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I apologise for taking up so much of the House’s time, but we must get the whole business of pre-commencement statements right lest we lay ourselves open to a plethora of legal proceedings and delays.

Lord Cameron of Dillington: My Lords, following discussions last week and in Committee, I formed the impression that the Government had not really understood the extent to which these national policy statements are a departure from where we are now. The statements will rule the decisions of the IPC and give those decisions the authority needed to expedite these essential, but nevertheless locally unpopular, infrastructure projects.

During our debate on Clause 12 in Committee, the Minister said that there was no intention to avoid the high standards of consultation and sustainability implicit in the Bill and that Clause 12 would ensure that a Minister would have to take into account consultation carried out before the commencement of the Bill. She even said how thorough the consultation on the air transport White Paper had been. To me, however, that misses the whole point of the national policy statements.

As I said, I do not think that the Government quite realise what a departure NPSs are from what we have now. They will authorise, empower and arm the IPC with the authority to carry out the will of Parliament without challenge. The Government appear to miss the point that, unless the previous consultation on these previous White Papers or planning guidelines expressly stipulated that they were going to dictate the decisions of the IPC, that consultation is invalid as far as the new process is concerned.

To be honest, I am not so concerned about the people or the NGOs that might have taken part in the process of consultation. It is more a question of the ordinary people, or their representatives, who would not normally have involved themselves in national policy guidelines, which are usually drafted within departments, behind closed doors. This is not something that normally features on people’s radar but suddenly they will find the rules being changed at half-time. These national policy statements will dictate the decisions of the IPC which could dramatically affect ordinary people throughout the country.

No one expects the Government to start with a blank sheet of paper, as the Minister said. I do not mind if they cut and paste whole chunks of previous statements, guidelines or White Papers, or maybe even

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all of them, as a starting point. That would probably make sense. They should also look again at all the previous consultation to see what really appeared to matter to people. That, again, would make sense. However, the national policy statements are different: they will focus people’s minds as they have never been focused before. To my way of thinking, it would be underhand to assume that any previous consultation in what were completely different circumstances amounted to more than a row of beans when it came to controlling the decisions of and giving authority to the IPC.

As many of us have said before, national policy statements are what make the Bill work. They are new, they are different and, in my view, therefore, this clause is redundant. Even if the Government do not agree, I hope that they will accept that whatever past policy is used in this way, it will at least ensure that a new consultation process is implemented.

Baroness Hamwee: My Lords, the noble Lord, Lord Cameron, has put very adeptly the concerns that we on these Benches have. I would like to ask the Minister one question about the wording of Amendment No. 44. The proposed new subsection says:

“The Secretary of State may take account of appraisal”,

previously carried out. It refers not to “appraisals” or “an appraisal”. I think that “appraisal” here means something slightly different from where it is used in Clause 5(3). This goes absolutely to the validity of the appraisal—in other words, whether there has been consultation. Can there be consultation on appraisal used in its normal sense, over a much wider area, not a discrete piece of work? This may seem a tiny point, but I believe that “appraisal” means something rather different from a specific appraisal on specific policy, a specific White Paper or possibly a series of appraisals on specific policies that will have alerted the public, as the noble Lord, Lord Cameron, said, to their importance and relevance for national policy statements.

3.30 pm

Lord Jenkin of Roding: My Lords, the noble Lord, Lord Cameron of Dillington, eloquently said almost exactly what I would have said. However, I will add one point. The pre-commencement statements were made with an entirely different purpose from that which this Bill is now enshrining in the national policy statements. They were, for instance, available to local planning authorities and to the Secretary of State, if he or she had to decide an appeal. The national policy statements are, by contrast, directed almost wholly to the Infrastructure Planning Commission. Indeed, the whole of that part of the Bill has been drawn up so as to make sure that the national policy statement is in a form fit to go before the IPC, after it has gone through all the processes, notably of consultation, local inquiry and parliamentary scrutiny. It is, therefore, for the IPC to determine any particular planning application made to it and then to decide on that application in the light of the NPS. I am sorry if I merely paraphrase what others have said.

