HL Deb 07 January 2004 vol 657 cc237-46

7.4 p.m.

Lord Berkeley

My Lords, I beg to move that this Bill be now read a second time.

I can tell your Lordships that the Bill has the support of the ports industry, which has identified an anomaly in the Harbours Act 1964. This Bill is intended to remove that anomaly and is essentially a Bill to achieve a much needed degree of deregulation for the ports industry by applying the same rules to the maritime sector as are applied successfully to other transport modes.

I should remind your Lordships that I introduced a similar Bill into this House in the last Session. That Bill was debated and passed through all its stages in this House. During the passage of the earlier Bill through this House, the Government expressed their support for it, and so did the Opposition, the Liberal Democrats and some Cross-Benchers, for which I am very grateful.

Amendments were moved on behalf of the Government in Committee. Those amendments were made. They were drafted by parliamentary counsel. They did not alter the principle of the Bill but put it into a form which ensured that it would be fit to be enacted. I can assure your Lordships that the Bill before us is in the form of the earlier Bill as it was amended on behalf of the Government.

After the earlier Bill passed through all its stages in this House, it was introduced into another place where it was read a second time and referred to a Standing Committee. Unfortunately, there was insufficient time for that Bill to proceed any further in that Session. However, this Bill has made a much earlier start and, if it passes through all its stages in this House, I would expect it to arrive in another place in good time to be fully considered there.

The background of the Bill requires some technical explanation. Sections 14 to 16 of the Harbours Act 1964 empower the Secretary of State to make harbour orders. Such orders are required, for example, to establish or reconstitute harbour authorities or to confer on existing harbour authorities additional powers to construct harbour works or to manage their harbours.

The procedure for the making of harbour orders is set out in Schedule 3 to the 1964 Act. It provides for objections to the making of a proposed harbour order to be sent to the Secretary of State within a six-week period from the time the proposal is advertised. Where such an objection is made and not withdrawn, the Secretary of State must—and I emphasise "must"—hold a public inquiry to consider the proposal, unless he determines that the objection is trivial or frivolous. The result is that a public inquiry must be held even if there is only one outstanding objection, unless the Secretary of State determines that the objection is trivial or frivolous. The Secretary of State, quite rightly and properly, rarely categorises an objection as such; and an objection made by a local resident who expresses a concern is in practice very unlikely to be determined to be trivial or frivolous.

There have been a number of cases in which a single outstanding objection to an order has necessitated the holding of a public inquiry giving rise to considerable expense and delay. These cases include two examples which I will briefly summarise. The first is the Felixstowe Dock and Railway Harbour Revision Order. The port of Felixstowe is the largest container port in the UK and the fourth largest in Europe. It applied in October 2000 for a harbour revision order to authorise major new harbour works of considerable local and national significance. By November 2001, all but one of several objections had been withdrawn following the provision of appropriate assurances and undertakings to bodies such as the Environment Agency and the Royal Society for the Protection of Birds.

However, as a result of the single outstanding objection—lodged and maintained by a local resident—a public inquiry took place over seven sitting days, resulting in the making of the order being delayed until October 2002. In his decision, the Secretary of State stated: The project should proceed for imperative reasons of overriding public interest". It is the industry's view—and mine, too—that if the Secretary of State had been able to deal with the objection by written representations, as provided for in this Bill, it is likely that the order could have been made in or about February 2002, a saving of about seven months, and considerable delay and substantial costs would have been avoided.

My second example is the Whitehaven Harbour Revision Order 1996. Whitehaven, at the other end of the country, is a completely different, smaller harbour. In 1995, the Whitehaven Harbour Commissioners applied for a harbour revision order to authorise the construction of a lock and other harbour works as a key part of an urgently needed scheme for the regeneration of Whitehaven town and the local area.

Objections were made by holders of harbours bonds which had been issued in the 19th century to finance port expansion. The bonds had virtually no market value and Whitehaven harbour was, by the time of the order, very little used and heading towards insolvency. However, the bond holders objected to the order on the grounds that the effect of the works would be to undermine the commercial value of their bonds.

