioners on the exercise of their functions. The appointment would be an appointment of a staff member of the commission. I understand what the noble Lord seeks here; I shall try to reassure him. The Bill provides that the commission secretariat will be responsible for the internal running of the IPC, including resource planning, appointments, finance and expenditure. It will be headed by a chief executive, and we do not want to constrain or curtail their power. It is entirely right that the chief executive should have the freedom to plan and manage those resources, including the appointment of staff. It should therefore be the chief executive who decides whether there is a requirement for the appointment of a solicitor to the commission, and he is likely to do so in all probability. It is worth pointing out that similar provisions apply to other public bodies, such as the Competition Commission. Although the Competition Act 1998 does
6 Nov 2008 : Column 373
The proposed new clause in Amendment No. 95 is somewhat similar to the proposed new clause in government Amendment No. 94, but it provides that the advocate to the examination may make,
in addition to asking questions of witnesses at hearings. That question was raised by the noble Lord, Lord Jenkin. I, too, am not quite sure what the intention of the noble Lords is with regard to the advocate’s role in making,
However, it suggests that it may allow the advocate to both question witnesses about their evidence, and give evidence about the application. If my understanding of the amendment is correct, I caution against it. I suggest that decisions where an advocate could both give evidence and, as it were, get evidence might be open to a claim of judicial review because of the dual function involved. Therefore, I cannot accept the relevant amendments because that is rather problematic.
As regards cross-examination, the noble Baroness, Lady Hamwee, has returned on Report with Amendment No. 92, which seeks to remove the word “exceptionally” from the test in Clause 93(7). I know that noble Lords are concerned that “exceptionally” might make it incredibly difficult for anyone to justify the use of cross-examination. The noble Baroness is aware that I will accept her amendment, and I am very happy to do so. However, I wish to explain what it means in terms of our position on cross-examination in the context of the Bill.
I have said that the Bill sets out a way of proceeding for the IPC that aims in the best possible way to probe, test and assess evidence through direct questions rather than through cross-examination. Consequently, we expect that, in most cases, the examining authority—the panel—will question witnesses and probe the evidence. Direct questioning would be the norm; cross-examination would be used only where needed. That is why originally the Bill contained a reference to “exceptionally”.
I have also said that while we believe interested parties should be able to cross-examine witnesses in certain circumstances, we think there needs to be a good case for departing from the norm. We think that the right test is therefore that of when it is necessary to ensure the adequate testing of representations, or that an interested party has a fair chance to put their case. I am sure noble Lords will understand that, given the arguments I have set out about cross-examination and direct questioning, we certainly do not consider that we should invite cross-examination unless it is necessary. However, I should stress that the Bill emphatically does not rule out cross-examination. If the commission concluded that allowing a party to cross-examine was necessary to ensure the adequate testing of any representations or to give a party a fair chance to put their case—these will be experienced people with the highest standards of argument and ability to know
6 Nov 2008 : Column 374
I have now further considered the strong arguments put by the noble Baroness in Committee. Although I am clear that in the examination of evidence, direct questioning would be the norm and that cross-examination would be used only where needed, I accept that the inclusion of “exceptionally” in the test to decide whether it is necessary to allow cross-examination may send the wrong, rather negative signal to commissioners and make it harder for them to allow cross-examination where it was necessary. Therefore, I am very happy to accept Amendment No. 92. I share her pleasure in seeing my name attached to that amendment, along with her own and that of the noble Lord, Lord Greaves.
Lord Dixon-Smith: My Lords, this has been a very useful and helpful discussion. Indeed, the noble Baroness went a long way to helping us further our objectives by tabling her amendment and particularly by accepting the removal of the word “exceptionally”. That was definitely one of the words that those who have discussed this matter with us were concerned about.
