Examination of Witness (Questions 1-19)
LORD FALCONER OF THOROTON QC
TUESDAY 7 MAY 2002
1. Can I welcome the Minister for Housing, Planning and Regeneration at the DTLR to our meeting this afternoon. Lord Falconer, you are very welcome. I have advised my Committee of the very positive and constructive meeting that my clerk and I had with you at the end of last week and we are very grateful to you for coming before us today at the first session of our inquiry into major infrastructure projects and the way that Parliament can handle this matter. Of course, another Committee deals with other more political issues, we deal with the issue as to how the House can work with the Government's proposals and that we intend to do. Can I start from the Chair by putting the first two questions to you. Minister, could you very briefly for the benefit of the Committee summarise the Government's proposals as they relate to Parliament. Because we are going to deal with the matter on behalf of both the Lords and the Commons perhaps you could relate to Parliament as a whole. How do these fit in with the wider changes to the planning system which I know and we all know that you are also proposing?
(Lord Falconer of Thoroton) Thank you very much. Can I also endorse what you said about our very helpful and constructive meeting last week in relation to discussing these issues. Can I thank you for inviting me to take part in the inquiry. As far as the proposals are concerned, we believe that there are a very few major infrastructure projects, no more than one a year, although maybe in the year two might be going at the same time, which are of national strategic importance. We believe that these should be dealt with separately from the more ordinary planning application and what the red document, which is part of the Planning Green Paper documents, proposed was that that sort of major infrastructure project be dealt with whereby the Secretary of State would determine whether or not it was one of the designated major infrastructure projects. It would then be considered by Parliament who could either approve or not approve the project. That would be done by order or motion passed in both Houses of Parliament. If Parliament approved the proposal there would then be an inquiry in the locality which would discuss how the major infrastructure project was to be done, not whether. Upon advice having been received from the planning inspector by the Secretary of State, he would then decide finally whether or not the proposal went ahead. What underlies the proposal is that there are these very few important projects where it is important that the national Parliament have a view in relation to them but also that a process be adopted which balances the rights of the people affected to be heard against the need for a conclusion to be reached in principle as to whether or not they should go ahead. In the red document we indicate that it is for Parliament to decide what procedure it should adopt in relation to considering the proposals before the order or motion is debated in each House of Parliament. We suggest, and it is only a suggestion because we do not think it is for us to decide, that something like the Regulatory Reform order process might be a suitable process, but some of the responses we have had indicate that might not be the best sort of proposal because it might not be long enough in certain cases and also the Regulatory Reform proposals are for uncontentious proposals whereas some of these proposals would be contentious. What we are keen to do is to engage in a debate with the relevant authorities to try and work out what is the best sort of process, one which allows for Parliament to come to a proper decision about it but also one which allows people affected to be heard. We think it has got to be a process where Parliament feels able to take the decision and it has also got to be one that people do not think takes too long because one that lasts for nine or ten years, which is the sort of Terminal 5 process, is not one that would have credibility. Equally it is one that has got to engage with the area affected.
2. During our questioning to you, Minister, we will be covering all of those areas. Can I put my second question to you. Ten years ago, the Transport and Works Act transferred such decision-making on planning matters from Parliament to the system of public inquiries. One of the reasons for this was there was the feeling both inside and outside Parliament that it was inappropriate for politicians rather than trained and independent inspectors to be taking such decisions. I am sure, Minister, you can understand that as well as anyone else. Why is the Government therefore now seeking to return some categories of planning decisions to Parliament and away from what I would describe as the trained and independent inspectors?
(Lord Falconer of Thoroton) Because we think there are those very, very few projects where it is appropriate that the national Parliament should decide them. The national Parliament has been deciding these sorts of projects in quite recent times and the obvious one is the Channel Tunnel Rail Link which is a major national infrastructure project that was approved through the process of the Hybrid Bill procedure. That took place during the 1990s. It involved Parliament in both Houses voting ultimately on the Bill after a Committee procedure had been gone through. It was in effect Parliament deciding whether or not the Channel Tunnel Rail Link should go ahead. I think that shows (a) that Parliament is able to make those decisions and (b) that there are a very few of those sorts of cases where Parliament should make the decision. I do not think it breaks with the process that the Transport and Works Act proposed because even the Transport and Works Act involves Parliament voting on the principle of major infrastructure projects.
