Localism Bill

Lord Jenkin of Roding Excerpts

Monday 17th October 2011 Lords Chamber

[Lord Berkeley]

My Lords, I shall speak to Amendment 223ZA and the other amendments in this group. I first apologise to the House for bringing these amendments forward comparatively late in the day. I will be as quick as I can although the amendments are fairly technical, with some pretty detailed arguments behind them.

The amendments stem from the issue of the change in responsibility for decision-making from the Infrastructure Planning Commission to the Secretary of State and provide that Parliament, in the form of the House of Commons only, approves the national policy statement series that is supposed to underpin the new regime. There have already been some minor changes to improve the process of planning major infrastructure projects and to streamline the whole process. I suspect that now that the Secretary of State will be the final decider—that is a political decision—rather than an official, many of the checks and balances that were in the original Act could possibly be dispensed with or reduced in scope to try and simplify the procedures.

I know that these points have been made to officials quite frequently over the past few months and that the noble Lord, Lord Jenkin of Roding, moved similar amendments in Committee. When the noble Earl, Lord Attlee, responded to the noble Lord on 19 July, he said:

“I would like to consider the points he has raised in more detail and consult him and others between now and Report to see whether anything further can be done”.—[Official Report, 19/7/11; col. 1319.]

I am not aware of any meetings that have taken place since then, which we probably all regret in retrospect. I will try to go through these various issues as quickly as I can and hope that we can all have a meeting with the Minister between now and Third Reading to see whether any of these particular issues can be resolved. The Government could then bring back some amendments at Third Reading.

To go through them quickly, starting in not quite the right order, Amendment 223ZD refers to Section 127 of the Planning Act, which requires a separate consent to be sought from the Secretary of State in some circumstances when it is proposed to acquire statutory undertakers’ land compulsorily. Again, now that the decision has been transferred back to the Secretary of State, this is probably an element of gold-plating. I suggest it would be sufficient if the Secretary of State was required to take into account the views of the undertakers.

Amendment 223ZE refers to Sections 128 to 132 of the Planning Act, concerning the special parliamentary procedures which are available if there are objections from various organisations and authorities which end up having to go through a Joint Committee of Parliament, which could take quite a long time to resolve. The restoration of the Secretary of State’s decision-making power could allow these provisions to be removed and for it to be left to the Secretary of State to decide whether to grant consent for an application that affects these types of special land holders. The SPP seems to be unnecessarily complex and gold plating.

Amendment 223ZF refers to Section 137 of the Planning Act, which requires a separate consent to be sought from a statutory undertaker or the relevant Secretary of State in some circumstances where the undertaker’s apparatus is installed. Again, the same comments could apply to that. Amendment 223ZG refers to Section 138 of the Planning Act. It inserts an additional test and a consent from the relevant Secretary of State where the undertaker’s rights to use land are being extinguished.

All these separate consents, which will often involve other Secretaries of State as well, fly in the face of one of the main purposes of the Planning Act regime, which was to create as far as possible a single consents regime. There are many examples I can quote but it is well known to your Lordships’ House and Ministers. It seems that the Planning Act provisions set out in these texts go much further than the two key order-making procedures that the Act replaces—TWA and harbour orders. Taking them as precedent there is an argument for saying that there is a bit of gold plating in here.

It is interesting that on 13 October we heard the first IPC decision which was to allow Covanta’s proposed energy from waste project in Bedfordshire. It was made within the statutory timescale of nine months. I am sure we are all happy to see the IPC sticking to its timetable. However, 43 of the 96 plots of land to be purchased are owned by statutory utilities or local authorities and they have made representations about the project. The Planning Act requires the project to be subject to the special parliamentary procedure which could add six to nine months to the programme, which for a big project is actually quite serious. There is an opportunity to put this right and to incorporate some of these amendments to simplify the process and accept that because we now have the Secretary of State making all the decisions he can take all these issues into account.

