4 Feb 2013 : Column 1

House of Lords

Monday, 4 February 2013.

2.30 pm

Prayers—read by the Lord Bishop of Bath and Wells.

Shipping: International Maritime Law


2.37 pm

Asked By Lord James of Blackheath

To ask Her Majesty’s Government whether they will issue any guidance to ex-Navy personnel or independent commercial organisations offering security and escort convoy services to shipping off the coast of Somalia regarding their rules of engagement and their compliance with international maritime law.

The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi): My Lords, the Department for Transport issued interim guidance on the use of private maritime security companies in December 2011. This was updated in June 2012 and is periodically reviewed to ensure its relevance. The Government are working with industry to establish a national accreditation system for this industry; both stress the importance of compliance with international maritime law, including the principle of self-defence, which provides the only condition under which these privately contracted civilian guards may use force.

Lord James of Blackheath: My Lords, I thank the Minister for that response, but I am a little disappointed not to hear that it is possible for us to ban altogether this independent commercial activity. It is seriously prejudicial to the interests of, perhaps, formerly redundant members of our services who find deliverance from their predicament by joining, given the extreme hazard that they will represent under international law, both to themselves and to this country’s reputation.

Baroness Warsi: My Lords, there are, of course, many members of the Armed Forces who take part in private security companies, including private maritime security companies: 90% of private maritime security companies are based in London. We have led the international community in providing the guidance and rules under which such companies can operate. My noble friend will be aware that these companies operated long before we issued the guidance; clearly, they now operate within a system for which there is guidance.

Lord West of Spithead: My Lords, I declare an interest that I am involved with a maritime security company. I am glad to say that I do it not because I am desperate for things to do, but because I feel that it is an important thing to do. I am delighted to speak because, 710 years ago today, the first admiral was commissioned in our country. That is rather nice. However, I would point out to the Minister that we must really focus on, and produce, some clearer guidance. There is no doubt that a large number of companies are now doing things which are beyond the law, since it is quite difficult for them to meet the requirements that are meant to be met. For example, the whole issue of floating armouries is a very real problem. Could I ask the Minister to push this issue much faster, because there will be an occasion—as the noble Lord said—where people will be getting into serious difficulties as a result of unintentionally breaking our laws and international law?

Baroness Warsi: The noble Lord speaks to this matter with great experience, both in relation to his previous role and in terms of his current role. He will be aware that these companies were operating before we issued guidance; it was really a reaction and response to the fact that they were predominantly operating out of the United Kingdom that the guidance was issued. The guidance is quite detailed in terms of the plans that they must set out and being responsive to the necessary organisations that monitor this in the particular area that they are in. The noble Lord will be aware, too, that international law will apply in international

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waters. The law of the particular flagged ship will apply to that particular vessel. For the companies that operate in that specific area around Somalia and the Indian Ocean, there are specific rules on which we have led in the drafting.

Lord Chidgey: My Lords, with new companies employing in the order of 2,700 armed guards to meet the surge in demand, costing the international shipping community over $1 billion a year, does my noble friend agree with the analysis that the current downturn in piracy is temporary and that it will in time re-emerge from the Somali clans unless irreversible progress is achieved in stability, security and the rule of law? In that regard, what progress has been made since last year’s Somalia conference in London?

Baroness Warsi: I can inform my noble friend that I have just come from a meeting. The president of Somalia is in the United Kingdom, having discussions about progress that has been made since the Somalia conference. My noble friend will be aware, too, that a follow-up conference has been planned for later on this year. I have the statistics somewhere in this great brief, but I can inform noble Lords that numbers of successful piracy attempts in that region have gone down dramatically. My noble friend is right that, ultimately, we need to keep working to keep those numbers down rather than providing security.

Lord Boyce: Could the Minister tell the House whether she feels that an increase in armed guards on board merchant vessels transiting that area has significantly improved security and, as a result, we see far less hostage taking so that lives are saved?

Baroness Warsi: I can inform the noble and gallant Lord that no vessel has been successfully pirated when it has had security on board.

Lord Anderson of Swansea: Could the Minister answer the specific question raised by my noble friend in respect of floating armouries, which is approved by the Security Association for the Maritime Industry? By having these arms on board ships outside territorial waters, they will avoid the need to go into port, with the obvious legal and bureaucratic problems that might arise. When will the Government come to a decision in respect of floating armouries?

Baroness Warsi: The noble Lord refers to the issue of floating armouries. Noble Lords may not all be aware that these are, effectively, vessels that sit outside of immediate country waters with a view to providing a place where armed items can be transferred and reused. We are currently consulting across Whitehall as to the best way in which to operate. The noble Lord will be aware that Sri Lanka has a specific example, whereby a ship which is used as a floating armoury lies just outside their territory. I am sure that he and other noble Lords will agree that to have such a vessel also increases concerns about what may happen if it is taken over.

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Lord Naseby: Is not the reality that the NATO navies cannot cope on their own? The reduction now has come about because of a combined effort from the navies of NATO plus the private sector. Therefore, are the Government not right in the way in which they have approached this, working with the private sector and the merchant marines? It is not the first time that that has happened—and godspeed to those who work together to ensure that this scourge on that part of the world is brought to an end.

Baroness Warsi: My noble friend makes an important point. I add that it is also important that we work in the region to make sure that these pirates are captured, properly prosecuted and subsequently sentenced. That would send out a strong method that there is not a culture of impunity in this matter.

Lord Elystan-Morgan: On that note, my Lords, will the Minister tell the House whether the combined effect of the Merchant Shipping and Maritime Security Act 1997 and the United Nations Convention on the Law of the Sea of 1982, which is incorporated in statute, means that piracy in any sea in the whole world can be brought before the courts of this land and such persons prosecuted? Will she say whether there is any intention, in respect of the pirating of any British-registered vessel, for any such case to be brought into the courts of the United Kingdom?

Baroness Warsi: The noble Lord is right; universal jurisdiction applies in these matters and, in fact, these matters can be tried anywhere in the world. However, we firmly believe, as of course the region also believes, that it is right that those people are captured, prosecuted, tried, convicted and detained in the region in which they are found.

Housing: Rural Areas


2.45 pm

Asked by Lord Knight of Weymouth

To ask Her Majesty’s Government how many affordable homes have been built in rural areas since 2010; and how many more are expected to be built in rural areas in the next two years.

The Parliamentary Under-Secretary of State, Department for Communities and Local Government (Baroness Hanham): My Lords, from April 2010 to September 2012, 7,519 affordable homes were built in rural communities of fewer than 3,000 people through the Homes and Communities Agency’s Affordable Homes Programme. We expect rural delivery in the next two years to account for nearly 10% of anticipated completions of the programme outside London.

Lord Knight of Weymouth: My Lords, I thank the Minister for her reply. Her figures do not compare well to the estimated rural housing need of at least 11,000 additional units per year. Housing affordability remains an urgent problem for the rural working poor,

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and this problem is getting worse, not better. Will the noble Baroness please tell us what the Government will do to protect the rural low-paid against the combined effect of housing benefit changes such as the bedroom tax, underfunded councils in rural areas cutting council tax benefit, and, if the Government go ahead and abolish the Agricultural Wages Board, farm workers in tied houses losing their protection on rents?

Baroness Hanham: My Lords, the question was about rural housing, but it seems to have spread a little wider than that. We recognise that affordable housing in the countryside is a problem. We are very clear that rural areas and the people in them require affordable housing, and that affordable housing should take into account welfare benefits as well as the other aspects raised.

Baroness Maddock: My Lords, is my noble friend aware that Northumberland, notwithstanding budgetary difficulties, has announced this week £20 million worth of building and £20 million worth of land for houses over the next three years? Is she further aware that it has taken the opportunity to use new powers, with the reorganisation of council benefit, to not allow any discount on second homes and empty homes?

Baroness Hanham: My Lords, I am delighted to hear what the noble Baroness has to say because we sometimes hear that nothing is happening in the north, while it is clear that it is, because we have had other examples in this House over the past few weeks. That, therefore, is extremely good news, and I am glad that Northumberland is making use of legislation, as it can, to best effect.

Lord Campbell-Savours: What is happening over affordable housing on the green belt?

Baroness Hanham: My Lords, we have made it clear, in the National Planning Policy Framework, that the green belt is virtually sacrosanct, but we recognise that occasionally green belt land needs to be used for affordable housing, although that will need to be replaced. Some green belt land, as the noble Lord knows, is not absolutely brilliant land, so where you can use that rather than going into real open space, it should be used. However, we need affordable housing, and we recognise that.

The Lord Bishop of Bath and Wells: My Lords, the dearth of affordable social housing in rural communities impacts upon the mental, physical and spiritual health of such communities. Will the Minister agree that all new housing projects in rural areas should be mandated to include affordable housing?

Baroness Hanham: My Lords, we know that most affordable housing projects in rural areas tend to be small. Basically, they happen when the land or housing is protected for rural people. The projects may be small or larger, but they can be built under a number of systems; we know that there is shared ownership, social rent, affordable rent and intermediate rent, so there should be a reasonable spread across the country.

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Baroness Gardner of Parkes: What is the position regarding amenities such as a centre to help disabled people or handicapped children, which could be built in conjunction and is very necessary for some communities? The noble Baroness mentioned that communities will be able to put housing on green-belt land. Could that same permission be given for such adjuncts, which are an important part of any housing scheme?

Baroness Hanham: My Lords, that would be for local decision, if the local authority believed that that was an appropriate use of land. Indeed, such amenities could be included in the neighbourhood plan. The more of those we can get up and running, the better. These sorts of facilities which are vital, as the noble Baroness said, can be included in those plans. I readily accept that communities need and want these essential facilities.

Lord Whitty: My Lords, the Minister was a bit dismissive of the broadening of the Question put by my noble friend Lord Knight. However, does she not realise that in rural areas particularly, affordability is a question of income as well as of the availability of housing? This is particularly true in areas such as the south-west, where the ratio between house prices and incomes is at its worst. Therefore, will she address holistically the problem of affordable housing in areas such as the south-west by having a coherent regional housing policy which allows people to live in the villages in which they were born?

Baroness Hanham: My Lords, as I have said, it is important that people in rural areas are able to stay in rural areas. I hope that the Government’s policies will ensure that that happens.

Nuclear Research and Development


2.51 pm

Asked By Viscount Hanworth

To ask Her Majesty’s Government what steps they are taking to foster nuclear research and development in the United Kingdom.

The Parliamentary Under-Secretary of State, Department of Energy and Climate Change (Baroness Verma): My Lords, over the past year, the Government have been working with industry, academia and other key stakeholders on a programme to help maintain, co-ordinate and further develop the UK’s nuclear research and development capabilities. We will publish details and outcomes from this work alongside a wider nuclear industrial sector strategy in the near future. Alongside this work, we are also engaged in positive discussions with international partners about joining an international research reactor programme. We have made a number of investments through the Skills Funding Agency and the UK Commission for Employment and Skills in support of the nuclear skills agenda.

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Viscount Hanworth: I thank the Minister for that Answer. She will have observed how closely the nuclear research agenda of the European Union is aligned with the interests of France’s nuclear industry. Does she not agree that it would be timely and appropriate to establish a British directorate of nuclear research to guide and co-ordinate our research efforts? Does she not also recognise the virtue of providing guaranteed long-term funding for research directly to our own National Nuclear Laboratory?

Baroness Verma: My Lords, the noble Viscount raises a number of key points. The UK is working very positively with its international partners and its partners in the EU. Alongside what I have already mentioned to the noble Viscount is our forthcoming strategy, which we are working on and will incorporate a number of streams, one of which will be a comprehensive landscape review of all our R&D activities. I am sure that when the noble Viscount sees that, he will be reassured that the UK is one of the leading hubs of nuclear research and development.

Lord Jenkin of Roding: Will my noble friend accept my congratulations to the Secretary of State on his appointment of Dr Paul Howarth to the national nuclear council, because that seems to me an admirable demonstration of the importance which the Government attach to nuclear research? Dr Howarth is, of course, the managing director of the National Nuclear Laboratory. I take this opportunity to wish him well.

Baroness Verma: I will, of course, pass on my noble friend’s congratulations to the Secretary of State and to all at the National Nuclear Laboratory.

Lord Hunt of Chesterton: My Lords, would the Minister like to comment on how Her Majesty’s Government are supporting collaborative research with Japan? The UK is already working on research with Japan, following Fukushima. The Japanese have the largest computing facilities in the world and it is particularly important to maintain our collaboration with Japan.

Baroness Verma: The noble Lord is absolutely right. He will be aware that our own Dr Mike Weightman was very involved in the work going on after Fukushima. We remain closely involved with Japan’s nuclear work. I think that we meet about twice a year bilaterally, but we are always talking with Japan in international forums.

Lord Patel: My Lords, is the Minister aware that the UK currently ranks 15th out of 16 in its spend on nuclear fission research, spending one-tenth of what Belgium does and half of what Finland spends? What should the UK spend?

Baroness Verma: My Lords, the noble Lord would draw me into providing a figure but I am not prepared to do so at this stage. However, we take our research and development very seriously and we are investing an awful lot of money in research and development, but it is also about the quality of research, not just the quantity of money being spent.

