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I shall probably get an answer saying that “may” is awfully close to “must”. I do not suppose that by the time I have done 25 or 35 years in this place, I shall ever quite understand that.

I am pleased to see the Government’s amendments. I look forward to hearing what the Minister has to say, but I provisionally give them a welcome.

The Duke of Montrose: My Lords, I do not have an amendment down in this group, but I understand that all noble Lords who have something to say on the amendments that are tabled should speak now, and then the Minister will reply.

I am interested in government Amendments Nos. 47 to 51, which relate to Clause 13. I have tried to keep up with all the implications of this Bill and have listened with much interest to the explanations that Ministers have offered as to the Government’s intentions for the

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extent of the Bill. I hope that noble Lords will allow me to express my puzzlement as to why Clause 13 should not apply to Scotland.

I accept that it is the Government’s intent that the Bill should have no practical effect in Scotland, because we recognise that the actual process of granting planning permission is a devolved function. But the Bill is fairly clear about which clauses apply to Scotland and which do not. Clauses 1 to 12 appear to apply to Scotland and, as such, whether as an unintended consequence or otherwise, and at some future date as well, at least a national policy statement might consider the Scottish dimension. Given that, it is possible that the Scottish Executive or some other Scottish entity might want to appeal to a court at some future point. Certainly, given the phrasing of the Bill, that could be on proposals for an electric line above ground, under Clause 16(1)(d), or a gas pipeline, as envisaged at Clause 20(2), in which the point at which the construction reaches the Scottish border will have a clear implication for how the engineering works will continue when they are within Scotland.

On the question of cross-border services, will the Minister clarify for me how things stand for railways? In answering my noble friend Lady Carnegy of Lour in Committee on 8 October, she said that,

I spent some time following the progress of the Scotland Act, and noble Lords will be aware that under Section E2 of Schedule 5 the provision and regulation of services was in the first instance reserved to Westminster. Later, on 13 June 2002, I and other noble Lords took part in the consideration of what became Statutory Instrument 2002/1629. It amended Schedule 5 to allow railways in Scotland to be devolved to the Scottish Parliament. In our discussion of the meaning of that statutory instrument, the Minister said:

“The order amends Section E2 of Schedule 5 to the Scotland Act. It transfers to the Scottish Parliament legislative competence over powers for the promotion and construction of railways in Scotland ... In future, permissions for railway projects that are wholly within Scotland will be granted at Holyrood and only cross-border developments will continue to be dealt with at Westminster”.—[Official Report, 13/6/02; cols. 449-450.]

It appears to me that there is a role for this Parliament in considering cross-border railway developments, although the noble Baroness may not want to include that in the Bill at this time. However, given that Clauses 1 to 12 have Scottish implications, someone might at some future date try to incorporate the issue into legislation. Perhaps the Minister could throw some light on the Government’s attitude to this.

5.45 pm

Lord Boyd of Duncansby: My Lords, I had not intended to speak but, given the comments made by the noble Duke, the Duke of Montrose, I thought that I should make one or two points in relation to Scotland. I should perhaps declare an interest as a member of the Commission on Scottish Devolution.

It is right to say that the Bill has tangential effects on Scotland. In effect, however, it extends to England and Wales and not beyond, except for particular instances

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involving a pipeline or something of that nature. I am not entirely sure what amendment we are speaking to, but the noble Duke raised the issue of Clause 13. I believe that, were there to be an issue in that context, it would be open to an interested person in Scotland to raise proceedings in the courts in England and Wales to challenge the national policy statement. However, the circumstances in which that might happen seem pretty remote and unusual, simply because national policy statements will not extend to Scotland. Of course, Scotland has its own national policy framework—the spatial plan—which is in some ways identical to the national policy statements but in other ways very different. I do not know whether that helps to resolve some of the issues that the noble Duke has raised, but I thought that I should give my understanding of the position, which I hope is shared by the Front Bench.

Baroness Andrews: My Lords, I am grateful for that intervention from such an expert. We talk about expertise in the House of Lords and, my word, it comes in handy sometimes.

