Planning Bill

moved Amendment No. 120: 120: Clause 118, page 61, line 21, at end insert ““with the consent of the Secretary of State”” The noble Lord said: My Lords, the amendment is intended simply to add ““with the consent of the Secretary of State”” to the first line of Clause 118(5). This clause provides that an order granting development consent may, "““apply, modify or exclude a statutory provision with relates to any matter for which provision may be made in the order””," and, "““make such amendments, repeals or revocations of statutory provisions””," and so on. In other words, the orders made by the Infrastructure Planning Commission can change the law. When statutory instruments, which are subject to the full parliamentary process, do that, they are known as Henry VIII clauses. The clause gives the IPC power to do that. This may not be the first time, but it will be a major issue when an unelected body such as the IPC—the Minister will know that I have indicated throughout my support for the IPC and its powers—has been given the power to change the law, and that seems to go beyond what is reasonable. I have had the advantage of receiving a bombardment, if that is the right word, of representations from Ministers, who make the point that not only is this measure essential, but there are admirable precedents. I would not dream of reading all of them out, but there are columns and columns and pages and pages of precedents under the Transport and Works Act and various other pieces of legislation. The point is that, as I understand it, and no doubt the Minister will correct me if I am wrong, all of those powers at some stage required the consent of the Secretary of State before they could take effect. If that is not right, I shall stand corrected. The argument, therefore, is that if we had to require such consent for all the orders made by the Infrastructure Planning Commission, this would once more transfer a substantial part of the decision-making process to the Secretary of State, who would then be obliged to make sure that what he was being asked to approve was appropriate and correct, to ensure that he was not challenged in the courts. I can understand part of that argument. When one looks at the details of the changes that have been made, for instance under the Transport and Works Act, one sees that many of them were completely reasonable, indeed inevitable, if an order was going to bring the necessary provisions up to date. You have to be able to change previous statutory provisions; I understand that. My fear is that this clause does not restrict it only to the run-of-the-mill statutory provisions that are to be amended and repealed. It in fact leaves it open to the IPC to make an order that could perhaps go well beyond something that has happened before, in the sense that some of the infrastructure projects likely to be the subject of consent orders under the Bill could be very large and complex developments indeed, which might require the repeal or amendment of substantial parts of the statute book. I hope the Minister can perhaps see a way of drawing a distinction between the mass of little projects, which would be fully in line with what has happened in the past under the Transport and Works Act and other similar legislation, and some way of identifying the major changes in the law that perhaps go beyond what has been done in the past and require the consent of the Secretary of State. I have studied the papers that the noble Baroness very kindly sent me, together with all the arguments in her letter, in which she stressed the safeguards. I understand that and have refreshed my memory on the matter. Her letter sets out as the first safeguard: "““The IPC can only use powers … where a promoter has applied for this, and the issue has been considered in public at the examination””." That is clearly of some value. The second safeguard is: "““The form of the draft order would be based on model provisions set out by the Secretary of State and subject to Parliamentary scrutiny””." Pausing there, I wonder whether, under the proposed model provisions, there is some way in which a distinction can be drawn, so that one is not simply leaving the IPC at large with a power to amend the law. Then her letter states: "““Development consent orders will not be able to authorise byelaws and offences””," which the Transport and Works Act orders and Harbours Act orders can do. That, again, is another safeguard. Then it all has to be, "““in accordance with Government policy set out in the national policy statement””." I appreciate that. Finally, the fifth safeguard is that, "““the Secretary of State has a power … to review””," if the draft order contravenes European law. If it contravenes European law, it will be invalid anyway, so it is right that the Secretary of State should see it to ensure that there is no serious error in that respect. Those are some safeguards but, to my mind, Parliament should look extremely closely at giving an unelected body an unlimited power to change the law. As I said, I recognise the need for this clause, and obviously the precedents with which I have been furnished give a good deal of support to what the Government are doing, but somehow there must be a way of identifying what might be a major change in the law in order to allow the commission to give its consent order to make it effective. That would require intervention by a Minister, who is, after all, accountable to Parliament. This is a difficult technical question and I am grateful to the Minister, who took time this morning to talk to me about it and to listen to my concerns. I much appreciated that. However, perhaps the Government can impose a limitation so that this is not done in the run-of-the-mill way, of which there are hundreds and hundreds of examples in the papers that I have been given. Perhaps they could impose, as it were, a trip wire that would require the intervention of the Secretary of State if there were a change—an amendment, modification or repeal—in the law which, as a parliamentary statute, had been passed by Parliament. That is what I am groping for and I hope that somehow the Minister will be able to help. I beg to move.