HL Deb 24 June 2002 vol 636 cc1181-90

10.37 p.m.

Baroness Hamwee

rose to move, That an humble Address be presented to Her Majesty praying that the rules, laid before the House on 13th May, be annulled (S.I. 2002/1223).

The noble Baroness said: My Lords, in moving this Motion I declare a couple of interests. I am currently president of the Town and Country Planning Association and I am a member of the London Assembly, which gives me a very remote interest as the Mayor has certain planning powers and the Assembly has the duty of scrutinising the Mayor's decision.

It was startling to see the title of these rules in view of the recent Green Paper and its associated proposals. I appreciate that the rules before us are not an attempt to introduce fundamental new proposals by the back door. But they are clearly linked. Being unclear as to how the rules and the proposals were connected and what was their relationship, I thought it right to bring the matter before your Lordships' House.

The proposals we heard about towards the end of last year on major infrastructure projects and those connected with the Green Paper were, and are, to give Parliament a role. I hope that the Minister can take this opportunity to update noble Lords—such as those who remain in the Chamber and no doubt many others from the profession and interest groups who will be interested—on what is happening to the proposals. I understand that there is some gossip in the planning world that the Government may not go ahead with them. I believe that that would have a very great deal of support among the many people whose response to the proposals was either concern or cynicism, compounded unhappily at one point by the noble and learned Lord, Lord Falconer, confirming that whipping would apply during consideration of the proposals in another place. I remain of the view that until Parliament improves the holding of the executive to account, such an arrangement would not work. I accept that other critiques have been more technical.

The Library of the House of Commons produced a note on the statutory instrument which states that it is clearly aimed at preventing a situation in which an inquiry rambles on with inconsequential cross-examination and endless hearings causing great delay. Over the past few months, and longer, we have heard much criticism in particular of the inquiry into the Heathrow Terminal Five. I do not believe that that inquiry rambled, although it took a very long time. Nor do I believe that one can argue from the particular—that was very particular—to the general. Indeed, the Royal Commission on Environmental Pollution said recently that since 1984 there were fewer than a dozen national scale projects for which a public inquiry lasted more than three months.

How many projects or applications are likely to be subject to these rules? The schedule to the order sets out the projects which would be governed by it. It is similar to the schedule attached to the proposals paper published in, I think, December. Will the schedule to the statutory instrument pre-empt the primary legislation? I wonder why there ace some omissions compared with that paper, notably power stations, nuclear reactors, large-scale renewable energy plants and what was described as major development by the Crown judged to be of national significance. I suppose for "the Crown" one reads the Secretary of State and perhaps that absence is welcome.

Why are some new projects included? Some, such as flood relief work extending over more than one hectare, seem out of proportion with the other projects listed. Some, such as major road schemes, are absent. On re-reading the list, I wonder, too, at the inclusion of others such as the industrial scale production of pharmaceuticals and plant health products. Can the Minister give the criteria used to compile the list?

Reading the document, I understand that many of the projects are likely to be controversial. However, the controversy may centre more on safety and underlying policy and environmental impact. I think that many of the schemes are more suitable as a subject of environmental impact assessment than this designation.

Perhaps the Minister will say more about how the Government propose to set the policy content. If the inquiry procedures are reformed and national policy statements introduced, is there a need for the parliamentary process? It might be argued that a parliamentary process would slow down the project.

I am sure the Minister will agree that public involvement in planning is vital. I am well aware that we have not yet succeeded in concentrating that at the plan-making stage.

I hope that the Minister will agree that in seeking to balance the rights of applicants and objectors we should not over-react to the delay which may be caused by objectors. I note that the planning reforms were first trailed last summer by the Chancellor of the Exchequer in a speech to the business community. Can the Minister comment on what appear to be restrictions on objections? There is an apparent restriction on the right of objectors to appear. There is the right for the inspector to curtail cross-examination if that affects a timetable which has to be approved by the Secretary of State. I should have thought that inspectors already have sufficient discretion not to need such a sledgehammer.