The pre-commencement statements, of course, vary hugely in their degree of detail, in the amount of consultation undertaken and in the importance that

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was to be attached to them when issued. I know that it is not now parliamentary to break into Latin phrases, but the lawyers would have said that they were prepared alio intuitu—with another intention. What has aroused the alarm not only here but in another place is that those statements will, in a sense, be taken as substituting for the quite elaborate procedure that the Bill sets out for approving the policy statement.

I recognise at once that the noble Lord, Lord Adonis, and the Government have sought to allay such anxieties. However, I remain anxious, for there is scope in how the Bill is now drawn—with these amendments, if they are now accepted—for the Government to cut corners by taking an existing planning policy statement and elevating it to the status of a national policy statement. That, to my mind, is the mischief in this clause.

One has dealt with these statements before: the noble Baroness, Lady Andrews, will recall our arguments about underground gas storage proposals, where my complaint was that, when her department ultimately issued its decision, Mr Darling’s statement of policy was reduced to one sentence. It is inconceivable that the commission would, when considering a particular application, reduce a national policy statement to one sentence.

I have been told that one of the first new NPSs that the Department of Energy and Climate Change is seeking to draft will deal with the underground storage of gas. Therefore, that particular one is starting anew. One is not expecting simply to start, as the noble Lord, Lord Cameron, said, with a tabula—I am sorry, I must not use Latin again—that is, with a clean sheet of paper. Of course, the department will take what has been said before as the basis for the statement, but it has to comply with the full and rigorous procedure that we have put into the Bill about parliamentary scrutiny and all the rest of it. It is not enough merely to say that the sustainability criterion must be added; much more than that will be needed.

I have not combed past planning decisions to see what previous decisions were, but noble Lords in all parts of the House have expressed huge anxiety about the aviation White Paper turning itself into a national policy statement. If ever a paper was directed to an entirely different purpose than the one that we will have for national policy statements, that was it. The noble Lord, Lord Adonis, and his colleagues will have to make some decisions on that White Paper. What about new circumstances? The noble Lord gave an extremely interesting interview to the Times a few days ago, in which he declared his passion for high-speed rail. That echoed what my honourable friends in another place said when they addressed the conference in Birmingham; they thought that high-speed rail would be a much better alternative than having large numbers of short internal flights. I happen to agree with that. I never fly to Edinburgh; I always go by train. Is this a change of circumstance? Is it a change of circumstance that the noble Lord, Lord Adonis, has arrived at the Department for Transport with this new enthusiasm? This is the kind of thing that one will have to look at. If there is going to be a national policy statement for aviation, airports, new runways and all the other things,

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it is difficult to say that you can simply take that White Paper, dust it down, add a sustainability criterion and then say, “Right, off we go”.

That is the anxiety that I have. I hope that the noble Lord, Lord Adonis, will be able to deal with it. He has met criticism from all parts of the House in trying to make sense of this clause. I hope that he, with his considerable abilities, will be able to allay our fears, but somehow I doubt it.

Lord Elystan-Morgan: My Lords, the course now proposed by Her Majesty’s Government in this amendment is, to use Latin for once, a via media, which should be welcomed in this context.

The problem with the new structure proposed in Clauses 1 to 8 is that one has to avoid one or two extreme and unwholesome situations. One extreme would be a total republication of all the relevant policy statements, from the year dot. That, of course, would be utterly impossible. On the other hand, if one were to say that none of them had any effect at all, the situation might be even more drastic. One must find some sort of compromise, with criteria being applied as to whether a particular policy statement is current and relevant for present-day needs and, of course, whether it conforms to the criteria set out in the Bill.

The amendment proposed by Her Majesty’s Government does the job as well as one could reasonably expect. However, I have one question. It is many years since I did any planning as a barrister, but there may well be great dubiety as to exactly what the situation is. Will there be a general publication with regard to all the previous policies—I suspect not—or will it come by dribs and drabs? The difficult situation of a petitioner then will be that he or she will not know exactly what the validity is of a matter that has been dealt with in the past. In other words, how soon can that dubiety be removed, how comprehensive will the statements be and what machinery will have operated in each case before such a statement is made?