Following discussions with the Whitehaven Harbour Commissioners, three bond holders refused to withdraw their objections in the knowledge that their action would lead to a public inquiry, thereby resulting in a delay which could have led to the loss of European Community funding. As a condition of withdrawing their objections, they required that their bonds should be purchased at considerably more than their minimal market value. To resolve the issue, a number of private individuals contributed money to purchase the bonds—which is an interesting thing to do—and the order was eventually made in June 1996. In this example, the current system was used to hold to ransom a public project of considerable local economic significance. The situation would not have arisen if the Secretary of State had had the power to consider those objections by means of written representations.

The ports industry feels strongly that the present position is unsatisfactory and that the Harbours Act 1964 requires amendment. I understand that there is no proposal to include in the next parliamentary Session a transport Bill that could be a suitable vehicle for such an amendment, and officials have given no indication about when parliamentary time could be found for a government Bill. Hence, I have introduced this Bill.

The effect of the Bill would be to bring the procedure for the making of harbour orders into line with the procedures for making highways or transport and works orders. The Secretary of State would retain a discretion to hold a public inquiry in all cases. When an objection is made by a relevant local authority or by a person whose land is proposed to be compulsorily acquired and who requests a hearing, the Secretary of State would be required either to hold a public inquiry or a public hearing. In other cases, the Secretary of State would have the discretion, instead of holding a public inquiry or hearing, to deal with the objection by written representations.

Neither the Highways Act 1980 nor the Transport and Works Act 1992 expressly provides that, when objections have been made and sustained and the Secretary of State has decided to proceed without an inquiry or hearing, he must deal with those objections by means of written representations. However, both those Acts provide that, in such circumstances, the Secretary of State must consider those objections and, as a matter of practice, consider any further written representations made by the objectors and the applicant to the order when those representations are volunteered or made at his invitation A similar procedure for written representations would follow on the enactment of the Bill when read with paragraph 19(1)(d) of Schedule 3 to the Harbours Act 1964, which provides that the Secretary of State must consider any objections which are made and not withdrawn.

Before closing, there are two matters which I should mention. First, I believe that the Bill is consistent with the provisions of the Human Rights Act. In particular, in the case of a landowner whose land is to be subject to compulsory acquisition by means of a harbour order, his right to require a public inquiry will be retained.

Secondly, there have been consultations between the British Ports Association, the Department for Transport and stakeholder bodies such as the Environment Agency and the Royal Society for the Protection of Birds. The Department and those bodies have expressed support for the Bill. However, the RSPB feels that, to ensure that wildlife interests are fully protected, the Bill should be amended to provide that the Secretary of State would be required to hold an inquiry to consider objections when English Nature or the Countryside Council for Wales objects to an application for an order and informs the Secretary of State that the agency or the council wish their objection to be referred to a local inquiry. I am pleased to say that the ports industry welcomes the constructive approach of the RSPB and, if the Bill is given a Second Reading, I shall propose an amendment at Committee stage to meet the points raised by, and agreed with, the RSPB.

In conclusion, if the Bill is enacted it will enable the Secretary of State to exercise his discretion in appropriate circumstances to speed up the process for making orders under the Harbours Act. It will reduce red tape and be welcomed by the ports industry and many others. I ask your Lordships to give the Bill a Second Reading.

Moved, That the Bill be now read a second time. — (Lord Berkeley.)

7.14 p.m.

Lord Donaldson of Lymington

My Lords, I rise to give the Bill a hearty welcome as it simplifies and curtails the procedures necessary in the case of harbour revision orders. As your Lordships know, shipping is a highly competitive industry, not only in terms of ships themselves but in terms of ports and the facilities provided through ports, or in the context of ports. Furthermore, the competition between ports is international, except perhaps in Australia, where there is no alternative but to go to an Australian port.

In north-west Europe, the international competition is fierce—and I might single out a particular part of north-west Europe, along the shores of the English Channel and just beyond. Therefore, it is of national importance that we do not lose out. Time is money, not only in the sense that vast capital sums have to be spent in setting up new ports or altering ports, but also because the money is all up front. The sooner that income can be brought in to support that effort, the better.

I know that it does not normally follow but. as my name implies, I actually live in Lymington, so I have a distinct local interest in the port of Southampton and the efforts to establish a new terminal at Dibden Bay. I have no financial interest, but a considerable local interest. It seems to me that it has an unfortunate history compared to its rival, which is the port of Le Havre. The Dibden Bay application was made in October 2000, but it took more than a year for a public inquiry to be started. It began on 22 November 2001 and wound its weary way—and I read a great deal about it in the local papers—until 12 December 2002. That is 13 months. I do not know for certain, but rumour has it that the inquiry report was handed to the Secretary of State in October 2003, but still we do not know the answer.

