Examination of Witness (Questions 40-59)
LORD FALCONER OF THOROTON QC
TUESDAY 7 MAY 2002
40. But there is always a right of appeal, is there not?
(Lord Falconer of Thoroton) Yes, there is a right of appeal, that is absolutely right, but only against refusal, not against grant, so the only person who has a right of appeal is the landowner, not the person who has been granted the right to do the application.
41. If it is an issue which is directly affecting the council, then the issue should be taken out of the hands of the council, should it not?
(Lord Falconer of Thoroton) Not under our present system.
42. Yes, it should.
(Lord Falconer of Thoroton) Maybe in Scotland, but not in England.
43. It was in the Scotland Act.
(Lord Falconer of Thoroton) As to your first point, I understand entirely what you are saying, but what we say to that is that because we have a democratically based system we are saying that, as a matter of principle, it must be right that on those national issues where planning comes into play the national democratic body should decide, rather than simply the local one. That is the point of principle. On your second question about have we got advice on human rights and does it comply with the European requirement on the environmental impact assessment, yes, we do have advice on that. What I said to the Chairman when we met last week was that the Committee and the Department should share the advice that there is, so that there is a properly informed basis upon which these legal issues can be looked at, as it is very important that there should not be a question about the legality of all this. The advice is that it can be done in a legal way, but it does not involve any European structure coming in to overrule, or anything like that, what Parliament might decide. There would not be the ability to appeal to the European Court of Justice, as it were, in relation to any conclusion reached. Dare I say, not yet. That is not envisaged in our proposals.
44. Taking the European Court and human rights out of the way, could there be a case where indeed Parliament itself breached its procedures and went against all the procedures that are put down, and that a citizen could challenge a decision taken by Parliament, in a court of law?
(Lord Falconer of Thoroton) I do not think there could be, because broadly normally what Parliament does can only be challenged in certain very limited circumstances. I do not think there could be. Perhaps I could write to the Chairman, to ensure that we are on the same wavelength in relation to that.
45. Very quickly, before I go to Desmond Swayne, can I quote Professor Malcolm Grant. I am sure, Minister, that you will have seen his paper?
(Lord Falconer of Thoroton) I have.
46. He first of all says that as to the Green Paper "it is remarkable how far-reaching are its proposals for reform." He then, a little further on in that paragraph, says: "The document sells an aspiration, and it tends more to rhetorical gusto than to intellectual depth. Much of the necessary detail is simply absent. The Government knows roughly where it wants to go, but it hasn't yet fashioned the route for getting there." Then he goes on in the next paragraph to say: "This is a very worrying omission. British planning law is almost wholly procedural. The legislation" as he sees it, "has no statement of objectives or purpose. Its function is to allocate power and to establish procedural rights in decision-making." Would you wish to comment on that, Minister?
(Lord Falconer of Thoroton) Those comments are on the whole suite of documents, they are not just on this one. At the heart of his point is the point that the document did not adequately focus on the issue of what is a planning system for. I think he is right in that respect. We did refer in the introduction to what the planning system is for. The planning system is to promote sustainable development. I think he is right to say that in any legislation that we pass in relation to the planning system as a whole, we should make it absolutely clear what the overall purpose of planning is. I do not think that undermines the conclusions of the Planning Green Paper, but I think he is absolutely right to say that you have to have four-square on the face of the legislation what the overall purpose of planning is. I do not think any of the remarks that he made were specifically addressed to that, but he has saidtaking up Iain's pointthat you have to be very careful to make sure that you do comply with environmental impact requirements and human rights requirements when you fashion this particular procedure, and I am sure he is right about that.
47. I think some of us are worried, and we ourselves have had separate papers in from a number of very distinguished organisations, let alone the 400-plus that you have already sent to us as part of the evidence. I have a list of them here. What we must not do is to take away from people who are affected by major strategic projects the right of proper representation, must we?
(Lord Falconer of Thoroton) Exactly, yes.
48. The problem is here, Minister, not just the detail of that, but actually whether or not that project should go ahead at all, is it not?
(Lord Falconer of Thoroton) Yes.