I hear what the noble Baroness said about the possible conflict of interest in my amendment, in which I am in effect asking a lawyer to do what we criticised the process for doing, and sit on both sides of the fence at the same time. I shall have to study the matter with care to be absolutely sure that where we finish up—given the government amendment and the change that she has accepted—is an ideal situation. Subject to that minor caveat—if we need to do anything about that, we can do so at Third Reading—for now I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
3.15 pm
Lord Patel of Bradford moved Amendment No. 17:
17: Schedule 1, page 140, line 1, leave out “42(2)” and insert “(Guidance about pre-application procedure)”
The noble Lord said: My Lords, I wish to speak to government Amendments Nos. 17, 70, 72, 76, 77, 78, 80, 81, 82 and 83. We had a full discussion of the provisions for pre-application in Part 5 in Committee and we have given considerable thought to the debate we had on that day.
As we set out then, the Government believe strongly that the promoters of major infrastructure projects should carry out the pre-application consultation on those projects. We are trying to initiate a proper dialogue between the promoter and the local community. We believe that the duties must therefore bear on the promoters and that they must take direct responsibility for meeting them. However, we were struck by what the noble Baroness, Lady Hamwee, said about the importance of the guidance that the Government will issue on pre-application consultation. We thought she put it particularly well when she said:
“What the Government have to say about encouraging genuine consultation is very important in addition to the words in the Bill”.—[Official Report, 16/10/08; col. 871.]
We were also struck by the comments of the noble Lord, Lord Cameron, about the importance of making sure that promoters are under a clear obligation to
6 Nov 2008 : Column 375
However, having listened to the debate and reflected on it, we think that the requirements could be clarified and strengthened, and the amendments that we have tabled seek to achieve that. First, we have sought to clarify and strengthen the provisions for guidance across the chapter. Amendments Nos. 72 and 80 remove the various provisions in Clauses 42 and 47 that allow the Secretary of State and the IPC to give guidance at specific points in the process. I recognise that those are too piecemeal and, aside from being difficult to follow, perhaps they do not send quite the right message. Amendment No. 81 would therefore replace those provisions with a much clearer new clause that sets out unambiguously that the Secretary of State and the IPC may give guidance on how any of the pre-application requirements of the chapter should be complied with. Crucially, it also requires that the promoter must have regard to that in the guidance. That makes it much clearer where guidance can be given and by whom, and extends the scope for guidance on the part of both the Secretary of State and the IPC across the chapter.
Noble Lords may be concerned that this raises a potential for conflict between two sets of guidance. I place on record that we expect the two sets of guidance to be fundamentally different. The Secretary of State will provide high-level strategic guidance on how pre-application consultation should be carried out and how communities should be engaged with. We expect that guidance from the IPC will be based on, and will take account of, that and will focus on the detail of how it expects promoters to apply that in practice.
Secondly, we have sought to strengthen the requirement on promoters to spell out what responses they have had and what account they have taken of them. Amendment No. 70 to Clause 37 strengthens the requirement for promoters to produce a consultation report, extending the report to cover consultation and publicity under Clauses 42, 47 and 48. The report must give details of any relevant responses and the account taken of them. We will make sure that the consultation report is thorough and makes clear how responses to consultation and publicity have been addressed by promoters.
The new requirements are reinforced by Amendments Nos. 82 and 83 to Clause 54. They make clear that when the IPC has decided whether the promoter has complied with the requirements for pre-application consultation in Part 5, it must have regard to the consultation report, any adequacy of consultation
6 Nov 2008 : Column 376
Amendments Nos. 17, 76 and 77 are consequential. Amendment No. 78 to Clause 47 clarifies how the promoter’s statement of community consultation relates to the proposed application, bringing the drafting into line with the wording used in Clauses 37, 42 and 48. Taken together, the amendments both strengthen the requirements for pre-application consultation and make clearer how they are to be enforced. The Secretary of State and the IPC will be able to provide guidance on any aspect of the pre-application procedure. Promoters must have regard to that, and the IPC must take account of whether the promoter has done so when deciding if it can accept the application.
Moreover, the amendments expand the consultation report and explicitly bring it within the scope of the IPC’s decision on whether an application can be accepted. The amendments go a significant way to addressing the concerns expressed by noble Lords in Committee, and I hope that noble Lords are happy to support them.
