| Planning and Compulsory Purchase (Re-committed) Bill
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Keith Hill: I beg to move, That the clause be read a Second time. The Chairman: With this it will be convenient to discuss the following: Government new clause 8—Special provision in relation to planning inquiries: Wales. Government new clause 40—Special provision for certain circumstances where disclosure of information as to national security may occur: Scotland. Keith Hill: New clauses 7 and 8 deal with the arrangements for planning inquiries when national security is at issue. I have good news for members of the Committee who are dismayed by the amount of material in the new clauses. The substance of what we shall debate is in new clause 7(1), which adds four subsections to section 321 of the principal Act—the Town and Country Planning Act 1990. The remainder of new clause 7 repeats that for the listed buildings Act and the hazardous substances Act—the other two planning Acts. New clause 8 sets out how the Column Number: 036 arrangements will differ for inquiries in Wales. Again, that is set out three times, once for each planning Act.I shall describe what the new clauses do and how we expect the new arrangements to work in practice. New clause 7(1) adds subsections (5) to (8) to section 321 of the principal Act. To make sense of that, I shall start with the existing section 321. It provides that all oral evidence at planning inquiries must be heard in public and that documents must be open to public inspection. There is, however, an exception, which applies when there would be public disclosure of information relating to national security, or to the security of any premises or property, and when public disclosure would be contrary to the national interest. In those circumstances, the Secretary of State may direct, under section 321(3), that specified evidence should be restricted. That provision has been in the planning legislation since 1982, but as far as we know there has never been a section 321 direction. In some ways that is unsurprising, as national security is a matter for the Crown and the Crown has not been bound by the planning Acts. Once the Crown is bound by the Acts, there will be the distinct prospect of planning applications being made that have national security implications, so we have had to devise a procedure for dealing with material that would be the subject of a section 321 direction, without violating human rights under article 6 of the convention. New clause 7(1) provides the framework for such a procedure and is modelled on the special advocate procedure of the Special Immigration Appeals Commission, under the Special Immigration Appeals Commission Act 1997. Subsections (5) and (6) deal with the appointment of the special advocate by the Attorney-General. Subsections (7) and (8) make provision for the Lord Chancellor to make rules, subject to the negative resolution procedure, to govern the procedure to be followed by the Secretary of State in making a section 321 direction and the functions of the special advocate. I shall briefly digress to new clause 8 to describe the variations for Wales, before continuing to discuss how this will work in practice. New section 321A, which is inserted by new clause 8(1), provides that in Wales the Counsel General to the National Assembly for Wales, who is the Assembly's chief legal adviser, will appoint the special advocate. The Assembly may make regulations covering the same ground as the Lord Chancellor's rules and, if it does so, the Lord Chancellor's rules will not apply. Subsection (6) is a technical provision that prevents any regulations made by the Assembly from being subject to the negative resolution procedure in either House of Parliament. I return to my main theme—how the provisions will work. The procedure is aimed at addressing two scenarios. In the first, a Crown body, such as the Ministry of Defence or one of the security and intelligence services, might need to undertake some development. That body would submit a planning application with as much information as possible, which might include most things required for a planning application to be determined, such as the location, size, bulk and external appearance of the Column Number: 037 building as well as the expected traffic generation. The use of the building and what might be inside it might be omitted, because to reveal such information could compromise national security.If the information provided were enough to enable the local planning authority to make a decision on the planning application, that would be all well and good. Even if the application were rejected, provided that no extra information was required a normal planning appeal could follow. The applicant Department would probably be aware from pre-application discussions of whether the local planning authority had enough information to make a decision. If the expectation was that the local planning authority would not be able to determine the application because it needed information that the applicant Department could not reveal, the applicant would ask the Secretary of State to call in the application and to make a section 321 direction for the subsequent planning inquiry. Even if the local planning authority rejected or failed to determine an application on the ground of lack of information, the section 321 procedure could be applied to a recovered appeal. We envisage that the Lord Chancellor's rules will cover the procedure for showing the classified material to the special advocate and the procedure for the special advocate to make representations. If the Secretary of State is minded not to make the direction, the rules will also contain a procedure for both the applicant and the special advocate to make representations. If the Secretary of State does not make the direction, he can decide the application or return jurisdiction to the local planning authority. The second scenario in which the special advocate procedure might be invoked would be one in which a private person's planning application interfered with some aspect of national security. For example, a proposed tall building might overlook a restricted site or interfere with a communications system. In that situation, the Crown would be an objector and it could ask the Secretary of State to call in the application. To work properly, the system will need further secondary legislation to be made under existing powers. For example, the inquiries procedure rules will need to be amended, or separate ones made, for planning inquiries that require a special advocate. We shall also need to make provision in the Town and Country Planning (General Development Procedure) Order 1995 under section 62 of the principal Act, as substituted by clause 41 of this Bill, for the Crown to withhold such information as might be the subject of a section 321 direction. Members might also wonder how we would deal with developments that are classified in their entirety, not just in detail. We propose to do that by creating a new permitted development right in the 1995 order to give legal cover for developments whose existence cannot be admitted. Almost by definition, such developments would have no planning implications. If no one knows they are there, they could hardly have a planning impact. A development that might come into this category would be a house converted to an operational building Column Number: 038 for the security and intelligence services. It would still appear to be a house, but the conversion would constitute a development. If the neighbours noticed some activity and approached the local planning authority, it would be for the developing Department to come up with an appropriate cover story, as it would have to do today in the non-statutory system. I hope, in the circumstances, that I have given the Committee all the information it needs.Mr. Clifton-Brown: I congratulate the Minister on introducing an exceedingly complex, although necessary, subject. Clearly, we must deal with issues of national security or the security of a building. In my former life, I was a signatory of the Official Secrets Act, so perhaps people do not even know that I exist. The Law Society has made representations to us on the new clause and I think that I can do the Committee a service by simply reading them out. It says:
On that relatively narrow point of who can represent the Government in these so-called secret applications, is the clause unduly restrictive? I have no further questions on the amendment. Matthew Green: I would like to ask a similar question. The Law Society has done us a favour in bringing it forward. Before the Minister replies, may I give him some reassurance? New clause 7(1)(5) states:
There will always be the cover that the Attorney-General can make sure that the person who is appointed has been cleared for security purposes. That person does not have to be a lawyer. All sorts of people are cleared for security purposes, as we well know. It is beyond me why they also need to be a lawyer, particularly when we are dealing in this instance with a planning matter. The Minister said that that provision was based on the Special Immigration Appeals Commission Act. I can see that immigration cases require lawyers. Here, we are dealing with planning, not immigration, and I should have thought that specialist planning consultants who have been positively vetted would be just as suitable if not more so.
12.45 pmIn introducing the new clause, the Minister said that new regulations would be developed to cover the situation in which the existence of buildings could not be admitted. It is not just that houses are altered for operational purposes; most Members will be aware that some buildings in our countryside do not appear on any map. Those structures have been put up Column Number: 039 without any planning permission. They are not always completely unnoticeable and some are obvious from considerable distances. We are not only dealing with the internal conversion of a house for operational purposes, as there are also substantial structures, perhaps mostly underground, that do not officially exist. How will the new regulations cover those circumstances?
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| ©Parliamentary copyright 2003 | Prepared 14 October 2003 |