49. What you are saying in terms of what we are considering this afternoon is that the Government will have decided that something should be done, and it will look to Parliament to agree it?
(Lord Falconer of Thoroton) In principle, yes.
50. In principle. But once that decision in principle is taken, there is no going back on the project, unless something comes up in the detail of the detailed inquiry?
(Lord Falconer of Thoroton) Exactly, or some totally unforeseen event that I cannot even think of. Yes, that is right.
51. So do you think that that is actually meeting all human rights matters?
(Lord Falconer of Thoroton) I think there has to be a process whereby those who are affected by the principle have an opportunity to have their point of view put before Parliament, which is the procedure that Parliament adopts. Separately, their individual interests on the how have to be dealt with in the public inquiry that follows. That combinationnamely, a right to be heard here and their individual interests to be heard when the detail is addressed in the public inquiryshould satisfy the law.
Chairman: I am grateful.
52. Minister, you mentioned Sir Iain Glidewell when you drew attention to various inquiries, including the Terminal 5 inquiry, in answer to Mr John Burnett. Sir Iain is on record as saying that he would be an enthusiast for these proposals, with one caveat that there was first a body that, before the proposals came to Parliament, examined them in detail and had the time and the expertise to do that. That body might be a commission such as the Royal Town Planning Institute has suggested, which then reports to Parliament. How do you react to that suggestion?
(Lord Falconer of Thoroton) I think these proposals only ever get to Parliament after a major promoterGovernment or whoeverhad thought that they were worth while. Ultimately the parliamentary process and the public inquiry that follows is, I think, adequate to examine the proposal. What Sir Iain is proposing, what you are picking up, is you are saying a commission, then the parliamentary process, then the public inquiry. I wonder if that just seems too much. I suspect it might do.
53. It is a question, to an extent, of the adequacy with which the different interests that the sponsors and those who oppose the development will feel that they have been represented, is it not?
(Lord Falconer of Thoroton) Yes.
54. How do you envisage a parliamentary process, without presumably some form of commission, addressing the issue of adequate representation of those who will be specially and particularly affected?
(Lord Falconer of Thoroton) Again, it will be for the parliamentary committee to decide how it hears the evidence. Parliament I believe to be entirely capable of making sure that interests affected have an opportunity to put their point of view. It is the principle that is being addressed then. The special interests can then be dealt with in the public inquiry.
55. I am not sure that I share your distinction between special interests and principle, but leaving that aside, in your earlier answers you seemed to hint that you would envisage more of a select committee type of investigation than a private bill procedure, did you not?
(Lord Falconer of Thoroton) Yes, I said that, I did indeed.
56. The advantage of a private bill procedure is that those who will be affected do have a right to be heard, do they not?
(Lord Falconer of Thoroton) Yes.
57. Many interest groups have already suggested that their principal fear is that they are going to lose their right at the critical stage, the stage on the principle of the issue, when it is going to be decided. How do you answer people like the Council for National Parks and so forth who say that there is a loss of their own right to be heard here?
(Lord Falconer of Thoroton) The private bill procedure, as I said in answer to the Chairman, basically involves the process whereby all the parties have the right to be represented by counsel; every witness who is called, by whoever party, is then cross-examined by counsel for all the other parties. That is going to be, I would have thought, a wholly inappropriate procedure for parliament to be deciding on the issue "In principle should this go ahead?" In private bills what is happening is that the absolute detail of the project is being dealt with, undertakings have to be given where the committee is worried about, for example, the precise size of the window frames in a particular place. A semi-court process of the private bill procedure is wholly appropriate for that, but I do not think it is appropriate for the sort of principled issue that we are talking about here.
58. Surely, Minister, private bills also deal with principle, do they not?
(Lord Falconer of Thoroton) They do deal with principle, most certainly, but they also deal with detail. That is why the process is a much more
59. So what you are definitely trying to do here is to try to separate principle from detail?
(Lord Falconer of Thoroton) Very much so, and it is entirely appropriate when you are dealing with the absolute detail of an individual's home, level of compensation, precisely where the particular project is going to go, that he or she should be represented by lawyers and it should become a semi-court case, but I do not envisage this process being a semi-court case.