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Lord Avebury: When do the Government expect to see the report from the Nuclear Decommissioning Authority on the disposal of the stocks of 100 tonnes of plutonium? Are the Government moving away from their formerly preferred solution of using this plutonium to create MOX fuel, bearing in mind that there are no customers on the horizon for that form of nuclear energy?

Baroness Verma: My Lords, I am aware of my noble friend’s interest in other forms of disposal of civil plutonium. I can reassure him that, while we still prefer MOX, we are considering proposals from GE Hitachi and Candu to determine whether their approaches need further consideration as credible alternatives for managing the UK stockpile of plutonium.

Lord Foulkes of Cumnock: On a wider matter, with the refusal by Cumbria council to agree to the underground disposal of nuclear waste and the withdrawal of Centrica from the new nuclear programme, is the Government’s nuclear energy programme not in some disarray?

Baroness Verma: My Lords, the two issues are completely separate. Centrica’s withdrawal has nothing to do with confidence in nuclear; its priorities are currently different. Cumbria County Council’s decision is, of course, disappointing but we welcome the very positive votes from the borough councillors of Copeland and Allerdale, which show that there are places that are willing to go on to the next phase. It is not an indicator that nuclear is dead: it is an indicator that much more thought needs to be put into the process of how we go forward.

The Lord Bishop of Hereford: My Lords, is the Minister aware of the All-Party Parliamentary Group on Thorium Energy’s meeting, only about 10 days ago, with academics, people from industry and national nuclear laboratories? Encouragement was given at the meeting to using thorium for mixed fuels with uranium, which has the long term potential to allow nuclear waste to be used as an asset and a fuel and not just a liability.

Baroness Verma: My Lords, the right reverend Prelate is right to raise the work done on thorium. We maintain an interest in the global potential of thorium and have, for the longer term, commissioned a wider analysis of nuclear fuel cycle scenarios which are open to the UK, among which is the reactor design fuelled by molten thorium salts. However, previous studies show that there are still significant risks to resources to develop thorium fuel to commercial deployment. In these difficult economic times, we need to concentrate on potential technologies that compete for the same investment but may have a sounder outcome than thorium currently does.

Baroness Smith of Basildon: My Lords, I listened carefully to the Minister’s answers to the previous two questions and I think she may have missed the point made by my noble friend Lord Foulkes. Centrica has withdrawn from the UK nuclear programme—the third

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company to do so, as E.ON and RWE have also pulled out. It is all very well for the noble Baroness to say, on the issue of thorium, that we should deal with more immediate problems, but if three companies have pulled out of the UK’s nuclear programme, what is the Government’s plan B to ensure we keep the lights on?

Baroness Verma: My Lords, the noble Baroness perhaps missed the first part of my response, in which I stated that the two questions posed by the noble Lord, Lord Foulkes, were two separate issues. Coming back to Centrica’s withdrawal, it has not withdrawn because it has no confidence in new nuclear but because of its own commercial priorities. However, significant progress is being made, and the noble Baroness will be aware that, in the last quarter of last year alone, the sale of Horizon to Hitachi and the granting of the first nuclear site in 25 years at Hinckley Point C happened. I would not be as pessimistic as the noble Baroness is being about nuclear, which is of course part of our low-carbon energy mix but not the only part.

EU: Legislation


3 pm

Asked By Lord Dykes

To ask Her Majesty’s Government what derogations and opt-outs from European Union legislation they are seeking in negotiations with European Union partners.

The Senior Minister of State, Department for Communities and Local Government & Foreign and Commonwealth Office (Baroness Warsi): My Lords, the Government always seek outcomes that are in the national interest when negotiating with other European Union member states. We work with a range of countries and our priorities include protecting the integrity of the single market and allowing fair competition for all members of the EU.

Lord Dykes: I thank the noble Baroness for that Answer. The Government are rightly very keen indeed on the single market, which is not just a free trade area but much more. The strong apparatus of support and protection that the single market affords to all member states means, effectively, that you have to stay in the EU as well. Is it not therefore important for the Government to avoid needless opt-outs of a chauvinistic or nationalistic nature?

Baroness Warsi: My Lords, I am always impressed with the ever-increasing appetite for discussing Europe in this House. Many of these matters were raised in the debate that took place on Thursday of last week. Nobody in this House would argue that every time the United Kingdom goes to the European Union we should not always act in our national interest and make sure that we are continually putting a case forward that means that the European Union is improved but, within that, we also get a good deal.

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Lord Harris of Haringey: My Lords, there has been much speculation about the Government wanting to withdraw from arrangements such as the European arrest warrant and other collaboration on criminal justice matters. What representations have been received by policing bodies about the wisdom of such a course of action and what representations have been received from victims’ organisations which may not get justice for the victims they represent?

Baroness Warsi: I am not aware of what specific representation has been received in relation to that matter, but I will make sure that I write to the noble Lord and give him a full answer.

Lord Kakkar: My Lords, I declare my interests as professor of surgery at UCL and a member of the General Medical Council. Despite assurances given at the time of its introduction that the imposition of the working-time regulation on junior doctors’ rotas would improve patient safety, we learnt last week from the president of the Royal College of Surgeons that the regulation has actually undermined the training of future generations of hospital consultants. Recently at least two coroners’ verdicts have cited the regulation as part of their narratives. What progress have Her Majesty’s Government made in the negotiations on this issue that were started in early 2011 by the then Health Secretary and the Business Secretary?

Baroness Warsi: It is exactly because of specific issues such as this that we believe improvements can be made and that we can negotiate with Europe on a way forward that is in our best interests and works clearly in terms of, for example, our hospitals—the example given by the noble Lord. It is for that reason that the Prime Minister has laid out that certainly in the next Conservative manifesto there will be a clear provision for us to go to Europe, to negotiate and to get that better deal.

Lord Forsyth of Drumlean: My Lords, further to the Question of my noble friend Lord Dykes, would it not be better if, instead of having a list of things that we want to opt out of, we start with a list of things that we want to opt into?

Baroness Warsi: We should simply start with a single premise that we should work on what is in our national interest—whether that is opting in or opting out—but we must start that process, make sure that we fight hard for what is right for this country and make sure that, after having negotiated that outcome, we go to the people of this country and ask them to buy into it.

Lord Triesman: My Lords, there is an enthusiasm for this issue in the House and I share it. During the debate last week the Minister and several other noble Lords said that they did not believe that these uncertainties would have any impact on inward investment. Last week—I repeat the declaration of interest I made at that time—I saw for the first time in a “due diligence” questionnaire from a potential inward investor questions about mitigating risk as a result of this whole episode. Can the Minister, whether on behalf of the Prime

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Minister or in her own right, say just what the red lines and issues are so that inward investors at this stage know what they are dealing with and which kind of country they are coming to?

Baroness Warsi: This is a very important relationship within the European Union. It is not the kind of thing that can be negotiated overnight. It is right, therefore, that the balance of competences review, which will take place between now and the end of 2014, starts to lay out and consult on those areas on which negotiations can be had. It is right that, if the Conservative Party were to win the next election, we would implement what we will put in our manifesto. We will go to Europe, negotiate and, thereafter, put that matter to the public of this country.

I understand what the noble Lord says about creating uncertainty. However, I am sure he will agree with me that the Europe debate is far and wide in this country. The concept that the British people are happy with the relationship that we have right now with the European Union is false. Therefore, any inward investor knows that this is a debate that is to be had in this country and, more than that, it is important that the people of this country buy into that relationship.

Lord Pearson of Rannoch: My Lords, has the time not come for Her Majesty’s Government to suggest to our European partners that we should all take back full national and monetary independence, that we should all help each other as appropriate and that Brussels should be closed down? If the Minister does not agree with me—I suppose that there is a chance that she may not—can she tell your Lordships what the European Union is now for? What useful things does it do which could not be done better and more cheaply by collaborating democratic governments?

Baroness Warsi: I congratulate the noble Lord on being consistent and predictable. I am sure that he will get the answer that I always give him. There are great benefits of our membership of the European Union, both in terms of jobs in relation to inward investment and, of course, the strong collective voice which the European Union provides us in relation to free trade agreements, sanctions and international action.

Public Bodies (Abolition of the Disability Living Allowance Advisory Board) Order 2013

Motion to Approve

3.07 pm

Moved By Baroness Stowell of Beeston

That the draft order laid before the House on 15 October 2012 be approved.

Relevant documents: 12th and 15th Reports from the Secondary Legislation Scrutiny Committee, 8th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 29 January

Motion agreed.

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Legislative Reform (Hallmarking) Order 2013

Motion to Approve

3.07 pm

Moved By Viscount Younger of Leckie

That the draft order laid before the House on 26 November 2012 be approved.

Relevant document: 10th Report from the Delegated Powers and Regulatory Reform Committee, considered in Grand Committee on 29 January

Motion agreed.

Mental Health (Discrimination) (No. 2) Bill

Order of Commitment Discharged

3.07 pm

Moved By Lord Stevenson of Coddenham

That the order of commitment be discharged.

Lord Stevenson of Coddenham: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated the wish to move a manuscript amendment or to speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged.

Motion agreed.

Growth and Infrastructure Bill

11th Report from the Delegated Powers Committee10th Report from the Constitution Committee

Committee (4th Day)

3.08 pm

Relevant documents: 11th Report from the Delegated Powers Committee, 10th Report from the Constitution Committee

Amendment 71C had been withdrawn from the Marshalled List.

Clauses 16 to 19 agreed.

Clause 20 : Variation and replacement of pre-Planning Act 2008 consents

Amendment 71D

Moved by Lord Ahmad of Wimbledon

71D: Clause 20, page 21, line 27, leave out from beginning to end of line 39 and insert—

“(3) If the original consent, or a section 33 consent that replaces it, is varied or replaced, section 31 does not apply to the development to which the consent as varied, or the replacement consent, relates (and so development consent is not required for that development).”

Lord Ahmad of Wimbledon: My Lords, I am afraid that this is a somewhat technical amendment, but I will do my best to explain what is intended in concise and accessible language. Clause 20 is about enabling projects that were authorised under the various major infrastructure consent regimes that preceded the Planning

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Act 2008 to go ahead without also requiring authorisation under the Planning Act in the form of a development consent order. It deals with cases where a developer’s plans for a project have changed and they need to have the original consent varied or replaced to take account of that change. We want to make it absolutely clear that in such a case, the variation or replacement of the original consent—for example, planning permission under the Town and Country Planning Act 1990—is all that is needed. The developer will not need to start again from scratch and apply for a development consent order under the Planning Act 2008 if they already have a validly varied or replaced consent under the relevant pre-Planning Act regime.

The reason for making the amendment is that new Section 237A, which Clause 20 would insert into the Planning Act, would still potentially leave projects authorised under pre-Planning Act legislation having to apply in some cases for a development consent order under the Planning Act. For example, the new section would not remove the need for a development consent order in a situation where a project had been built and it was necessary to make changes to the conditions of its original planning permission relating to operational matters. This seems wrong. As an additional benefit, the amendment also simplifies the drafting of new Section 237A of the Planning Act. I beg to move.

Lord Adonis: My Lords, the Minister’s explanation of the amendment was entirely persuasive, and we are content.

Amendment 71D agreed.

Clause 20, as amended, agreed.

Clause 21 : Removal of Planning Act 2008 consent and certification requirements

Amendment 72

Moved by Lord Berkeley

72: Clause 21, page 22, line 35, at end insert—

“(4A) In section 150(1) (removal of consent requirements), for the words “consented to the inclusion of the provision” substitute “been consulted by the applicant about the inclusion of the provision”.”

Lord Berkeley: My Lords, I shall speak also to Amendments 75ZA and 75ZAA in this group. I shall not speak to Amendment 75, which probably should not be there because it has been superseded. As an introduction to these amendments, I will say that Amendments 72 and 75ZAA have the support of the British Property Federation, the Confederation of British Industry, the National Infrastructure Planning Association and the Royal Town Planning Institute—so noble Lords will see where I am coming from. I am grateful to the Minister for the meeting we had a week or two ago to discuss all these amendments. It was extremely helpful. I hope that we have made progress and will continue to do so.

All the amendments that I am speaking to are attempts to learn from the experience of the Planning Act 2008 and to take account of how the process has changed with the introduction of the changes

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made by this Government. I hope that many of the suggestions will be useful in trying to streamline and simplify the regime in order to reduce the delay, cost, uncertainty and risk in delivering some of these big projects. After all these years, and having tried hard to simplify things—both Governments of the past 10 years have tried to do that—there is still a long way to go. Steven Norris, the chairman of the National Infrastructure Planning Association, recently wrote in the



“A modern economy needs a planning system that doesn’t smother democracy, but makes reasoned decisions in a reasonable timescale”.

3.15 pm

He then quotes the painful lessons of HS2, which we have talked about many times in this House. There is still some way to go on this. At the other end of the spectrum it is interesting that Sir Michael Pitt has gone public on what he calls the intimidating amount of paper that applicants are sending to the Infrastructure Planning Commission. New Civil Engineer of 31 January this year says that EDF, the new nuclear company about which we were talking in Question Time, submitted a 36,000-page environmental impact assessment as part of its planning application. IPC people are human like everybody else. Sir Michael is right; it is ridiculous to expect anybody to look at things that long.

