Examination of Witness (Questions 60-78)
LORD FALCONER OF THOROTON QC
TUESDAY 7 MAY 2002
60. I am just not sure that the dichotomy that you draw between detail and principle is quite as dramatic as you make it. Having myself served on a private bill committee, first of all the committee, during the committee stage, decides the principle of the bill and then makes various caveats about amendments before it comes to report on the Floor of the House. Given my own experience of the range of interests that quite properly want to be represented in projects of the sort that you have described, if I take one example, let's say the ABP proposals to develop Dibden Bay
(Lord Falconer of Thoroton) That is a planning inquiry now.
Mr Swayne: Absolutely, but would you envisage that sort of development as being one to which these procedures would apply?
61. If you feel this might be prejudicing what is going on at the moment, I do not need to remind you, you can say so.
(Lord Falconer of Thoroton) I cannot see how it would prejudice what is going on in Dibden Bay. Dibden Bay seems to be one that is on the cusp of whether it would be a major infrastructure project or not. I am not sure of the detail or the extent to which the proposal at Dibden Bay could be described as of national strategic importance. It is an important port application and the issue is on which side of the line it falls.
62. That is precisely the issue that is being discussed at Dibden Bayis this nationally strategically important and therefore sufficiently important to overturn the environmental arguments against it? That is the issue that needs to be decided. That decision is determined on all sorts of detailed arguments about the environment as against strategic national interest, so it is that detail that will decide the principle. That is what I am getting at.
(Lord Falconer of Thoroton) Dibden Bay is a very good example it seems to me. Assumeand I do not know whether it would or would not be a major national infrastructure project covered by thisthe Committee over the period of a Parliamentary session would address the issue in principle having regard to the environmental impacts and the other broader impacts on road traffic, for example do we think there should be this major port development there? What you would not have to decide is what the precise level of traffic on the roads to Dibden Bay would be. What you would not have to decide is the precise number of flora and fauna that might be affected. You would have a range of what the possibilities would be and you would then make up your mind in the light of those issues. What is going on at Dibden Bay at the momentand this is absolutely no criticism of the systemis that it is a planning inquiry that is expected to last well in excess of 12 months. The most detailed issues are being looked at on size, space, design, the precise number of flora, the precise number of fauna, the precise effect, traffic surveys have been done, and what is going on there is a very, very, very detailed court case in effect. That is not what one would envisage the Parliamentary procedure would involve. If one went down to Dibden Bay and saw what was going on there, one would see quite quickly the difference between a Parliamentary procedure and what is going on in Dibden Bay because one would see immediately that the principle could be addressed without reference necessarily to all of those details which have a great impact on how you implement but not the question of whether.
Mr Swayne: Perhaps we should take up that suggestion.
63. We are grateful to the Minister for that suggestion.
(Lord Falconer of Thoroton) I put it very diffidently.
Chairman: Subject to a very nice day it might take us away from Parliament! Could I come on to Iain Luke.
David Hamilton: Where is Dibden Bay?
64. In the PIU Report on the future of energy the point was made, going back to the nuclear issue, that there were no planning applications of any significance lodged now nor in the near future, but the case was made if it were to come forward and be successful it would have to have a degree of public support. My major worry is that by entrusting major planning decisions to Parliamentary committees sitting largely in Westminster that you are not likely to engage the public and obviously you are losing the public input in decision-making. I know you have said there should be visits. I do not know if that would be taking evidence on the ground rather than Westminster. My worry is the processwherever Dibden Bay isbecomes distant in major issues from the public whom eventually it will affect.
(Lord Falconer of Thoroton) That is a very interesting point but what underlies it is the proposition of whether Mr Roy Vandermeer or Sir Iain Glidewell or Sir Frank Layfield, QC and High Court judge, are better able to judge the question of public support than Parliament would be. One of the critical issues Parliament would have to addressand it would not just be the Committee, it would be a vote in both Houses of Parliament before the matter could go aheadwould be the issue is there adequate public support to justify this proposal going ahead, which is essentially a political with a small "p" issue. What the inquiries are doing is they are looking at is whether on the basis of planning law and practice and on the basis of the evidence one hears should this go ahead? There is obviously a critical issue there but there is also the wider political with the small "p" issue that you have identifiedis this something that looked at overall the public thinks should go ahead? I think Parliament, if you have a democratic system of planning, is the body that should decide that in these few major infrastructure projects we are talking about.
