Localism Bill

Lord Berkeley Excerpts

Monday 31st October 2011 Lords Chamber

[Lord Berkeley]

My Lords, I support the concept of this amendment, but we are in danger of making even more laws when we cannot enforce the ones we have. I find pretty incredible the idea of somebody such as a litter warden—I do not think the police would do it—chasing every car that goes down a country lane to see whether something falls out of the window and then trying to identify who threw it via the keeper. The same could apply in parks or on the roads. Who is going to enforce these laws? I wonder whether either of the noble Lords who have put their name to this amendment could actually tell the House how many convictions there have been for dropping litter, even without this amendment, since the law came into effect. I am afraid that it is probably a solution that is nice to have but will not make much difference. We have to do much more to educate people about not throwing litter or dumping things and helping them, as my noble friend Lord Judd said, to have more pride in the environment in which they live.

[Lord Jenkin of Roding]

My Lords, I, too, support the amendment, but I have only one question to ask my noble friend who is going to reply. When he replied on 10 October, at col. 1370, it was perfectly clear that he had been briefed about the London Local Authorities Bill currently before Parliament. I had made the point that it was awaiting some technical changes to be approved by the Government. The Ministry of Justice and no doubt the DCLG will also have been involved. Can my noble friend tell me anything more about that? How long are we going to have to wait before that Bill can be made to work? That is what we are waiting for, and at the moment it is in the hands of the Government. Can she tell me anything about that?

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[Lord Marlesford]

My Lords, I am most grateful to my noble friend for her comments. I am most grateful for the support that I got from all sides of the House. I would like to answer the noble Lord, Lord Berkeley, straight away. First, I am not creating a new offence as such. All I am trying to do is to make the 1990 Act, which has failed for the reasons we have discussed, work better. How many prosecutions there have been or how many there will be is completely unknowable. I suppose we could know how many there have been, but the point is that at the moment the thing cannot be enforced. In my book, unenforceable law is bad law. You should not have laws which put obligations and requirements which cannot be, and therefore are not, enforced. That is the way to bring the law into contempt.

[Lord Berkeley]

I am grateful to the noble Lord for giving way. The Act applies to more offences than throwing things out of motor cars, so have there been any convictions for other litter offences without this problem of motor cars?

[Lord Marlesford]

I am talking about the problem, not of motor cars but of motor vehicles—a little wider than motor cars but not as wide as the noble Lord seeks to draw me. I am not concerned with other things that the Act does. I am sure there are lots of bits of the Environmental Protection Act 1990 which work extremely well. What I cannot accept is the suggestion of my noble friend that it is not necessary. It is necessary for us to do something about litter. This is one thing we could do. It is a simple thing. It is an enabling power. It is a power which gives local authorities the opportunity, as my noble friend Lord Jenkin explained, to do what is being done in London. Therefore, it is wholly appropriate to the Bill. All too often one has found that the Government talk one thing and either do nothing or do something quite different. I would like to feel that this House will give a signal that it basically believes that something should be done and that something can be done. I beg leave to test the opinion of the House.

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[Earl Attlee]

My Lords, the need for this amendment emerged following the first decision under the regime a little over a week ago when it became clear that the Planning Act 2008 contains a drafting flaw that could have serious consequences for the regime if not corrected. Under compulsory purchase law, local authorities, statutory undertakers and the National Trust have special protection from proposals to compulsorily acquire their land. Where they object to a compulsory purchase order, and do not withdraw that objection, the order is subject to special parliamentary procedure—an involved, complex and often lengthy process which can add six to nine months to the timetable.

The first decision under the regime has demonstrated that the Planning Act 2008 has inadvertently widened the grounds on which special parliamentary procedure is engaged. Any representation by a relevant body on any aspect of the development consent order not limited to compulsory acquisition can trigger SPP. This means that many more projects will need to go through the SPP than do at present, with implications for growth and jobs. Government Amendment 53, therefore, seeks to correct the drafting of the Planning Act to bring it into line with compulsory purchase law as it operates under the town and country planning system.

Let me be absolutely clear on this for the benefit of the House. We are absolutely not seeking to lessen the important protections for land belonging to those bodies, and indeed this amendment would not prevent the National Trust, for example, from invoking SPP where a development consent order would grant consent for its land to be compulsorily acquired. The amendment seeks only to correct an error in the 2008 Act, thereby ensuring that the compulsory purchase regime is consistent across both the 2008 Act and the major infrastructure planning regimes. I beg to move.