Some of the amendments to which I will be speaking this afternoon suggest ways of simplifying and speeding things up. The last amendment in my name and that of the noble Lord, Lord Jenkin of Roding, is very long because it all goes in one place, so we have agreed that we will split up the initial introduction, so that noble Lords do not hear either of us for too long. I hope that the Committee will find that helpful but of course we can intervene later if we want to.

Amendment 72 refers to the fact the Planning Act regime was supposed to give a one-stop shop for major projects. The problem is that there is still a large number of prescribed consents that may be disapplied only by a development consent order with the permission of the body that would otherwise be responsible for granting that consent. If that body’s permission cannot be obtained, one has to go for separate consents, which add to the time and cost of the application.

Sir Michael Pitt, who is chief executive of the Planning Inspectorate, said only two weeks ago at a conference that 40% of the required consents were outside the DCO regime. This is a very high percentage, as I think that the Committee will agree. This amendment removes the requirement in Section 150 to obtain a consenting body’s permission and replace it with an obligation to consult that body in any case where the promoter intends to include in the draft DCO a provision disapplying a consent for which that body is responsible. This would mean a case-by-case approach, and if the consenting body had concerns about the disapplication, it could object. This would be an interesting and useful way of simplifying the process for those bodies that are happy to do it. I hope that that is a sufficient introduction to this amendment.

Amendment 75ZA is not supported by the organisations that I mentioned earlier. This is not because they oppose it; they have not been asked to support it.

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I thought it might be useful to raise this issue, and it comes in this group. It comes out of a discussion that a number of colleagues have recently had about the increase in heavy goods vehicle movements to major construction sites. In so far as this affects rail, I declare an interest as chairman of the Rail Freight Group. It also affects water. If you look big projects that have been built and that are being planned at the moment, some have done extremely well in reducing the amount of road traffic to and from the sites, and some have done pretty badly. The construction of terminal 5 was probably the best in terms of non-road movements; it had several consolidation centres away from the site and brought everything in by rail. The Olympics at Stratford were not bad: a lot of material went by rail and some of it went by water. The Thames tideway tunnel, which your Lordships have debated at some length and no doubt will debate again, started off by driving away by road all the spoil from the excavation of that enormous tunnel wherever the sites on the Thames were. That was about 500 trucks a day. When I suggested that it should be sent by water, I was told that the river was too congested. However, if you look outside today, you are lucky to see a ship going past every few minutes. There is more to it, sadly, because with some of the big developments that are now taking place, usually on the south bank of the Thames, a lot of work could be done to take the spoil away by river, with short road or conveyor-belt journeys if necessary.

Looking at a different project, and back on nuclear I am afraid, Sizewell is one of those which look likely to go ahead with EDF. The latest rough calculation of the number of trucks required to go in and out of that site every day is about 300. As some noble Lords will know, the roads around Sizewell are not very good for that number. In addition, if the promoter, EDF, was able instead to send more of the goods by water, sea and rail, it could also bring some of the workers in by rail by improving the railway lines. There are benefits there as well. The suggestion is to require those who are applying to those granting development consent to include in their applications a report on the feasibility of using water and rail transport. It may not always be possible, but it will at least make people think about it. I shall be interested to hear what the Minister has to say in his reply when we get there.

I will speak to the first few provisions of the last amendment in this group, Amendment 75ZAA. The new subsection (2) proposed in the amendment would insert new subsections into Section 4 of the Planning Act 2008 on fees. There is a bit of a problem over how the infrastructure planning commission calculates its fees. It is worrying for those who are making an application because if they do not pay the fees, they will not make any progress with their applications. You either pay it if you want this, or you do not pay it. The real problem here is that the fees are set out in the Infrastructure Planning (Fees) Regulations 2010, which provide that PINS may charge for each day in which the examining authority examines the application,

“in the period beginning with the start day … and ending with the completion of the examination”.

The problem is whether it charges five days a week from when it starts to when it finishes or charges only for

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the actual days worked by the examining authority, not by all the staff underneath, but just the examining authority. It makes quite a lot of difference to the fees. I do not know what the solution is, but there have been examples when one examining authority has been known to be examining two applications at the same time. If you are charging for what you are doing on a daily rate, that does not seem quite right. We have had discussions with the noble Baroness, and I know that this is something that the Government are looking at. However, it needs some pretty detailed investigation so that applicants know what they are going to be up to and have some confidence that the examining authority has been able to demonstrate that the money that has been spent, and the hours and days worked, are on their project.

The last part of the amendment concerns national policy statements. I am afraid that the amendment responds to the Department for Transport’s failure to bring forward the National Networks NPS, which is supposed to cover railways, the strategic road network and strategic rail freight interchanges. I am not going to go into why these are necessary. Given that the cost of applications for these facilities can go into tens of millions of pounds or more, the more comfort that these companies can have—especially when they are private sector companies—the better.

The NPS was first promised to be published for consultation in October 2009. That is over three years ago. It has been repeatedly delayed and it is not thought to be coming any time soon. In fact, at some stage applicants have been told that they may never see it. At a recent Enterprise Forum event, the Secretary of State for Transport said that an NPS covering roads and rail is “far from imminent”. I am not sure how many years “far from imminent” is in government-speak, but it is years not months, as the Department for Transport prefers to concentrate on specific projects. I find this depressing and discouraging. If the department is going to go back to its old ways of 10 or 20 years ago of keeping roads in one box and railways in another and then saying, “Oh dear, they don’t meet in the middle”, it is a step backwards. I hope when he responds the Minister can give us some comfort that I have got it all wrong and it is actually going to happen very quickly so we can all be excited and welcome it. I will leave the noble Lord, Lord Jenkin, to carry on. I beg to move.

Lord Jenkin of Roding: My Lords, I will start by putting all this in context for the House. We are addressing the need for national infrastructure. This is now widely accepted. It is not sufficient to talk about it and to produce lists of things that could be done. One has got to get ahead with it. Much of the Bill—and I welcome this—is clearly directed to that end; to try to remove some of the barriers, speed up the timetables, reduce the bureaucracy that has been involved, and in every way help those who are contemplating substantial infrastructure investment to achieve their objectives, of course while protecting important environmental and other interests. The CBI wrote in response to these questions that:

“Infrastructure investment is critical for boosting the economic performance of the UK and it is important that the right conditions are set to encourage the private sector to bring forward projects to boost growth. Infrastructure UK has identified a pipeline of

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more than 550 projects requiring more than £330 billion of investment by 2015 and beyond, with over 85% of this coming from private sector sources. At the same time significant investment is needed in other forms of commercial and residential property to boost business productivity and ensure an adequate supply of housing”.

I quote those figures to demonstrate just how enormous is the task that faces this country in trying to catch up with what under successive Governments has been a neglect of infrastructure investment in keeping our essential infrastructure up to date.

3.30 pm

Perhaps I may follow the noble Lord, Lord Berkeley, in saying a word about consents given by other bodies. This has become a major obstacle, and I have tabled other amendments to deal with this when it is a matter of local planning authorities. Here we are discussing the system that was set up by the Planning Act 2008, which was originally the Infrastructure Planning Commission and now is part of the Planning Inspectorate. Sir Michael Pitt and his colleagues deserve our very warm thanks for the readiness with which they switched the commission’s role from being an independent agency, with the power to make decisions, to becoming part of the inspectorate, with the decisions having to be made by Ministers. The democratic legitimacy of that was very obvious but they accepted it without question and are working extremely hard in developing that.

Turning to the consents that are required, to which the noble Lord, Lord Berkeley, referred, guidance has been issued recently to those wanting development consent orders—DCOs—and a section on who should be consulted, titled “Statutory bodies and other relevant groups”, sets out a stronger onus on the consulting bodies to consider including consents in the DCO. Again, I quote:

“Where an applicant proposes to include non-planning consents within their Development Consent Order, the bodies that would normally be responsible for granting these consents should make every effort to facilitate this. They should only object to the inclusion of such non-planning consents with good reason, and after careful consideration of reasonable alternatives. It is therefore important that such bodies are consulted at an early stage”.

It sounds like common sense, but actually it has not been happening. The objective of a one-stop shop has proved extraordinarily difficult to achieve in reality. Some of the amendments in this group are intended to try to help this forward.

The noble Lord has referred to the payment of fees, and to national policy statements. I have one question for my noble friend: as the Government become keener on the development of shale gas, is it not now apparent that we are going to need a national policy statement for shale gas? A large number of different government departments are going to be involved if that industry is to move from the exploratory to the development phase, which is clearly envisaged by the Chancellor of the Exchequer in his Autumn Statement.

Other national policy statements have been very successful; the noble Lord, Lord Berkeley, mentioned some of them. On the whole, the national policy statement for nuclear is standing the test of time, but I share the anxiety about the sheer volume of paper that EDF had to submit for its development at Hinkley

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Point. It is a large, powerful company with a lot of expertise but I heard that it had to submit 45,000 pages—there must be ways of dealing with that.

One way of dealing with that could be to improve the pre-application process. There is a strict timetable once the application has been lodged with the Planning Inspectorate. The target is that an applicant should get a decision within 12 months. But it is in the pre-application stage that applicants are expected to consult very widely with a range of interests. Of course, with a big project such as Hinkley Point, this is of enormous importance. From my knowledge of the case, it has been conducted extremely thoroughly by EDF and its contractor Arriva, but it can drag on and on. Amendment 75ZAA suggests that there should be some oversight of the pre-application stage. The Planning Inspectorate—which is always knows as PINS—should be involved in that, to help and advise both the applicant and the consulted bodies and individuals on the best way of doing this, and to set a reasonable timetable of how it might be achieved. So far this has not happened. There may be some informal contacts, but what is looked for here is a legislative imprimatur for such a process, to keep the pre-application stage under control. I hope the Government will be prepared to consider this.

We debated the question of the national planning statements at great length during the passing of the Planning Act 2008. I always hoped that there would be national planning statements for all the main categories of major investment. I have to say to my noble friends on the Front Bench that it is disappointing that this has not happened so far, but I will not repeat the statement of the noble Lord, Lord Berkeley.

I can perhaps cover the other proposed new subsections more briefly. If we could achieve the pre-application programme management and oversight mentioned, there would be a shorter period and lower costs. Applications would not be over-egged or gold-plated, as I think happened with the Hinkley Point application and have been told also happened with others. It would improve the process of engagement by local authorities and other statutory consultees, and reduce the risk of applications having to be withdrawn or being long drawn out during subsequent stages. All this would help make the whole process more efficient.

Finally, there is the question of waivers. There should be a procedure whereby the Secretary of State may recognise that some of the processes or requirements are irrelevant to a particular application by an applicant, and can be waived. The applicant would then not have to go through the process of submitting documents and evidence for matters which are really quite irrelevant. It is perhaps strange that such a procedure does not exist already, but this amendment includes such a requirement. People have to put all sorts of things into application documents: a land plan, a works plan, an access plan, an ecological plan, a heritage plan and a Crown land plan, separately or in combination. However, the fact is that an application may already contain a full environmental statement covering all these matters; does this really have to be duplicated? It seems to me that in this case the system could again be improved. It has been a good system, and it has been widely admired and taken up. When I looked at the website over the

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weekend there were 101 applications currently under consideration by PINS using the new procedure, and there will be many more. However, it needs to be improved and speeded up, and this is an opportunity for us to do that. I hope Ministers will respond positively to some of these issues.

Lord Snape: I support the amendments so ably spoken to by my noble friend Lord Berkeley and supported by the noble Lord, Lord Jenkin. When the previous Government introduced what they said was a national planning agreement in 2008, many of us said, “About time, too”. The problem with major projects in this country is the length of time that they take. Any way of shortening that time taken, without withdrawing people’s democratic right to make proper objections, is to be welcomed. When the 2008 Act was passed, one of my perhaps more cynical colleagues said, “It’ll never happen”. Once you try to shorten the procedures, you immediately deprive the legal profession, to name but one group, of the opportunity—how does one put this as kindly as possible?—to spin out the process for as long as possible. It was said to me at the time that that profession would ensure that.

We have only to look at the inordinate time that all major projects in this country take. In my time as a transport spokesperson in the other place, I spent some time attending the Terminal 5 inquiry. The amount of time wasted, where lawyer after lawyer and group after group restated virtually the same matters day after day, month after month and, in the case of that project, year after year, was, to say the least, expensive and inordinate. Anything that can be done within the democratic process to shorten that period is to be welcomed.

The noble Lord, Lord Jenkin, mentioned housing problems. I am sure that both sides of your Lordships’ House agree that it is very difficult to build anywhere in this country. All parties accept that there is a housing shortage, but circumventing that shortage is difficult under existing planning law.

On Amendment 75ZA, my noble friend Lord Berkeley spoke of the necessity of ensuring that construction materials for major projects are able to be transported using water and rail. Those of us who served four or five years ago on the Crossrail Bill were anxious to see proposals of this kind enacted for that project. We were anxious to see as much of the material for that enormous project taken in and out by rail and water. My noble friend mentioned various other projects; he did not mention Crossrail during his speech on the amendment. I am sure that he would agree with me that that is an area where the scope for restricting the number of heavy goods vehicles, particularly coming in and out of London, would be covered if the amendment was adopted.

