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A wide range of other bodies will be engaged at the three key stages, which we will specify in secondary legislation. We expect that this will, where relevant, specify major statutory bodies, including those with local authority status, such as parish councils, fire and rescue authorities, police authorities, and so on. Like those bodies, the role of integrated transport authorities, once they are established, will be a matter for secondary legislation. It would not be appropriate to include the list in the Bill, because it would be unwieldy and would quickly become outdated and inaccurate.
I hope that I have adequately addressed the issues and, therefore, I urge my noble friend not to press Amendments Nos. 100 and 155. I beg to move.
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Lord Judd: My Lords, I hardly need to be urged to thank my noble friend for the amendment. It is good that it is before us and I warmly welcome it. I should put on record my appreciation to all those in other parts of the House, and on this side, who spoke positively and warmly in support of what I sought to achieve. We should also put on record our appreciation of all those outside the House who made strong representations to the Minister.
This is a good moment to take note of the fact that my noble friend Lady Andrews is an outstanding example of a Minister who listens. The way in which she facilitated meetings between me, the noble Lord, Lord Chorley, her officials and herself was very helpful and reassuring. Therefore, I have no qualifications whatever in saying thank you and in recommending the amendment to the House.
Perhaps I may add a postscript. As I said in Committee, a courageous and tough battle was fought by those who established and won the case for the national parks in the post-war years. They are a treasure and a special asset for the whole nation. There should not be any doubt at any time that in everything that the Government are doing they must uphold what those who fought so courageously achieved. We must not allow the parks to drift into the position of being afterthoughts in governmental and administrative matters.
We must also avoid a situation by which, through incremental steps, the national parks slip from being a special asset and become genteel suburban areas or theme parks. That is not what they are about. While they are, of course, places where people work and local communities matter, the government amendment puts a tremendous responsibility on the national park authorities to give constant, imaginative and visionary leadership on this matter and at no time must they leave anyone in doubt that they see themselves as the Praetorian guard of what the parks are there to achieve.
I thank my noble friend for the amendment and I hope that no one will have any doubts about supporting it.
Lord Boyd of Duncansby: My Lords, I shall speak briefly to the amendments in the name of my noble friend Lord Berkeley, who wishes me to apologise to the House on his behalf for the fact that he cannot be here.
These matters have been dealt with by my noble friend. The Integrated Transport Authorities are a product of the Local Transport Bill, which is currently going through Parliament and renames the Passenger Transport Authorities as ITAs. It is a step-change in the powers of sub-regional transport authorities. The ITAs, among other things, will have a duty to develop local transport policies and there will no longer be a joint duty with district councils. It will have greater powers over buses, an ability to bring forward road-charging schemes and general well-being powers.
Including ITAs in the list would, in my submission, have been fully consistent with the reasons given in Committee by the Minister, the noble Baroness, Lady Andrews, for the special treatment of local authorities. Like local authorities, they have unique knowledge and expertise in relation to consultation and in relation
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However, I am happy that the Government listened to these arguments before I even spoke and that they have given an undertaking that they will be considered for secondary legislation. Accordingly, when it comes to it, I shall not press the amendments.
Lord Williamson of Horton: My Lords, I gave a silent welcome to some of the Government’s earlier amendments, such as Amendments Nos. 23 and 25, but I now step up a gear and give a spoken welcome to Amendment No. 32, which brings the national parks authorities and the Broads Authority in from the cold. We asked for this and we certainly welcome it very much.
On Question, amendment agreed to.
Baroness Andrews moved Amendment No. 32:
32: Clause 8, page 5, line 17, at end insert—
“(g) a National Park authority;
(h) the Broads authority.”
On Question, amendment agreed to.
Clause 9 [Parliamentary requirements]:
Lord Dixon-Smith moved Amendment No. 34:
34: Clause 9, page 5, line 21, at end insert “for the approval by affirmative resolution of both Houses”
The noble Lord said: My Lords, we now come to a small but none the less significant group of amendments. I have Amendments Nos. 34 and 35 in this group, and the Government have Amendment No. 36, which the Minister will no doubt explain in due course.