The rules also provide for mediation. Does that mean that some views will not be represented? I do not argue against mediation but it does not amount to the advocacy role which small groups need at inquiries with regard to planning aid. Better support for objectors at inquiries might lead to the resolution of objections. After all, we still have an adversarial process, however much many of us wish to see a more inquisitorial system.

Of course, mediation will not resolve objections to the principles of an application. I note under the rules that government representatives will not be required to answer questions on the merits of policy. I am not sure how that is to operate in the absence of major changes being proposed. One might ask why anyone should contribute to an inquiry if the decision has already been taken.

I come back to the underlying concern; namely, that the rights of objectors and the very important contributions made by them should not be stifled.

Finally, I turn to the underlying question: why now? Is there a major project in the pipeline? I hope that the Minister will take this opportunity to refute any suggestion that the rules are being changed at this point in order to prepare the ground for a particular inquiry. My own background based in west London leads me to seek confirmation with regard to a matter that was previously topical with the then department combined with the office of the Deputy Prime Minister; in other words, runway capacity. We expect to have a Statement on that quite soon. I hope that the Minister will be able to say that that is not in the Government's sights when setting these rules.

When this House debated the Green Paper, many comments were made to the effect that the process of planning could be much improved without fundamental change. If the Government introduce these rules to smooth the course of inquiries, will it then be necessary to introduce the greater and more controversial changes? If they are going ahead with those larger changes with regard to major infrastructure projects, surely it would be proper to introduce all the changes at the same time so that the implications and the implementation could be addressed as a package. I beg to move.

Moved, That an humble Address be presented to Her Majesty praying that the rules, laid before the House on 13th May, be annulled (S.I. 20002.1223).—(Baroness Hamwee.)

Baroness Hanham

My Lords, I am grateful to the noble Baroness, Lady Hamwee, for bringing this statutory instrument to the attention of the House. I too find it strange that these measures are being brought forward at this time. The planning Green Paper is barely three months old. It presages a further consultation document on major infrastructure projects, in particular on the new role envisaged for Parliament as a planning authority. Why is it therefore that changes are being made to the procedure under this legislation?

Certainly, the statutory instrument does not bring forward the highly contentious issues raised in the Green Paper about the centralisation proposed for the introduction of a parliamentary planning procedure for major infrastructure inquiries but, as the noble Baroness, Lady Hamwee, pointed out, it does bring forward the timetabling of inquiries, mediation and pre-inquiry meetings, at which the Secretary of State will have considerable powers of intervention. He will be able to lay down the matters which are to be discussed, the timescale of the totality of the inquiry and to appoint both mediators and technical advisers, if required.

Perhaps I may ask the Minister how it is envisaged that the Secretary of State will know, at the pre-inquiry stage, what matters he will be asked to consider. How will he be able to know what evidence will be adduced during the proceedings, even if a statement of case is to be produced at the outset by each party? Or is it the intention that the only matters which the inspector will be allowed to consider are those to be laid down by the Secretary of State? Is it proposed that the pre-inquiry meetings will be held in public?

The timetable for the inquiry is to be laid down by the Secretary of State; that is, the beginning and an end. How flexible will the timetable be? How can a strictly defined timetable allow for a fair hearing of all the evidence and representations, in particular that additional evidence, often from objectors, which will be elicited during the proceedings? Rule 8 states that the inspector cannot vary the timetable without the approval of the Secretary of State. What discretion does that allow him in managing the proceedings? The Secretary of State is to be able to appoint both the mediators and technical advisers. How will he protect himself from an accusation of bias in those whom he appoints under such circumstances?

As the noble Baroness, Lady Hamwee, said, the inspector will have the right to stop cross-examination or to refuse to permit it to be undertaken. What circumstances are envisaged that will justify this action? Does not the Minister think that this could threaten the ability of the inquiry to explore all the important issues?