I do not wish to sound any sort of controversial note in concluding my comments in support of the amendments, but I am always struck by how quickly former Secretaries of State are converted to the idea that perhaps a little urgency should be injected into these matters once they have left office. That is not a criticism of the noble Lord, Lord Jenkin, who served as Secretary of State for the Environment, if my

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memory serves me right, for some years, but I suspect that it was that experience that leads him so enthusiastically to support the amendments standing in his name and that of my noble friend Lord Berkeley. I shall join him in that enthusiasm and refrain from any comment about wishing that he had behaved in the way envisaged in the amendments when he had had the opportunity to do so during his own distinguished career.

I hope that the Minister will look kindly on these amendments and agree with me and the other two speakers who were in favour of them that they have a great deal to commend them.

3.45 pm

Lord Adonis: My Lords, I begin by echoing the tribute made by the noble Lord, Lord Jenkin, to Sir Michael Pitt, who is doing an excellent job of public service as chief executive of the Planning Inspectorate—and did so in his previous work at the Infrastructure Planning Commission. However, in the present economic downturn where businesses are under so much pressure, the Planning Inspectorate, like other parts of the public service, should seek to keep its costs and charges down to an absolute minimum. That is the first important issue raised in the amendments in the name of my noble friend Lord Berkeley and the noble Lord, Lord Jenkin.

The key issue in the first amendment in this group is to do with the basis on which PINS calculates fees for the processing of development consent order applications. The fees are set out in the Infrastructure Planning (Fees) Regulations 2010, which provides that PINS may charge for each day on which the examining authority examines the application in the period beginning with the start date and ending with the completion date of the examination. This provision has given rise to uncertainty as to whether PINS is entitled to charge a fee only for the actual days worked on the development consent order by the examining authority or for each day of the examination period, irrespective of the days on which the examining authority may have worked on the application.

PINS has adopted the second of these interpretations, which is hardly surprising because that gives it a larger income and of course it is under great pressure from the Government to maximise its private income so that it is less dependent on the department. However, it seems that any reasonable interpretation of the fees that should be paid by promoters would lead one to conclude that they should pay only for the actual days worked on the development consent order by the examining authority. This is not a minor matter. I talked about the issue with the National Infrastructure Planning Association, which told me that for larger projects fees run into hundreds of thousands of pounds and that even for smaller projects, were the interpretation that fees would be payable only for actual days worked by the examining authority rather than the entire examining authority period, savings to developers of £20,000 or £30,000 might not be uncommon.

My understanding is that the Government are sympathetic to the case that has been made in respect of fees. When the Bill was before the Commons, the Planning Minister said:

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“Although I would not want to fetter the Planning Inspectorate’s already constrained ability to charge fees for the valuable work that it does, I nevertheless take on board the concern about how such fees are charged. I have already had conversations with the Planning Inspectorate about how exactly it measures time and whether that time measurement relates to work done rather than just the clock ticking, and I will be sure to keep on the case.”—[Official Report, Commons, Growth and Infrastructure Bill Committee, 4/12/12; col. 437.]

How far has the planning Minister been on the case since the matter was raised in the Commons? Can the Minister here today give any further comfort to developers that the fees charged to them by the Planning Inspectorate will be done on what appears to be a defensible basis, namely the days actually spent by planning inspectors in working on the DCO applications rather than, as I say, the entire period that they are before the examining authority?

The second issue raised by my noble friend is about consents that cannot be disapplied by a development consent order without the consent of the relevant body. My noble friend cited Sir Michael Pitt who said recently that 40% of the required consents were outside the development consent order regime, even though—as the noble Lord, Lord Jenkin, said—the Planning Act regime was intended to be a unified authorisation process and therefore a one-stop shop for the construction of major infrastructure. The issue here is whether to do as my noble friend and the noble Lord, Lord Jenkin, wish—that is, remove the requirement to obtain the consent of bodies such as the Environment Agency and Natural England in respect of their permissions and replace that simply with a right for them to be consulted—would lose essential safeguards for essential interests. I look forward to hearing what the Minister has to say about that issue because it seems to be the fundamental point at stake. My understanding is that a new consent service is being set up by the Planning Inspectorate which should help in this respect and that recently reissued guidance to promoters about development consent orders sets out a stronger onus on consenting bodies to consider including consents in the development consent order regime. I look forward to hearing from the Minister whether he thinks that is likely to be effective in meeting the concerns raised by my noble friend and the noble Lord, Lord Jenkin.

The third key issue raised by these amendments relates to the pre-application programme management system and the oversight by PINS. The proposition is that the PINS examining inspectors should perform a programme management or case oversight role, probably holding public hearings with the key parties to check on progress made and the next steps.

I know that PINS already does good work at the pre-application stage to help promoters. However, I simply report to the House that the CBI, the Royal Town Planning Institute and the National Infrastructure Planning Association all report that the support given by PINS is not sufficient at the pre-application stage. They cite a whole string of cases, with which I will not take the time of the House now, which appear to substantiate that point. Providing a greater degree of oversight by PINS could help to ensure greater success for the DCO regime.

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I look forward to hearing the Minister’s response to the concerns raised by the CBI and others in this respect because, if this is a blockage, it is completely within the control of the Government, since, of course, the Planning Inspectorate is a government agency.

Lord Ahmad of Wimbledon: My Lords, I thank the noble Lord, Lord Berkeley, and my noble friend Lord Jenkin of Roding for tabling these amendments. In his introduction, the noble Lord, Lord Berkeley, apologised for the amount of detail as regards these amendments. I join him in that apology: I apologise in advance for the length of my response. However, unlike the noble Lord, Lord Berkeley, who had the benefit of riding tandem, while I have benefited greatly from riding tandem on this Bill with the noble Baroness, on this occasion I seek the Committee’s indulgence because my response to these amendments is very much a solo cycle. I also join my noble friend Lord Jenkin and the noble Lord, Lord Adonis, in paying tribute to the work of Sir Michael Pitt in this respect.

As has been said, the amendments address a number of important issues in relation to reform of the major infrastructure planning regime. The importance of this was well expressed by my noble friend Lord Jenkin of Roding. For the purposes of the Committee, I will address each amendment in turn. I recognise the intentions behind Amendment 72, which addresses the “one stop” element for major infrastructures. This amendment would mean that the Planning Inspectorate was likely to be required to deal with a much wider range of issues than it current deals with—issues which require detailed technical or specialist knowledge or relate to sensitive issues such as nuclear safety.

At present this expertise is held by a small number of departments and government agencies. It perhaps would be wasteful to replicate this wide range of expertise within the Planning Inspectorate, particularly on issues as sensitive and highly technical as, for example, nuclear safety. In addition, many of these consents require ongoing compliance activities and periodic review based on the results of the compliance work, and it would be undesirable to separate the permitting and compliance activities into different organisations.

That said, the Government certainly are sensitive to concerns about the challenge for developers, as was raised by the noble Lord, Lord Berkeley, of effectively co-ordinating various application processes for a range of consents across a range of departments and government agencies, and are taking forward a range of actions to address this concern. Clause 21 and parts of Clause 22 remove the need for the five separate certificates or consents currently required and allow them to be dealt with under the single development consent order, a change which has been widely and strongly welcomed.

I am pleased to report that we have also recently consulted on proposals to establish new arrangements to improve co-ordination and communication between the Planning Inspectorate, applicants and consenting bodies. The proposals are intended to make the consents process more efficient, while retaining the technical and legal expertise in consenting bodies such as the Environment Agency and Natural England.

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We think that this approach provides developers with the additional support and service that they are looking for without, most importantly, watering down the protections which currently exist. While we recognise the appetite from some developers for the Government to let all consents be dealt with by the Planning Inspectorate alone, other bodies have highlighted the important role that bodies such as the Environment Agency and Natural England play in ensuring that adequate environmental protections are delivered.

My noble friend Lord Jenkin also highlighted the recently updated guidance on pre-application. I welcome his positive comments in this regard, which, of course, make it clear that non-planning consents can be included within the development consent and that the bodies normally responsible for granting these consents should make every effort to facilitate this. They should only object to the inclusion of such a non-planning consent with good reason and after careful consideration of reasonable alternatives.

I turn to Amendment 75ZAA, which addresses four distinct and important issues in relation to the operation of the nationally significant infrastructure regime. I will seek to address each of the four issues raised in turn and hope that my comments will provide noble Lords with some reassurance.

I turn first to the issue of fees—this was raised by several noble Lords, including the noble Lord, Lord Adonis—addressed by proposed new subsection (1) of Amendment 75ZAA. This amendment would restrict the ability of the Secretary of State to set appropriate fees for applications for nationally significant infrastructure projects. The Planning Inspectorate’s fees are currently set out in regulations, which include provision for day-rate charges that depend on the make-up of the examining authority. There is a smaller charge for cases where a single inspector is the examining authority and larger charges for panels of inspectors. These fees are intended to cover the work of the Planning Inspectorate, which supports the examination, including staff working in case management, case administration, environmental services, legal services and other relevant costs of the inspectorate, including those incurred during the recommendation stage, for which no separate fee is charged. This amendment would narrow the ability of the Secretary of State to set appropriate fees to reflect the costs of the application. This would, in effect, mean that the taxpayer would have to further subsidise the service that the Planning Inspectorate provides for nationally significant infrastructure projects. I strongly support the “user pays” principle in relation to major infrastructure fees and see it as entirely appropriate that developers of nationally significant infrastructure pay a reasonable fee for their planning applications. I would not want to curtail the ability to charge reasonable fees.

However, the noble Lord, Lord Adonis, pointed to the comments of my honourable friend the Planning Minister in the other place—specifically on the issue of fees. The Government recognise that some developers are questioning the current wording of the infrastructure fees regulations. The noble Lord asked whether the Planning Minister was on the case; knowing the Planning Minister as I do, I know that he is definitely on the

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case, has opened the case, and has investigated it fully. I can therefore update the noble Lord with the news that the Government intend to bring forward a statutory instrument later in the spring to make this position absolutely clear and remove any possible doubt.

Lord Adonis: It is not entirely clear to me what “this position” meant in what the noble Lord just said. What does it mean? Is it that the charges will now only be in respect of actual days devoted to the examination of the cases?

Lord Ahmad of Wimbledon: As I mentioned earlier, we have already said that there are specific fees which are charged for specific projects, so if a single inspectorate is being asked to look at that, that will be clear in the fee structure. Similarly, if there is a bigger application where a range of inspectors are involved, that will also be transparent. I also highlighted the issue of the day rate, which I mentioned earlier in my speech. In effect, all we are doing is highlighting the issue of transparency, which was mentioned earlier. The statutory instrument will address that point: it will outline the Government’s policy clearly. Again, I refer the noble Lord to what I said earlier about day rates also being charged as part of this policy.

Lord Berkeley: I am grateful to the Minister for giving way, but I seek further clarification on that. Will this statutory instrument clarify whether an inspector can charge two separate applicants for a day rate on the same day? Obviously, it is right that the applicants should pay the cost, but it would be wrong if two were paying the same costs on the same day for the same inspector. Let us hope that the statutory instrument would cover that as well, because I think that would be equitable.

4 pm

Lord Ahmad of Wimbledon: I am sure that the noble Lord understands that I myself have yet to see the statutory instrument. I am sure that it will provide the clarity that he has requested. As it is published, it will be apparent to noble Lords, and I will take up the specific point that he has raised with my honourable friend.

The second part of Amendment 75ZAA addresses national policy statements. While I am afraid I will not be able to accept this amendment, I share noble Lords’ view that they are an important element of the nationally significant infrastructure regime. They provide the policy and decision-making frameworks for nationally significant infrastructure, giving certainty to developers by making clear the Government’s policy on different forms of infrastructure, helping to speed up the examination phase and guiding the decision-maker on the approach that should be taken on the main issues. Therefore, they remain central to the Government’s planning reforms, because they provide clarity of policy and predictability, as noble Lords have mentioned, for those wishing to invest in new infrastructure.

I assure noble Lords that there is no question of the Government moving away from their commitment to national policy statements as the bedrock of the nationally

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significant infrastructure regime. Thus far, the Government have designated the national policy statements on energy, ports, and waste water. We hope to designate the hazardous waste national policy statement in spring 2013.

As the noble Lord, Lord Berkeley, pointed out, the Department for Transport has currently put on hold the roads and rail national policy statement to concentrate on other priorities, specifically the roads strategy, which will be published later in spring, and to support the work of the independent airports commission, chaired by Sir Howard Davies. The Department for Communities and Local Government continues to work closely with colleagues in the Department for Transport to work towards roads and rail and aviation national policy statements in future.

I have been asked for a definition of “imminent”. I regret to say that my definition may not tie in with the noble Lord’s, and I hope that it is not envisaged in the way that he expressed. Nevertheless, I hope that I have underlined that the issue of national policy statements has been raised centrally. I am sure that our colleagues across government will follow the debate with keen interest.