Lord Boyd of Duncansby: My Lords, I warmly welcome the government amendments, which I respectfully suggest address the issues raised in Committee. I direct the House’s attention to the terms of Amendment No. 43, which would insert new provisions into Clause 12 and in particular to proposed subsection (1C), which states:

“For the avoidance of doubt, section 5(3) to (7) continue to apply where the Secretary of State proposes to designate a statement as a national policy statement for the purposes of this Act”.

Clause 5(3) provides that,

As we saw last week at Report, that now includes both design and reference to climate change as well as general sustainability.

Clause 5 (4) states that:

“A statement may be designated as a national policy statement for the purposes of this Act only if the consultation and publicity requirements set out in section 7, and the parliamentary requirements set out in section 9, have been complied with”.

Those are the full requirements in relation to these matters. National policy statements would be required to comply with consultation and publicity provisions

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in Clause 7 and the parliamentary procedure in Clause 9, which we amended on Report last week.

Clause 5 (5) sets out what the national policy statement must include; Clause 5 (6) states that the,

and Clause 5 (7) states that:

“The Secretary of State must—

(a) arrange for the publication of a national policy statement, and

(b) lay a national policy statement before Parliament”.

Those provisions go a very substantial way indeed towards concerns expressed by noble Lords in Committee, and ensure, so far as I can make out, that pre-commencement national policy statements will have the full rigour applied to them as would be applied to national policy statements made after the commencement of the Act.

From my own knowledge, in the nuclear field the Government have commenced the procedure for the adoption of a national policy statement through consultation on the strategic siting assessment and the criteria for a strategic environmental assessment. We heard not only in this Bill but also in the course of debates on climate change and energy about the problems that face the Government and our society in meeting the challenges of climate change and security of energy supply. If we delay any further, as would be implied by not accepting pre-commencement national policy statements, we would be doing a disservice to the challenges that we face.

Lord Adonis: My Lords, my noble and learned friend Lord Boyd has made my speech for me. It answers a good number of the points raised by the noble Earl, the noble Baroness and the noble Lord, Lord Jenkin. Again, I draw the attention of the House to Clause 5 and the provisions of subsection (3) onwards, which would apply in respect of the designation which could take place under Clause 12. As my noble friend said, it would make clear that:

“Before designating a statement ... the Secretary of State must carry out an appraisal of the sustainability of the policy set out in the statement”.

It must only be done, under subsection (4),

as well as all the provisions set out in subsections (5), (6) and (7). These ensure that the concern the noble Lord, Lord Jenkin, still has that there might be a cutting of corners cannot take place. It cannot take place because of the provisions in the Bill. It is not a question of my giving assurances from the Dispatch Box. This will be the law once we accept these amendments. I hope that on that basis the House is reassured. As always when you have constantly to flick between amendments and different provisions on different pages, the problem is to understand their full force. Noble Lords need to read Clause 12 as if all the subsections in Clause 5 continued from subsection (1) of Clause 12. I think in that context the concerns that have been raised are met.

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3.45 pm

Lord Jenkin of Roding: My Lords, I am most grateful to the noble Lord for giving way. He clearly has a point as regards the parliamentary process. I should think very few pre-commencement statements have ever been through anything like that. On consultation of local interests and other stakeholders, the anxiety is that the Government may well say, “There was a lot of consultation about the aviation White Paper; that will suffice”. That is the anxiety, even though it was done in an entirely different set of circumstances.

Lord Adonis: My Lords, the consultation requirements set out in Clauses 7 and 8 are substantial. The elephant in the Chamber is the Air Transport White Paper. That issue is giving rise to a good deal of concern and it might be helpful if I state categorically that we intend to produce a national policy statement which meets in full the policy and statutory requirements for national policy statements set out in the Bill. As part of that I can say categorically that we will consult again on the airports national policy statements in line with the Bill’s requirements. We shall have to make a judgment on how we conduct that consultation in the light of what is in the national policy statements and the extent to which it differs from what is in the Air Transport White Paper, but it will need to meet in full the requirements of the Bill.