I will come to the points about Scotland, but let me first speak generally about the amendments. This area of reviewing national policy statements was the subject of great debate in Committee, when it became clear to us that noble Lords wanted more clarity about the criteria that the Secretary of State should take into account when deciding when to review the statements. In Committee, the noble Lords, Lord Dixon-Smith and Lord Jenkin, and the noble Baroness, Lady Hamwee, urged that the Secretary of State should review national policy statements at frequent intervals.

I think that there is general agreement that it is essential that the decisions of the IPC should be taken on the basis of policies that remain valid and not on the basis of NPSs that are, to use a word used in Committee, “stale”. To do otherwise would be to undermine the credibility of the process. However, I have some problems with the amendments tabled by the noble Lord. As he kindly said, my amendments address the substance of his concern. Clearly, what we did not want was non-stop review of NPSs and the instability that that would cause. It is worth thinking back to the contribution in Committee of the noble Lord, Lord Bridges, who is not in his place at the moment. He said that we should be attempting,

That is absolutely right. The aim of national policy statements must be to set out a policy that meets the national need for infrastructure into the medium-term to long-term future. There is a benefit to having some continuity in such policy statements, while at the same time keeping flexibility to react when circumstances change. A review of the policy should be triggered by unforeseen changes, not simply by the passage of time. Some things will hold good. As we debated in Committee, there are different stages of change and some areas of policy are likely to change more dramatically and frequently than others. That is why the test of when an

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NPS needs to be reviewed is nothing to do with the age of the document, but with whether the assumptions underlying that policy remain true and whether it is therefore still fit for purpose. You cannot fit an arbitrary time and date around that.

It is also right that the Secretary of State, as the responsible Minister, should carry that responsibility into judging whether circumstances have or have not changed since the national policy statement was published. We agree with noble Lords that there should be more clarity at this point in the Bill about the criteria which the Secretary of State should take into account when deciding when to review national policy statements. That is simply what we have sought to do through the amendments.

Amendment No. 28 makes that clear. The Secretary of State must consider whether there has been a significant change in any circumstances on which the policy is based since the policy was last reviewed; whether these circumstances were already anticipated in the previous review; and whether, if the change had been anticipated, any of the policy in the statement would have been materially different. To answer the argument in the amendment of noble Lord, Lord Dixon-Smith, the Secretary of State should certainly frequently consider whether these criteria are met, but it is only when the criteria are met that the Secretary of State should review the content of the policy itself. As I explained in Committee, the criteria are the same as those set out in Clause 11, which are the right ones to determine when a national policy statement should be reviewed.

Government Amendments Nos. 28, 29, 38, 39 and 41 seek to clarify that when the Secretary of State wishes to conduct a review of the national policy statement, it could be a complete or a partial review. Amendments Nos. 47 to 51 and 111 to 117 make consequential changes throughout the rest of the Bill, providing an added measure of flexibility so that the Secretary of State can take a proportionate approach to reviewing NPSs. They also make it easier for the Secretary of State to respond quickly if necessary to changing circumstances and to review a national policy statement. If appropriate, the Secretary of State will only need to consider whether circumstances have changed significantly in respect of the part which is to be reviewed; that is obviously much more flexible and sensible. To take a hypothetical example, if further scientific data change our assumptions about the rate of flooding or coastal erosion, the Secretary of State might want to review parts of the relevant national policy statements but not all of them or parts that are unaffected by the change.

Amendments Nos. 111 to 117 are consequential, although they affect individual applications in Part 7. We have also addressed criticism that it was unclear which criteria would be applied to decide whether a review was justified.

I hope that I have reassured noble Lords that we are committed to ensuring that national policy statements must be based on an accurate understanding of present and future circumstances and whether the assumptions underlying that policy remain true. If those circumstances change, we want to ensure that the policy can be reviewed too.

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The noble Earl, Lord Caithness, asked me whether new subsections (1B) and (1C) in Amendment No. 28 limit what we intend to do. I was not entirely certain which (1B) and (1C) he was talking about, because he will notice that there are two of each in this clause. However, new subsection (1B) relates to the review of a whole national policy statement and new subsection (1C) relates to a review of part of the national policy statement. The two issues are dealt with separately to avoid an extremely long and complicated provision. If the noble Earl was asking about the broader disposition of the clause, it does not limit what can be interpreted as “changing circumstances”. It is a broad definition that allows the Secretary of State to operate with discretion, allowing for flexibility, judgment and changing evidence. We could not anticipate a limit as it is not within our scope or that of the Bill.