Let us compare that to the situation in Le Havre. In that case, a public inquiry, or some form of inquiry, was held between 24 November and 23 March 2001, which is four months as compared with our 13 months. Dredging began in the following year, and the new container terminal is expected to open in the middle of this year.

There are undoubtedly major issues involved. For example, there is an issue about the need for the terminal in Dibden Bay. Personally—although I do not have any technical knowledge of the matter—I would be a bit surprised if ABP, the owners of the port, would be prepared to pour vast sums of money into the project if there was no need. However, that was one of the matters that was bandied about at the inquiry. There are also considerations of whether there are adequate communications into the hinterland. By that I do not mean the immediate hinterland, but rail communications up to the north and the Midlands. They are important issues. There are also issues of marine safety.

All those issues can be considered without a public inquiry, because they are technical in nature. However, they were being bandied about by people who, with the greatest respect to the objectors—if one really strips the matter down—were simply battening on to the issues on the general proposition, "Not in my back yard". That proposition was not actually put forward, but that is what it amounted to. As a nation, we cannot afford to have the nimbys of the world holding up economic progress. It may be that there is no case for Dibden Bay; I do not know, and that is not a matter for me. However, whether there is or is not, the time spent inquiring into it is something that we should curtail.

With those words of support, I express the hope that the Bill will go through virtually unamended. I should like to look at the amendment about the birds, mentioned by the noble Lord, Lord Berkeley. If the birds can force a public inquiry at any time, I am not sure how far we are down the road of improvement.

7.20 p.m.

Lord Greenway

My Lords, for the second time in under a year I rise to support the noble Lord, Lord Berkeley, on the Harbours Bill. I must declare an interest at the outset. I have been a consultant in the ports business for more than a dozen years, although I have not actually worked for any British port for three or four years.

As a result of my experience in the business, I am only too well aware of the frustration of those in the ports and the shipping industries concerning delays to harbour revision plans as a result of objections to orders, some of which, to put it politely, seem to lack any common sense at all.

I very much welcome this modest Bill's aim of simplifying the objection procedures in relation to port orders. This will not only bring ports into line with highways and other transport works but will, more importantly, save both time and money. I need hardly add that I fully concur with everything that the noble and learned Lord, Lord Donaldson, said about the competitiveness of the ports business, particularly in relation to Southampton and Le Havre, both of which I worked with some years ago. I know full well how frustrated the people in Southampton are. I wish the noble Lord, Lord Berkeley, well with this Bill and I hope his problems with the birds are sorted out.

7.21 p.m.

Lord Bradshaw

My Lords, like the two previous speakers, I was here less than a year ago to offer my support to the Bill. I should add a word of warning. I was present at a meeting this morning which was seeking a Transport and Works Act order. I was told that English Nature—not the Royal Society for the Protection of Birds; I believe that English Nature was mentioned—with which consultants have spent considerable time exploring different ways of meeting their objections, said that whatever is done, it is obliged by its constitution to object.

I fear—the Minister may care to take account of this—that we may be making a rod for our own backs by giving certain objectors extremely strong grounds for objecting. We may even be saying that they must object to a proposal even if the promoters have done their damnedest to employ consultants to meet the objections. Whatever scheme is being proposed, whether it is a port, a railway or a road, one is bound to do some damage while building it. There is a great case for restitution afterwards or for improving things, but you cannot make the proverbial omelette without cracking a few eggs at the outset. I wish the Bill good speed. We were discussing planning yesterday, and the noble Lord, Lord Rooker, was at pains to tell us that the Government's aim is to do everything possible to streamline planning. While I defend the right of a genuine objector, I recognise what the noble and learned Lord, Lord Donaldson, said. Some people become objectors—I would dismiss many of them as absolutely frivolous and trivial objectors—simply because, in many cases, they have nothing better to do than to stand in front of an inquiry talking absolute rubbish. We want to avoid that whenever we can.

I certainly support the Bill's aim, which is to promote an efficient ports industry. I wish the Bill all speed. I hope that the Government will ensure that when it goes to another place this year, it receives sufficient time to be passed.

7.24 p.m.