The Government are also currently considering consultation responses on the question of whether to put in place a national policy statement or statements for proposed new business and commercial categories of development, and this is a subject we will come to later in the debate.

Therefore, I am afraid that I cannot accept this amendment, which would impose an obligation to publish all national policy statements by 31 March 2015 and to lay before Parliament, on or before 31 March 2014, a report explaining to Parliament what has been done and what will in future be done to comply with that requirement. The reasons are quite simple. I am sure that it is appreciated that much of this work taken forward cuts across the work of several departments, such as the Department for Transport on the transport strategy and the Davies commission on aviation, which is due to report in summer 2015. The aviation commission’s terms of reference make it clear that:

“As part of its final report in summer 2015, it should also provide materials, based on this detailed analysis, which will support the Government in preparing a national policy statement to accelerate the resolution of any future planning applications for major airports infrastructure”.

I understand the concerns raised about the potential impact of there not being a national policy statement in the meantime, but it is clear that the nationally significant infrastructure regime can operate effectively and quickly without the need for a national policy statement, as we have seen, for example, with the decision on the Ipswich rail chord.

I turn to the issues raised around pre-application oversight by the Planning Inspectorate—

Lord Berkeley: I am grateful to the Minister. I thought that he might welcome a short rest during his very long speech, which is very interesting; he apologised for it, but it is no longer than our introductory speeches. Before we leave this subject of national policy statements, I also have an interest in the fracking debate. The noble Lord, Lord Jenkin, asked whether there would be a national policy statement on fracking. Dare we ask when this might come, if it does?

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Lord Ahmad of Wimbledon: I also asked that question. First, I thank the noble Lord for allowing me a gulp of water to clear the throat somewhat. There are no current plans for an NPS on fracking. That is because it is very much at its early stages of development, it is not clear how or when it will happen, and some of the issues around commercial viability are unclear. However, again, the points that the noble Lord has made and those made by the noble Lord, Lord Jenkin, have been noted.

Lord Jenkin of Roding: I recognise the problems that Ministers face on this, but they must realise that while DECC has restarted the exploration programme, attention is now totally focused on what may follow if the industry decides that commercial exploitation will become necessary. I beg Ministers to recognise that it is not too soon to start to think quite seriously as to what would go into that national planning statement. They will want to consult widely in advance, but it is not too soon to start now.

Lord Ahmad of Wimbledon: As ever, of course, I note with interest the comments made by my noble friend. These activities continue to be treated as kinds of oil and gas exploration, but he makes his point, as ever, based on his own experience of this field. I am sure that the points have been noted, and that we shall, as we look at other issues in this regard, return to this subject in the future.

I will now turn, with the permission of the Committee, to pre-application oversight by the Planning Inspectorate. Amendment 75ZA provides for the Planning Inspectorate to take on a more active oversight role during the pre-application phase of the nationally significant infrastructure planning regime. The Planning Inspectorate already offers a pre-application service to developers and other interested bodies during the pre-application phase of a nationally significant infrastructure project application. This can include regular meetings with developers and other interested bodies to discuss the project; advice on specific questions and clarifications about policy and process; and support in understanding the pre-application consultation requirements.

As I have already said, the Government have consulted on our approach to expanding and improving the idea of the one-stop shop for major infrastructure, including proposals to streamline the current list of statutory consultees set out in regulations, to reduce consultation burdens and to make the pre-application phase of the infrastructure planning route more effective and efficient, which, as several noble Lords have highlighted, is the desire of many developers. This includes a proposal to establish new arrangements to improve co-ordination and communication between the Planning Inspectorate, applicants and other consenting bodies to make the overall consents process more efficient. The Government are now considering a range of views expressed as part of that consultation exercise.

In addition, my department has conducted a light-touch review of guidance for the major infrastructure planning regime earlier this year. Revised guidance published in January this year has been well received by developers, and we are confident that it will make it clear that consultation should be proportionate to the

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type and scale of the project being proposed. It should give developers the confidence and certainty they need during the pre-application phase.

I will now turn to waivers within the pre-application procedure. Subsection (4) raises similar issues and proposes to allow developers the option of obtaining a “waiver” of certain procedures in the major infrastructure regime, subject to the discretion of the Secretary of State. I appreciate that the noble Lord has brought forward a more tightly drawn amendment in Amendment 75ZAA than the original proposition in Amendment 75. However, the amendment continues to capture a wide range of Planning Act 2008 requirements and would provide developers with an opportunity to seek waivers against many of the key elements of the major infrastructure planning process. This would potentially undermine the certainty and transparency of the regime. It is also not clear exactly what parts of the nationally significant infrastructure regime developers would want to see a waiver used for. As was indicated by my noble friend, while we remain in listening mode, thus far we have seen only limited evidence of a problem in this area.

As I have already highlighted, the Government are pressing ahead with a number of important changes to reduce bureaucracy and ensure that the major infrastructure regime is as efficient as possible, including work on the one-stop shop and the revised guidance on pre-application to make the major infrastructure process more user friendly. I therefore argue that this amendment is unnecessary.

The final amendment in this group relates to the use of rail and water transport for the movement of construction goods. I share the noble Lords’ commitment to ensuring that all sustainable modes of transport are maximized in major infrastructure developments and to encouraging better and more efficient transport of our goods and services, including construction materials, on transport services such as rail and shipping. Indeed, the noble Lord, Lord Snape, also referred to this issue.

The Government are clear that sustainable transport is a crucial part of our vision for sustainable, long-term economic growth. Nationally significant infrastructure projects will almost always be subject to the requirements of the environmental impact assessment directive, which requires developers to prepare an environmental statement. One of the things that is expected in an environmental statement is a transport assessment setting out how the transport impacts of a development will be managed and any environmental impacts mitigated. The noble Lords’ amendment would therefore potentially duplicate requirements already in place.

In addition, decisions on nationally significant infrastructure projects must be taken in accordance with national policy statements, where they exist. Other policy statements, such as the national planning policy framework or other government policy guidance, would be likely to be important and relevant considerations that the Secretary of State would also need to take into account in relation to a decision on a nationally significant infrastructure project, so the Government’s commitment to sustainable transport policies is already very clearly built into the framework for decision-making on nationally significant infrastructure projects.

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The ports national policy statement, for example, sets out that applicants should carry out a transport assessment as part of their environmental statement and that,

“rail and coastal or inland shipping should be encouraged over road transport, where cost-effective”.

The national planning policy framework also makes clear:

“Encouragement should be given to solutions which support reductions in greenhouse gas emissions and reduce congestion”,

and is clear that plans and decisions should ensure that developments’,

“use of sustainable transport modes can be maximised”,

including for the efficient delivery of goods and supplies.

The Government’s policy guidance on strategic rail freight interchanges also sets out the benefits of transporting goods by rail, including reducing road congestion, reducing carbon emissions and supporting growth and creating employment. I argue, therefore, that this amendment is unnecessary and that the framework of national policy statements, the national planning policy framework and other government policy guidance make clear that the expectation is on developers to identify the most sustainable form of transport available.

A wide range of issues have been covered but I hope that with that rather detailed response I have at least given sufficient assurances for the noble Lord to deem it appropriate to withdraw his amendment.

4.15 pm

Lord Adonis: My Lords, I am very grateful to the noble Lord for the marathon that he has run with such fortitude. I hope that I may return to the fees charged by PINS. Having reflected on what the noble Lord said, I think that he made a dramatic statement which did not contain a great policy shift. I understood the Minister to say that the order which will be prepared later this year will be transparent about the number of inspectors—I stress, the number of inspectors—who are engaged in examining a DCO application. I understand that there is not much difficulty in finding this out and that developers are well aware of the number of inspectors in respect of their application. The issue is not the number of inspectors, it is the number of days on which they are engaged on the application, which they are able to charge for. That is a distinctly different point. If the order simply requires transparency on the number of inspectors, there will be no effective change from the status quo. The essential issue is whether developers and applicants are being charged excessively for the work being undertaken by the inspectorate.

Lord Ahmad of Wimbledon: I thank the noble Lord again for his question. The content of the statutory instrument is currently being looked at, and I do not want to pre-empt the detail of it. I refer the noble Lord back to my earlier point: Planning Inspectorate fees are currently set out in regulations which include provision for day-rate charges which depend on the make up of the examining authority—that was the point I was making—but there is something within them specific to day rates. Current practice and policy

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are not expected to change. There have been concerns about clarity and transparency, and they will be addressed by the statutory instrument.

Lord Adonis: The longer the noble Lord speaks, the more opaque it becomes as to what the actual change will be, if, indeed there will be any change whatever in the statutory instrument he refers to. If it simply re-expresses the status quo, what is the purpose of producing it in the first place? Will there be a change of practice on the part of the Planning Inspectorate? The noble Lord’s briefing may not enable him to answer that question now, but perhaps he could write to noble Lords after Committee.

Lord Ahmad of Wimbledon: I can assure the noble Lord that there is a statutory instrument due in this respect. I take his point about greater clarity, but my understanding is that the current policy position is not expected to change. The current fees regulations include day-rate charges.

Lord Adonis: Will the noble Lord write to us, between Committee and Report, so that noble Lords properly understand what is being proposed and have the opportunity to work out whether we need to return to this matter on Report? Given the feeling in the Committee, we may well return to this matter unless there is some movement.

Lord Ahmad of Wimbledon: We shall write to all noble Lords concerned.

Lord Berkeley: My Lords, I thank all noble Lords who have spoken in this very long debate. Perhaps we should, in future, reflect whether amendments should be cut into bite-sized pieces to make it easier.

I am particularly grateful to my noble friend Lord Snape who reminded me about Crossrail which I had, of course, forgotten. The Minister was right that there was lots of regulation about environmentally friendly transport on that particular issue. However, I do not see why something the size of the Thames Tideway tunnel, which claims to be complying with all the latest regulations, can be using road transport for all the spoil when there is a river there. We can explore that in the future. With so many different issues having been discussed and responded to, I will need to read the Minister’s response, for which I am very grateful, very carefully. I beg leave to withdraw the amendment.

Amendment 72 withdrawn.

Amendment 73

Moved by The Earl of Lytton

73: Clause 21, page 22, line 37, at end insert—

“( ) In section 58 (certifying compliance with section 56), subsections (3) to (7) are repealed.”

The Earl of Lytton: My Lords, I tabled this probing amendment following discussions with the Compulsory Purchase Association. It sits as a singleton and does not relate to the amendments I moved previously in connection with compulsory purchase. I hope I can be brief and that it will be recognised as an attempt to

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free up the processes and will have general support as it actually removes something from the statute book rather than adding something.

The background to the amendment relates to the certification process when the infrastructure planning commission has accepted an application for an order granting development. Noble Lords will doubtless know of the procedure. Section 56 of the Planning Act 2008 provides that notice is to be given to persons of a particular category and in the form prescribed. Section 58 then deals with compliance with that general provision and, in particular, states at subsection (3):

“A person commits an offence if the person issues a certificate which … purports to be a certificate under subsection (2), and … contains a statement which the person knows to be false or misleading in a material particular”.

It relates to “knowingly” doing something that is offensive. Subsection (4) states:

“A person commits an offence if the person recklessly issues a certificate which … purports to be certificate under subsection (2), and … contains a statement which is false or misleading in a material particular”.

I have bit of a philosophical battle regarding the difference between the use of “knowingly” and “recklessly” in other matters. I should mention that “recklessly” is always a materially reduced standard of proof; however, the practicalities of this in relation to nationally significant infrastructure projects are, of their very nature, complex and involve large numbers of interested persons. All such projects are listed in the 2008 Act, many of them under various headings. The very idea of attaching a criminal offence to something of that degree of complexity borders on the absurd.

My amendment seeks to remove subsections (3) to (7), which contain the provisions for this sanction. The Committee may feel that that is going a little too far and I am quite happy to hear from the Minister that that might be the case. However, while an infrastructure provider on a large and complex scheme, which perhaps covers a substantial geographical area and a lot of different interests, may be expected, not unreasonably, to use its best endeavours to notify to all interested parties, having a criminal sanction is going a step too far. The Compulsory Purchase Association certainly feels that the provision is an impediment and stands in the way of getting these things done in a timely manner, while everyone carries out their due diligence in order to try to make sure that there is nothing lurking there which, unbeknown to them, could give rise to this criminal sanction.

My argument pivots on the term “recklessly”, which indicates that the circumstances in which there might be some element of risk are known but that someone somewhere thinks that you have not done enough to take account of those risks. The standards of proof are not as robust in terms of a convicting authority as they would be otherwise. The amendment removes risk and possible abuse in the setting in place of various bear traps, tripwires and anything else that people might want. The amendment will shorten timescales and remove a sanction that ultimately is unnecessary. I beg to move.

Lord Ahmad of Wimbledon: My Lords, I thank the noble Earl, Lord Lytton, who has made a number of important points about the operation of the major

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infrastructure planning regime. Of course I share his concerns to ensure that unnecessary bureaucracy and, indeed, all such administrative burdens are removed wherever possible from the planning system.

