Infrastructure Bill [HL]
(9 years, 5 months ago)
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Lord Newby (LD)
My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Infrastructure Bill, has consented to place her interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Amendment 1
Baroness Kramer
“General duties of a strategic highways company
(1) A strategic highways company must, in exercising its functions, co-operate in so far as reasonably practicable with other persons exercising functions which relate to—
(a) highways, or(b) planning.(2) A strategic highways company must also, in exercising its functions, have regard to the effect of the exercise of those functions on—
(a) the environment, and(b) the safety of users of highways.”
The Minister of State, Department for Transport (Baroness Kramer) (LD)
My Lords, I agreed on Report to come back with amendments on two aspects over which noble Lords had concerns. I tabled Amendment 1 in recognition of noble Lords’ preference for the strategic highways company’s duties to be stated in legislation. It places a duty on the company in relation to the environment, safety and co-operation, noble Lords having expressed the strongest concern that that should be made clear. We have already made considerable change in taking on board concerns that were raised in Committee and on Report. It is the Government who must set broad policy on the environment and road safety and noble Lords will be aware that we have already amended the Bill to include an obligation on the Government to have regard to the environment and safety of users of the highway when setting or varying the road investment strategy. We are now taking this further by placing a duty on the company to consider those matters, meaning that the company itself is obliged to consider the impact of its operations on environment and safety.
Moreover, your Lordships will know that we have made changes to the powers of the monitor—the ORR—to hold the company to account and to measure and report on the company’s performance and whether it is meeting its duties, including on the environment and safety. I remind your Lordships that, in parallel with these high-level duties, we are using statutory directions and guidance from the Secretary of State to steer the company in the way it exercises its functions. We have extensively redrafted these prior to Report to reflect your Lordships’ concerns and these same issues are covered in great detail there.
In addition, your Lordships will note that we have also done even more than relying on statutory direction or guidance to ensure that the company co-operates. It now has a clear duty to co-operate in the areas of highways and planning with local authorities, devolved Governments, operational partners—such as the police and emergency services—other transport operators, and other bodies with a significant stake in the long-term development of the network.
I tabled Amendment 16 in recognition of your Lordships’ concern that there may be more than one strategic highways company provided for in Part 1 of the Bill. I have explained to the House that the Government have no plans to create more than one company and that the Highways Agency—in its new status as a government-owned company—will be the only company appointed when we bring these provisions into force. I recognise that further reassurance is needed on this point and therefore propose an amendment requiring parliamentary approval if the Secretary of State wishes to make an appointment order under Clause 1 which involves moving away from a single company structure. This strikes a balance in providing the flexibility for future Governments to move to a different structure—for example, a regional structure—should it be needed or desired, without the need for further primary legislation on the point, while meeting your Lordships’ desire for further discussion and approval by Parliament on the detail of how a multiple company structure would work in practice before allowing it to proceed. I hope that this provides a sensible compromise between your Lordships’ concerns and our desire to maintain a potentially useful option for the future, and for this reason.
In summary, I hope your Lordships recognise the effort we have made to ensure that there can be no doubt about what responsibilities the company has or how it will be held to account and that we have advanced considerable changes to meet the views expressed in this House. I beg to move.
Lord Davies of Oldham (Lab)
My Lords, I am grateful for these amendments, which certainly improve the Bill. I congratulate the Minister on the way she has conducted herself at the various stages of the Bill and on bringing forward these amendments in response to the arguments put forward in Committee. Those arguments were put forward particularly forcefully by my noble friends Lord Whitty, Lord Faulkner and Lord Berkeley. As the Minister will know, we started off with a great many reservations about the nature of the Bill and we are very pleased that the Government have gone some of the way towards making it slightly more difficult for multiple strategic highways companies to be set up. Amendment 16 ensures that Parliament will have a say on this, which is very much to be welcomed. I particularly appreciate Amendment 1, which ensures that the strategic highways company has regard to the environment and to the safety of users of the highways. These were issues about which we were very concerned on the Opposition Benches and we are pleased that the Minister has seen fit to propose amendments to the Bill as it then was.