[Lord Berkeley]

My Lords, I am grateful to the Minister for introducing his amendment and allowing me to speak to my three amendments in this grouping. He has agreed to respond after this, and it is very welcome that we can do it in this way.

I shall just make a very small comment on government Amendment 53. While I welcome the amendment—it is good to see that the Government recognise that some changes have to be made to the Planning Act in this regard—it does nothing for the point that I shall come on to shortly. In a wider sense, the special parliamentary procedure seems to be an additional safeguard in the 21st century, with a rather heavier touch, as I shall come back to several times, than the approach taken in the Harbours Act or the Transport and Works Act orders, which are two of the principal order-making regimes that the Planning Act draws on and replaces.

I turn to the amendments in my name. The House will recall that, both in Committee and on Report, the noble Lord, Lord Jenkin, my noble and learned friend Lord Boyd and I moved, and spoke in support of, a number of quite technical arguments, which we thought were pretty important to the Bill, designed to make a number of changes to the provisions of the Planning Act 2008 dealing with the new regime for considering national infrastructure projects, which are currently operated by the Infrastructure Planning Commission. The Planning Act is a distinct improvement on the many regimes that we had before for the types of infrastructure that it replaces, and I think that it is settling down.

My concern, which I expressed previously and will have to return to shortly tonight, is that this Bill should have gone further and made more changes to the 2008 Act that are either a necessary or logical consequence of the IPC's abolition and the return of decisions to Ministers or are simply required to make the 2008 Act work better. I have been briefed in particular by the National Infrastructure Planning Association, which has people with great experience in this field. I welcome the Government's intention to keep the new regime under review, but it would be helpful to hear from the Minister tonight a little more as to quite what they are going to review and when.

The House will recall that the Minister, Greg Clark MP, said in a Written Ministerial Statement that the Government are,

“listening to industry, representative groups and others using the system … and will be exploring opportunities for improvement to ensure the system has the right mix of certainty, flexibility and efficiency”.—[Official Report, Commons, 10/3/11; col. 73WS.]

That is good. In the impact assessment for the Bill’s provisions on major infrastructure projects, published in January this year, we are told that, in relation to the policy behind the preferred options, which is now reflected in the Bill,

“It will be reviewed 04/2014”.

I would like to hear from the Minister how this review will take place.

Before discussing in more detail the issues focused in these amendments, I want to mention a very recent development that appears to be highly relevant. Apparently,

“The European Union is concerned that the single market is not operating effectively because of a lack of integrated energy, transport and digital infrastructure”—

I certainly support that view—

“and is also not moving to a secure, low-carbon energy future quickly enough”.

On 19 October, only a couple of weeks ago, the European Commission launched two new proposed regulations to address this: the “Connecting Europe Facility”, which is about to spend €50 billion on all three sectors of infrastructure, which is a great deal of money; and a focus on energy infrastructure, for which the Commission will require new authorisation regimes because such projects will have to be subject to a special “permit granting process”. It is a bit complicated, but €9 billion has been earmarked for energy projects.

The Government will have to change regulations or legislation to allow these internationally significant infrastructure projects—which are apparently called ISIPs, as opposed to NSIPs or something—that will sit above, or instead of, the Planning Act regime for nationally significant projects. There are various processes and timetables set out for this and the pre-application consultation requirements are quite prescriptive. I understand that all these are required to be in place by 1 September 2013, which is only nine months after the regulation is due to come into force. It would be interesting to hear from the Minister how the Government intend to do this and make sure that the money being offered from the EU is available.

I am grateful to the Minister for arranging a meeting between his officials and myself and the noble Lord, Lord Jenkin, between Report and now. We had a very useful meeting and I take the opportunity to thank Ministers and officials for the very helpful discussions. We should have had the meeting some time ago, but we did not—as was said at Report. However, I hope that, even so, we can make progress.

Turning to the amendments themselves, I should say that Amendment 87 relates to the Minister’s amendment about development consent orders and the need to have special parliamentary procedures where there are objections. As the Minister said, it could take about nine months extra if one had to go through these procedures. I still wonder why we have to go through these procedures when there should be a single consents regime with a harmonised set of requirements and procedures, which I call a one-stop shop. I compare the complexity and difficulty of this with the transport and works orders and the harbours orders.

