Planning Bill

My Lords, this is an important group of amendments, and I am grateful for the support for our amendment from across the House. Two important points have rightly been made. These processes must be seen to be fair, and must work in such a way that everyone feels that they have had their say and been listened to properly, that the evidence has been tested thoroughly and the judgment is sound and on the basis of the best possible evidence. Confidence in the process and ensuring that the evidence is properly tested, and that there are the skills and tools available to do that, are extremely important. When we debated this in Committee, I sensed that there was growing understanding and support for the Bill’s proposal to charge the commissioners with examining an application, to probe, test and assess the evidence through direct questions, rather than the traditional means of outsourcing this to advocates speaking on behalf of other people. At the end of our exchanges, we were also able to agree that cross-examination was not ruled out in the new regime. I made it clear that the commission can allow participants to cross-examine where it considers it necessary to ensure the adequate testing of any representations, or necessary to allow an interested party a fair chance to put the party's case. In short, this means that if there is a good case for inviting interested parties to cross-examine witnesses, the commission can certainly do so. However, it was apparent across the House, not least behind me, that there were concerns that the commissioners might not always have the appropriate skill and expertise available to them to question parties in the same way that experienced advocates could, to dig under the evidence, and that they might need support to do that. It was argued in the debate led by the noble Baroness, Lady Hamwee, that the requirement for commissioners to consider that cross-examination may be allowed only ““exceptionally”” might make it more difficult for them to allow cross-examination, and that what we had inserted as a ““safety valve”” might not function as such. Members of the Committee asked me to provide assurances, and to come back on Report with a better story and some amendments. I hope that I have done that. First, however, Amendment No. 16 of the noble Lord, Lord Dixon-Smith, and the noble Earl, Lord Cathcart, provides that the Secretary of State must appoint a solicitor to the commission for the purpose of advising it on the exercise of its functions, ensuring in particular that the consideration of applications is lawful and fair. The new clause proposed in Amendment No. 95—which is, of course, closest to where we are—provides that the chair of the commission may appoint a qualified lawyer to act as an advocate to the examination, provided the solicitor of the commission considers them to be a suitable person to act in that role. It further provides that the advocate to the examination can make oral or written representations to the examining authority, and may ask oral questions of any person making representations at a hearing. It also provides that the solicitor to the commission may appoint a suitable person to assist the advocate. Amendment No. 91 is consequential to that. I understand that noble Lords are seeking assurances that our approach to examining evidence is workable. In that context, I shall go over the opportunities that those coming forward will have to make an oral case. The noble Lord, Lord Jenkin, asked me to explain how that would work in practice. Most representations to the IPC would be written. They would be so technical that, by the time they had reached that stage, a lot of the discussion and argument on principle may be in-house. There is a good case for prioritising written representations to clarify technical issues. However, there are two separate opportunities for oral hearings. First, there can be specific oral hearings on any one of a number of topics that are germane to the application. Secondly, and this is unique, there are open-floor hearings. That provides two powerful opportunities for individuals, both the promoters and those from the local community, to come and make their case and test each others’ arguments. As I said before, we expect that all commissioners will be provided with appropriate training to carry out their functions, including training in the techniques of testing evidence: questioning, listening and asking the right questions in the right way. However, I absolutely took the noble Lord’s point that commissioners might sometimes need the support of a professional advocate to ensure that the right evidence is tested in the most effective and revealing way. That is what our new clause in Amendment No. 94 is about. To answer the first point of the noble Baroness, that clause will provide that the chair to the commission may appoint a barrister, solicitor or advocate to provide legal advice and assistance to the examining authority—that could be a panel or a single commissioner—where the examining authority requests it. However, it cannot be a single person. Needs will differ, the scope will differ and the nature of the examination will differ. A counsel with experience in engineering projects or in dealing with different types of witnesses may be required. We have therefore left it as fluid as possible. The noble Lord, Lord Jenkin, asks how it will work. Essentially, the advice and assistance that may be provided must be determined by the panel itself when it specifies its needs. It will certainly include the ability of the advocate in question to conduct oral questioning at a hearing, on behalf of the panel, of anybody who