However, it is still the case—as I am going to speak only once I hope the Minister will forgive me for moving a little further on—that there are questions which the Government have not adequately considered. An example is the needs of local roads in dealing with the challenges of huge numbers of potholes and the projected increase in traffic. The fact is that it is not the strategic system which creates the majority of problems for road users but local roads. The same applies to safety, where the Government have presided over a large reduction in road safety budgets and further action may be required. Among others, I obviously mention the issue of cyclists. That may seem marginal in a Bill that is predominantly concerned with strategic highways but, if one is talking about safety, one has to look at the growing use of cycles on our roads. That is greatly to be welcomed in many respects—provided that cyclists obey the law, I hasten to add—but we must also ensure that we do not get the kind of significant increase in cycling accidents that we have seen in recent years.
Baroness Kramer
Baroness Kramer
I shall speak also to Amendments 3, 4, 6, 8, 9, 10 and 12. Maximising the release of surplus public sector land is critical to supporting the Government’s ambitions to reduce the deficit, increase the number of houses being built and help to drive economic growth.
The new public sector land programme from 2015-16 will mean transferring a significant amount of surplus and developable land from government bodies to the Homes and Communities Agency and, in London, to the Greater London Authority. Disused government land can and does already transfer to the Homes and Communities Agency but the process is often more bureaucratic than is necessary. Clause 26 is about simply increasing the rate of delivery and efficiency by streamlining what essentially is an internal government procedure.
As I believe the House now largely accepts, the intention behind Clause 26 is not and has never been to sell off the nation’s forests. In recognition, however, of the strength of the House’s concern about the future security of the public forest estate, my noble friend Lord Ahmad committed on Report to table an amendment to make it clear in law that the public forest estate will not transfer to the HCA. The amendment we have tabled will prevent transfer of the public forest estate to both the Homes and Communities Agency and the Greater London Authority.
We have gone further than the amendment tabled by the noble Baroness, Lady Royall. Our amendment additionally seeks to address an oversight we have now identified in the original Housing and Regeneration Act 2008, which was passed under the previous Government. Section 51 of that Act makes it possible for land owned by central government to transfer directly to the HCA. The public forest estate is, of course, owned by central government and not—as we have repeatedly made clear when asked about these clauses—by an arm’s-length body. Needless to say, since the Labour Government introduced powers to transfer the public forest estate to the HCA six years ago, we have not used them. I am sure the fact that the legislation allowed this was an oversight rather than intentional, so we are now amending the 2008 Act to prevent any transfers under these existing powers. This now covers any transfers from a government department to the HCA where the land is part of the public forest estate.
I also make it clear that our amendment already covers the contingency that the amendments tabled by the noble Baroness, Lady Royall, seek to address. Our amendment will prevent the transfer of any land that is held by the Secretary of State and has been acquired, or is treated as having been acquired, under Section 39 of the Forestry Act 1967. This definition, therefore, covers all land that is under the management of the forestry commissioners at any given time, as well as land that is not being used for afforestation or purposes connected with forestry. I trust that this amendment will provide the comfort that noble Lords have sought on this issue.
In the same debate on Report, the noble Lord, Lord Phillips, raised a query about the potential scope of this clause, asking whether the definition of “public bodies” is too broad for the stated aims of the clause and whether it could, for example, allow for the transfer of land owned by charities. The noble Lord, Lord Ahmad, has written to the noble Lord, Lord Phillips, to set out why we think this clause is not likely to extend to the transfer of land from charities. However, for the avoidance of any doubt, we wish to make it clear in the Bill that transfers to the HCA or GLA using this power may happen only with the consent of the transferring body. I trust that this will allay any concerns that there would be any potential for a future Government to misuse this power. I beg to move.
Baroness Royall of Blaisdon (Lab)
My Lords, I will speak to Amendments 5, 7, 11, 13 and 14. I thank the Minister for coming back with the government amendments. I know that campaigners who have fought to protect our forests are also pleased that the Government have responded to their concerns. I am also grateful to the Minister and the noble Lord, Lord Ahmad, and their officials for the work they have put into ensuring that the exemption of the public forest estate from the Infrastructure Bill is in the Bill. However, while I accept what the Minister is saying about an oversight, her line of argument appears contradictory to statements at previous stages of the Bill when it was said that transfers of the PFE under this legislation could not happen. However, that is history.