Sections 56 and 57 of the Planning Act provide that an applicant for development must notify certain persons of an application for development consent, such as local authorities, environmental bodies or people with interests in land. This is a crucial part of the pre-examination phase of a nationally significant infrastructure project as it ensures that those bodies and individuals with an interest in the project are made aware of and are able to engage in the development consent order process. This is, of course, crucial for an effective, transparent and efficient examination process.

Section 58, to which this amendment pertains, provides that the applicant must certify that he has complied with these requirements. The noble Earl raised several concerns and, indeed, if an applicant issues a certificate containing false or misleading information, he may be guilty of an offence and liable for a fine. The Government consider that this position is appropriate given the nature of a nationally significant infrastructure project, being on such a scale and having considerable effects, both positive and negative, on not only the local area and local people but also on national and international infrastructure networks. It is vital that applicants comply with the notification and consultation requirements placed upon them so that interested people, organisations and authorities can exercise their right to be involved in the examination of the project. Since the onus is on the applicant to ensure that parties are informed that an application has been accepted, it is right that the Government have some sanctions at their disposal if it fails to comply.

However, the Government remain committed to listening to and addressing any future concerns raised about unnecessary bureaucracy or, indeed, barriers to growth. The Government are happy to discuss any further evidence of this particular provision which is cause for concern. Based on those assurances, I hope that the noble Earl will see fit to withdraw his amendment.

The Earl of Lytton: My Lords, I thank the Minister very much for his reply. It is a little bit of a disappointment. I simply make the point that, given the provisions for publicity that are also embedded in the 2008 Act, it is scarcely appropriate to have on top of that a criminal sanction. However, he very kindly offers the opportunity to discuss it. In fact, the Compulsory Purchase Association and I already have an appointment with to discuss matters with the department. Although it forms a separate matter from that particular body, I think it is entirely appropriate to leave it to that. While I may return to this at some later stage in the Bill, I beg leave to withdraw the amendment.

Amendment 73 withdrawn.

Amendment 74 had been withdrawn from the Marshalled List.

Amendments 75 to 75ZAA not moved.

Clause 21 agreed.

House resumed.

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Banking Reform


4.29 pm

Lord Newby: My Lords, the Government have today laid before the House the Financial Services (Banking Reform) Bill, and their response to the report of the Parliamentary Commission on Banking Standards that was published on 21 December last year, following the commission’s pre-legislative scrutiny of the Bill. I thank and pay tribute to the members of both the Independent Commission on Banking and the Parliamentary Commission on Banking Standards. The two commissions, whose membership comprises some of the most distinguished policymakers and formidable intellects in the world, have between them shaped a set of reforms to British banking that will lead the world and set an example to other countries in the seriousness, radicalism and meticulousness of the changes that are proposed. The Bill that is published today reflects their painstaking work, and the Government have accepted almost all their recommendations.

The reforms address what the Chancellor has called the British dilemma: how Britain can be a leading global financial centre, with more than its share of international trade in financial services, while at the same time not exposing the ordinary working people of this country to the catastrophic risks of banks failing. These reforms were, and are, necessary. The previous regime was tested and failed. UK taxpayers had to bail out the banks with £65 billion of the hard-earned money of ordinary working people, while those who had taken a one-way bet with their money slunk away, losing nothing more than their job—and sometimes not even that.

The anger that the country feels about what happened must be channelled into change, to reset Britain’s banking system. The objective of the Bill proposed by Vickers and endorsed by the commission is that any failure of any bank in future should not impose a cost on the taxpayer, and not interrupt for a second vital banking services. That is a high ambition, but one that is appropriate for a country with a reputation for financial stability and confidence that has for centuries been one of Britain’s chief assets in the world.

As is well known, the Bill will erect a ring-fence around the core operations of banks headquartered and regulated in the UK. Within that ring-fence, banks must be completely insulated from activities such as using depositors’ funds to speculate for the banks’ own benefit in capital markets. In the event of failure, depositors will be given preference in liquidation. As a result of the commission’s recommendations, the Government are making a number of further changes to the Bill. First, in the honourable Member for Chichester’s acute phrase, which will permanently enter the lexicon of banking, the ring-fence will be electrified. The regulator will be given the power to order the full separation of any bank that attempts to undermine the ring-fence. The directors of the banks will be personally responsible for ensuring that their banks comply with the ring-fencing rules, and the Prudential Regulation Authority will conduct an annual review of the operation and adequacy of the ring-fence rules.

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Secondly, there are explicit provisions in the Bill for the principal aspects of ring-fencing, including that there should be separate boards of directors, remuneration arrangements and human resource management, for ring-fenced banks. Thirdly, the Bill gives us an opportunity to make an historic change in the competitive environment of UK banking. Competition is essential to ensure that customers benefit from innovation, extracting customer service and efficiency from their banks. That has not always been the experience of customers in the past. As well as bringing in a seven-day automatic account-switching service from September this year, the Government will take steps to tackle the cosy arrangement whereby the biggest banks determine how payment systems will be run. Why should it be necessary in 2013 for a cheque to take six days to clear, with banks and not customers scooping up the interest on balances during this delay? Why should a new bank have to beg an incumbent bank for permission to use the payments system? We will require access arrangements to payments systems that are fair, reasonable and transparent. The commission has, rightly, emphasised the importance of competition. I am grateful to it for propelling this drive further, as I am to my honourable friend the Member for South Northamptonshire, for whom greater competition in banking has been a personal crusade.

The fourth change is that more parliamentary scrutiny will be built into the secondary legislation that implements this high-level Bill. Drafts of the principal statutory instruments to be made will be available to the House before Second Reading. The Government accept the recommendation of the Delegated Powers and Regulatory Reform Committee on the type of scrutiny each should receive.

These are historic reforms, but they are appropriate for our country, and for an industry in which, directly and indirectly, 2 million people work. It is our biggest export earner and contributes £1 in every £8 of our tax revenue. We should take the steps necessary to restore confidence in and to an industry in which it has fallen so far. There is much scrutiny of the Bill before us, both here and in the other place. I look forward very much to our discussions in the weeks and months ahead.

Lord Davies of Oldham: My Lords, I am grateful to the noble Lord for repeating the response to the Urgent Question but I am appalled that this issue is being tackled as an Urgent Question. It means that this House has merely 10 minutes to consider the matter. Surely on this issue—the most significant piece of legislation that will go before the two Houses relating to an industry that has been at the centre of the greatest crisis in many years—there should have been a Statement in the other place. Why was it a junior Treasury Minister who made the Statement and not the Chancellor?

This is indicative that the Government would like to water things down. They have done that from the beginning. When the Vickers commission reported, the Government’s first reaction was to set about watering down its recommendations, by allowing, for instance, the reduction of the advised leverage ratio. When the Joint Committee of the two Houses proposed to electrify

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the ring-fence, the Government’s first reaction was to refuse to commit to it. As we see today, they have significant reservations about it. They have produced only a partial climbdown.

Does the Minister agree with the noble Baroness, Lady Kramer, who is in her place? I apologise if am pre-empting what she might say but I will have no other opportunity in this debate. She is the economics spokesperson for the Minister’s party. She believes that attempting to limit the procedure to individual banks will effectively tie up the sanction in years of complex litigation. That is why we endorse her viewpoint; it is ours, too, that this should be legislation. The back-stop power should apply to all banks.

Is it not vital that the Government make up their mind shortly and include a reserve power in this Bill for full separation of retail and investment banking, in case ring-fencing does not work,? That is what the Opposition have asked for. I believe that is what the noble Baroness, Lady Kramer, is asking for. It is certainly what the parliamentary commission indicated in its report and I fail to see why the Government are not more responsive in an area that they must know causes the greatest anxiety to the British people. The Government must look closely at this, and be determined, clear and effective, and not wishy-washy.

Lord Newby: My Lords, I smile with amusement when the noble Lord accuses the Government of not taking this issue seriously. When his party was in his power, and we and I suggested to it and him that they do exactly that, we were told that it was irrelevant to the problems that we were facing and that we should definitely not do it. I will certainly not take any lessons from him about the importance of this issue.

As for whether the legislation should include reserve powers to implement full separation across the sector, this was put to the Governor of the Bank of England, who said that he did not want such reserve powers. More importantly, general reserve powers would give huge power outwith Parliament to tear up the provisions of the Bill as we envisage it, and fundamentally change some of the ways that we see it working. The Government think that if you got to the point where that was a possibility, or you wanted those powers, the appropriate way to do it would be to come back to Parliament, rather than leaving it to the regulator to exercise what would be very sweeping powers indeed.

Baroness Kramer: My Lords, I will not repeat the question on reserve powers. I have a feeling that this House will take it on if the Government do not.

May I ask a question about the competition aspects of the Chancellor’s speech? His comments were welcome but to be able to change from one bank to another when all those banks are essentially alike is not real choice. Will the Government look seriously at splitting up some of the major banks, especially those in which we have ownership? I have not read the Statement but can he comment on whether Chancellor or the legislation will allow the FPC to set the level of the leverage back-stop so that it could be higher than the rather modest levels proposed under Basel III?

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Lord Newby: On the second point, the Government’s view is that, as a general rule, we support the level proposed by Basel III and do not want the UK to be out of line with what is happening elsewhere in the global banking community. As my noble friend knows, the Government and I completely share her views about the importance of competition. As a first step, it is very important that we see rapid progress when it comes to those branches that, for example, RBS is supposed to be divesting itself of but which so far have not been divested. That is one step towards the greater competition that she seeks.

Lord Martin of Springburn: Many of these big banks took over our friendly societies, which were excellent self-help groups and were able to ensure that young couples got a mortgage. In fact, the friendly- society legislation governed the trade union movement at one time. Will the Government look at the restoration of the friendly societies, which were gobbled up by these banks? There are far too many young couples out there who have to rent property when, like the rest of us, they would rather be in an owner-occupier situation.

Lord Newby: My Lords, the Government share the noble Lord’s support for the mutual sector. It is interesting that, over the past couple of years, the mutual sector has been doing very well: Nationwide and the Co-op have been growing rapidly, which we very much welcome. We also welcome some of the specific decisions that have been taken by banks such as Nationwide, under which people who want a mortgage will get preferential treatment if they have had an account with that mutual for some time before they asked for it. That situation was commonplace a generation ago.

Lord Higgins: My Lords, some aspects of this answer are certainly welcome, not least in respect of speeding up the clearing of cheques and so on. However, can my noble friend be a little clearer on precisely what the situation is? Are the Government coming down in favour of a ring-fenced arrangement, which will be electrified? If so, is it not important that we electrify the loopholes as well as the ring-fence? Can he make it clear, if the system really is effective, how the position of a bank operating under it will be any different from having a split between the two sides of the bank?

Lord Newby: My Lords, on the first question, as to whether we are having full ring-fencing and whether we are electrifying the loopholes, I think, to take the analogy on, that if you have a proper, electrified ring-fence, there are no loopholes. First, the aim of the electrified ring-fence is to set up a very robust system. Secondly, the electrification not only allows the bank that has transgressed to be dealt with but will act as a very severe deterrent to prevent banks transgressing in the first place.

There is a rather long technical answer to his second question, which I am happy to give, but I suspect, given the time, that I will have to do it on another occasion.

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Growth and Infrastructure Bill

Committee (4th Day) (Continued)

4.44 pm

Amendment 75ZAB

Moved by Lord Berkeley

75ZAB: After Clause 21, insert the following new Clause—

“Planning Act 2008: further reform of highways

For section 144(3) of the Planning Act 2008 (provisions of development consent orders for highway projects) substitute—

“(3) Subsection (2) does not apply to an order granting development consent which imposes charges in respect of the keeping or use of motor vehicles on roads by the application of Schedule 23 to the Greater London Authority Act 1999 or Part III of the Transport Act 2000, in full or in part and with or without modifications.””

Lord Berkeley: Amendment 75ZAB stands in my name and in the name of the noble Baroness, Lady Valentine. This amendment comes out of a fairly recent discovery about some new roads that have received permissions under development consent orders. If the developer wishes to put a charge or toll on them then, for some reason, it has to be a fixed-toll plaza, with lots of toll booths and the old fashioned things that one sees on motorways in France, on the M6 toll, and the Dartford crossing. It seems rather odd that a developer who seeks planning permission to build a toll road needs to be told as part of getting consent that if he is going to put a toll or a charge on it then it has to be a fixed-toll point. It seems to me that that has very little to do with planning—except for the planning permission of the site—and that the method of tolling should come out of a policy from the Department for Transport. I have had a useful meeting with officials on it.

It makes me recall the debate that we have in your Lordships’ House every now and then when the American embassy refuses to pay the congestion charge because it says it is a tax. One or two other embassies do the same thing. We all get a bit upset about that and the Foreign Office tries to make the embassies pay. It is an argument, but what is a toll, what is a charge and what is a tax? It is basically something you pay for going into a tunnel or across a bridge or up a road.

