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The introduction of the Bill has given a great deal more significance to the meetings that take place under the Joint Ministerial Council. I think we are all glad that there was much agreement at that level as there could have been trouble otherwise, but it raises the question of what weight and authority we in Westminster need to give to the deliberations of this body, and whether the Joint Ministerial Council itself recognises that Westminster has overall control.

Lord Livsey of Talgarth: My Lords, I, too, welcome this amendment wholeheartedly. It is clear that some difficulties came to light in the debates that we had, particularly on cross-border issues. This appears to me to put the record straight. Indeed, the Government of Wales Act 2006 has been appropriately amended to take account of the developments in the Bill and I hope that this will satisfy the Welsh Assembly Government.

Lord Hunt of Kings Heath: My Lords, I thank the noble Lord, Lord Livsey, for commending the amendment, which I believe clarifies matters. I say to the noble Duke that I am happy to circulate the paper more widely. Clearly, there is a problem in relation to the desire to establish joint bodies and the conflict that thereby arises with the devolution settlement. However, we will do everything we can to ensure that the new arrangements work well together. I referred to the meeting of UK Ministers that took place in the autumn, which was very helpful in resolving some of the issues in relation to the Bill. That was a very positive sign.

As regards the British-Irish Council, this matter also concerns the Government of Ireland. Therefore, one has to be cautious about where Westminster comes into play in that, but certainly I agree that it is important that the outcome of those deliberations is reported back. The noble Duke raises a substantive point. As I had the responsibility of chairing the meeting of environment Ministers, I shall be happy to reflect on communicating the outcome of those meetings.

The Duke of Montrose: My Lords, does the Joint Ministerial Council include Ministers from the Irish Republic? I had understood that UK bodies were involved.

Lord Hunt of Kings Heath: My Lords, I must distinguish between the meeting that took place last autumn between Ministers from the four UK Administrations, which specifically discussed this Bill and was helpful in allowing us to reach a very sensible outcome ensuring that there would be good co-operative relationships, and the British-Irish Council. I chaired a meeting of the latter body in Jersey a few weeks ago at which we discussed the marine environment and where we had many helpful discussions about co-operative approaches to tackling the marine environment. That meeting had the advantage of bringing in the Isle of Man, Jersey and Guernsey. As noble Lords will know, there is concern about that issue. Alas, the noble Lord, Lord Wallace, is not here to enliven our debates on these matters. I think that he described it as a great white area between Wales and Ireland in terms of regulation and enforcement. The outcome of the meeting last autumn was very encouraging, as is the determination

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that I see on the part of all Administrations, including the Irish Government, to ensure that we protect our marine environment. I take great comfort from that.

Lord Livsey of Talgarth: My Lords, I very much appreciate what the Minister has just said. It reflects the sensitivity with which he and his colleagues have treated the devolution settlement in Wales. The British-Irish Council is particularly important for resolving matters to do with the Irish Sea. Indeed, the Minister and his colleagues have moved this process forward to achieve a much deeper understanding and co-operation between all those concerned with the Irish Sea.

Amendment 18 agreed.

Schedule 6: Marine plans: preparation and adoption

Amendment 19

Moved by Lord Davies of Oldham

19: Schedule 6, page 239, line 21, leave out “regional planning body whose area” and insert “responsible regional authorities whose region”

Lord Davies of Oldham: My Lords, I shall speak also to government Amendments 20 and 21. The first two amendments ensure that the Bill works effectively with the Local Democracy, Economic Development and Construction Bill, presently undergoing scrutiny in the other place. Paragraph 1 of Schedule 6 to the Bill requires a marine plan authority to notify a number of “related planning authorities” when it begins to prepare a marine plan. One of these related planning authorities is a terrestrial authority responsible for planning at a regional level. Currently, that is the regional planning authority defined under Section 2 of the Planning and Compulsory Purchase Act 2004. The House will, of course, be aware of the proposals in the Local Democracy, Economic Development and Construction Bill to replace regional planning bodies with responsible regional authorities that comprise a local authority leaders’ board and the regional development agency. We therefore need to update the reference in the Bill to ensure that it continues to operate effectively once the Local Democracy, Economic Development and Construction Bill completes its parliamentary passage and comes into force. I hope that the House will support these minor changes to paragraph 1.