On Report, the Minister referred to the Planning Act drawing on long-standing and well-established protections from compulsory purchase orders for certain types of land. He thought that our proposals then would significantly weaken them, but I do not accept his reference to a two-tier system—why it should go further than happens with the TWA and the harbours order. The House will recall that the only project so far to be approved by the IPC, which is Covanta's proposed incinerator in Bedfordshire, will now have to be approved by this House and the other House under SPP. A lot of people may not like these incinerators but that has gone through a process and, again, will be subject to six to nine months’ extra delay. I hope that the Minister can indicate that these issues will be reviewed in the light of experience.

The next amendment in the group, Amendment 88, refers to the regulations made under Section 150, which deal with construction-related consents in England. Again, we discussed this quite thoroughly on Report—so much for having a one-stop shop, as there are still up to 42 other consents required from regulators in England and a further 36 in Wales. I still have not discovered why there are so many extra ones in Wales but it may be that the noble Earl will take the view that it does not matter very much. Again, the point is that it would be very good for those developing new projects to be able to reduce the number of these other consents which they have to get. I wonder whether the Minister would be prepared to give some kind of timetable and a commitment to reviewing this number, and even to produce a report to Parliament every year for the next few years. That could challenge his colleagues in other departments on whether they really can be brought underneath this umbrella of the one-stop shop.

Finally, on Amendment 89, again, we have discussed the creation of criminal offences in some detail but it is still a worry that the types of offences which can be introduced through this process are not sufficient for the types of projects and offences which might be required. Again, that provides a much greater limit than the Transport and Works Act orders do, which is why I wanted to see whether we could include railways and construction in tidal waters. One example which springs to mind is the question of trespass during construction, which could well occur on the high-speed line—assuming that it gets built—or on some of the offshore wind farms, if people can get around there. Trespass is a very difficult thing to stop if you do not have the right regulations, and it would be good to see whether the Minister would be able to extend the existing criminal offences to the two issues in this amendment.

To sum up, we have made progress on these issues in discussions on the Bill but we have certainly not gone as far as I would have liked to see. However, is the Minister prepared to tell us a little more about the issues that I have raised and about three things in particular? First, there is the impact assessment on how the Planning Act 2008 has worked in respect of projects through the IPC and its successor, which I believe is supposed to be there in 2014. Secondly, there is how this connecting Europe facility will work and whether the Government are keen that projects here should get the extra €9 billion that will be available for energy alone. Finally, can I press him to have an earlier review and a progress report to reduce significantly those 42 consents, plus the 36 in Wales?

[Lord Jenkin of Roding]

My Lords, the noble Lord, Lord Berkeley, spoke to his amendment so comprehensively that I want to add only one point. As my noble friend on the Front Bench indicated, the Government’s own amendment came to light only a week ago. I should like to say a very warm thank you to him and to the officials who recognised so swiftly that there had to be a change to the 2008 Act to prevent quite unnecessary use of the special parliamentary procedure, or SPP.

I endorse what the noble Lord, Lord Berkeley, said: there are still too many examples where such procedures will or could need to be invoked. If anybody makes an objection—for instance, where one is dealing with local authority land—and that objection is sustained, it will have to go through this special parliamentary procedure. While the decisions on major infrastructure projects were being taken by the Infrastructure Planning Commission, a quango, that may have been a necessary parliamentary protection. However, as the noble Lord, Lord Berkeley, has said, under the new procedure, perhaps from April 2012, these decisions will be taken by a Minister accountable to Parliament. This changes the nature of the necessity for these other protective procedures to be built in.

Like the noble Lord, Lord Berkeley, I would very much welcome an indication from my noble friends on the Front Bench that they will look at this again. I understand that, in the short time that we have had to deal with this—it came up only on Report in this House—it has been difficult for Ministers to go as far as we would perhaps like. However, with the review coming up, there seems to be an opportunity to have another look at this so that it gets somewhat nearer the one-stop shop that was originally offered by the Ministers in the previous Government as being the major benefit of the new Infrastructure Planning Commission. It most manifestly is not a one-stop shop at the moment. Maybe it never could be a one-stop shop but it could certainly have fewer than the 42 consents that are necessary for these major projects. I hope my noble friends will be able to give us some reassurance that they are sympathetic to this and will, in the review, look at it very carefully with a view to coming somewhat nearer the original objective that was held out to Parliament when the 2008 Act was introduced.