I have put down the amendment because I strongly believe that the Department for Transport should now have a policy on tolling. I do not mean which roads should be tolled and which ones should not be because that is a separate issue. We have the London congestion charge, we have tolls for the Dartford tunnel and for the Birmingham northern relief road, and we have lorry road-user charging coming in. The lorry road-user charging is going to be time-based rather than distance-based, which is odd. Nobody else in Europe is going time-based but that is probably why we are. Worse still, if these all move forward, you are going to have to have separate equipment in your car or lorry for each area, road, tunnel or bridge that you wish to use because I suspect that more and more of the crossings that now have toll booths will wish to convert to taking money while you are on the move because it is so much easier and cheaper and, of course, it is quicker for the person paying.

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Cheapness comes into it. Noble Lords will correct me if I am wrong but the cost of collection of the congestion charge in London is something like 30% of the amount you pay. With some of the modern electronic systems used in other cities and some motorways on the continent, you are getting down to about 5%, which means that the developer keeps more of his money. One hopes that one day the Department for Transport, maybe in its new roads policy which we were told about earlier in the Committee stage, will come up with a policy on tolling. That should include one system for the whole country—one technical system—that you can have in your car. That means a common technology and it would be much better if it was common throughout Europe. Then it would be up to the developers, the Government or whoever to decide what rate should be charged for using whatever facility you need. We want to get away from the idea that if you are getting consent for a particular crossing or something with a development consent order, it has to specify the type of toll booth, which seems to be a rather retrograde step. I look forward to hearing the Minister’s response. I beg to move.

Baroness Valentine: My Lords, Amendment 75ZAB stands in my name and that of the noble Lord, Lord Berkeley. I declare that I am chief executive of London First, a business membership organisation.

The demands on our roads are growing. In major urban centres such as London, there are severe physical limits to building more capacity, and congestion is a serious problem. I believe that road charging will be an important part of that solution as we seek to manage our resources more efficiently. A more sophisticated charging scheme will need to deliver reduced and more certain journey times. As the noble Lord mentioned, London is ahead of the pack: it already has a congestion charging zone, which is now widely accepted, including by all political parties.

This amendment would enable Transport for London to develop intelligent, barrier-free charging systems for new or existing roads or river crossings in response to the growing demand for road space. This is more than an academic point. Transport for London is currently consulting on a new tolled river crossing at Silvertown in east London. There is a real dearth of river crossings on the east side of London, in contrast to the west, and a new crossing here would help relieve the Blackwall tunnel and would support new jobs and growth in east London.

Lord Berkeley: Can the noble Baroness confirm that this should apply—and the amendment does apply—well outside London? There is a plan for a new road or motorway linking Felixstowe to Birmingham—of course, I would rather it was a railway, but that is irrelevant—and there is talk of it being tolled. There are lots of other plans for tolled motorways in the offing, so am I right in thinking it would be a national system?

Baroness Valentine: Yes, indeed, it would be a national system.

Lord Snape: My Lords, I support my noble friend and the noble Baroness in this amendment. It is something that I personally feel strongly about. I live near

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Birmingham in the West Midlands and I use the tolled section of the motorway quite frequently on my journeys north. It is a very convenient way of missing the congestion that can be found around spaghetti junction and the Ray Hall viaduct, the elevated section of the M6—until one reaches the toll booths, where we have this medieval concept of queuing to pay, the sort of thing one did with a horse and cart centuries ago. Invariably, I find myself behind someone who has got in the wrong lane, or someone who does not have the right money or cannot find their credit card, and a lot of the time saved by using the toll road is lost as one queues to get through this barrier. Surely there has to be a better way.

As the noble Baroness, Lady Valentine, said, in this day and age it should surely be possible to have a more modern system of collecting revenue for toll roads. It is 25 years since I first went to Singapore. The authorities there managed to collect congestion charges electronically three decades ago in a way that is apparently beyond us on the Midlands motorway. I ask the Minister to bear that in mind.

Perhaps I may test the patience of the Committee for two or three more minutes while I am on this hobby-horse of the Midlands motorway. At the moment it is comparatively lorry-free because the private owners—I understand that Macquarie, the Australian company, is the main shareholder in the Midlands motorway—deliberately, as a matter of policy, price off heavy goods vehicles. Those heavy goods vehicles then use the existing M6 over the elevated section at the Ray Hall viaduct and past spaghetti junction—a section of the M6 that is regularly and expensively under repair because of those very same heavy goods vehicles which, whatever the very effective road lobby says, do not pay their true track costs and do enormous damage.

Thanks to the generosity of the noble Baroness, Lady Thatcher, when she was Prime Minister in the 1980s, Macquarie was given the concession to run the Midlands motorway in perpetuity, and can charge what it likes. The last thing it wants is a non-stop procession of heavy goods vehicles, because that damages its motorway. It is no accident that the bit of motorway infrastructure regularly under repair anywhere in the country is the left-hand lane, because that is the one used by heavy goods vehicles. It is a nonsensical situation in which the British taxpayer has paid literally hundreds of millions of pounds. I know the Ray Hall viaduct quite well; it was in my former constituency of West Bromwich East. When the former Prime Minister John Major talked about the cones hotline he had the Ray Hall viaduct and the spaghetti junction interchange in mind. Miles of it are regularly coned off because of the damage done by heavy goods vehicles, which use that section of the M6 because they are deliberately priced off the Midlands motorway.

There are two matters here that I hope the noble Earl, Lord Attlee, will address. The first is the nonsensical and medieval concept of stopping to pay a toll, having used a road on which I must confess to breaking the speed limit occasionally myself. I have rarely if ever seen a police vehicle on that privately-owned section of motorway, although having said that I have no doubt I can expect to see one in the very near future. The taxpayer had to pay literally hundreds of millions

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of pounds because of the pricing policy on that section of toll road, which keeps off heavy goods vehicles. Both of those matters are complete nonsense. No one blames the Minister personally, but can he do anything about it?

Lord Adonis: My Lords, I wish my noble friend Lord Snape well in his quest to abolish all medieval practices in this country. I would simply point out that your Lordships may be the first victims of such a policy, so I hope he does not progress too fast.

Lord Snape: If my noble friend will allow me to say so, at least some of us in this House have occasionally sought election.

Lord Adonis: Of course, in medieval times exit was not a permitted right. The issue here is a very simple and straightforward one, on which I hope the noble Lord can give the Committee comfort. It is as simple as whether it is possible to have a tolling regime without having to have toll booths. The reason the issue has come to the fore is the Silvertown tunnel proposal. TfL, quite rightly, does not want to have toll booths, but the legal position is unclear. TfL tells me the issue is whether the New Roads and Street Works Act 1991 or the Greater London Authority Act is the relevant legal basis for tolling. If it is the one, then there is not a need for booths; if it is the other, then there might be. I think we all agree on what the public policy objective is here; we simply need the Government to give us comfort that it can be achieved.

Earl Attlee: My Lords, I am grateful to the noble Lord, Lord Berkeley, for tabling this amendment and for raising this issue in the House. Of course, it is always a pleasure to listen to noble Lords when they get on their hobby-horses. No doubt the noble Lord, Lord Snape, will be here on Thursday afternoon to discuss the HGV Road User Levy Bill that I will propose to the House.

The noble Lord, Lord Berkeley, makes a persuasive case in favour of amending Section 144(3) of the Planning Act 2008 in order to provide greater flexibility for developers wishing to include road charging provisions within the development consent order and to remove unnecessary additional processes and restrictions from the major infrastructure regime. While I cannot comment on the detail of individual cases, I share his commitment to ensuring the delivery of the crucial infrastructure that this country needs to support vital growth and jobs. I also agree with him that it is important that we take the opportunity to ensure that the provisions of the Planning Act 2008 are fit for purpose and are not inadvertently acting as a barrier to growth. This is therefore an area where I am able to consider further the case for an amendment to Section 144(3) of the Planning Act 2008.

On the noble Lord’s point about charges against diplomatic organisations, he will be aware that this is a long-running issue that we have debated many times. The Government pursue these charges vigorously with the organisations concerned. The noble Lord touched on the charging of road users, and of course on

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Thursday we will debate the HGV Road User Levy Bill, which partially addresses some of these problems.

I am happy to meet all noble Lords to discuss some of the wider issues relating to charging for roads. However, noble Lords will be well aware of the Government’s policy on wider road-user charging. With those reassurances, I hope that the noble Lord will be willing to withdraw his amendment and perhaps return to it on Report.

Lord Berkeley: I am very grateful to the Minister for what I felt was a positive response. I did not really need much on the poor old Foreign Office’s attempt to get the Americans to pay for parking their cars here, but, on the subject of the amendment, it was good to hear that he understands the problem. I look forward to sitting down with him between now and Report and possibly encouraging the Government to come back with their own amendment, which I am sure will be much better than the one that we have drafted. On that basis, I beg leave to withdraw the amendment.

Amendment 75ZAB withdrawn.

5 pm

Clause 22 : Special parliamentary procedure in cases under the Planning Act 2008

Amendment 75A

Moved by Lord Greenway

75A: Clause 22, page 22, line 39, leave out “Sections 128 and 129” and insert “In section 128”

Lord Greenway: My Lords, I shall speak also to Amendments 75B, 77ZA, 77ZB and 77ZC. The amendments are to do with safeguarding port land.

Amendments 75A and 75B to Clause 22 are intended to preserve the possibility of special parliamentary procedure in relation to compulsory acquisition of land of certain types of transport statutory undertakers. Clause 22 relates to Section 128 of the Planning Act 2008, which provides for development consent orders authorising the compulsory acquisition of land of local authorities and statutory undertakers to be subject to special parliamentary procedure. As currently drafted, Clause 22 would repeal the whole of Section 128. The amendments would instead remove the reference to local authorities and the general reference to statutory undertakers in that section and restrict its application to land of harbour and railway undertakers. These are providers of infrastructure for public benefit, and it is important that land required for these purposes should continue to enjoy the additional level of protection which this procedure confers. Since Section 128 is not to be repealed in its entirety, Section 129 of the Planning Act, which relates to the operation of Section 128, will continue to need to apply. Amendment 75A would also remove its repeal.

Amendment 77ZA would delete subsection (4) of Clause 22, which repeals provisions which also relate to Sections 128 and 129 of the Planning Act. The proposal that these provisions remain makes repeal unnecessary.

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Amendments 77ZB and 77ZC follow on from the previous amendments. Clause 23 modifies and limits the scope of special parliamentary procedure in relation to compulsory acquisition of land in certain cases where the Bill is not removing the process altogether; that is, in cases where special parliamentary procedure is triggered under what the Bill describes as a “special-acquisition provision”. It is accepted that if special parliamentary procedure is still to apply under Section 128 of the Planning Act in relation to land of transport undertakers, it should be subject to the same limitations. These amendments would include Section 128 in the definition of special-acquisition provision. This means that the modifications to the procedures would apply to any case in which special parliamentary procedure was triggered by Section 128.

These are in the way of probing amendments. I am seeking assurance that the Government realise the importance of safeguarding port land. If the Minister can give me reassurance on this, and says that the amendments are unnecessary and that the Government are content with the status quo, I will be happy with that. I beg to move.

Lord Faulkner of Worcester: My Lords, I start by thanking the Ministers—the noble Baroness, Lady Hanham, and the noble Lord, Lord Ahmad of Wimbledon—for taking the time to see me with their officials last Thursday to talk about the amendments I have tabled to Clause 23 in the next group and also about my objections to the inclusion of Clause 22 in the Bill.

Your Lordships may recall that I spoke about special parliamentary procedure—SPP—at Second Reading. That was based on my experience of serving on the Rookery South Joint Committee. I shall not repeat the arguments that I used then, other than to repeat the point that SPP has been triggered very rarely—only three times since 1990. While the eventual majority decisions of the Rookery South Joint Committee were not ones I supported—both the noble Lord, Lord Geddes, and I felt that the promoters of the resource recovery facility had a case to answer in terms of demonstrating the need for such a large project—I believe that the public interest was served in our deliberating in a Joint Committee. Had this Bill been an Act last year, with Clauses 22 and 23 contained within it, the Rookery South Joint Committee would not have taken place.

Since Second Reading, I have been sent two pieces of briefing on why Clause 22 should be removed from the Bill. The first relates to a battle against road-builders in High Wycombe in 1965. The redoubtable Kate Ashbrook, general-secretary of the Open Spaces Society, has described what happened on her blog, from which I shall quote some extracts:

“Wycombe Rye is a stretch of public open space on the east side of High Wycombe, Bucks, extending alongside the River Wye … The rye is a treasured spot, 68 acres of land vested in Wycombe District Council and its predecessor body … since 1927 … Looking at it now you might think it had always been safe. Not so. In 1962 part of the land was threatened with a compulsory purchase order, to enable the inner-relief road to be built across it”.

That road had been approved following a public inquiry. She goes on:

“There was a further inquiry into the appropriation of 2.4 acres of open space, but on the inspector’s recommendation, the minister”—

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of the day—

“confirmed the appropriation order, under the Acquisition of Land (Authorisation Procedure) Act 1946, on 5 February 1965. Fortunately no land was offered in exchange, so the order was subject to special parliamentary procedure … That meant that objectors could petition parliament and present their case to a joint committee of both houses ... Magnificently, the committee ruled that the orders be annulled. The rye has remained intact to this day, saved by legislation which gives parliament the final say on the theft of open space where no suitable alternative is provided”.