We are talking about a preferable form of procedure for dealing with the approval of national policy statements. Our Amendment No. 34 adds to Clause 9(2),
“This section sets out the parliamentary requirements referred to in sections 5(4) and 6(4) ... The Secretary of State must lay the proposal before Parliament for the approval ... of both Houses”.
That is quite clear and easy to understand. Amendment No. 35, if accepted, would deal with the consequential change and would remove subsections (4) to (7) of Clause 9. That is fairly simple. I acknowledge that the Government’s amendment would remove the rather unfortunate use in subsection (4)(b) of the words “House of Commons” and would insert in their place “either House of Parliament”, but it would leave the approval process a rather less clearly defined for Parliament. Our amendment requires both Houses of Parliament to give approval. The Bill as amended by the Government would read:
“Subsection (5) applies if, during a relevant period”—
which is defined in subsection (6) and we need not bother about that—
“(a) either House of Parliament makes a resolution with regard to the proposal, or
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“(b) a committee of either House of Parliament makes recommendations with regard to the proposal”.
This is a matter of degree. I think our wording is simpler, clearer and easier to understand. I know that the noble Baroness will argue that that is not the case. For the life of me, I do not really see, if either House of Parliament can make a resolution with regard to the proposal or a committee of either House makes recommendations with regard to the proposal, why that is approval. I accept that subsection (5) states:
“The Secretary of State must lay before Parliament a statement setting out the Secretary of State’s response to the resolution or recommendations”.
The difficulty is whether that is approval. What happens if the Secretary of State disagrees with the resolution that is passed?
We are not left with a clear understanding. We are back on the issue which we have debated on so many occasions, the integrity of the decision-making process. That is vital to the success and, more importantly, credibility of the Bill. I submit that our amendment, which is shorter and simpler, would leave the Bill in a much easier position for ordinary members of the public to understand. What is more, if ordinary members of the public understand that both Houses of Parliament have approved the national policy statement, they will find it easier to accept that policy statement, as Parliament has given its seal of approval in a positive fashion, and they will be much less likely to wish to challenge it.
Lord Howarth of Newport: My Lords, what does the noble Lord envisage happening if one House should approve and the other should not approve the national policy statement?
Lord Dixon-Smith: My Lords, I admit that that would cause a great deal of difficulty, and I have not gone through that. I suspect the noble Baroness will take us through it. My noble friend Lord Jenkin of Roding may have an answer as he has greater experience than I have. I would have thought that a national policy statement that was approved by only one House and not the other would, in the wording which I am putting forward, not be a national policy statement. A national policy statement would clearly require the approval of both Houses. If that were the situation, the Government would have to go back to work and put something together which could get the approval of both Houses.
Lord Woolmer of Leeds: My Lords, does the noble Lord suggest, from the Conservative Front Bench, that an unelected House of Lords could, effectively, vote down a decision approved by the elected House of Commons?
Lord Dixon-Smith: My Lords, sometimes that might be the nature of progress. On many occasions, this House has been presumptuous enough to believe that it knows better than the House of Commons, and that has led to quite interesting situations.
I recognise my difficulty, but we have to face that. If we are dealing with parliamentary approval, that has to be done. There will have to be a mechanism for resolving that: it would simply be to go back to work.
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Lord Cameron of Dillington: My Lords, I, too, put my name to Amendments Nos. 34 and 35 because I believe that Clause 9 is at the heart of the Bill. As the noble Lord, Lord Hunt, said only a moment ago, the role of national policy statements is key. If we get this clause right, the Bill will work and the IPC will have the authority to act resolutely and speedily. If we get it wrong, then delays through judicial inquiries and other challenges will ensue as surely as night follows day. In Committee, the noble Lord, Lord Jenkin, said that no one can argue with—there is no argument against—the authority of Parliament. I disagree with the noble Lord, Lord Dixon-Smith. I would have thought that in this case the Commons would have supremacy over the Lords on national policy statements.