The noble Earl has raised a serious political point, because incoming Governments have different values and different priorities. However, as I tried to make clear when we discussed this previously, demography does not change and neither does the need for power and energy. Our demands on water supplies and waste resources do not change. We will need predictable amounts of resource for the homes we must build. An incoming Government wanting to change the disposition of policy will have a national policy statement grounded in evidence. If they believe that a different political decision must be made, they are free to do so and that is a change of circumstance. Clearly, however, we cannot allow for that in the language of the Bill. All we can do is to try to anticipate situations where circumstances have changed. Therefore, the Secretary of State must be free to make a judgment on that basis and to review the NPS.

I cannot improve on my noble and learned friend’s intervention relating to Scotland. I was slightly surprised suddenly to find myself confronted with detailed questions about cross-border issues. The noble Duke said that the Bill reflects the devolution settlement. I shall come back to him after I have read what he said about cross-border issues in relation to previous legislation with which he has been involved. However, I can say something about Clause 13 and judicial review. The special provisions in Clause 13 apply only to England and Wales. I understand that Scots law does not admit time limits on JR, but this means that NPSs can still be challenged in Scotland using normal judicial review rules. I hope that makes sense. I have it on advice, but when I read what he said I shall see whether we can clarify anything in writing.

Lord Jenkin of Roding: I hope that the noble Baroness can clarify something for me. If there is to be a review in whole or in part, as described in the amendment, one may have to suspend the operation of an NPS. I wholly agree that that should be discretionary and not obligatory. If there is no suspension, clearly the existing NPS continues in force and the planning commission has to continue to make its decisions on the basis of the NPS as it is. However, if it is decided to suspend its operation, does that mean there is then a complete vacuum for the IPC and all applicants until one has gone through the entire procedure after the review to approve the revised NPS? Does the noble Baroness have any idea how long that process might take?

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Baroness Andrews: My Lords, I do not know how long it would take. If the NPS is suspended, the IPC will refer decisions to the Secretary of State. I will let the noble Lord have a note about that, because two sets of circumstances might determine the choices. However, if an NPS has to be suspended, provision is made for decisions to be taken by the Secretary of State.

Lord Jenkin of Roding: My Lords, I should be grateful if the noble Baroness will do that. The note that she kindly sent on this does not actually deal with that aspect. Therefore, an additional note would be very helpful. I apologise for intervening again.

Baroness Andrews: Not at all, my Lords. I almost forgot to address Amendment No. 40. I have some sympathy with the noble Baroness’s arguments. It would clearly be inappropriate to have applications decided on the basis of a policy that is no longer valid. It is our intention that where the Secretary of State believes that circumstances have changed such that it is no longer appropriate for decisions to be made in accordance with the NPS, she will suspend it. However, we do not think it is necessary to suspend the NPS in every case where a review is being conducted, not least because, as I said, there is flexibility now about whether you review part or whole of the NPS. It would not invalidate the whole statement if one was looking, for example, only at scientific data about the risk of coastal erosion. One would have to make a judgment about the extent to which the whole NPS would be affected.

6 pm

I am not going to say what the noble Baroness thought I was going to say about her amendment. The amendment would have an unfortunate consequence, because changing the word from “may” to “must” would remove the Secretary of State’s ability to judge what the appropriate response might be to a change in circumstances. The whole burden of the clarification and review is to ensure that everyone understands that it is the Secretary of State’s judgment that counts and that there is the necessary flexibility to anticipate and interpret what is happening.

If we move to the word “must” it is likely that the question of whether circumstances had changed would move from being something on which the Secretary of State can make a judgment to being a question of fact which would ultimately have to be judged by a court. Inevitably, that would lead to an increased risk of legal challenges. I hope that with that assurance the noble Baroness will feel able not to move her amendment. I can give her another assurance: we certainly intend that the Secretary of State would suspend the NPS if there were any risk of unsafe decisions being made on applications on that basis.