However, that protection will disappear if Clause 22 remains in the Bill because,

“instead of such cases being referred to a parliamentary committee, the Secretary of State for Communities and Local Government himself can decide the fate of open space. In future, when compulsory purchase of open space is proposed for development which the government thinks should go ahead quickly, and there is no suitable exchange land or that land is considered to be too expensive, the minister can cast aside SPP and rule that the development proceeds without regard to the open space”.

Powerful arguments in favour of retaining SPP have also come from the Inland Waterways Association, which makes the point that the Canal & River Trust, the body set up following the passage of the Public Bodies Act, holds the waterways it cares for in trust on behalf of the nation in perpetuity. If the CRT is threatened by a compulsory purchase proposal, it has at present the option to go down the SPP route. This, says the Inland Waterways Association, makes the authority threatening compulsory purchase treat the CRT with greater respect and encourages constructive discussion. It claims that if the Bill is passed, the CRT will lose the right to request an SPP. Will the Minister confirm whether it is right in that assertion? If it is, how does he explain the anomaly whereby the National Trust retains the right to call for an SPP on its own land but the Canal & River Trust is denied that? It appears to be the case that the Government are, by their amendment to Clause 22, strengthening the position of the National Trust but at the same time doing nothing to give protection to other bodies with heritage responsibilities. As the Inland Waterways Association puts it, how can the Minister justify the situation where the River Wey Navigation, which is owned by the National Trust and dates back to the 17th century is protected, but the River Lee Navigation, which is five centuries older, is not?

Finally, if Clauses 22 and 23 stay in the Bill, a decision, which was vested in Parliament, will now be taken by the Executive. I caution the Minister to take care in what he wishes for. One advantage from the Government’s point of view about SPP is that it cannot be subject to judicial review and does not apply to decisions taken by the Secretary of State, which can be challenged by JR and will take far longer to resolve than SPP. Certainly, if the Government are threatening open space, they should anticipate the possibility of numerous judicial reviews. I suggest that the Government should now drop Clause 22, take it back for further consideration and perhaps come forward with fresh suggestions on Report.

Lord Jenkin of Roding: My Lords, Amendments 76 and 77 are in the names of the noble Lord, Lord Berkeley, and myself, and this perhaps is the moment when I should make my contribution to the debate.

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I read the speech made by the noble Lord, Lord Faulkner, at Second Reading and his reference to Rookery South. I approach this issue from a rather different angle. If one looks at the history of that energy-from-waste project in Bedfordshire, the SPP—a post-consent process; planning consent had already been given—simply allows the objectors a further opportunity to object. A lot of people feel strongly about energy-from-waste projects.

The noble Lord says that that gives rise to parliamentary accountability. I have to say that until I had studied the briefs on these two clauses, I had been entirely unaware as a Member of Parliament of the activities of the noble Lord and some of his colleagues—the noble Lord, Lord Geddes, was mentioned. I know that my noble friend Lord Brabazon has been involved in similar SPP processes and has regarded them as very long and drawn out.

This Bill is about encouraging growth and investment in the infrastructure. It really cannot make sense to continue with these, as it were, statutory procedures for delaying decisions and action on applications for which consent has already been given after the normal processes. I have to confess to the noble Lord, Lord Faulkner, that I have not studied closely the condition of the waterways, as he obviously has, or, perhaps I may say to the noble Lord, Lord Greenway, the ports.

These two amendments are concerned about, as am I, the application of the special parliamentary procedure for what is called common land,

“open space, fuel or field garden allotment”.

The Planning Act currently provides that a development consent order which authorises compulsory purchase of open space land or a right over such land will be subject to the SPP unless the Secretary of State has issued a certificate confirming that certain prescribed circumstances will apply. I have already said that this is a post-consent approval stage that certainly has the potential to result in—and in some of the cases, not least that of Rookery South to which the noble Lord, Lord Faulkner, has referred, has actually resulted in—very considerable delays for a project that had already achieved planning consent. The procedure can be very costly for the applicants—and, I dare say, for some of the objectors—and hold back the provision of infrastructure projects that support economic growth.

5.15 pm

Clause 22—I welcome it and want to make it perfectly clear that I support it—widens the circumstances in which the Secretary of State can issue a certificate confirming that a DCO which authorises the compulsory purchase of open space land or a right over such land will not be subject to SPP. However—and this is the point I wish to make to my noble friend on the Front Bench—there remains significant scope for a DCO which authorises the compulsory acquisition of open space land or a right over that land to be subject to SPP. I believe that the clause could go further and remove what could be a rather tiresome—and, from the economic point of view, obstructive—process, while still retaining a proper balance between the interests of promoters and the users of open spaces.

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The amendments are aimed at limiting the scope of what is meant by “open space”. They do this by a very simple process. An open space, for the purposes of this clause—and I am not referring to some of the earlier clauses that we discussed—would be limited to land which has been formally designated as open space by the responsible local authority. All important pieces of open land are officially and formally designated by the local authority, but they cannot cover every single piece of open land. For instance, where there is a road junction in a village with a triangle of open land in the middle of it and somebody wants to improve the road system and would require some of it, in theory that could be open to the SPP because it would belong to the local authority. However, it would never have been designated as open land in that way. There are pieces of open land where boys are accustomed to go and kick a football around, but no local authority has ever thought it necessary for that to be formally designated. It just happens to be there; but why should an important road or other development be held up simply because there happens to be a procedure which is triggered by the fact that there is a compulsory purchase of open land?

My noble friend the Planning Minister in the other place, Nick Boles, got this absolutely right when he said:

“The Government believe there is a strong argument for the special parliamentary procedure to be limited to situations where there is a real need for further scrutiny by Parliament: for example, where there is a genuine need to weigh up the public interests of allowing infrastructure development to take place at the expense of the loss of certain types of very specially protected land”.—[Official Report, Commons, Growth and Infrastructure Bill Committee, 4/12/12; col. 401.]

At another point, he referred to these as essentially our “most precious” open spaces. I am not challenging that, but, of course, all the most precious open spaces fall under designations that are already very clear and would be covered by the SPP. I am talking about the informal bits of land—land that happens to be open land but which no local authority has ever thought it worth while to designate because it seemed to be so trivial—that can somehow trigger the right of the objectors to a particular piece of development to ask the Secretary of State for a special parliamentary procedure.

It is a narrow point, but if this clause is to be effective, as I hope my noble friends in government expect it to be, this modest improvement in the situation would help the Government’s intention. I hope that Ministers feel able to agree to that. What Mr Boles said on that occasion absolutely reflects what is right, and this amendment is necessary to give effect to that.

Lord Adonis: Noble Lords have different views about the precise scope of the special parliamentary procedure, which we have heard expressed in Committee, but it is important that the scope is consistently applied. It is therefore important that the Minister answers the point made by my noble friend Lord Faulkner. Why does Clause 22(5) preserve the application of the SP procedure to proposed compulsory purchase acquisition of National Trust land, which is held inalienably, but not provide equivalent protection for land held in trust for the nation by the Canal & River Trust? Since the

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land is held for precisely the same purpose in both cases, why should the same legal procedure not apply to both?

Lord Greaves: My Lords, I support the amendments and the stand part debate proposed by the noble Lord, Lord Faulkner, and express some concern about the amendments in the name of the noble Lord, Lord Berkeley.

We are talking about open space. The law relating to open space is quite complex and is nothing like as simple as might be suggested. The problem is that a little bit of this particular Bill intervenes on the law on open space in one or two instances, potentially causing considerable confusion, not least about the definition of “open space”. In Clause 22 is set out the proposal that in some circumstances where it is proposed to develop on and remove open space—it does not refer to commons; the position on commons will remain the same—the special parliamentary procedure will not apply. Those circumstances are when,

“it is strongly in the public interest for the development for which the order grants consent to be capable of being begun sooner than is likely to be possible if the order were to be subject (to any extent) to special parliamentary procedure”.

It is an important bit to read out. The crucial words are,

“it is strongly in the public interest”.

That decision will have to be made by the Secretary of State, which is why what the noble Lord, Lord Faulkner, said about the threat of a relatively large number of delaying judicial reviews is so crucial. What is and is not in the public interest is clearly debatable, and the question of whether the Secretary of State is making a reasonable judgment on what is in the public interest is clearly judicially reviewable. That is the constraint in here which means that it is poor legislation; it is vague and not very clear about what it means. It might mean different things in identical circumstances to different Secretaries of State.

There are other reasons why Clause 22 is undesirable. As the noble Lord said, there have been very few references to or uses of special parliamentary procedure. Once again in this Bill, the Government come forward wanting to do something without providing any clear evidence of why it is necessary. The first thing that the Minister has to try to do is to give us some evidence of why this is necessary in the real world, not of why, in some theoretical future, there might be a problem or two, but evidence that it has been a serious problem in the past. If it has been only in one or two cases, then that does not add up.

The other rather vague and, I believe, judicially reviewable phrase is “long-lived”. These new provisions apply to circumstances in which the removal of the open space is temporary but possibly long-lived. Perhaps the Minister can tell us what “long-lived” means. I suspect that she cannot tell us very precisely because, again, it is a matter of judgment, and it may lead to more delays than even a special parliamentary procedure.

Has the noble Lord, Lord Berkeley, spoken to his amendments? He has not. I thought that perhaps I had been asleep and had missed him when the noble Lord, Lord Adonis, jumped in. I will speak to them, with his permission, and then he can tell me why I am wrong.

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Lord Jenkin of Roding: I apologise, but my noble friend may have been asleep at the point when I spoke quite heavily to the amendment.

Lord Greaves: The noble Lord, Lord Jenkin, indeed spoke to the amendments, and his name is on them, so I am justified in speaking to them. I am grateful to the noble Lord.

At the moment, open space is generally defined as any land used for the purposes of public recreation. When it is threatened with compulsory purchase, the developer must provide suitable exchange land. If no land is provided, or if it is thought to be inadequate, then the special parliamentary procedure comes in. It is true that open space is often already designated by local authorities. It includes all the land designated in local plans as open space. However, it surely includes a great deal more than that.

At the moment the protection of Parliament is afforded to all land used for public recreation, formal or informal. For example, the amendments in the name of the noble Lord, Lord Berkeley, would remove this protection from the many thousands of acres of countryside, apart from the commons, which were mapped for access under the Countryside and Rights of Way Act 2000, and which are now clearly designated as access land and, therefore, open space. They would also remove this protection from many hundreds of sites which people enjoy by custom for informal recreation.

Again, the amendments in the name of the noble Lord, Lord Berkeley, produce a new definition of open space, which is that it has to be designated by local authorities in addition to, and over and above, land designated in local plans. I do not know what this means. It would produce considerable new duties on local authorities to make sure that they looked again at all their open space and, inevitably, it would exclude quite a large amount of open space.

There is a suggestion that the Government now only want to protect the most precious spaces and very specially protected land, which the noble Lord referred to in his speech. However, that would be a very substantial restriction on existing definitions of open space. I am sure that, overall, that is not the Government’s wish, but if it were to be their wish, they should come forward and apply that to everything, not just to this particular provision.

The provisions have existed in their present form since the Acquisition of Land (Authorisation Procedure) Act 1946 and were intended to protect land which is valued by people for recreation. I suggest that to introduce some kind of arbitrary distinction, which results from a new kind of designation by local authorities, is not the way forward. It would be vague and confusing, and to put out a new definition of open space just for this purpose would not be desirable at all. It would be a great confusion and would lead also to lots of judicial review. The noble Lord, Lord Jenkin, referred to the normal processes, but the normal processes in relation to open space are different from the normal planning processes. They are part of that but they are different.

Clause 22 already restricts the application of special parliamentary procedure to open space. It is something that I would rather did not happen. Therefore, I support

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the noble Lord, Lord Faulkner. However, to restrict it even further, as the noble Lord, Lord Berkeley, wants, would be a very substantial step backwards.

5.30 pm

Lord Berkeley: My Lords, the noble Lord, Lord Greaves, invited me to speak to my amendment, which was very kind of him. The noble Lord, Lord Jenkin of Roding, gave a very good description of it, which I do not need to repeat, but there are a couple of issues on which we ought to reflect. First, the special parliamentary procedure, which my noble friend Lord Faulkner described at Second Reading and again today, is to my mind a second attempt to oppose planning permission if you fail on the first occasion. Is that worth having and, if so, what exceptions or types of development should be included? There is also the question of the scope of the SPP. I believe that it can be very wide: for example, looking at a complete planning application again; or it could be narrowed to apply to just the particular issue that is under consideration.

I found a very interesting example of this recently on Humberside where the established port operator there, Associated British Ports, got into a bit of debate with a new company, which I think was trying to develop a port complex next door for offshore windmills or something or other. A railway line runs through the middle of the proposed development which the developer was trying to purchase so that he could install level crossings rather than having the cost of a bridge. The detail does not really matter but the issue comes back to the fact that if you are opposed to a proposed development, the SPP gives you a second round of attack, if you like, in putting your case. If you want it to go forward as quickly as possible, you will argue that the consent order process is perfectly valid and, if you do not like the outcome, I suppose that you can go for judicial review.