With the authority of Parliament, which is required, there is nothing more to be said, but the Government have to decide whether Parliament is allowed to question the power of the Executive and make the Bill work, or whether these national policy statements are to be merely equivalent to White Papers or planning policy statements emerging from departmental think tanks and continually challenged by the courts. I do not think that should be the case. As we have all said many times before, national policy statements are new animals. They will be the essence of the new system. They must have the full authority of Parliament for the IPC to be able to do its work expeditiously and thus effectively.
Lord Williamson of Horton: My Lords, as I indicated in relation to Amendment No. 1, I attach a great deal of importance to the role of the Secretary of State and the parliamentary requirements for the national policy statements. The Bill requires the Secretary of State to lay these statements before Parliament and either House can pass a resolution that must be replied to. The Minister has tabled Amendment No. 36, which rediscovers the committees of your Lordships' House and permits a committee of this House to make recommendations to which the Secretary of State must reply. This amendment is very welcome. However, it does not go as far as the amendment tabled by the noble Lord, Lord Dixon-Smith, which requires approval of national policy statements by affirmative resolution of both Houses. Having being so many years in this House, I have become an even more enthusiastic parliamentarian, and I would wish to see an affirmative resolution as the basis for the parliamentary approval of these national policy statements.
In response to the point made on the Labour Benches, I do not mind at all if the affirmative resolution is by the House of Commons only and we do not have the facility to give one, but we have the right to make recommendations, as proposed by the Minister in Amendment No. 36.
Lord Jenkin of Roding: My Lords, I spoke strongly in favour of the sense of this amendment in Committee. I have been rereading the debate, including the powerful
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The answer to the noble Lord, Lord Howarth, is simple. Of course, the will of the elected House must prevail, and that has frequently happened. It happens in cases where a statutory instrument requires affirmative votes in both Houses. If one House turns it down, it fails, but it is, of course, brought back, at which point the House, if it is the upper House, yields to the lower House. We have the advantage of the admirable report by the noble Lord, Lord Cunningham of Felling, who spelt out, in the context of the reform of Parliament, that the supremacy of the elected House is not in question. It would not be in question here. What we are talking about is—
Lord Brooke of Alverthorpe: My Lords, I am grateful to the noble Lord for giving way. If my memory is correct, we had a similar problem with the Gambling Act, where a statutory instrument that defined the areas in which the casinos would be located had gone through the Commons. It came here and, contrary to usual practice, this House voted it down, and it was lost from the Government’s programme.
Lord Jenkin of Roding: My Lords, what has happened to casinos since then? Well, who was right? If the Government had been confident of their policy about casinos, of course they would have brought the order back, but the original policy is in tatters and the idea of a giant casino has disappeared from view. If I may say so, the noble Lord has not chosen a very good example.
The noble Lord, Lord Woolmer of Leeds, was cross because the noble Lord, Lord Oxburgh—who, I am sorry to say, has left the Chamber—referred rather unwisely to the moral authority of Parliament. That is not a phrase that I would ever have used. I served for 23 years in the other place and have now just about topped up 23 years here, so I have seen both sides clearly. Parliament has authority and the legitimacy of a parliamentary vote.
At the risk of being tedious, I repeat what I said on a previous occasion. When I was Secretary of State for the Environment, I faced a challenge from local authorities, led by the extreme left—some by the Militant Tendency. No doubt noble Lords will remember those occasions. Those authorities were challenging the Government; they were challenging the authority of the Secretary of State; they were demanding that I withdraw the rate support grants, remove the capping on rates and a number of other things. At the end of a long meeting attended by 35 of them, led by Mr Blunkett, I said, “I can’t do those things. They have been approved by Parliament. Are you challenging Parliament?”. Of course, the whole thing faded away. They realised that Parliament had decided; it had cast its votes in support of the rate support grant settlement; it had approved legislation on rate capping and that was that.