3. Before I pass on to John Burnett, do you think that even in principle, Minister, Parliament has the technical and specialist experience and expertise to make a dramatic decision on the sort of project that you have indicated you will seek to be using this procedure for?
(Lord Falconer of Thoroton) Yes, I do, but on the basis that Parliament must have the resources to take such advice and call such evidence as it regards as necessary and appropriate properly to inform itself of the issues in relation to the particular project.
4. Just to look at some of the detail. You made the point about the national Parliament and we had a slight discussion beforehand and there have been some discussions to do with energy in the House in Adjournment Debates. Are there any instances, Minister, when this procedure could apply to Scotland or Northern Ireland?
(Lord Falconer of Thoroton) This procedure is envisaged only to apply to England, it is not envisaged to apply to either Northern Ireland or Scotland. It is an English
5. England and Wales?
(Lord Falconer of Thoroton) England and Wales, yes.
6. It is the issue of major infrastructure projects but could that be a power plant or an energy plant as well?
(Lord Falconer of Thoroton) Talking again about England and Wales it could be a power plant. One of the examples that I have given is Sizewell B which was a very major inquiry some years ago, it was in 1981, it took six years. That was a huge plant in East Anglia. I could envisage that would be one of the sorts of things that would be suitable for the major infrastructure project proposals.
7. In principle the planning laws in Scotland would deal with any major infrastructure projects arising?
(Lord Falconer of Thoroton) Planning is a devolved matter and therefore I think I would be wise to stay out of that.
8. Can I just ask, because I do not know whether Iain is going to ask it but I am going to ask it, what about Crown developments such as large military projects which clearly should fall within the scope and responsibility of the UK Parliament rather than the Scottish Parliament?
(Lord Falconer of Thoroton) At the moment these proposals do not relate to Crown development at all, so this is only in respect of non-Crown development proposals.
9. Oh. It appears in one of these post notes that I am reading. "The Parliamentary Office of Science and Technology. Possible types of major infrastructure projects" and at the bottom it says "Crown developments such as large military projects".
(Lord Falconer of Thoroton) Could I check that. At the moment we should proceed on the basis that it only relates to non-Crown developments in the first instance.
10. And even, I have to say, Minister, in the very red document to which you have referred, item 14 on page 24 says "Major developments by or on behalf of the Crown judged to be of national significance" and that could of course be defence.
(Lord Falconer of Thoroton) Yes. The current position is that those Crown projects are not caught by normal planning law. I think the way that one should proceed at the moment is on the basis that these proposals that we are making apply to applications that would otherwise be caught by the normal planning procedures.
Chairman: Thank you very much.
11. I appreciate you allowing me in on this very point, Chairman. Crown land is reserved within the Westminster Parliament, not within the Scottish Parliament, and therefore is quite a big issue. In addition to that there is one other part if I could just expand a little on my colleague's comments. If, for example, we were going to build a big nuclear power station, another one, in Scotland that nuclear power comes under the Westminster remit.
(Lord Falconer of Thoroton) Yes.
12. Planning applications normally come under the Scottish remit.
(Lord Falconer of Thoroton) Yes.
13. We have had a debate already within the Westminster Parliament in relation to who would have the last say. The belief of many is that this would be the remit of the Westminster Parliament.
(Lord Falconer of Thoroton) Because it is Crown land or because it is nuclear?
David Hamilton: Because it is nuclear power and it is also a reserved matter.
14. We are well represented by Scots on this Committee, Minister.
(Lord Falconer of Thoroton) Indeed. Can I make it clear that the proposals here that we are talking about are only how it would affect the planning system in England. If there are separate issues like Crown development or special rules in relation to nuclear power these proposals would not bite because they are only dealing with the planning law issues. I want to, as it were, steer away from those controversial areas and say what we are talking about is proposals for major infrastructure projects in England and Wales which would otherwise get caught by normal planning law.
15. There seems an apparent conflict between stages one and three in the process. Stage one is that it is considered by Parliament and approved by Parliament, then there is a public inquiry, which is two, and then three, once Parliament has approved it you are saying the Secretary of State can then abrogate it or confirm the planning. Could you just elaborate on that point because there does seem, superficially anyway, to be an apparent conflict because what Parliament decrees is what should happen?
