Planning Bill

My Lords, I am grateful for that intervention from such an expert. We talk about expertise in the House of Lords and, my word, it comes in handy sometimes. I will come to the points about Scotland, but let me first speak generally about the amendments. This area of reviewing national policy statements was the subject of great debate in Committee, when it became clear to us that noble Lords wanted more clarity about the criteria that the Secretary of State should take into account when deciding when to review the statements. In Committee, the noble Lords, Lord Dixon-Smith and Lord Jenkin, and the noble Baroness, Lady Hamwee, urged that the Secretary of State should review national policy statements at frequent intervals. I think that there is general agreement that it is essential that the decisions of the IPC should be taken on the basis of policies that remain valid and not on the basis of NPSs that are, to use a word used in Committee, ““stale””. To do otherwise would be to undermine the credibility of the process. However, I have some problems with the amendments tabled by the noble Lord. As he kindly said, my amendments address the substance of his concern. Clearly, what we did not want was non-stop review of NPSs and the instability that that would cause. It is worth thinking back to the contribution in Committee of the noble Lord, Lord Bridges, who is not in his place at the moment. He said that we should be attempting, "““to find a form of words that commits the Government of the day to a serious policy and to making every effort to get everybody to agree with it, but which admits to the possibility that, in exceptional circumstances and after careful consideration, you might have to change it””.—[Official Report, 14/10/08; col. 629.]" That is absolutely right. The aim of national policy statements must be to set out a policy that meets the national need for infrastructure into the medium-term to long-term future. There is a benefit to having some continuity in such policy statements, while at the same time keeping flexibility to react when circumstances change. A review of the policy should be triggered by unforeseen changes, not simply by the passage of time. Some things will hold good. As we debated in Committee, there are different stages of change and some areas of policy are likely to change more dramatically and frequently than others. That is why the test of when an NPS needs to be reviewed is nothing to do with the age of the document, but with whether the assumptions underlying that policy remain true and whether it is therefore still fit for purpose. You cannot fit an arbitrary time and date around that. It is also right that the Secretary of State, as the responsible Minister, should carry that responsibility into judging whether circumstances have or have not changed since the national policy statement was published. We agree with noble Lords that there should be more clarity at this point in the Bill about the criteria which the Secretary of State should take into account when deciding when to review national policy statements. That is simply what we have sought to do through the amendments. Amendment No. 28 makes that clear. The Secretary of State must consider whether there has been a significant change in any circumstances on which the policy is based since the policy was last reviewed; whether these circumstances were already anticipated in the previous review; and whether, if the change had been anticipated, any of the policy in the statement would have been materially different. To answer the argument in the amendment of noble Lord, Lord Dixon-Smith, the Secretary of State should certainly frequently consider whether these criteria are met, but it is only when the criteria are met that the Secretary of State should review the content of the policy itself. As I explained in Committee, the criteria are the same as those set out in Clause 11, which are the right ones to determine when a national policy statement should be reviewed. Government Amendments Nos. 28, 29, 38, 39 and 41 seek to clarify that when the Secretary of State wishes to conduct a review of the national policy statement, it could be a complete or a partial review. Amendments Nos. 47 to 51 and 111 to 117 make consequential changes throughout the rest of the Bill, providing an added measure of flexibility so that the Secretary of State can take a proportionate approach to reviewing NPSs. They also make it easier for the Secretary of State to respond quickly if necessary to changing circumstances and to review a national policy statement. If appropriate, the Secretary of State will only need to consider whether circumstances have changed significantly in respect of the part which is to be reviewed; that is obviously much more flexible and sensible. To take a hypothetical example, if further scientific data change our assumptions about the rate of flooding or coastal erosion, the Secretary of State might want to review parts of the relevant national policy statements but not all of them or parts that are unaffected by the change. Amendments Nos. 111 to 117 are consequential, although they affect individual applications in Part 7. We have also addressed criticism that it was unclear which criteria would be applied to decide whether a review was justified. I hope that I have reassured noble Lords that we are committed to ensuring that national policy statements must be based on an accurate understanding of present and future circumstances and whether the assumptions underlying that policy remain true. If those circumstances change, we want to ensure that the policy can be reviewed too. The noble Earl, Lord Caithness, asked me whether new subsections (1B) and (1C) in Amendment No. 28 limit what we intend to do. I was not entirely certain which (1B) and (1C) he was talking about, because he will notice that there are two of each in this clause. However, new subsection (1B) relates to the review of a whole national policy statement and new subsection (1C) relates to a review of part of the national policy statement. The two issues are dealt with separately to avoid an extremely long and complicated provision. If the noble Earl was asking about the broader disposition of the clause, it does not limit what can be interpreted as ““changing circumstances””. It is a broad definition that allows the Secretary of State to operate with discretion, allowing for flexibility, judgment and changing evidence. We could not anticipate a limit as it is not within our scope or that of the Bill. The noble Earl has raised a serious political point, because incoming Governments have different values and different priorities. However, as I tried to make clear when we discussed this previously, demography does not change and neither does the need for power and energy. Our demands on water supplies and waste resources do not change. We will need predictable amounts of resource for the homes we must build. An incoming Government wanting to change the disposition of policy will have a national policy statement grounded in evidence. If they believe that a different political decision must be made, they are free to do so and that is a change of circumstance. Clearly, however, we cannot allow for that in the language of the Bill. All we can do is to try to anticipate situations where circumstances have changed. Therefore, the Secretary of State must be free to make a judgment on that basis and to review the NPS. I cannot improve on my noble and learned friend’s intervention relating to Scotland. I was slightly surprised suddenly to find myself confronted with detailed questions about cross-border issues. The noble Duke said that the Bill reflects the devolution settlement. I shall come back to him after I have read what he said about cross-border issues in relation to previous legislation with which he has been involved. However, I can say something about Clause 13 and judicial review. The special provisions in Clause 13 apply only to England and Wales. I understand that Scots law does not admit time limits on JR, but this means that NPSs can still be challenged in Scotland using normal judicial review rules. I hope that makes sense. I have it on advice, but when I read what he said I shall see whether we can clarify anything in writing.