Lord Dixon-Smith: My Lords, I implied at the beginning of the debate that we were in a chicken-and-egg situation. If we had not had our earlier debates, we would not have had the amendments. If we had had the amendments earlier, we would not have had these discussions. I am very grateful to the noble Baroness for what she has said. She has gone a long way towards

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what we wanted. In this respect, the Bill is now in a satisfactory process. I pay tribute to her work. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Andrews moved Amendments Nos. 28 and 29:

28: Clause 6, page 3, line 42, at end insert—

“(1A) A review may relate to all or part of a national policy statement.

(1B) In deciding when to review a national policy statement the Secretary of State must consider whether—

(a) since the time when the statement was first published or (if later) last reviewed, there has been a significant change in any circumstances on the basis of which any of the policy set out in the statement was decided,

(b) the change was not anticipated at that time, and

(c) if the change had been anticipated at that time, any of the policy set out in the statement would have been materially different.

(1C) In deciding when to review part of a national policy statement (“the relevant part”) the Secretary of State must consider whether—

(a) since the time when the relevant part was first published or (if later) last reviewed, there has been a significant change in any circumstances on the basis of which any of the policy set out in the relevant part was decided,

(b) the change was not anticipated at that time, and

(c) if the change had been anticipated at that time, any of the policy set out in the relevant part would have been materially different.”

29: Clause 6, page 4, line 1, after “of” insert “all or part of”

On Question, amendments agreed to.

[Amendment No. 29A not moved.]

Clause 7 [Consultation and publicity]:

[Amendment No. 30 not moved.]

Clause 8 [Consultation on publicity requirements]:

Lord Patel of Bradford moved Amendment No. 31:

31: Clause 8, page 5, line 15, leave out second “or”

The noble Lord said: My Lords, I shall speak to government Amendments Nos. 31, 32, 73, 74, 98 and 99.

In Committee, my noble friend Lord Judd tabled amendments which sought to add national park authorities to the list of local authorities specified in the Bill as statutory consultees at the various relevant stages. The amendments received considerable support, particularly as national park authorities have local planning authority status. We have given this matter careful thought, and we have been persuaded by the powerful arguments made by my noble friend and others.

Amendments Nos. 31, 32, 73, 74, 98 and 99 would therefore add national park authorities and the Broads Authority to the list of local authorities for the purposes of Clauses 8, 43 and 100. Let me outline briefly in more detail what that will mean. The Bill provides a central role for local authorities at all three stages of the new regime. First, relevant local authorities will be statutory consultees on publicity requirements where the national policy statement identifies specific locations for development.

Secondly, the relevant local authority will be a statutory consultee at the project development stage

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for all nationally significant infrastructure projects. Promoters will also need to consult the local authority when drawing up their plans to consult the local community about a proposed application, and local authorities will be able to make representations to the IPC if they believe that pre-application consultation has not been adequate, to which the IPC must have regard.

Thirdly, relevant local authorities will be statutory consultees at the examination stage. They will have an important role in ensuring that the IPC takes proper account of relevant local and regional factors and considerations. In particular, they will be invited to prepare a local impact report, which the IPC will have to have regard to in its decisions.

We have listened to the arguments made about national park authorities, and we agree that it is sensible to expand the list of local authorities specified in the Bill to include them. We believe that this would strengthen the Bill, and I hope that noble Lords will be able to support the amendments.

Let me also address Amendments Nos. 33, 75, 100 and 155, tabled by my noble friend Lord Berkeley. I believe that my noble and learned friend Lord Boyd will speak on his behalf. The amendments seek to add integrated transport authorities to the same three lists of local authorities that I mentioned earlier. I am aware that the Local Transport Bill, which recently completed Third Reading in another place, will establish new integrated transport authorities. Amendment No. 155 will expand the existing duty on local transport authorities to develop transport policies which must cover all aspects of transport, rather than the currently more limited requirement relating only to transport facilities and services. However, aside from the fact that we cannot amend the Planning Bill to refer to provisions of another Bill which has not yet been enacted, it would not be right to accept my noble friend’s amendments.

As I have already said, the Bill recognises the important role of local authorities, and local planning authorities in particular, in understanding the nature and circumstances of the communities that they represent and, therefore, in advising the Secretary of State and promoters on how to consult them effectively. Local planning authorities will have expert knowledge of planning issues in the areas for which they are responsible. It is because of this that those authorities are prescribed as statutory consultees in the Bill.

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