(Lord Falconer of Thoroton) If you look at the document it envisages the possibility, which is regarded as a remote possibility, that after Parliament had approved it in principle, as a result of the planning inquiry it became apparent there was some insuperable obstacle to the scheme going ahead. So suppose, unbeknownst to anybody, the land was not appropriate and that became apparent in the planning inquiry, it would be wrong that Parliament's decision in principle to go ahead should fly in the face of the detailed inquiry by the planning inspector.
16. Are you therefore saying at stage three the Secretary of State can only abrogate the consent in the light of evidence that has come out at the public inquiry?
(Lord Falconer of Thoroton) That would normally be the case. I cannot rule out completely other circumstances because one can envisage unexpected events occurring in the world, for example, which might make it inappropriate to go ahead with a particular proposal. I do not want to speculate but you can all imagine circumstances, for example, where a particular mode of travel suddenly became totally unacceptable to everybody. That is an extraordinarily unusual thing to think of but I do not want to completely box in future ministers as to what the position might be.
17. I have another question on the second question of our Chairman. You talked about Terminal 5 and I think all of us know a little about that, and our Chairman put to you, do you think Parliament has sufficient technical and specialist expertise to deal with these matters. The expertise that is required, and we will come on to public consultation later, for, say, a nuclear power station or Terminal 5 is phenomenal. I think there were something like 25 to 30 specialist teams of witnesses both for the proposal and against it. You then went on to say there must be sufficient resources to help Parliament. What do you envisage? Do you envisage some sort of cross-examination in public, cross-examination in Parliament?
(Lord Falconer of Thoroton) First of all, the point about does Parliament have the expertise to do it. Remember, the people who actually gave the advice as planning inspectors in all of these major planning inquiries were, dare I mention it, lawyers. So Roy Vandermeer QC is the Terminal 5 inquirer, Sir Iain Glidewell, High Court Judge, is the Terminal 4 inquirer, Sir Frank Layfield is the Sizewell B inquirer. These are people sitting and listening to material and then forming a view as to whether or not on the basis of that material it should go ahead. It is not being decided by, as it were, a nuclear physicist or a road economist. You may not think this is a fair way of describing it but in those cases it was a reasonable man deciding on the basis of the material he heard.
18. What sort of parliamentary procedure do you envisage? Proofs of evidence, examination in chief, cross-examination? How do you expect Parliament actually to wrestle with this problem and these very, very difficult matters?
(Lord Falconer of Thoroton) It is a matter for Parliament to decide what the appropriate procedure would be. I envisage a procedure which would be closer to a Select Committee type hearing than a Private Bills hearing. In Private Bills the promoter is represented by counsel, the objectors are represented by counsel, they call witnesses and cross-examine each other. I would envisage a procedure whereby the Committee decides what evidence it wants to hear, what advice it wants to get from experts, it uses its secretariat and/or experts to decide for it what the crucial issues are, and it basically develops whatever is the appropriate investigation it thinks will most assist it in reaching a conclusion by which it can assist the House.
19. The person I have the greatest sympathy for within the House is the Member of Parliament in whose constituency the proposal is being advanced. You talk about assistance and support and so forth. In all likelihood that member is going to do his or her utmost to oppose the proposal. Take Terminal 5, for example. What sort of support would there be for that Member of Parliament and any other members that he or she could cajole into assisting him or her?
(Lord Falconer of Thoroton) It would be again a matter for Parliament to decide whether or not that Member of Parliament, or the group of Members of Parliament affected, should be on the Committee. I suspect it might be they would conclude they should not be on the Committee. That Member of Parliament or Members of Parliament would plainly have the opportunity to give evidence before the Committee as the Committee thought appropriate, but if you take Terminal 5 the actual material opposing Terminal 5 came from a whole range of bodies, some of them very well supported both in terms of manpower and in terms of money. So I think you would find there would be a whole range of bodies in something like Terminal 5 where the Committee could draw on their expertise to get a view about it. I would not envisage specific additional resources for the individual MP or MPs in whose constituency the project was.