When the Green Paper was briefly discussed in this House, the then Minister, the noble and learned Lord, Lord Falconer, indicated that the next stages would not be by way of a White Paper but by a statement on the Government's intentions—as I understand it, an unusual process. But here we have not even that, only bits and pieces of the Green Paper proposals which raise fundamental questions about the whole approach to these major, and nearly always contentious, inquiries.

If it had not been for the keen eye of the noble Baroness, Lady Hamwee, all of this would have gone unnoticed and there would have been no opportunity to air these matters. Obviously some of the concerns that I have raised duplicate those raised by her, but they are worth repeating in view of the fact that they may get only a limited amount of attention.

No one would deny that there have been some long drawn-out public inquiries—Terminal 5 being the most recent and longest, but that was not helped by the Minister taking one-and-a-half years to make a final decision following the inspector's recommendation—nor that a streamlining of the process might be sensible, but what is the urgency to introduce these measures now? The noble Baroness, Lady Hamwee, asked what inquiries are likely to come forward within the next few months that make it so urgent that these procedures have to be implemented without consultation and before the Government have had time to publish their responses to the Green Paper or to issue their consultation paper on the major infrastructure projects put forward in the previous Green Paper.

In our view this is a very poor deal indeed. Even at this late stage, the statutory instrument should be withdrawn until full consideration can be given to the entirety of what is needed to speed up such inquiries, but within a full and agreed framework. The public have a fairly poor view of the outcome of these inquiries on matters which often affect them very severely. Surely, therefore, any changes should be made in an open way and not hidden under the blankets, which is exactly what was happening here.

Lord Rooker

My Lords, I am grateful to both noble Baronesses. Let me deal with one issue straightaway: to the best of my knowledge there is no ulterior motive. In the past four weeks I have seen and know of no papers in regard to any potential inquiries attached to this narrow set of changes in the rules, which is promoted by the noble and learned Lord the Lord Chancellor.

While there is always a natural suspicion—which I hope to answer satisfactorily—there has been nothing carried out behind closed doors. The rules have been drafted, laid before Parliament, and I hope that they will come into force. Noble Lords have used their right to secure a debate in order that the Minister can answer some questions. I understand that that procedure will be followed in the other place as well.

I shall do my best. I shall confine myself to the rules because they are what the debate is about, otherwise I shall be tempted to stray into other areas. I hope that in due course I shall be able to answer all the questions that have been posed by the noble Baronesses.

The rules are part of a package which was announced to Parliament in July last year, so there should be no surprise about them at all. The former Secretary of State, Stephen Byers, announced the package of measures aimed by and large at speeding up decisions while increasing the opportunities for public involvement in the decision-making process for major projects such as airports, dams and other such matters.

The present system can take too long—although I fully accept that there are not dozens of decisions that have taken years, and I fully accept the statistics that have been given. The package announced last July included up-to-date statements of government policy to help reduce inquiry time spent in debating policy. That is an important element. It also included possible new procedures to give Parliament the opportunity to approve a project in principle before an inquiry looked at the details. We have consulted separately on these procedures and are considering the responses. The appropriate Select Committees are still examining the matter and are due to report.

The third element of the package—which was clearly stated at the time in the press release and the parliamentary Answer—involved improved arrangements for the handling of inquiries. This debate is exclusively about the last of the three measures, so there is no surprise. It was announced that we would do this.

I shall deal with why we have introduced the new rules, and set out the changes and the benefits. Some consolidation has gone on, as anyone who reads the Explanatory Note will see. It delineates the separate changes.

The new rules build on the improvements already made to inquiry rules in August 2000. These are specific to the handling of major infrastructure projects. They are done on the basis of experience and on the basis of measures that have been successfully employed informally at major inquiries. We want to improve significantly the time-scale for the handling of major inquiries—by which I mean to cut it down rather than extend it—streamline the process and reduce unnecessary delay while continuing to make sure that every opportunity is given to people to have their say and to test the evidence that is put forward to the inquiry.