The final amendment in this group, Amendment 21, is in response to the promise we made on Report to consider an amendment tabled by the noble Baroness, Lady Hamwee. It required a marine plan authority to consider the extent to which matters raised in its representations have been resolved when deciding whether to appoint an independent investigator. At the time, her amendment was commended from the Dispatch Box because it reflected our intention that this should be one of the key factors in determining whether an independent investigation should be held. The Government have therefore tabled Amendment 21, which addresses this very point, although in slightly different terminology. It requires the marine plan authority

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to consider the extent to which any issues raised during the public consultation on the marine plan remain unresolved following the consultation and, therefore, should inform the decision to appoint an investigator. I beg to move.

Amendment 19 agreed.

Amendments 20 and 21

Moved by Lord Hunt of Kings Heath

20: Schedule 6, page 239, leave out lines 31 and 32 and insert—

““responsible regional authorities” has the same meaning as in Part 5 of the Local Democracy, Economic Development and Construction Act 2009 (regional strategy).”

21: Schedule 6, page 244, line 27, at end insert—

“(c) the extent to which matters raised by representations falling within paragraph (b) have not

been resolved,”

Amendments 20 and 21 agreed.

Schedule 8: Licensing: Minor and consequential amendments

Amendment 22

Moved by Lord Hunt of Kings Heath

22: Schedule 8, page 254, leave out lines 12 to 15 and insert—

“(c) an exclusive economic zone, except any part of an exclusive economic zone in relation to which the Scottish Ministers have functions,

(d) a Renewable Energy Zone, except any part of a Renewable Energy Zone in relation to which the Scottish Ministers have functions,”

Amendment 22 agreed.

Schedule 11: Consequential amendments relating to MCZs

Amendments 23 to 26

Moved by Lord Hunt of Kings Heath

23: Schedule 11, page 267, line 35, leave out “Chapter 1 of Part 5” and insert “section 128”

24: Schedule 11, page 267, line 36, leave out “(marine” and insert “(byelaws for protection of marine”

25: Schedule 11, page 267, line 38, leave out “Chapter 1 of Part 5 of that Act” and insert “section 133 of that Act (orders for protection of marine conservation zones)”

26: Schedule 11, page 268, leave out lines 1 to 4 and insert—

“(3) The provisions of Chapter 1 of Part 5 of that Act relating to byelaws under section 128 or orders under section 133 apply, with the modifications described in paragraph (3A) of this regulation, in relation to byelaws made by virtue of paragraph (1) of this regulation or (as the case may be) orders made by virtue of paragraph (2) of this regulation.

(3A) The modifications are—

(a) any reference to an MCZ is to be read as a reference to a European marine site;

(b) in sections 128(1) and 133(1), the reference to furthering the conservation objectives of an MCZ is to be read as a reference to protecting a European marine site;

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(c) the reference in section 128(3)(c) to hindering the conservation objectives stated for an MCZ is to be read as a reference to damaging a European marine site.”

Amendments 23 to 26 agreed.

Schedule 19: Schedule 1A to the 1949 Act

Amendment 27

Moved by Lord Goodlad

27: Schedule 19, page 300, line 35, at end insert—

“(12) The determination of the Secretary of State must comply with the recommendation of the appointed person unless, in the opinion of the Secretary of State, there are exceptional circumstances.”

Lord Goodlad: My Lords, Amendment 27 stands in my name and that of the noble Lord, Lord Pannick. I reiterate my gratitude to the Government and, in particular, the Minister, for their response to the recommendations of your Lordships’ Select Committee on the Constitution on the right of those affected to appeal to an independent person. Amendment 27—which, I emphasise, does not reflect the unanimous view of members of the committee—seeks to enhance and reinforce the other safeguards now written into the Bill to ensure that,

Otherwise, why have an appointed person? Perhaps the Minister might add a word about the future role of the Planning Inspectorate in this context.