comes before it; it may be the applicant himself, or someone from the local community. His function is to probe the veracity and test the quality of argument and the quality of evidence provided. I hope that that addresses the concerns raised. Our amendment will ensure that the assistance of the advocate would be available should the examining body feel it requires some extra support and forensic skill. It also provides that the chair will have the final say as he or she will have the ultimate responsibility for the deployment of the commission’s resources. We are building in that discretionary power. On Amendment No. 16 to Schedule 1, the main purpose of the solicitor to the commission would be to provide advice to the commissioners on the exercise of their functions. The appointment would be an appointment of a staff of the commission. I understand what the noble Lord seeks here; I shall try to reassure him. The Bill provides that the commission secretariat will be responsible for the internal running of the IPC, including resource planning, appointments, finance and expenditure. It will be headed by a chief executive, and we do not want to constrain or curtail their power. It is entirely right that the chief executive should have the freedom to plan and manage those resources, including the appointment of staff. It should therefore be the chief executive who decides whether there is a requirement for the appointment of a solicitor to the commission, and he is likely to do so in all probability. It is worth pointing out that similar provisions apply to other public bodies, such as the Competition Commission. Although the Competition Act 1998 does not state that a solicitor to the commission should be appointed, I understand that such appointments have been made. Therefore, I can put that on the record. The proposed new clause in Amendment No. 95 is somewhat similar to the proposed new clause in government Amendment No. 94, but it provides that the advocate to the examination may make, "““oral and written representations to the examining authority””," in addition to asking questions of witnesses at hearings. That question was raised by the noble Lord, Lord Jenkin. I, too, am not quite sure what the intention of the noble Lords is with regard to the advocate’s role in making, "““oral and written representations to the examining authority””." However, it suggests that it may allow the advocate to both question witnesses about their evidence, and give evidence about the application. If my understanding of the amendment is correct, I caution against it. I suggest that decisions where an advocate could both give evidence and, as it were, get evidence might be open to a claim of judicial review because of the dual function involved. Therefore, I cannot accept the relevant amendments because that is rather problematic. As regards cross-examination, the noble Baroness, Lady Hamwee, has returned on Report with Amendment No. 92, which seeks to remove the word ““exceptionally”” from the test in Clause 93(7). I know that noble Lords are concerned that ““exceptionally”” might make it incredibly difficult for anyone to justify the use of cross-examination. The noble Baroness is aware that I will accept her amendment, and I am very happy to do so. However, I wish to explain what it means in terms of our position on cross-examination in the context of the Bill. I have said that the Bill sets out a way of proceeding for the IPC that aims in the best possible way to probe, test and assess evidence through direct questions rather than through cross-examination. Consequently, we expect that, in most cases, the examining authority—the panel—will question witnesses and probe the evidence. Direct questioning would be the norm; cross-examination would be used only where needed. That is why originally the Bill contained a reference to ““exceptionally””. I have also said that while we believe interested parties should be able to cross-examine witnesses in certain circumstances, we think there needs to be a good case for departing from the norm. We think that the right test is therefore that of when it is necessary to ensure the adequate testing of representations, or that an interested party has a fair chance to put their case. I am sure noble Lords will understand that, given the arguments I have set out about cross-examination and direct questioning, we certainly do not consider that we should invite cross-examination unless it is necessary. However, I should stress that the Bill emphatically does not rule out cross-examination. If the commission concluded that allowing a party to cross-examine was necessary to ensure the adequate testing of any representations or to give a party a fair chance to put their case—these will be experienced people with the highest standards of argument and ability to know when it is important to be able to probe that much further—it would, as a basic matter of administrative law, have to allow it under the test we have included. I have now further considered the strong arguments put by the noble Baroness in Committee. Although I am clear that in the examination of evidence, direct questioning would be the norm and that cross-examination would be used only where needed, I accept that the inclusion of ““exceptionally”” in the test to decide whether it is necessary to allow cross-examination may send the wrong, rather negative signal to commissioners and make it harder for them to allow cross-examination where it was necessary. Therefore, I am very happy to accept Amendment No. 92. I share her pleasure in seeing my name attached to that amendment, along with her own and that of the noble Lord, Lord Greaves.