In respect of the noble Baroness’s concern about appraisal, Clause 12 needs to be read in the context of Clause 5(3), which makes it clear that the appraisal in question is one of sustainability. Although the Secretary of State can take account of existing appraisal work in that context, there will be a new appraisal of sustainability on any new national policy statement, and that would include one concerning airports.

The noble Earl, Lord Cathcart, wanted to know who would seek to advise the Secretary of State on whether there had been a significant change of circumstances. Under the Bill, the Secretary of State ultimately has to make a judgment on whether he believes there has been a significant change of circumstances, but it will be open to parliamentary Select Committees, the public and others to make representations to him. The Secretary of State would have to look at those representations and take a view on them when making a judgment. The noble Earl also referred to strategic environmental assessments as required under EU law. Where a strategic environmental assessment is required under EU law, it will be undertaken within the appraisal of sustainability, ensuring one integrated assessment process, so that we do not have unnecessary duplication. We have already stated our intention to produce an airports national policy statement which incorporates the Air Transport White Paper in a way which meets the policy and statutory requirements for national policy statements set out in the Bill. We will, of course, conduct a strategic environmental assessment for the airports national policy statement if it is required under EU law.

I hope that I have dealt with the specific issues raised and made categorical statements in respect of the seriousness of the consultation and appraisal process that would need to take place before a pre-existing

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statement of policy could be designated as a national policy statement. I again emphasise the provisions of Clause 5, which would need to be satisfied in full before such a designation could take place.

Lord Cameron of Dillington: My Lords, will the Minister clarify something for me, so that I understand it perfectly? Is the noble Lord saying that any PPG, PPS or White Paper that is now going to become a national policy statement will have to undergo fresh consultation in the light of the change that is going to happen?

Lord Adonis: My Lords, it would need to undergo fresh consultation if the consultation that had been conducted so far did not meet the terms of the Bill.

Earl Cathcart: My Lords, I thank the noble Lord for his responses. He categorically said that the Air Transport White Paper would go through the consultation process again. Given that the evidence that was used in the original policy was called into question by the Sustainable Development Commission, and it has called for an independent review of that evidence, will that now happen?

Lord Adonis: My Lords, I said that there will be a fresh consultation in respect of any airport’s national policy statement. I believe that incorporates the noble Earl’s point.

On Question, amendment agreed to.

Lord Adonis moved Amendments Nos. 43 to 45:

43: Clause 12, page 6, line 23, at end insert—

“(1A) But subsection (1) does not apply in relation to a pre-commencement statement if the Secretary of State thinks that—

(a) since the time when the statement was first issued or (if later) the statement or any part of it was 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.

(1B) A pre-commencement statement is a statement issued by the Secretary of State before the commencement day.

(1C) For the avoidance of doubt, section 5(3) to (7) continue to apply where the Secretary of State proposes to designate a statement as a national policy statement for the purposes of this Act in circumstances within subsection (1)(a) or (b).”

44: Clause 12, page 6, line 24, leave out subsection (2) and insert—

“(2) The Secretary of State may take account of appraisal carried out before the commencement day for the purpose of complying with section 5(3).”

45: Clause 12, page 6, line 30, leave out subsection (4)

On Question, amendments agreed to.

[Amendment No. 46 not moved.]

Clause 13 [Legal challenges relating to national policy statements]:

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Lord Hunt of Kings Heath moved Amendments Nos. 47 to 51:

47: Clause 13, page 7, line 2, leave out “review” and insert “carry out a review of all or part of”

48: Clause 13, page 7, line 5, leave out “review the statement” and insert “carry out the review”

49: Clause 13, page 7, line 7, leave out “review” and insert “carry out a review of all or part of”

50: Clause 13, page 7, line 13, leave out “reviewing” and insert “carrying out a review of all or part of”

51: Clause 13, page 7, line 20, after “review” insert “of all or part”

On Question, amendments agreed to.

[Amendment No. 51A not moved.]

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