Improvements to the rules can be brought in now and are not dependent on any of the other parts of the package. They are not dependent on any parliamentary procedures, which would require primary legislation. Whatever is decided, there will be further delays because primary legislation is required in other areas. I suspect that it might require amendments to standing orders if a possible parliamentary procedure was proceeded with.

I want to set out the key elements of the order and the key improvements. It is true that the timetabling is stricter. The timetable will be discussed with the parties at the pre-inquiry meeting and will be approved by the Secretary of State. Thereafter, it can be changed only with the approval of the Secretary of State. That does not mean to say that it would never be changed, but it would be no good people spending days and days at an inquiry belly-aching to the chair of that inquiry, because it would be a matter for the Secretary of State. The statutory nature of the approved timetable, following discussions—I emphasise that—with the parties will provide greater discipline for all the parties involved and will obviously help to speed the process.

I can see nothing wrong with the introduction of round table discussions. It will allow parties to discuss areas of concern with each other. It is no bad thing if the parties to a dispute can talk to each other round a table before the inquiry. It ought to lead to a better understanding of the various positions. Experience at other inquiries shows that such discussions can be an effective means of agreeing the facts, so that days are not spent arguing over them—thereby narrowing the areas of disagreement before the inquiry starts.

11 p.m.

Baroness Hanham

My Lords, will those pre-inquiry meetings take place in public or in private?

Lord Rooker

My Lords, I cannot say, but as they will be pre-inquiry, I suspect that it will be up to the parties concerned. They will not be dragooned there. Some people may say that they will do it only if it is in public. That will be up to the chairman and the people round the table. I do not think that we are being prescriptive about that. If we are, no doubt I shall be advised pretty quickly.

There is no reason why these things should be done in secret. In principle, openness and transparency are bound to get a better result than something done behind closed doors that looks as though it is cooked up by the parties concerned. That is important in terms of the media reporting of the issues. It is also important that no one can claim that an inquiry has been fixed before it starts. That would be counter-productive for the exercise of getting public acceptability for major infrastructure projects.

To underpin the stricter timetabling arrangements, the inspector can limit the cross-examination to avoid the timetable being put at risk. This new power will ensure that the timetable is adhered to and that people whom the inspector knows are appearing later in the proceedings get their fair share of time. Some parties might try to snuff out views that other people want to put if they know that there is a time limit on the procedures. That is important. If the inspector did not act even-handedly, they would be answerable to my learned friends elsewhere.

A technical adviser, expert in a particular topic, can be tasked with assessing the technical evidence of all the parties and producing an independent report on the technical issues. That report will be copied to everyone entitled to appear at the inquiry. The adviser will give evidence and be subject to cross-examination on the contents of that technical assessment. The inspector will not be bound by the findings of the technical adviser's report, but we hope that it will help to clarify the technical issues and identify the areas of disagreement and advise on them.

Mediation is an important element. I am digressing slightly and I do not want to cause further problems of delay—or problems for myself—but I asked in the department the other day how many female chairs of inquiries there were. It is well known in the public annals that mediation is much more successfully conducted by females than by males. That is not to say that we will always use only females, but they can be an element in successful mediation.

Mediators can be appointed at the request of the inspector at any time before or during the inquiry. They will be tasked with facilitating an agreement between the parties on any of the issues, technical or otherwise. Introducing mediation to inquiry proceedings is not intended to curtail people's right to put their case. It is simply a process of bringing an agreed result to an inquiry in a faster and fairer fashion. We want to narrow the issues and get agreement where there is common ground. That is bound to be helpful in facilitating the overall conduct of the inquiry.

