LOCAL ORDER-MAKING POWER (Hansard, 20 February 1992)

§ Mr. Snape
I beg to move, That the clause be read a Second time.
The clause seeks to introduce into the Bill a means by which minor schemes of only local significance can be determined locally. The Bill does not include a local order-making power as floated in the Government's original consultation document. That is of considerable concern to organisations such as the Association of Metropolitan Authorities whose members are at the forefront of the revival in interest in light railway schemes. The subject received cursory attention in Committee and I raise it to press the Government to reconsider.
The consultation paper on which the Bill's provisions are based said that the Government saw advantage in a three-tier approach with some proposals being considered and approved locally, others by Ministers and a small minority being referred to Parliament". The Bill provides only for a two-tier approach, the local tier having disappeared. On the local tier, the consultation paper stated: If some proposals of essentially local significance can be authorised by local planning authorities there are likely to be some time savings. In practice many local and minor schemes may have to come to central government for approval, either because they involve compulsory land acquisition…or because the works require scheduled monument consent. It will be for Parliament to decide whether or not to give local authorities powers to confer a defence on grounds of statutory authority to actions for nuisance which will be involved in many of the proposals at present authorised by private bill. Nevertheless the Government would welcome views, particularly from the local authority associations, about what local decision-making may be practicable. What representations were received from local authority associations and why have they apparently been discarded?
The Association of Metropolitan Authorities strongly supported the local-tier proposal, as did other local authority associations. They argued that it would be especially useful in relation to small modifications to previously approved schemes which frequently arise as a result of detailed design work and implementation following initial scheme approval.
On Second Reading, the Minister said that the Government had examined the scope for a separate regime for schemes so local in impact that they should be dealt with by local authorities. On examining the matter further, we have found them to be too few to warrant the legislative apparatus, including possible appeals, which would be required."—[Official Report, 2 December 1991; Vol. 200, c. 44.] We are not able to quantify the demand for that type of procedure, but we are advised that minor modifications to 510 schemes are not infrequent and that under the proposed arrangements they would be subject to the full blown order-making procedure. It is certain that as further major public transport schemes are proposed and implemented, the number of such minor proposals will increase. In Committee, the Minister said: Several points were put to us—not least by the Council on Tribunals—as a result of our consultations and we felt that it was best to keep one type of scheme in operation for all the orders"—[Official Report, Standing Committee A, 23 January 1992; c. 373.] The Minister's officials have been a little more forthcoming. In correspondence with the AMA they raised a number of objections to the local tier of decision making. In a letter to the association, the Department stated: an important feature of all statutory authorised works is that they benefit from a common law defence of statutory authority against actions for nuisance arising from the proper operation of the undertaking. We had doubts about the propriety of delegating to local authorities the power (traditionally in the gift of Parliament of Ministers of the Crown) to confer such a privilege. When stripped of the jargon so beloved of departmental civil servants, that means that they do not trust anybody but themselves to take decisions. It is important to remember that the consultation paper says that that issue should be decided by Parliament, but it looks as though it has been prejudged by the Under-Secretary and his fellow Ministers.
The Department of Transport also argued in writing to the Association of Metropolitan Authorities that it foresaw problems with defining what constitutes a local scheme. That is the opposite of what the Minister said in Committee during discussions about similar matters. I shall paraphrase what he said, and I took him to mean that it was easy to define a local from a national scheme. If he did say that, perhaps he could persuade some of his advisers that that is the case, because they appear to think that the opposite is true. The definition of what constitutes a local scheme applies equally to the definition of schemes of national significance for the purposes of clause 9.

§ Mr. McLoughlin
I think that the hon. Gentleman is mixing different parts of what was said in Committee. His paraphrase of what I said is almost correct, and I shall not argue about the small details on which he is wrong. I said that schemes of national significance which were subject to the special parliamentary procedures that were laid down would be easily identifiable. I shall later deal with the problems in the new clause.