Chairman: Quite clearly the Minister is indicating that we should make more journeys from this place to take evidence on site. Lord Falconer, we are most grateful to you! John Burnett?
65. Before we go on to the next question I take Mr Swayne's argument, which I think is following on from mine, and I must put it on record, Minister, that I believe you are very optimistic about the matter of detail and principle because to get to the principle you will need to get through a lot of detail and, furthermore, the public will rightly insist on that because once Parliament has said yes or is minded to approve, that is a huge step forward in the development and the consent being given. I would just say that. Can I finish by saying that Sir Ian Glidewell, Roy Vandermeer and the other inspectors are eminent planners with a wealth of experience, with lifetimes of experience and, furthermore, they are full time on the inquiry. Members of Parliament, for reasons that are obvious, have to spread their time fairly widely.
(Lord Falconer of Thoroton) Yes. You are absolutely right to emphasise that this cannot be a superficial inquiry nor would I envisage an inquiry that lasted over a period (it would not be sitting all the time obviously) between October and July as a superficial inquiry. Remember what happens at these planning inquiries. It is in the promoters' interests all the time to say
66.I have taken part in them.
(Lord Falconer of Thoroton) So you will know that if the "whether" is an issue the worse the surface transport, the worse the noise, the worse the design is, the more there is a factor in the balance against. So, equally, the better the surface transport, the less bad the noise is, the better the design It is always in everybody's interests in all of these inquiries to pile up the minuses or pluses depending on what side you are because the "whether" is the issue. If instead of the whether being the issue it was the how, then you would find much of the detail moved from the first stage to the second. I do not underestimate for one moment the difficulty of distinguishing between the two but it can be done and it is not right to say you could not have a properly detailed inquiry in a Parliamentary session.
67. Could I try and focus and get this situation sorted out to our satisfaction. If Sir Iain Glidewell puts forward the proposal that there should be a Commission set up by the Secretary of State, as he does, to consider the matter of principle relating to a proposed major project to report to Parliament possibly within a predetermined timetable (and as Mr Swayne said, the Royal Town Planning Institute says that there should be an Major Project Evaluation Commission appointed by and reporting to Parliament, a slightly different proposal but coming at the end of the day to the same thing) would you, as a leading Minister in your Department responsible for planning be sympathetic to that? Would you be prepared to consider it?
(Lord Falconer of Thoroton) Of course I would be prepared to consider it. These are very reputable individuals and bodies putting it forward. I just wonder is it not a bit too much to say you would have the Commission looking at it, and they would presumably have to go through some semi-judicial process, then you had Parliament looking at it which involved the committee stage and then the debate in both Houses of Parliament, and then a public inquiry. That feels to me to be too heavy a procedure. It feels to me that it would take too long and it could lead to too many possibly contradictory results. Of course we will consider the proposal but I wonder if there is added value in that.
68. I do not think there is much in this question because you have made it quite clear but perhaps you would like to put it on record. You do not believe now that Parliamentary scrutiny should take place within a 60-day period and you do not believe, as I understand it, that that should run concurrently with the public consultation as the Green Paper then suggested. You believe in three sequential stages. Could you give us your thoughts as to how long you envisage the Parliamentary procedure taking. One term?
(Lord Falconer of Thoroton) One session. This Committee wrote and said to me that on one view the Parliamentary scrutiny would last four dayson one viewwhich is not what we remotely envisage. I envisage a process whereby Parliament at the outset is presented with the application and a proper summary or the detail of all of the objections and it then decides for itself what the right process for letting people come forward is and then what the process should be for investigating the issues. In a sense the Parliamentary session starts at a point where the issues are joined in that you have got the application and you have got the objections. Parliament must then decide how it hears evidence, lets those views be put, and investigates them, and that whole process after receipt of objection and support would take about a Parliamentary session. It might be shorter because it might be a much more simple issue but I cannot envisage that it would be that much simpler.
69. And the timetable will be up to the Committee to decide?
(Lord Falconer of Thoroton) Exactly, that is right.
