Planning Bill

I have a number of amendments in this group and I am afraid that I may speak at a little more length, particularly on the issue of cross-examination. I appreciate that it is for the examining authority—a single commissioner or panel of commissioners—to determine how to examine the application, and oral representations and cross-examination are not ruled out. I do not need assurances that they are possible, but the Bill does not give much encouragement to them, and the commissioners will take their cue from what will be the Planning Act 2008. What I have to say will be familiar to the Minister. I was grateful to her for agreeing to meet the chairman of the Planning and Environment Bar Association with me. He feels—I am sure that he speaks for colleagues because he made it clear that he was not there, as it were, in a trade union capacity—that if there is to be an Infrastructure Planning Commission—I do not think that there is a prospect that there will not be—it must work as well as possible. That means, among other things, being fair and being seen to be fair because of issues of confidence among the public and scrutinising applications rigorously. That leads me to argue that there should be a right for the parties to require an oral hearing and the right to ask questions to test the evidence. I would say to my noble friend that at that point I have a dash not a comma, but I think that that amount to the same thing. Cross-examination is not simply something narrow and legalistic: it is an important tool to test the basis of views that are being put forward. Assertions have to be tested by informed questions. It is not a matter of an expression of view: this is about ascertaining how well founded are the propositions being put to the commission. Are they rational, are they on a secure basis, and so forth? As has been said several times, including this afternoon, these applications will be highly complex and difficult. There will be expert evidence. We know that not every expert agrees with another—if every expert were correct then they would all agree—so there are matters to be tested. Fairness requires that parties should be able to test each other's case. The promoter will spend a great deal on putting the case together. Is it fair to the applicant not to be able to question those who oppose the application? Understandably, there will be differences between, for instance, the applicant and local residents, whose interests are very different but who will seek on the basis of the application to make assertions that will need to be tested. Noble Lords who have been members of a planning committee will have had many examples of objectors to an application casting as widely as possible for arguments against it. I know that the Government are hugely concerned—it is really the rationale for the proposals—not to lengthen the procedures, but testing the evidence need not unduly lengthen them. It will be open to the commissioners to curtail cross-examination. Judges have the right to curtail it if they feel that it is going nowhere and is not truly a cross-examination. Although Clause 92(8) permits the commissioners to refuse to allow representations that are irrelevant, repetitious and so on, the same or similar provision could be made in respect of questioning. Even if it is not accepted that there should be a right to an oral hearing and to questioning, Clause 92(7) is much too restrictive. The reality is that questioning by the parties will frequently be needed. It is not practicable to expect the examining authority to ask all the questions. Questioning expert witnesses to probe their evidence requires an enormous amount of preparation, skill and experience—although the latter can be gathered. In case the noble Baroness throws this back at me, I accept that at an early stage in our discussions I said that the commissioners could be trained, but practically speaking it is not possible to train them to the level of experience, for instance, that members of the Bar have gathered over their career. The commissioners will need guidance from an appropriately qualified expert on what areas to test. They are not likely to have at their disposal the guidance of specialists, who are essential to brief an advocate engaged in such testing. I do not think that the Government have got their head around the massive cost of providing the examining authorities with the teams of experts they would need if they were to take responsibility for all the testing of evidence. There is also the risk to fairness of process that such assistance is not open to scrutiny. The point was made to the Minister, privately before today, that in the development plan examinations, the procedures introduced following the 2004 Act, it is for the inspector to decide the procedure. I understand that initially inspectors tried to exclude questions from the parties to the process but came to realise fairly quickly that from time to time they needed their assistance. Clause 92(7) says that the examining authority may think that, "““exceptionally, oral questioning by another person is necessary””." The term ““exceptionally”” must mean something. It can only be there to make it more difficult for the examining authority to allow anyone else to ask a question. It must decide not only that questions are necessary, but that this is an exceptional case among the applications going to the IPC. If it is necessary to allow questions in a relatively high number of IPC cases, is it ““exceptional””? The approach will by definition prevent the examining authority having the tools required to test the objectives I have mentioned. I need not say nearly as much on the other amendments. My points underlying Amendment No. 283 apply across the raft of amendments. Amendment No. 275 is about publication. Amendment No. 280 is about the time for notifying the examining authority of a wish to be heard at the open-floor hearing; I propose 56 days for some of the practical reasons voiced in other contexts this afternoon. If practicalities are not observed, then unfairness can arise. Amendments Nos. 285 to 287 are about oral representations; I think that I have probably covered the point. I will not speak to Amendment No. 290, so the Minister need not respond to it. I look forward to hearing what she has to say on a serious aspect of the IPC’s procedure.