§ Mr. Snape
I probably did not paraphrase the Minister in as elegant a way as he delivered the original words. I thought that he said that national schemes were easy to quantify. Perhaps I read too much into what he said. I presumed that, if he could obviously identify nation & schemes, it would be fairly easy to say that the rest were local schemes. I have no doubt that the Minister will deal with that in his reply.
The absence from the Bill of a local tier is especially disturbing in the light of what the Minister said about a possible alternative route. Speaking to another clause to which the same principle applies, the Minister said: Clause 24 gives power to the Secretary of State to transfer certain classes of case to inspectors on the model of the Town and Country Planning Act 1990 if experience shows that to be the best way of dealing with them."—[Official Report, 2 December 1991; Vol. 200, c. 44.] 511 The phrase "if experience shows" should cause us some concern. There can be no doubt of the existence of this group of minor modifications which require authorisation. For how long will they have to go through those expensive and time-consuming authorisation procedures before the Government introduce a streamlined and preferably locally based alternative route? If the Government cannot see the sense of the new clause, the use of clause 24 would become extremely important, and clarification of the Government's position on that clause is vital.
Also important in the context of the debate is clause 6(4) which allows the Secretary of State to set different rules for applications for different types of scheme. If the Minister continues to resist the case for including in the Bill a local order-making power, will he agree to use the power in clause 6(4) to streamline the process for minor schemes?
The adoption of the provisions in the new clause will not only clarify this part of the Bill but make local order-making power easier and more democratic.

§ Mr. McLoughlin
As the hon. Member for West Bromwich, East (Mr. Snape) says, in some ways the new clause replicates one which we discussed, albeit briefly, in Committee. If my memory serves me right, "briefly" means that the hon. Member for Denton and Reddish (Mr. Bennett) rose and said, "Why not?" and expected an answer.
I accept that the consultation proposals contained the suggestion that local authorities should be able to decide on applications for orders which were minor and local in nature. I shall explain why we decided to drop that suggestion. We thought that there might be advantages to be gained in terms of time scale by deciding some applications locally. There was some support for the proposal from the local authority associations, but none of their responses identified any obvious or sizeable group of schemes suitable for treatment in this way which we thought would have justified the creation of a separate procedure.
Other responses to the consultation document, such as that from the Council on Tribunals, highlighted serious deficiencies in the proposal, and I fear that the same considerations apply to new clause 3. Our first difficulty was in deciding how to identify which schemes should be treated under a local procedure. Many small schemes might appear, initially, to be of only local significance because of their size. That factor alone would not, however, take into account the possibility that their environmental or economic effects could extend much more widely than the immediate vicinity of the works.
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Some schemes that are definitely minor and local may nevertheless cross local authority boundaries. These would be difficult to handle at local authority level and would probably require us to provide potentially complex procedural arrangements. There would be other handling problems for schemes—of which there could be many—which were promoted by local authorities themselves in their own area. In such cases, there would be understandable concern at the prospect of 'coal authorities applying to themselves for statutory authorisation for 512 works, and we would certainly have to provide procedures for appeals to the Secretary of State and for the calling in of schemes by him.
Many, if not most, orders under the new procedure will be likely to include proposals for the compulsory acquisition of land. It would be contrary to long-established policy for such matters to be decided other than by Parliament or Ministers of the Crown. There are similar doubts in some quarters about the propriety of allowing local authorities to confer statutory authority for works. Such authority carries with it a defence against actions for nuisance arising from the proper operation of an undertaking, and this will be a factor in most applications for railway and tramway orders.
Finally, we thought that the need to provide a mechanism for appeals to the Secretary of State against decisions by local authorities would remove any potential time benefits of local decision making. That would defeat the main purpose of setting up the procedure in the first place.
I should also take this opportunity to anticipate the amendments that we are proposing—Nos. 32 to 34—to clause 23 which takes a different approach to local schemes from new clause 3. I undertook in Committee to look again at the scope of the power to transfer classes of application to inspectors; our revised proposal is to exclude from the scope of clause 23 those applications which involve compulsory acquisition powers. I hope that Opposition Members will agree that clause 23 offers a more practical way of dealing with local schemes, and will agree to withdraw the new clause.

§ Mr. Snape
Although I understand the Minister's reluctance to commit himself in the way outlined in the new clause, I find some parts of his explanation less than satisfactory. It is all very well to say that it is hard to define the schemes that should be treated as local; I should have thought that an element of common sense was required here. Obviously, if schemes cross local authority boundaries, they cannot be readily defined as local.
Some of the minor matters that are currently dealt with by means of the fairly cumbersome procedures of the House—and, in future, will be dealt with by means of the procedures proposed in the Bill, which appear to be equally cumbersome—really ought to be looked at again. We shall consult our noble Friends in another place about whether we should return to that point.
Surely it would be possible for Ministers to give local authorities delegated powers to deal with statutory agencies. Local authorities frequently act as agents for Her Majesty's Government when it comes to motorway works and repairs. Is there really any difference between that and delegating powers under the Bill?
As I have said, this aspect of the Bill will be considered again in another place, because we feel that more local democracy is necessary. The further down the democratic pipeline some of these decisions are made, the better. Having listened to the Minister' explanation, however, I beg to ask leave to withdraw the motion.