I have tabled amendments to the government amendments with one aim—to make sure that the entire public forest is given the protection that noble Lords and campaigners have asked for throughout the passage of the Bill. However, I am still concerned about forest waste. Forest waste—in the forest that I know best, the Forest of Dean—is usually taken to mean land within or on the margins of the forest, not planted or used for forestry purposes. Forest waste is of great value in terms of biodiversity, ecology, amenity and recreation. Within the Forest of Dean there are a number of gales—shallow workings mined by free miners. These mines are clearly not used for afforestation or in connection with forestry, but they are a central part of the history and character of the Forest of Dean.
I am concerned that this forest waste may not be included and there could be some ambiguity as to whether it is suitable for afforestation or purposes connected with forestry. My disquiet is principally due to the part in brackets in Amendment 12 that states:
“(power to acquire land which is suitable for afforestation or purposes connected with forestry)”.
That does not include,
“together with any other land which must necessarily be acquired therewith”,
which is in Section 39(1) of the Forestry Act. I would be grateful for clarification from the Minister on that point. Will she confirm that forest waste is exempted from the Infrastructure Bill? In which case, I hope that she will accept my amendment as confirmation that this is the case.
Once again, this reflects the key message that arose repeatedly in our debate on Report on the need for the Government to legislate through a forestry Bill to protect the public forest estate. As the Woodland Trust said in its briefing ahead of Third Reading, for which I am grateful:
“We hope that the Third Reading debate, any subsequent further amendment—and scrutiny in the Commons—will ensure that protection is as strong as possible. Whatever the outcome of the Bill’s passage, however, it has to be said that this is a row of the Government’s own making through not bringing forward a Forestry Bill as promised. Indeed, this assurance within the Infrastructure Bill cannot be deemed a substitute for the bringing forward of legislation for the Public Forest Estate; a specific Forestry Bill is still needed to settle the future of the PFE and for the avoidance of any future doubt or confusion as to its status. We want to see that legislation brought forward at the earliest opportunity after the election”.
I strongly echo those sentiments. Again, I thank the Minister, but I also pay tribute to the campaigners, particularly those from HOOF who, through their dedication, care and passionate love of the forest, have fought time and again to ensure that it is protected for future generations.
Lord Clark of Windermere (Lab)
My Lords, I support my noble friend’s amendment. I take her point about forest waste. Equally, I am very grateful to the Government for the way in which they brought forward these proposals. On the face of it, they take us further forward and appear to give us greater protection.
I am delighted that the Government managed to find a weakness in the 2008 Act but it is very important that the assurance that I think the Minister gave today was that it included all land managed by forest commissioners. That is very important because, in recent years, we have had joint initiatives and joint ventures with the private sector that are not forestry—the provision of forest cabins, car parks, and so on. I remind the Minister that the Wildlife and Countryside (Amendment) Act 1985 required statutorily the Forestry Commission to manage economic forestry with environmental interests.
My noble friend referred to forest waste, which is vital. The Lake District, for example, includes a great many of the highest mountains in England, and is owned by the Forestry Commission but trees will not grow there and are not planted there. We must have an assurance that those areas of land are covered by the protection that the Minister seems to have brought forward today.
Lord Jenkin of Roding (Con)
My Lords, I do not begin to claim the same amount of expertise as the noble Lord, Lord Clark of Windermere, who of course is a former chairman of the Forestry Commission. We listen to him with huge respect on these matters.
I was puzzled by the amendment tabled by the noble Baroness, Lady Royall, and was not quite sure about its precise aim until she explained. I was under the impression that when my noble friend Lord Ahmad of Wimbledon undertook to bring back amendments at this stage, he greatly satisfied the House. A very strong case had been made by the noble Baroness and by other noble Lords that there was a real need to declare in the Bill the protection of the public forestry estate. I supported that and I was very glad to hear my noble friend Lord Ahmad at the end of the debate recognise the strength of feeling in the House and undertake to come back at this stage with the amendments.