Another important element is the fact that the date for the delivery of the inspector's report will be announced at the end of the inquiry. That will give some certainty to the parties about the length of time before the inspector reports to the Secretary of State. The obvious question then is whether there would be a similar procedure relating to the time that the Secretary of State takes to make a decision. I cannot answer that, but the question begs itself when a timetable is put on the inspector. If other parties are using an expedited procedure to secure fairer and faster decisions, it is incumbent on the Secretary of State, in the spirit of openness and making progress, to proceed accordingly and join in the party. That is not a criticism of any decisions made by Secretaries of State. The words jump out from the page. It is obvious that the Secretary of State is part of the overall process. It is in everyone's interests that there is no undue delay.

No reasons, other than those that I have stated, lie behind the rules. I have seen no documents in the department and heard nothing verbally to suggest that this effort is part of a pre-emptive strike in relation to a forthcoming inquiry; I know of no such details. The rules will come into force, subject to the prayer against them being unsuccessful. They stand on their own as provisions that were set out by the Lord Chancellor, irrespective of what happens as a result of the planning Green Paper, which may or may not require primary legislation in any future Parliament, when time is available. Those are well-worn words; no commitments have currently been given. The rules also stand alone in relation to any possible agreed parliamentary process towards major infrastructure inquiries.

I turn to the specific issues. I freely admit that there are differences in relation to Schedule 1 and the consultation paper. Moreover, I freely admit that I do not know why some provisions are in and some are out. However, town and country planning inquiries are effectively involved. Some decisions on what are clearly infrastructure projects by some definitions are carried out under other legislation. It is, as I recall, explicit in last summer's consultation paper that similar procedures would be made for inquiries in relation to other legislation.

Roads, including motorways, for example, come under the Highways Act 1980. New roads in excess of 30 kilometres are covered by the proposed parliamentary procedures, if they are agreed to. If Parliament approved a new road in principle, a detailed inquiry would still have to consider orders under the Highways Act.

The way in which power stations, for example, are affected depends on the size—the generating capacity—of the power station. Some are handled under the Electricity Act 1989 and others are covered by the process that is set out in the consultation paper for parliamentary procedures, if those provisions are adopted. I make no point either way; I understand that people outside—particularly planning lawyers—are very interested in what will happen. I am in no position to say what will happen because I can honestly say—I genuinely mean this—that no decisions have yet been made by Ministers. I know that for a certain fact. We have not received the Select Committee reports from the other place. I refer to the Procedure Committee and the committee associated with the former department, which has separated under the machinery of government changes following the announcement of a separate Department of Transport.

The rules stand on their own. It was forecast in July 2001 that such a package would be brought forward. After just a few weeks in the department, I point out that they were brought forward at the first available opportunity. In other words, they have taken rather a long time—a year—to put together. I do not know the detailed reasons why that was the case; the important point is that they are before us. They will facilitate fairer and faster procedures. It is important to say that they are not designed to prevent anybody from putting their view to an inquiry; they are designed to facilitate the process in relation to the dragging out of inquiries on matters that could be dealt with by pre-inquiry meetings, mediation and other well-tested means. Such means have been tried in other inquiries in an informal fashion and have been known to work. The arrangement is as simple and open as that. I hope that the House will approve the rules and not proceed with the prayer.

Baroness Hamwee

My Lords, I thank the noble Baroness, Lady Hanham, for her thoughtful questions. I seem to have graduated to being her noble friend. I am happy to accept that promotion, although perhaps not politically.

Of course, I accept what the Minister says about there being no ulterior motive. I welcome his obvious commitment to openness in this matter. When I read the details of the rules, I realised that they were far more benign than my concerns about the previous proposals in the consultation paper might have led me to believe. I remain a little puzzled about certain aspects of them, but I accept that, if anything, the rules are late rather than premature. If I were to ask the House to express a view, I suspect that we would not be able to do so. But that has never been my intention. I wanted to understand the context. On that basis, I beg leave to withdraw the Motion.

Motion, by leave, withdrawn.

House adjourned at eleven minutes past eleven o'clock.