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Baroness Hamwee: I acknowledge that the Government recognise that the boroughs have an interest. In drafting the amendment in this form, I attempted to limit the scope of their requests or demands to be heard.

No doubt I should know this answer, but I fear I cannot remember it. Will those conducting the examination in public be required to have regard to any guidance issued by the Secretary of State as to the people to be invited? That might be a basis for ensuring

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that proper views are received. I, too, look forward and not simply backward. However, one has to build on history. Guidance might present the opportunity of ensuring that the boroughs' interests are covered.

Lord Whitty: The panel would be required to have regard to guidance with regard to which interests should be given the opportunity to make representations. The measure does not prescribe exactly how the hearings should be structured.

Baroness Hamwee: That reply is helpful. I hope that I may assume that regard would be given to those concerns which I have voiced. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 268 agreed to.

Clause 269 [Duty to notify London borough councils of publication or withdrawal]:

[Amendments No. 404 not moved.]

Lord Whitty moved Amendment No. 404A:

Page 144, line 33, leave out subsection (2)

On Question, amendment agreed to.

[Amendment No. 405 not moved.]

Clause 269, as amended, agreed to.

Clause 270 [Review of matters affecting the strategy]:

[Amendment No. 406 not moved.]

Clause 270 agreed to.

Clause 271 [Reviews of the strategy]:

[Amendments Nos. 407 and 408 not moved.]

Clause 271 agreed to.

Clause 272 [Alteration or replacement]:

[Amendments Nos. 409 and 410 not moved.]

Baroness Hamwee moved Amendment No. 410A:

Page 145, line 9, leave out subsection (2)

The noble Baroness said: Clause 272 refers to alteration or replacement of the spatial development strategy. Under Clause 272(2) the Secretary of State can direct the mayor to publish,

    "such alterations of the spatial development strategy as the Secretary of State directs; or ... a new spatial development strategy to replace it".

I should feel less concerned if the subsection were confined to subsection (2)(b): a direction to prepare a new strategy. I am concerned that the Secretary of State has power to direct the mayor to make any alterations that the Secretary of State may decide, either after full consideration and consultation or almost on a whim.

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Amendment No. 413, grouped with this amendment, restricts the directions which can be given. I believe that similar concern is expressed there. If my amendment fails to succeed, I shall support Amendment No. 413. I beg to move.

The Deputy Chairman of Committees: I have to advise the Committee that if Amendment No. 410A is agreed to, I shall not be able to call Amendments Nos. 411 to 413.

Lord Dixon-Smith: I speak to Amendment No. 413. It is somewhat similar in intention to Amendment No. 410A but is not limited. It does not seek to prevent the Secretary of State directing the mayor to prepare and publish alterations to the strategy, or to prepare a new strategy if the Secretary of State believes that that is right. The amendment seeks to place limitations on the circumstances under which the Secretary of State could so direct. He may only do so if,

    "the spatial development strategy is inconsistent with current national or regional policies, or ... that it is expedient to do so for the purpose of avoiding any detriment to the interests of an area outside Greater London".

That is not an unreasonable restriction to place on the Secretary of State's power. It is right that he should have power to take those matters into account. While one would hope that a responsible mayor would take those matters into account, he might fail to do so; or he might feel that there would be an overriding London reason why he should not do so. It is reasonable that the Secretary of State should have a limited power. The general power in the Bill is too great and I should prefer to see it restricted. That is my reason for tabling the amendment.

8 p.m.

Lord Whitty: I believe that we need the reserve powers. Our plans give the mayor the responsibility to prepare the SDS for London and to keep it up to date. We would expect the mayor to take account of the wider regional and national policies and to update the strategy from time to time as necessary. However, if there were a serious failure on the mayor's part to take account of changing policies or requirements outside London and to keep the SDS up to date in that sense, there must be a way of rectifying the situation, which the clause as drafted does.

It is a reserve power based on similar ones in existing areas of planning legislation. Those powers are rarely used and I do not expect that the mayor will need encouragement from the Secretary of State to keep the SDS up to date. It is nonetheless essential, because of the important role we give to the SDS not only for its own purposes but for the boroughs' planning operations, that we have reserve powers to ensure that it can be kept up to date.

Amendment No. 413 is slightly more moderate in its objectives. It would limit the Secretary of State's power without removing it. I appreciate the thinking behind it. It tries to use similar criteria used elsewhere in the Bill,

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including Clause 267. However, in the context of a reserve power we need wider powers than those specified within the clause.

The circumstances in which the Secretary of State might remotely but conceivably need to act to protect the integrity and operation of the planning system could include those referred to in the amendment. However, there may be others where the mayor, for whatever reason, had failed for years to bring the SDS up to date to take account, for example, of economic, demographic or employment changes that had a significant bearing.

In those admittedly unlikely circumstances, it would not be satisfactory to have a requirement for the London borough to keep its UDP in conformity with an out-of-date SDS. It is therefore right that the Secretary of State should be able to intervene in the interests of boroughs, developers and the planning system as a whole. In such a case, therefore, the tests of inconsistency with national or regional policies and of detriment to other areas are not necessarily applicable in the narrow sense that the noble Lord's amendment implies.

I repeat that it is a reserve power which will not be used by the Secretary of State except in the most serious cases of neglect by the mayor. I consider it most unlikely that they would be used at all, but they are a failsafe and we consider that we need them in this form. I therefore ask the noble Baroness to withdraw her amendment.

Lord Dixon-Smith: When the Minister studies the record he will see that in his response to the amendment tabled by the noble Baroness, Lady Hamwee, he gave a reason why he should accept my amendment. However, when he dealt with my amendment, he destroyed that argument. I must study in detail what he said, but perhaps if I take the second part of his argument and disregard the first he has satisfied the point I have raised.

Baroness Hamwee: Is there a legislative constraint on the alterations which the Secretary of State can direct under Clause 272(2)(a)? I heard what the Minister said about the powers being reserve, but I should be interested to know whether there is anything in the Bill or elsewhere which will define the parameters of the power of direction.

Lord Whitty: I shall need to check, but I believe that there is nothing in the terms mentioned by the noble Baroness. There is in the overall requirement that the Secretary of State shall act reasonably with regard to the exercise of reserve powers, as with other powers. That is the qualification I give.

Lord Phillips of Sudbury: Is there any control on an autocratic or overbearing Minister? From a legal point of view, the potential for judicial review is not a safeguard in these circumstances.

Lord Whitty: Probably in the terms the noble Lord indicates, the requirement to act reasonably is a restraint. They are reserve powers and they are specified where

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the Secretary of State would have to demonstrate that the mayor's strategy did not conform, or no longer conformed, to national policies or interests, or would act to the detriment of other parts of the United Kingdom. Therefore, there are constraints and tests against which the reasonableness of the Secretary of State would have to be judged. I therefore believe that there is a significant degree of restraint on the Secretary of State.

I now have further inspiration! I am reminded of the additional point that the powers have long existed in planning legislation in other parts of the country and are not new. So far as I am aware, we have not had a sufficiently autocratic Secretary of State to indicate that these powers are easily abusable.

Baroness Carnegy of Lour: There is one difference between this situation and those which exist. There could be a stand-up political row between a directly elected mayor who has built up an enormous political head of steam in London vis-a-vis the Secretary of State of the day. I suggest that the Minister contemplates that. This may be a failsafe mechanism and we hope the circumstances will not arise. However, there might not be a failure on the part of the mayor to do that which is required of him in law but there might be a political row on grounds of special planning. It is an issue which the Government ought to be careful about in making up their mind about the reserve powers.

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