What do we have here? We have national policy statements on which there is a considerable process of consultation with Parliament—the amendment tabled
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One has to remember that the growth of judicial review in the past 20 years has been enormous. I have here the figures provided by Professor Anthony King in his book on the British constitution. Under the heading, “The Judges Come Out”, he cited the figures. He says that,
- “the number of applications for judicial review has soared in recent decades. In 1981 a total of 356 non-criminal applications for judicial review were made; in 2005 the total of such applications was 5,131”.
6.30 pm
This country should not be ruled by the judges. The judges have a distinct role in ensuring that the law is upheld, but if Parliament makes law, it should not be challenged by the judges. If the Secretary of State takes decisions, they are and frequently have been challenged in the courts. The noble Lord, Lord Hunt of Kings Heath, will no doubt have been warned of the danger of a challenge by environmental groups on nuclear policy. These decisions were taken not by Parliament but by Ministers, and what happened? The courts held that the process had been flawed, and Ministers had to start all over again. This is what I am frightened of if we leave the national policy statements as ministerial statements without the full sanction of a parliamentary vote.
The House decided this morning that the planning commission is to be the deciding body, and my noble friend’s amendment was decisively rejected. However, as a number of noble Lords have said—it was said this morning by the noble Lord, Lord Williamson of Horton, and in a previous debate by the noble Lord, Lord Turnbull—if one wants to looks for democratic legitimacy, one should look to the national policy statements and not to the commission.
Baroness Whitaker: My Lords, I interrupt the noble Lord with great timidity. When I was briefed as a civil servant on how to avoid judicial review, which we were extensively briefed on because of the high numbers that he quotes, we were told very clearly that it was nothing to do with the authority of who took the decision; it was entirely about the process. He talks in a throwaway manner about the proper procedures being gone through, but that is the essence of the judicial review as we, the victims of it, were taught to recognise it, so I am not at all convinced that it is the authority of the organisation taking the decision that matters.
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Lord Jenkin of Roding: My Lords, the noble Baroness has never been a Member of the House of Commons, which is the main decision-maker. We have our own role, which has been repeatedly described, but the House of Commons is where the law is made and the final decisions are taken, with our help, support and advice. It is quite different from a decision taken by a Secretary of State. If the noble Baroness cannot understand the question of the authority of a vote in Parliament, we will have to differ. A vote in Parliament carries authority. I have already said that I do not accept that it is moral authority; it is legal authority. Parliament is where it all happens.
I totally support the national policy statement, which is an admirable new institution and a splendid innovation in the planning process. As I made clear this morning, I was certainly prepared to recognise the planning commission and its role. However, the danger is that the whole thing will collapse in a series of judicial reviews as the ultimate way in which those who wish to challenge the policy will go. If the statements are sanctioned by a vote in Parliament, my guess is that it will be exceedingly difficult for anyone to challenge that in the courts.
Lord Boyd of Duncansby: My Lords, it may be my fault, but I fail to understand the noble Lord’s point about the approval of the House of Commons. The Bill sets out in clear detail the way in which the national policy statements must be arrived at. I understand the noble Lord to say that if there was a flaw in the procedure, that could not be challenged in court if it had been approved by the House of Commons. I do not understand that. I understand the noble Lord’s concerns about judicial review, but I do not see the argument that this will avoid judicial review.
Lord Jenkin of Roding: My Lords, if I did not make myself clear, it is because I feel very strongly on these matters. Perhaps I should have taken more time to prepare my remarks, but yesterday I was dealing with the Energy Bill and one does not have time to do everything. The point is that a court would challenge even an Act of Parliament if it turned out to be, for instance, contrary to European law. That is why we have a statement at the beginning of every Bill stating that it is compliant with the European Convention on Human Rights. Similarly, there have been cases, but they were special cases. The courts will not seek to challenge a decision of Parliament which was enshrined in a vote of both Houses. Judges would be exceedingly slow to do that, whereas they have shown themselves to be readily—I have quoted the figures—willing to challenge decisions by Ministers. If this is left as a ministerial decision rather than a parliamentary vote, my guess is that it will run into difficulty with the courts in a way that it would not if it had been approved by affirmative resolution in both Houses.
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