70. I will put on record the fact that I do not have a problem in relation to the detailed issues. At a simple level we are looking at an outlying planning issue where at some point the detail will have to be looked at by all the various groups that are involved in that process. I am quite cynical about professionals anyway because at the end of the day whenever a professional tells you one thing, you have got another who will tell you another. Ultimately the decision is going to be taken by people who are seen to be impartial. I come back to the point I made earlier onimpartiality is the bit that concerns me. There is also a second part that could come up and that is when within any local authority you have an issue, more and more organisations and indeed major companies are able to take on a local authority and you end up with a public inquiry and the local authority ends up paying for that inquiry. In some cases it can bankrupt the local authority and there is no money allocated for it. Do we have a bottomless pit in the scenario you have? In a major, major project I can see not just one MP involved, but several MPs involved because the project is so big within that location. The guidelines to individual Members of Parliament over that period will have to be very strict. They should not participate in the initial discussion if they want to argue later on down the line when they get to the detail. These issues are far more important from my point of view about what the role of local Members is going to be and, indeed, the cost of that and the impartiality of it. I am not too concerned about the detail at this stage because I believe that when you agree a principle all other things come from that. I accept the point you made at the very beginning that if something comes out in the detail which was not considered in the outline planning position then that would also change your position.
(Lord Falconer of Thoroton) I go back to the point about impartiality. If you have got a system based upon the democratically elected representatives, then you are always going to have the problem about impartiality because the democratically elected representatives also in part form the government, so if the government is supporting something, just like the local authorities supporting a particular scheme, that is a problem we have always got, but I think we should stick with the democratically based planning system so you are never going to get away from that particular problem.
71. There might be a new role for Scottish MPs south of the border!
(Lord Falconer of Thoroton) You could be the determiners of English planning applications. The other issue about the bottomless pit, a lot of local authorities have said to me in England (I do not know what it is like in Scotland) that they are frequentlythreatened is the wrong word advised that if they do not allow a particular planning application they might end up with a planning inquiry that will cost them lots and lots of money. That problem does not arise if Parliament is considering it. There is an issue about the resources of the committee or committees that would be considering these and although it is not a matter for me it is plain that the scheme could only work if the committees that consider it are sufficiently resourced to, for example, instruct or call experts as they see fit in order to advise them on particular issues. So there will be a resourcing issue but I do not think it will be a resourcing issue which gives rise to a bottomless pit of funding. It must be the case, however, that committees considering these issues have enough resources to properly inform themselves.
Chairman: As a member of the Liaison Committee which would initially consider this matter, I can say they would clearly make very strong representations to the House of Commons' Commission which of course is responsible for providing the appropriate money for the activities of the House. I think we have heard what you say.
72. Can I get clarification on the advice given to Members because I believe that will very important. In local planning applications, whether it be in England or Scotland or Wales, there is very, very strong legal advice given when a local Member is not necessarily directly involved in anything but it is in his or her location. In a situation where you look at a major project taking place, whatever that project is, you could have several Members. The scenario I am thinking about is if a Member gets involved initially in that potential development, does that then mitigate against a Member coming into here to challenge that?
(Lord Falconer of Thoroton) Again, it would be a matter for Parliament. I would not envisage Members of Parliament in whose constituency or whose constituencies are affected by the particular proposals sitting on the Committee. I would envisage it being perfectly appropriate for that Member or those Members of Parliament to be as partisan as they wish to be in relation to pro or anti the proposals and to express their views to the Committee in relation to it if that is what they wished. Indeed, I would imagine it would be unlikely that the Committee would consider the thing without taking evidence from Members of Parliament affected by the proposals. There would be nothing improper about a Member of Parliament vigorously supporting or vigorously opposing it, whatever he deemed appropriate.
73. I accept what you say in answer to this question, that a Member of Parliament who is opposed or in favour of a particular strategic project of importance, he or she would clearly get substantial information and assistance from outside bodies who were likewise taking a position for or against a project.
(Lord Falconer of Thoroton) I am saying that. I think David is going further. He is saying would it be improperand I am saying no it would notto have a strong view if you are the local constituency MP and, also, would the Parliamentary authorities make available to the Member of Parliament resources if there were an issue? I would have thought not but again it is a matter for Parliament.
Chairman: I am not sure exactly what the position would be but my immediate instinct would be to say to the Committee that there are no additional monies available for an individual Member of Parliament to undertake a particular job relating to his or her constituency.
David Hamilton: But the Member would be able to access any information from other sources?