I will now mention one or two other items as briefly as possible. There are a large number of things that we really cannot go through at this time of night but there is one issue that refers to the construction of these big projects. It means that regulations made under Section 150 of the Planning Act still require the promoters to seek myriad other consents and regulators before they can start construction. The Infrastructure Planning (Miscellaneous Prescribed Provisions) Regulations 2010 lists 42 separate agencies or authorities from which permissions have to be sought and a further 36 for Wales only, which I find quite interesting. Why is Wales so much more complicated? Again, it would be an enormous help to these projects if there could be just one consent which went through the IPC process.

I could spend a lot more time going through the detail of the technical issues. I hope that it might be possible for those of us who take an interest in this to have a meeting with Ministers before Third Reading to see whether we can encourage the Government to make some changes at that stage. I am sure that the noble Lord, Lord Jenkin of Roding, and perhaps other colleagues, would wish to participate fully in such a meeting. I beg to move.

[Lord Jenkin of Roding]

The noble Lord, Lord Berkeley, has masterfully reduced what could have been a very long speech into one that lasted less than 10 minutes. There has been some confusion about this whole matter. The group of amendments that I moved in Committee on 19 July contained a large number of separate and discrete subjects. The amendments that I moved were concerned primarily with ensuring a seamless transition from the existing IPC procedure to the NSIP procedure. I will not go into the details now but my noble friend Lord Attlee very kindly said that there should be discussions on this. Those who were advising me on this matter did have discussions with officials in the department. The result was that when we approached Report stage, when I asked them whether they had achieved what they were looking for, they said yes. Therefore, I have not retabled those amendments. However, as the noble Lord, Lord Berkeley, has rightly said, there were other amendments, a lot of which were aimed at the proposition that there should be a one-stop shop.

As I understand it—I am open to correction—for some reason the meeting with officials did not take place until last week. There was a misunderstanding about who was seeking to organise the meeting and make sure that proper discussions could take place. I think that the meeting took place on 13 October, with the result that the large number of amendments in the name of the noble Lord, Lord Berkeley, were tabled only on Friday and appeared with an asterisk in this morning’s revised Marshalled List. I had not realised that they would appear on the Marshalled List. I have made inquiries and I have a great deal of information on this issue but most of them are the same as those we discussed on 19 July in Committee, although there are one or two additional ones to which no doubt attention will be drawn at some stage. Whether it was the fault of my noble friend on the Front Bench or of those who have been advising us, the fact of the matter is that there have not been the discussions that there should have been and that my noble friend offered when he wound up the debate on 19 July. Therefore, we are in a slight difficulty on this. I hope that the request of the noble Lord, Lord Berkeley, that serious meetings should be held before Third Reading so that we can, if necessary, retable the amendments, or some of them, at that stage and have them debated will be taken note of.

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[Lord Berkeley]

My Lords, this is a completely different subject; it is to do with something which is colloquially called fracking. I raised it very briefly in Committee, but we were short of time then and I am grateful to the noble Baroness for the letters that she wrote, dated 5 September. Since that time I have had further thoughts about it. I have had quite an amazing amount of correspondence from people on the basis of a very short entry in Hansard. That is why I have tabled this amendment tonight, because it needs a different solution.

Very briefly, fracking comprises drilling a hole that is probably several kilometres under ground, pumping in water and unspecified chemicals, and sometimes apparently causing an explosion in the hope that gas will come up to the surface. There have been some pretty horrendous stories from the United States, where this is apparently quite common. There, houses have collapsed or settled seriously while water sources, and therefore water supplies, have allegedly been poisoned. In one instance, I believe that gas came out of the water tap, which must have been quite frightening.

I am not saying that that is going to happen here. However, the press release relating to what I believe is the first attempt at fracking in this country, somewhere near Blackpool, by a company called Cuadrilla Resources—the noble Lord, Lord Browne, an ex-chairman of BP, is apparently its chairman—said that it was excited because that could produce 200 trillion cubic feet of gas. I do not know what that means to the ordinary person in the street but it would be something like 30 years of gas. It all sounds very nice, with mouth-watering profits. But what will happen to the people who might be affected not by just the drilling and the things that I have mentioned, but by extra traffic on the roads, construction work and everything like that?