Amendment 27 would add transparency, fairness, stability and an element of predictability, although obviously not certainly, to the arrangements envisaged in the Bill and would accord with everyday common sense. The amendment would not of course dilute in any way the accountability of the Secretary of State to Parliament. I beg to move.

4.15 pm

Lord Morris of Aberavon: My Lords, I support the noble Lord, Lord Goodlad, the chairman of the Constitution Committee, of which I am a member, in his thanks to the Government for agreeing that there should be a right of appeal. That has been the consistent line of the Constitution Committee throughout, and it is of the utmost importance that a right of appeal is seen to be transparent.

Having gone that far, I fear that I cannot agree with the noble Lord on this amendment. The procedures described in the clause state that, as in most planning considerations, a person is appointed to hear evidence. That is the basis on which the bulk of planning decisions are taken. Having heard admissible evidence, the planning inspector, in due course, makes recommendations to the Secretary of State for his determination. It is the Secretary of State’s decision, and his alone. He is accountable, in general, to Parliament. In particular instances, a rare procedure of having a parliamentary debate on the matter can be invoked.

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I got into a great deal of hot water as a planning Minister for six years in Wales, when I determined, as regards the future of industrial development in Ebbw Vale, following the closure of the steelworks, that I had to overturn the recommendation of the planning inspector, who wanted to fill in various parts of the area with the odd bit of industrial development. I took the holistic view that the only way to give hope to that community was to ensure that particular land was designated on a sufficient scale to provide the basis for attracting industry, and that you would not achieve that in the same way if you were merely in-filling pockets.

In those circumstances, the decision of the Secretary of State would be limited, if this amendment were to be accepted, because he,

What on earth are “exceptional circumstances” in this context? If the amendment were to be passed and if exceptional circumstances can be defined, the decision would be taken away from the Secretary of State and his power would be extremely limited. First, this is not workable, and, secondly, it abdicates the responsibility of the Secretary of State, because such matters should be for his determination, and his alone.

Lord Pannick: My Lords, I support the noble Lord, Lord Goodlad. The background to Amendment 27 will be very familiar to your Lordships. As originally drafted, the Bill lacked an appeal provision for those affected by the coastal access duty. This was criticised by your Lordships’ Constitution Committee, chaired by the noble Lord. In Committee, many noble Lords suggested that an appeal procedure was necessary. To his great credit, the Minister listened. He and his hard-working officials tabled on Report the detailed amendments which are now Schedule 19 to the Bill, creating a right to have the matter considered by the person appointed. These provisions, however, have a serious defect. They leave it entirely to the discretion of the Secretary of State whether to accept or to reject the views of the person appointed—indeed the factual findings of the person appointed. There is no attempt in Schedule 19 to confine the power of the Secretary of State to overturn the recommendation of the person appointed to issues of policy or to cases where there are broader implications of the recommendation.

As often occurs in planning matters, as the noble and learned Lord, Lord Morris, suggested, the noble Lord gave a very good example from his own experience. I entirely accept that in that type of case the Minister should have power to overturn the findings of the person appointed. Amendment 27 seeks to confine the discretion of the Secretary of State to overturn the recommendation of an independent person who has the statutory responsibility of considering representations and doing so in a context concerned with a person’s rights—here the right to property. This is particularly important when the Joint Committee on Human Rights has advised that a lack of an appeal to an independent person with a power to determine questions of fact would be a breach of the European Convention on Human Rights.

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I thank the Minister and his officials for their considerable courtesy in discussing this matter with the noble Lord, Lord Goodlad, and with me during the past week. As I understand the departmental concern—the Minister will explain it more fully and more eloquently—it is that the Secretary of State must have the power to take account of the general implications for the coastal route. The person appointed is concerned only with the specific piece of land. The Secretary of State, however, needs to have in mind the broader picture.

I understand and accept that policy concern. I do not understand, however, why it justifies the breadth of the discretion conferred on the Secretary of State. On Report, the Minister told the House at col. 50 that it would be “extremely unlikely” that the Secretary of State would depart from the recommendation of the person appointed. Since the Minister recognises and accepts that it would be extremely unlikely for the recommendation of the independent person to be displaced, surely it is appropriate to include in the provision a sub-paragraph that recognises that matter and gives a degree of assurance to landowners and to all other interested persons.