Lord Judd (Lab)
At earlier stages of the Bill, I drew attention to the widespread and spontaneous concern—quite unprecedented in some ways—that had come from people right across the country about the precious and special nature of our forests. I think, therefore, that among a lot of people, there will be a great sense of relief at the amendment that the Government have introduced. Credit should be paid to them for the very commendable way in which they listened to the argument, went away and came back and responded to what the House said.
As for my noble friend’s amendment, I totally see the logic and importance of it. If we have just said that the other amendment is essential because of the very special nature of the forests—let us not be afraid of these phrases: the atmospheric nature of the forests, the spiritual nature of the forests, the physical and recreational nature of the forests—it really is important that intrusions, by carelessness or deliberate action, which spoil that special nature should be dealt with in a way that preserves the special characteristics of the forest. The two amendments go completely together. I hope that the Government will be able to take very seriously what my noble friend has argued and accommodate it.
Lord Berkeley of Knighton (CB)
I congratulate the Minister on listening to the points that a lot of us in this House made. As a rider to what has been said, a very important part of forestry—speaking as someone who has some—are those strips of land where you can extract timber to cut it up and prepare it to go to the timber mill or wherever it is going. This area that we talk of as waste is vital. To people in the country, it is not unlike those elements that you get at the sides of fields that are often put to set-aside or for biodiversity. The amendment makes a very good point and I am sure that the Minister will reassure us on it.
Baroness Kramer
My Lords, I think that we are all at the same place on this. My argument against the amendments of the noble Baroness, Lady Royall, is that they are unnecessary, because the issue is entirely covered in the language that I hope we will be bringing into the Bill through amendment, if your Lordships agree. The amendments prevent the transfer of any land held by the Secretary of State that has been acquired—remember, this is government-owned land—or is treated as having been acquired under Section 39 of the Forestry Act 1967. As I said earlier, that covers all land that is under the management of the forestry commissioners at any given time—whether by freehold or leasehold—and includes any land that is not being used for afforestation but is still under the management of the forestry commissioners or is not being used for purposes connected with forestry.
The provision is widely drawn. Not only does it include forest waste, it includes the kind of ancillary facilities that many noble Lords have pointed out are necessary. Indeed, there is not even a necessary test: it simply has to be under the management of the Forestry Commissioners. I am sure that that is exactly what the noble Baroness, Lady Royall, and the various campaigners were attempting to achieve.
We think that we have done this rather effectively because one of the challenges of writing legislation is to make sure that we do not include another unintended loophole. We think that this approach is rather effective. I hope that noble Lords will understand why I will resist the amendment because I believe that its principle is well incorporated into the amendments that we introduced.
This may be the last time that I have the opportunity to speak in the House on this phase of the Bill before it goes to the other place. The last group of amendments will be led from the Government’s perspective by my noble friend Lady Verma. I want to say that, in a sense, this last discussion reflects what has been an extraordinary quality of this Bill, for which I thank the whole House. So many Members of the House have taken responsibility for raising issues of concern, strengthening the Bill, looking for ways to make it more effective and recognising the underlying purpose and intent. The collaborative attitude of so many Members of this House—I include the Opposition in that—has led us to a Bill that will serve its purpose even better than the Bill that we originally drafted.
At the same time, I want to thank the most extraordinary Bill team who have facilitated and made all of that possible, and the staff from the many departments that have contributed to the Bill. They have shown an exemplary service in making sure the legislation reflects the genuine intent of this House. I thank the House for allowing me to proceed with this as well. The last group of amendments will be led by my noble friend Lady Verma.
Baroness Kramer
“(4A) The Secretary of State may not make a scheme under this section unless the specified public body to which the scheme relates has consented to its provisions.”
Baroness Kramer
“(4B) A scheme under this section may not make provision in relation to land which is held by the Secretary of State and was acquired, or is treated as having been acquired, under section 39 of the Forestry Act 1967 (power to acquire land which is suitable for afforestation or purposes connected with forestry).”
Baroness Kramer
“(2A) In section 51 (property etc transfers) after subsection (3) insert—
“(3A) A scheme under this section may not make provision in relation to land which is held by the Secretary of State and was acquired, or is treated as having been acquired, under section 39 of the Forestry Act 1967 (power to acquire land which is suitable for afforestation or purposes connected with forestry).””