I know that there would be licensing from DECC and others. But if it were to happen around the country, I do not think that one can expect a local planning authority to have the resources to give something that is pretty technical due consideration, especially when it is balanced by potentially exciting numbers of new jobs and extra revenue from rates. It would be unfair to expect local planning authorities to give it the consideration that it deserves. I believe that the right solution is to make another change to Section 14 of the Planning Act to create a new type of project to include hydraulic fracturing of underground rock —it is not called “fracking” in the amendment.

This new type of project would then be subject to the IPC process but, equally importantly, it would have to have a national policy statement in which all these questions that I have been suggesting and more could be investigated, responded to, debated in the House and consulted on. We would all then have confidence that if this process could be done safely with minimum upset to local residents, it could go ahead on a national basis. If not, it will be in trouble. That is the purpose of my amendment. I beg to move.

[Lord Jenkin of Roding]

My Lords, it is right that the noble Lord, Lord Berkeley, has brought this matter back to the attention of the House. I have attended a number of lectures and presentations about the development of shale gas. As he said, it is perfectly true that there are substantial areas of shale several kilometres or more under the surface of this country, which could be, in appropriate circumstances, a source of gas for this country. However, a good many people have said to me, “But you would never be able to deal with this properly in a country that is as crowded and as fully populated as the United Kingdom”.

It has happened in the United States—indeed, it is happening on a very substantial scale—but there are wide open spaces there. It is apparently likely to happen in Poland where, again, there are substantial areas where it could be done without interfering with the life of the normal population. But in the crowded areas of western Europe and the United Kingdom, there is a widespread view that this is not likely to happen.

I, too, have had correspondence from a farmer in west Lancashire who has written in terms of being extremely anxious about what is happening. Yes, we had the small earthquake outside Blackpool, which is perhaps a foretaste of what may come. But the real concern is the huge amount of surface activity that has to go on at regular intervals. There is a limit to the amount you can drill horizontally before you need to drill another hole down and have all the equipment and plant at the top to deal with it.

There is quite a movement now to say that there should be a moratorium on this until it has been examined a great deal more thoroughly. I do not know enough about it. The noble Lord, Lord Browne of Madingley, clearly regards it as very important: he is the chairman of Cuadrilla, which is the only company that I am aware of that is drilling so far in this country. One needs to treat this very seriously, as it is a serious prospect. If we could find an acceptable process for recovering very large quantities of shale gas, that would replace a lot of the North Sea gas, which appears to be coming towards the end of its life. At the same time, however, if there are enormous disturbances of local populations and communities because of a huge rash of surface activity, this solution would seem to be worse than the problem.

I do not know what the answer is—whether it is a moratorium, or it is simply sufficient to say that it will come under the NISP process. As I said to the lady who wrote to me, it is going to be jolly interesting to learn what the Minister says in answer to this amendment. All I know is that there is a widespread view that it is not going to catch on in this country for the reasons I explained a few moments ago. I look forward hearing my noble friend’s response.

[Lord Greaves]

My Lords, this issue is closer to me than to other noble Lords, since the Bowland shale, which is the reserve of rock that potentially contains a large amount of methane, if it could be extracted in a sensible and safe way, underlies at a very great depth of some two miles or so a large amount of the Lancashire plain, and extends up towards Pendle Hill, where it is rather nearer the surface. Like other noble Lords, I have taken an interest in this and decided that I ought to find out something about it, as it is clearly extremely controversial. I have been doing just that, and I spent an extremely interesting three hours last Friday afternoon at the site at Banks in Lancashire where the firm Cuadrilla is currently drilling. Its employees showed me around, explained what they were doing and told me a very good tale. I listened and, like all very good tales, will assess it against all the other evidence in this particular case.