Our amendment therefore seeks to make the position clear in this respect. If Amendment 27 were to be approved, the Secretary of State would still have ample power to overturn the recommendation of the person appointed in the type of case that the noble and learned Lord, Lord Morris, envisages. That is a case where there is some policy concern and some general issue relating to the coastal route which has not been adequately addressed by the person appointed. The noble and learned Lord, Lord Morris, asks, “What does ‘exceptional circumstances’ mean? It is a broad and general phrase”. Precisely so. The purpose of the amendment is to confer a discretion on the Minister to depart from the views of the person appointed but to do so only if there is something unusual or exceptional about the case and not simply because he disagrees with the person appointed on a matter of fact.

The Minister has tabled Amendment 28, which goes a long way towards meeting the points that I have raised. I am most grateful to him and his officials for listening and for acting on the points raised by the noble Lord, Lord Goodlad, and by me. However, I have concerns about that amendment. It states the principle that the Secretary of State will be bound by the opinion of the person appointed but it makes this subject to four exceptions. Exceptions (c) and (d) are, I accept, principled exceptions. Of course it is right that the Secretary of State should not be bound by a finding by the person appointed which is made,

or a finding that is “perverse or irrational”. That is entirely so. Exception (b) provides that the Minister is not bound by the factual conclusion of the person appointed if there is,

That, too, is principled if—and I should welcome the Minister’s assurance on this—it means that the Secretary of State concludes that the person appointed could

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not have properly made the finding on the evidence available to the person appointed at the time that he made his recommendation. That leaves exception (a),

That causes concern because it allows the Secretary of State to conclude that, even though the person appointed finds that the matter is of great importance to the landowner and even though that finding cannot be challenged under exceptions (b), (c) and (d)—in other words, there is sufficient evidence for the finding, it is based on relevant factors and is not perverse—he can still substitute his view for that of the person appointed on that factual matter.

I therefore prefer Amendment 27. It is clear, it is sufficiently flexible and it accords with the Minister’s assurance on Report that only in rare cases would the Secretary of State override the views of the person appointed.

Perhaps I may briefly mention two other matters. I understand that the Secretary of State will be making regulations to ensure that, if he proposes to depart from the findings of the person appointed, a fair procedure must be followed which gives the landowner an opportunity to address the issues before the Secretary of State. I should very much welcome the Minister’s confirmation that such regulations are intended to be made.

The second and final matter I ask the Minister to deal with is this: I understand that, contrary to the expectation he stated on Report, it is no longer envisaged that the person appointed will be a member of the Planning Inspectorate. Can the Minister clarify who will now be the appointed person or persons to perform this important function, and can he assure the House that they will be independent, and seen to be independent, of the Secretary of State?

4.30 pm

Lord Rowlands: My Lords, I, too, am a member of the Constitution Committee and during all our discussions on this Bill, I have emphasised the tremendous value of coastal access. I happen to live quite near a coastline in south-west Wales, and I have witnessed the enormous benefit, both in health and recreational terms, of coastal access. Like all members of the Constitution Committee, I felt strongly that there should be some kind of planning appeal procedure, though I did not want the old-fashioned kind, which has often led to interminable delays and been extremely expensive. I believe Ministers have come forward with a workable alternative appeal procedure, which I welcome and support. As other members of the committee have testified, we are indebted to the way in which Ministers have responded to the representations we have made. I am more than content that an appeals procedure is in place that is of a character which will not mean that coastal access is somehow continually delayed or prevented, while at the same time protecting the rights of citizens and property owners.

On the last point, I share the view of my noble and learned friend Lord Morris. Under his jurisdiction, when he was Secretary of State and I was a Minister in

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the Welsh Office, I came across cases where it was the view of the Secretary of State and the department that the Secretary of State should have the right to overrule planning inspection findings of one kind or another. I think that power must remain with the Secretary of State.

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