Viscount Astor

My Lords, we support the Bill in principle. I suppose that the big question is whether it has the Government's support and whether the Minister will back it and indeed encourage its passage through another place. Perhaps he can also confirm the statement by the noble Lord, Lord Berkeley, that it complies with the Human Rights Act.

The noble Lord, Lord Berkeley, raised an important point about the one amendment he proposes making after his conversations with the RSPB. I believe he said that if there were an objection from English Nature, the Government should consider holding a public inquiry. I agree with the comments of the noble Lord, Lord Bradshaw. The noble Lord, Lord Berkeley, may have fashioned a rod with which he could be beaten. I suspect that the RSPB will encourage English Nature to object on principle to every single proposal regardless of whether it is good or bad. Because of that pressure, English Nature also will feel obliged to object to every proposal on principle, so that a public inquiry is held. English Nature will feel that unless it does so, someone could come along and say, "There is an amendment to the Bill which says that if there is an objection, there should be a public inquiry; and if you do not object on principle, we will ask you to go to judicial review".

The noble Lord, Lord Bradshaw, is absolutely right about that. From my side, I advise the noble Lord, Lord Berkeley, to consider very carefully the terms of his amendment. I should be interested to hear what the Minister says about it. If the amendment has such consequences, I suspect that the noble Lord will have defeated the Bill's core aim. I see the noble and learned Lord nodding. for which I am grateful. I am grateful also for his support for the Bill. His comments on Southampton and Le Havre were very interesting.

I think we all agree that although we want local representation to be paramount in major planning issues, we also want—and I believe that this is the Government's aim—to ensure that major projects are not delayed as they have been. The Terminal 5 inquiry has been a testament to the failure of government on both sides. I am not being partisan by saying that the system has taken such a long time to come to a conclusion. That is not satisfactory from anyone's point of view, whether of the promoters or the objectors to the scheme. We certainly support the Government's intention of making make the planning system simpler and more effective. I noted the support of the noble Lord, Lord Greenway, who has expertise in these matters. We support the Bill. As I said, we are concerned about the amendment proposed by the noble Lord, Lord Berkeley. I hope that he and the Government will consider it carefully.

7.28 p.m.

Lord Bassam of Brighton

My Lords, the Government's intervention in this debate will be brief for two reasons. First, there is a large element of déjà vu in this debate; it is the second time that my noble friend Lord Berkeley has brought the measure before the House. Everyone has expressed support for the Bill. Perhaps we should all congratulate him on his persistence in pressing the measure.

The Bill also had the benefit of advice from parliamentary counsel during its previous passage. The Government make plain our support for its objective. I n the circumstances, as I am sure noble Lords will understand, my comments will be very similar to those relayed by my noble friend Lord McIntosh in the Second Reading debate in the previous Session.

As all speakers have averred, the Bill's objective is essentially to streamline—one could say to deregulate to a small degree—the procedure for handling objections to harbour orders. As my noble friend Lord Berkeley said, it is a simple technical measure which will bring harbour order procedures into line with more recent arrangements, for example, under the planning system. The noble Lord, Lord Berkeley, gave some interesting examples. I add one in the Brighton context, oddly enough, where moves towards the restoration of the West Pier have been held up by a commercial objector, in part using the harbour orders procedures to provoke a delay. We are all well aware of the potential adverse conditions that currently pertain and want to move on from that.

The House will know that harbours in this count ry are managed by harbour authorities, which act as statutory undertakers with powers conferred originally by private Act of Parliament. These powers have been used to authorise the original construction of the port and to enable the harbour authority to regulate the safe and efficient use of those facilities. Harbour authorities are, of course, also subject to a body of general legislation, but their local powers remain centrally important to the operation of our ports.

Harbour authorities need to be able to revise their powers from time to time to keep them up to date and to meet new needs, new pressures and new demands. It may be appropriate, for example, to change the constitution of a harbour authority, or to move the harbour limit, or to update the powers it has to make by-laws and other local regulations.

New powers are also needed to authorise harbour works, mainly because works in tidal waters interfere with rights of navigation, and because the authority's regulatory powers have to be statutorily extended to any new facilities. A harbour empowerment order is also occasionally proposed to create a new harbour authority.

As is well known, until 1964, a harbour authority's statutory powers could be revised only by private Act. The Harbours Act 1964 created a procedure to make harbour orders. These are statutory instruments made by the Department for Transport. The 1964 Act may have seemed modern in its day but it has been overtaken by procedural practice, notably by the Transport and Works Act 1992. This Bill would bring it back up to date.