74. Indeed and there would be nothing unethical about a Member working closely with organisations who do have resources that would be opposed to or supporting a strategic project. Can I put one or two final questions to you, Lord Falconer, particularly about the powers of Parliament and amendability. Should Parliament be able to amend proposals or attach conditions to its approval of proposals put forward by government? For instance, that a project should only go ahead if the inspector in the subsequent public inquiry is satisfied as to some matter? If the answer to that question is no, on the grounds that the two Houses, the Lord and the Commons, might disagree and attach different conditions, would a Joint Committee be right to arrive at a common view to the solution? If Parliament is not able to amend proposals, does this not increase the risk (from the Government's point of view) that they will be rejected outright?
(Lord Falconer of Thoroton) We had envisaged that the proposals would not be amendable nor had we envisaged that conditions would be attached because different Houses of Parliament could lead to approving different proposals and different conditions which could be contradictory, although it is quite hard to imagine how they could be, therefore we had thought neither amendable nor imposeable on conditions. The Joint Committee does not solve the problem of the debate on the floor of each House producing different conditions because ultimately the decision will have to be made by each House of Parliament not by the Committee. Does that lead to the risk of rejection being greater? Yes it does because it seems to me it would be open to the Committee or either House of Parliament to say we cannot be satisfied about this issue and therefore we reject it, which must be a possible conclusion that they would reach.
75. A final question which I think is important and I hope my colleagues doand I know one has another important engagement to go towhat is the Government's proposed timetable for legislation? Are you intending to bring in a Bill in the next Queen's Speech? How much detail will your Bill contain about the Parliamentary stage of the new procedures. That is very important to us.
(Lord Falconer of Thoroton) Obviously I am not in a position to say when a Bill may be produced, that is a matter for the Government as a whole to decide and make an announcement about in the Queen's Speech, but we would wish a Bill covering planning issues to be brought forward as soon as it is possible to do so. If that Bill covered a major infrastructure project it would not set out what the Parliamentary procedure was save to the extent that it would say what the triggering event was. It would say the Secretary of State can designate a project as a MIPs project. It would then say what the effect of an order or motion being passed by both Houses of Parliament was. It would not say, "And this is the process that has got to be gone through by Parliament before any motion or order is passed", because we envisage that process would be a matter entirely for Parliament to determine itself.
76. Can I say, Minister, on behalf of my Committee colleagues that this has been a most invigorating and stimulating evidence-taking session. Can I thank you for the directness and the transparency with which you have dealt with all our questions. If there is anything further we wish to take up with you we will write to you. If there is anything you feel you have not said to us you would like to say, either say it now or please put it in writing to our Clerk.
(Lord Falconer of Thoroton) The views of this Committee are obviously incredibly important in relation to how we proceed. From the conversation we had last week and from the conversation we have had now, it is plainly unlikely that the Committee would be in a position by the summer recess to set out in detail what it would propose for a Parliamentary procedure, but we have indicated that we would wish to make a policy statement by the summer recess as to where we were going in relation to all of the planning issues referred to in the Planning Green Paper. It is entirely a matter for the Committee but it would be of some assistance if in very broad terms the Committee were in a position to indicate, even on an interim basis, what it thought the right next stages were. I do not necessarily want you to answer that now but could I put that on the table as our timing in terms of policy statement so that you can make your dispositions accordingly.
77. You make a very good point which has been heard by my Clerk and all members of the Committee who are here. Obviously we will share with you as far as we are able to do so how this inquiry that we are undertaking is proceeding. If there is any chance of an interim report obviously we will seek to produce one. If there is not, I hope to share the information that we are getting and the way that our discussions are going with you, as far as I am able do so with the permission of the Committee, as clearly to do that is to the advantage of Parliament because it is to the advantage of this country that we should improve and speed up our planning procedures.
(Lord Falconer of Thoroton) I would envisage that we would come back to you if an announcement is imminent (which it will be before the summer recess) and say what we envisage saying for your comment. It is quite important that we act together in relation to it, not form the same view necessarily but keep each other informed about what we are doing.
78. I am perfectly happy to take that on board and I am very grateful to you for the offer that you will keep us advised. Lord Falconer, thank you very much for coming before us and helping us so much with our inquiry. You have got us off to a very good start.
(Lord Falconer of Thoroton) Thank you very much indeed.