Baroness Kramer
“(3A) The Secretary of State may not make a scheme under this section unless the specified public body to which the scheme relates has consented to its provisions.”
Baroness Kramer
“(3B) A scheme under this section may not make provision in relation to land which is held by the Secretary of State and was acquired, or is treated as having been acquired, under section 39 of the Forestry Act 1967 (power to acquire land which is suitable for afforestation or purposes connected with forestry).”
Baroness Kramer
“(5A) In section 408 (transfers of property, rights or liabilities to the Greater London Authority etc) after subsection (8) insert—
“(8A) An order under subsection (1) above may not make provision in relation to land which is held by the Secretary of State and was acquired, or is treated as having been acquired, under section 39 of the Forestry Act 1967 (power to acquire land which is suitable for afforestation or purposes connected with forestry).”
(5B) In section 409 (transfer schemes for transfers to the Greater London Authority etc) after subsection (8) insert—
“(8A) A scheme under subsection (1) or (2) above may not make provision in relation to land which is held by the Secretary of State and was acquired, or is treated as having been acquired, under section 39 of the Forestry Act 1967 (power to acquire land which is suitable for afforestation or purposes connected with forestry).””
Baroness Verma
“(4A) A person (“L”) who owns land (the “relevant land”) is not liable, as the owner of that land, in tort or delict for any loss or damage which is attributable to the exercise, or proposed exercise, of the right of use by another person (whether in relation to the relevant land or any other land).
(4B) For that purpose, loss or damage is not attributable to the exercise, or proposed exercise, of the right of use (in particular) if, or to the extent that, the loss or damage is attributable to a deliberate omission by L.
(4C) There is a “deliberate omission by L” if L, as owner of the relevant land, decides—
(a) not to do an act, or(b) not to allow another person to do an act,and the circumstances at the time of that decision were such that L would not have had to bear any of the costs incurred (whether by L or any other person) in doing or allowing the act.”
The Parliamentary Under-Secretary of State, Department of Energy and Climate Change (Baroness Verma) (Con)
My Lords, the UK stands to benefit enormously from the safe and effective development of the offshore shale gas and oil and geothermal industries. The Government have introduced provisions into the Infrastructure Bill which provide a right to use deep-level land 300 metres or more below the surface for the purposes of exploiting petroleum or deep geothermal energy.
I explained on Report that I had listened to the concerns expressed by stakeholders and by noble Lords that the right to use deep-level land could disadvantage landowners if claims were brought against them in connection with petroleum or deep geothermal operations. While the existing regulatory regime is robust, I agree that we can do more to reassure landowners. We need to be clear that these sorts of claims—brought by a third party against a landowner whose land is accessed through the right of use clauses—cannot be made against a landowner who has done nothing wrong. To this end, I committed to table an amendment to address this issue.
The amendment will provide protection for landowners against claims made by third parties for any loss or damage caused by the exercise of the right of use provision. It does, however, ensure that landowners—including persons with an interest in land, such as persons licensing the land—will not benefit from the exemption if they deliberately fail to act, or decide not to allow someone else to act. To make this fair to landowners, we also propose that a landowner would not have to do anything that would ultimately involve them in bearing any costs. This means, for example, that if a landowner prevented an operator from accessing his land to remediate any damage caused, despite the landowner not having to bear any costs, that landowner could be deemed liable. If, by contrast, the landowner allowed for the damage to be remediated, this amendment ensures that, as well as benefiting from existing protections, the landowner would not be liable to claims from any third parties for loss or damage.
This amendment will complement the existing comprehensive statutory and regulatory regime by protecting landowners, while allowing this source of home-grown energy to develop in a way that is fair to communities. I beg to move.
Lord Teverson (LD)
My Lords, I thank the Minister for having explained that amendment. I must admit that, when I went through it, I was not at all clear what it was trying to get at. I wondered whether this mystery person “L” would be listening to the debate or appearing in it. We have a number of such letters in this Bill.
