22. Our consideration of this first Development Consent Order under Special Parliamentary Procedure has thrown up several procedural problems which arise from anomalies in the statutory framework within which we work. We urge the Government to rectify these anomalies as a matter of priority, and in doing so, they should consult the relevant authorities in the two Houses. We will draw our Report to the attention of the Leaders of the two Houses and to the two Procedure Committees.

INCOMPATIBILITY OF THE PLANNING ACT 2008 AND THE STATUTORY ORDERS (SPECIAL PROCEDURE) ACT 1945

23. The Statutory Orders (Special Procedure) Act 1945 sets out the powers and procedures of Parliament in relation to Special Procedure Orders. It provides for the receipt of petitions, the certification of petitions as proper to be received and the period during which either House can resolve to annul the Order as well as the remit and powers of joint committees to consider petitions against the Order. Crucially, the Act makes provision for Parliament to consider the whole Order, and neither House has procedures in place which would allow them to annul only some elements of the Order.

24. By contrast, the natural interpretation of section 128(2) of the Planning Act 2008 is that it limits the Special Parliamentary Procedure to the provisions of the Development Consent Order authorising the compulsory acquisition of special land. After all, it would seem rather inconsistent if Parliament were to conduct a full re-hearing of the issues in respect of some Development Consent Orders, given that all DCOs, including those subject to Special Parliamentary Procedure, are subject to appeal by judicial review. However, as explained above, the provisions of the 1945 Act apply to the Order as a whole, and since the 2008 Act did not amend the 1945 Act, we now have a statutory framework which is internally contradictory.

25. This incompatibility between the 1945 and the 2008 Acts is particularly critical for the two remaining stages in the Special Parliamentary Procedure process. Firstly, the 1945 Act provides only for consideration and decision of the whole Order, and the Standing Orders of both Houses simply mirror the framework provided by the Act. Neither House has any procedural instrument by which debate on a resolution to annul the Order, tabled within the 21 day resolution period, could be limited to certain elements of the Order only, nor does either House have any means of annulling only some elements of the Order. It must therefore be the incontrovertible right of each House to debate any aspect of a Development Consent Order subject to Special Parliamentary Procedure and, if it so chooses, to reject the Order in its entirety on the basis of opposition to elements which, according to the intention of the 2008 Act, ought not to be subject to any part of Special Parliamentary Procedure.

26. The other stage at which the discrepancy between the provisions of the 1945 Act and the intentions of the 2008 Act become critically important is in the scope of consideration of petitions by a joint committee. The Agents for the unitary councils argued forcefully at our hearing that, once a petition has been certified as proper to be received and referred to a joint committee, all aspects of that petition, whether or not they relate to the compulsory purchase of special land, should be considered by the committee.

27. We do not agree with this 'key to the door' interpretation, but we acknowledge that the lack of legislative consistency muddies the waters very seriously. We do not have the power to direct any committee to opt for one interpretation or another. Only the Houses can do that, should they so choose. Given the inconsistencies of the current statutory framework, it must be the prerogative of any committee to decide for itself how widely or narrowly it wishes to interpret its remit in relation to the petitions before it. We would, however, encourage any joint committee to seek to be consistent with section 128 of the Planning Act 2008 by focusing their work on the issues of compulsory purchase of special land; but it is clear that whilst the statutory inconsistencies remain, joint committees may reach different conclusions about the appropriate breadth of their inquiries, and further inconsistencies of practice are therefore probable. This is unsatisfactory.

In the 2012 Budget, the Government announced that it will—

"remove duplication in the consenting regime for major infrastructure development by bringing forward legislation to adjust the scope of Special Parliamentary Procedure, and will shortly publish draft revised guidance to make the regime clearer and easier to use".[8]

28. At this stage, it is unclear precisely what duplication the Government intends to remove, and indeed whether it will address the problems we have identified above. We urge the Government to amend either the Statutory Orders (Special Procedure) Act 1945 or the Planning Act 2008—or both—so as to ensure a consistent statutory framework for the consideration of future Development Consent Orders subject to Special Parliamentary Procedure. In drawing up revised provisions, the Government will need to consult with the relevant authorities of the two Houses. In the meantime, no further orders of this type should be laid before Parliament until the statutory framework has been amended to resolve these inconsistencies.

COMPLIANCE WITH EUROPEAN DIRECTIVES

29. A further legal issue was brought to our attention by the Secretary of State for Energy and Climate Change less than a week before our hearing on the Rookery South (Resource Recovery Facility) Order 2011 on 8 March 2012. In a written submission summarising the arguments that would be made on behalf of the Secretary of State at the hearing, it was suggested that, in a case such as this which relates to the approval of new electricity generating capacity, the Special Parliamentary Procedure would be incompatible with Article 7 of EU directive 2009/72/EC (concerning common rules for the internal market in electricity and gas) if it led to the annulment of the order, or a decision by the joint committee that the order be not approved.[9] The Directive provides that Member States are obliged to provide a route of appeal for applicants in cases where an application to construct additional generating capacity is rejected. We were urged to opt for a narrow interpretation of locus standi in order to minimise the risk that a joint committee would be persuaded to report that the Order be not approved under section 5(2) of the 1945 Act.

30. We sought clarification on these points both at our hearing on 8 March, and subsequently by correspondence (which is published in Appendix A). In his letter, the Minister states that "Both Parliament and the Executive have a duty to secure compliance, in so far as they can, with the UK's international obligations, for example under EU Treaties." The Minister also suggests in his letter that through a series of procedural manoeuvres it would not be "impossible to secure compliance by one means or another", including the possibility that an annulment motion may "not be selected for debate". This view of Parliamentary procedure is mistaken as there are no powers of selection in the Lords and the powers granted to the Speaker in the Commons do not extend to motions of this type. Furthermore, under the 1945 Act, either House has the right to pass a resolution to annul the Order (a decision the Minister concedes would be incompatible) and the joint committee has a statutory right to reject the Order if it sees fit to do so.

31. It is clear from the Minister's response that the Government considers that it would be incompatible with Directive 2009/72/EC for Parliament to annul an order granting development consent where, as in this case, the order related to a new electricity generating station. The same must apply where a joint committee decided that such an order should not be approved. Given this point of view, we find it very difficult to see any justification for maintaining the legislation in a form that allows these things to happen. In our view, it cannot be right for legislation to confer powers on Parliament in relation to development consent orders for new electricity generating stations if there are no circumstances in which those powers can be exercised compatibly with EU law. We therefore urge the Government to amend the statutory framework under the Statutory Orders (Special Procedure) Act 1945 to ensure that all outcomes available under the statutory framework, and as a result, the Standing Orders of the two Houses, are compliant with EU legislation. In drawing up revised provisions, the Government will need to consult with the relevant authorities of the two Houses. In the meantime, no further orders of this type engaging Article 7 of Directive 2009/72/EC should be laid before Parliament.

9   Submission from the Secretary of State for Energy and Climate Change, 1 March 2012, paras 45-50 Back