I shall speak to Amendment No. 79, tabled by the noble Baroness, Lady Hamwee, and the noble Lord, Lord Greaves. It seeks to ensure that promoters must consult local authorities on how to undertake consultation with people living in the vicinity of the land. I confirm that that is the effect of the Bill. Subsection (1) requires promoters to draw up a statement describing how they propose to consult the local community. Subsection (2) requires promoters to consult the relevant local authority about what should be in the statement. That has the same effect as the amendment; they are effectively consulting on how consultation should be undertaken. I hope that reassures the noble Baroness and that she will be prepared to withdraw the amendment. I beg to move.
Baroness Hamwee: My Lords, I am grateful for the compliment, and I am very glad to see the government amendment, which I support. The noble Lord is absolutely right in his analysis of my Amendment No. 79; I wanted to be reassured about the “how”. The noble Lord may recall that we used the example of Heathrow, as they did in the Commons. If the British Airports Authority was regarded as being too close to the consultation, it would be regarded with considerable cynicism. That is a big example, but there would be smaller examples. I wanted an assurance that the local authority, which understands the nuances, was consulted on methods and mechanisms as well. I am grateful for the assurance and, when it comes to it, I shall not move my amendment.
Lord Jenkin of Roding: My Lords, I hope that it will not be too tedious if I raise again the question that I raised in Committee. It is about trying to get guidance out as early as possible. I know that departments are currently working on national policy statements. As I understand it, as soon as the Bill becomes law the Secretary of State will be able to issue guidance under new Clause 81. They do not have to wait for the commission to be appointed; the Secretary of State could issue guidance and may well wish to issue draft guidance. However, potential applicants out there are
6 Nov 2008 : Column 377
It has been said in reply that it will be for the commission to produce the guidance, but the Government’s new clause makes it perfectly clear that the Secretary of State can do this and does not have to wait until the commission has been appointed. This process is still at a fairly early stage. One has seen the advertisements for the chair of the commission, and there will be other appointments. I suspect that the process will run for several months before we have a commission in place. In the mean time, I do not see any reason why the Secretary of State should not start to draw up guidance now, or at least as soon as the Bill becomes law, which I hope will be fairly shortly, so that applicants will have a much clearer idea of what will be expected of them in the pre-application process.
I wholly welcome the pre-application process; it is a very important stage in the process of an application that will eventually go before the IPC. As I have said, many of those who propose major infrastructure projects want to get ahead with it. I hope that the Minister can provide some assurance and comfort that a start will be made on the guidance process as quickly as possible.
Lord Patel of Bradford: My Lords, the noble Lord, Lord Jenkin, raised a very important point. I can reassure him that we are just as committed to beginning this process as he is and that we will prepare the guidance as soon as is practicable.
Lord Cameron of Dillington: My Lords, I thank the Minister for listening to what I said in Committee and for reacting to it. I am grateful that the IPC will not only have to take into consideration responses to the applicant, but that account has to be taken of these responses by the applicant. Those new words are exactly what I wanted. I am very happy to support the government amendments.
Lord Dixon-Smith: My Lords, the government amendments are, indeed, helpful, but my noble friend Lord Jenkin of Roding raised a fundamental point about timing. I have met potential applicants who are desperate to know how far they can go before the Act is even in place. That raises an interesting issue as to whether they are able to deal with the technical aspects of their application. If there is a proposal to build a nuclear power station on an existing site, a lot of design work and so on can be done; but we need to recognise that applicants in that situation will want to start work almost while the commission is being established.
One purpose of my standing up to support my noble friend is to ask the Minister whether the Government have a view on how far potential applicants can go in preparing an application before the commission is “up and running”. The commission will probably have to be established on one day and to expect its first application on the second day of work. Some of the
6 Nov 2008 : Column 378
Lord Patel of Bradford: My Lords, I can probably surprise all noble Lords by showing how fast this Government work. Since my last statement, we have already started work on the guidance and we hope to consult on it in the first half of next year. Therefore, I suggest that people wait until the guidance comes out, but of course there is also the question of how fast we can deal with the detail of the NPSs.
| Next Section | Back to Table of Contents | Lords Hansard Home Page |