My noble friend Lady Kramer has already thanked a number of people. I am not sure whether I am in the right area to do this but I want particularly to thank my noble friend Lady Verma for the work that she has done on this Bill. It has gone through everything from community energy to fracking to this whole area of oil. It has been a pleasure to work with her. We have our disagreements more in DCLG areas rather than here, but the Bill when enacted will make a number of things in the area of energy much better.
I also thank my noble friend Lady Kramer for guiding a Bill through the House when only about 10% included her departmental responsibilities. She has been present for a lot of our proceedings even when matters far from her department’s responsibilities were involved. Of course, I support the amendment.
Lord Jenkin of Roding
My Lords, while agreeing with everything that my noble friend Lord Teverson said, I would like to make particular mention of my noble friend Lady Verma’s readiness to listen to the arguments on Part 4 concerning the community electricity right. The concession that the Government made on the timing of the power to introduce regulations has been widely welcomed by the renewables industry. It was very wise, and I was extremely grateful when my noble friend signalled that there would be an amendment on Report; I said so at the time.
I, too, thank both Ministers for their part in the Bill and, in his absence, my noble friend Lord Ahmad, who played quite a notable part in the whole question of planning and other responsibilities that fell to his department. I also echo what was said earlier by my noble friend Lady Kramer about the Bill team. They have been extraordinarily helpful. I do not mind at all if, when one raises a point at a private meeting, one receives a very good explanation from one of my noble friends’ staff. Although it is always nice to get letters from one’s noble friends who are Ministers, to have such an authoritative statement from an official is equally helpful, and I thank them very much for that.
This has been a remarkable example of the House of Lords at its best in its role of scrutinising and revising legislation. There are still one or two issues which are not fully resolved, but it is with some relief that we will send the Bill to another place where, perhaps, they can be aired again.
As many noble Lords will have learnt, it is my intention to retire from the House shortly, and I am making it clear to anyone who cares that this will be the last Bill on which I will take an active part. I have enormously valued the opportunity to do that, and I look forward to what is now being called the valedictory speech—which is not today, it will come later—that retiring Peers will be entitled to make under the provisions of the report of the Procedure Committee. I have enjoyed it; I think we really have made a difference; and I think that that is what this House is for.
Lord Davies of Oldham
My Lords, as the House is in congratulatory mood, I briefly congratulate the noble Lord, Lord Jenkin. I first met his formidable intellect, advantages and knowledge on energy Bills a decade or so ago, when we went through a very long energy Bill. From what I can recall, he was present for virtually every minute of a Bill that went through 13 days or so in Committee, to say nothing of the extensive consideration elsewhere. Others will have the chance to congratulate him later, but with regard to this Bill, he has displayed his usual insight and talent to improve the legislation. I also, of course, second his point about congratulating the noble Baroness, Lady Verma, and the Bill team—although I may say that they have only started the long road. I predict challenges yet to come on all parts of the Bill but in the area of fracking, I think that they will have quite an interesting time in the other place.
Baroness Verma
My Lords, I am extremely grateful to all noble Lords for their participation in our proceedings on this Bill, particularly our discussions outside the Chamber, which have been very helpful. I end by thanking my noble friend Lord Jenkin for being there throughout all the energy Bills that I have worked on. He has provided a stream of information and expertise, and I have learnt a great deal from him in the past two and a half years at the Department of Energy and Climate Change. I wish him well. His forensic examination of legislation has made us all realise that this House has such excellence to offer that we should never underestimate the expertise among those who sit here.
Baroness Kramer
“(1A) A statutory instrument which contains an order under section 1—
(a) appointing a strategic highways company for an area other than the whole of England, and(b) which is the first exercise of the power in respect of such an area,may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.(1B) A statutory instrument which contains an order under section 1—
(a) appointing a strategic highways company for an area other than the whole of England, and(b) which is a subsequent exercise of the power in respect of such an area,is subject to annulment in pursuance of a resolution of either House of Parliament.”
Baroness Kramer
My Lords, I owe the most extraordinary thanks to two of the most brilliant colleagues, the noble Baroness, Lady Verma, and the noble Lord, Lord Ahmad. I also regret the fact that, sadly, the noble Lord, Lord Jenkin, may not be here again on another Bill. We shall desperately miss him. I beg to move the privilege amendment.