The procedure for making a harbour order begins with an application from the harbour authority, or would-be harbour authority in the case of an empowerment order. Applications are advertised so that people have a chance to object or make representations. I emphasise that this is very important. It is entirely right that there should be this opportunity, and that it should be accessible. It should not be used mischievously. As we have heard, it can on occasion fall into that trap.

The 1964 Act makes provision for a public inquiry instead, and it says that one has to be held if there is just one outstanding objection—as a number of noble Lords have said— unless that objection is frivolous or too trivial.

As many noble Lords have said, inquiries are disproportionate in some cases. Harbour authorities can be deterred from making highly desirable changes by the delay, uncertainty and, as many noble Lords have said, cost. It is hard to plan a proposal without knowing if just one objection might lead to an inquiry.

Inquiries can be inaccessible to some objectors, especially ordinary members of the public, who would often find a hearing or written representations far less daunting. I believe that is part of the appeal of the Bill. Only highly organised and well resourced objectors can afford expert representation although that is not always a good use of their funds. If the promoter is a large enterprise, there is a risk of lack of balance in the way in which opposing cases are presented. Even when an objector is well resourced and able to afford representation, it is not necessarily a good use of their money.

The Town and Country Planning Act and the Transport and Works Act allow hearings and written representations as an alternative to an inquiry. As has been argued in this case, this simply brings the harbours and ports legislation into line. Importantly, these more modern procedures still give objectors a full right to be properly heard, but without the formality and expense of an inquiry where this is not appropriate. I am pleased to see that this Bill preserves the right to an inquiry where one's land is compulsorily acquired or the objector is a local authority. The Transport and Works Act does exactly the same. This is very important in relation to satisfying the Human Rights Act. That point was raised in today's debate.

I have also noted—the noble Viscount, Lord Astor, raised this point—that the noble Lord intends to move an amendment at a later stage to add the Government's statutory advisers on nature conservation issues to the list of those with a right to an inquiry. For reasons that have been expressed we shall have to reserve our position on the proposal until the time for its consideration. It has been brought forward understandably to ameliorate the concerns of nature conservation bodies but there may be an issue of consistency with other legislation to be taken into account.

The regulatory impact assessment shows that the change would cost nothing and would benefit ports—and objectors—of all sizes. I assure the House that appropriate use only would be made of the new discretion. The Secretary of State would not use it to avoid inquiries where they need to be held. We have plenty of precedents from the planning system to guide us on when discretion should he exercised. The Bill, if enacted, would make a useful contribution to the Government's overall policy of streamlining planning and related procedures. For all those reasons we give it our support and wish it well

7.35 p.m.

Lord Berkeley

My Lords, I am extremely grateful to noble Lords on all sides of the House who contributed so positively to the debate. I start by addressing the remarks of the noble and learned Lord, Lord Donaldson, who made an excellent point when comparing the timing of the Dibden Bay development with that of the Le Havre development. I did not give an example in that context but I shall mention one that may be relevant. I worked for 15 years on the Channel Tunnel. Permission was sought to construct it on this side of the Channel through a hybrid Bill. That process took over two years and cost heaven knows how many millions. The equivalent process in France took six weeks. It was said that if you want to build in a swamp, you do not consult the frogs and so on. However, the French people were consulted and the French authorities had a national policy.

I am not suggesting that we should introduce such dramatic changes here, but it is encouraging that the Government are now looking at the planning process as a whole and trying to speed it up. That is greatly to be welcomed, as the noble Lord, Lord Bradshaw, indicated.

It is clear that any Bill such as this will help harbours with developments on which general agreement is reached. As we heard in a debate just before Christmas, there is demand for extra port capacity. Several noble Lords referred to that. It is a question of providing that capacity in an acceptable fashion which costs as little as possible. I hope that the Bill will constitute a small contribution towards that.

Many noble Lords said that we need to reconsider the discussions we have had with the RSPB and others regarding their role in a public inquiry. I take on board comments made by many noble Lords that that may have other consequences that need to be looked at. I am sure that we can do that in the forthcoming stages of the Bill.

I again thank all noble Lords who have given the Bill such positive support.

On Question, Bill read a second time, and committed to a Committee of the Whole House.

House adjourned at twenty-one minutes before eight o'clock.