I have been deliberately trying not to take a view on the desirability of the extraction of shale gas until I discovered a great deal more about it. My current view is that the people who claim that this will be the answer for decades to the gas problems of this country are overegging their case a little bit, or quite probably a very large amount, but, equally, the people who claim that it would be the kind of environmental disaster in this country that it clearly has been in parts of the USA are also overstating the case. The regulatory regime in this country is very much stricter and more acceptable than the regime in the USA, particularly in some states of the USA. I doubt whether we will get the environmental devastation that has happened in some parts of the USA. I am told by Cuadrilla, although I cannot confirm it, that the famous picture which we have probably all seen on television of the water tap setting on fire was a result not of shale gas but of drilling into coal-seams. Even so, this clearly has to be taken extremely seriously indeed.

The licensing regime at the moment appears to be threefold. First of all, drilling for shale gas comes under ordinary petroleum exploration and development licences. Areas in which shale gas is currently being looked at have licences, issued in 2008 as I understand it, under that regime. It is a licence to explore and develop, but it does not grant planning permission or give the go-ahead even with planning permission. It is the first stage. The areas of this country where these licences have been issued in relation to shale gas include part of south Wales, where a different company, a British one I believe, is involved. I understand that there is also a wish to explore in a part of Somerset that has given rise to concerns in Bath about the spa waters.

The second stage is planning permission, which is what the noble Lord, Lord Berkeley, has been talking about. Planning permission is needed for exploration, and that is what is taking place in Lancashire at the moment. That planning permission was obtained from Lancashire County Council because in two-tier areas, the upper tier authority gives permission for mineral extraction. I have to say that, given the scale of the present exploration, it seems reasonable that the local planning authority, the county council in the case of Lancashire, should be in charge of this, although if it really took off, the points made by the noble Lord make a great deal of sense.

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[Lord Howarth of Newport]

My Lords, it is ironic that the Government's attempt to clarify the purport of the existing law has led to large-scale confusion and anxiety. While I was enormously relieved to hear what the noble Earl said, and absolutely accept that that is the appropriate interpretation of the provision, none the less, since he also said that the addition of this clause and the amendment that we are debating to the new clause that the Government brought in at a late stage in Commons proceedings does not do anything to change the law, would it not be better to withdraw the clause and issue guidance to clarify, for anyone who may be in doubt, what the existing law means? That would be helpful. Of course, those who attempt to construe the law and the Government's intentions will take careful account of what the noble Earl said on the record this evening. However, it would be better to remove the clause, clarify the law as it is and allow everybody to settle down and get on with the work that they need to do.

[Lord Jenkin of Roding]

My Lords, the Minister deserves complete support. When we debated this in Committee, I made the point that the clause did not change the law at all. My noble friend made this clear and stated that there had been confusion, which the amendment was designed to remove. The noble Baroness, Lady Parminter, spoke eloquently. Her noble friend Lord Greaves suggested that perhaps, in order to remove doubt, it might be helpful if the Government could clarify the extent of the clause and explain that it did not put financial considerations above all others, but that it was entirely for the planning authority to determine what weight should be given to them. That has been done. I find myself very unsympathetic to the argument advanced by my noble friend Lady Hamwee that by going on and trying to make this clear, my noble friend is digging himself deeper into a hole. That is very unfair. He recognised the concerns that were expressed in Committee and moved an amendment that puts the matter beyond doubt. He deserves complete support.

[Baroness Hamwee]

Perhaps I may clarify that I am not suggesting that the hole is of the noble Earl's making.

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Moved by

[Lord Jenkin of Roding]

249: After Clause 224, insert the following new Clause—
“Post-legislative impact assessment
(1) The Secretary of State must produce and lay before Parliament an assessment of additional expenditure incurred by relevant authorities as a direct consequence of this Act within two years of the Act’s commencement.
(2) This assessment will be known as the Localism Act post-legislative impact assessment.
(3) A relevant authority must supply the Secretary of State with such financial information as the Secretary of State may specify for the purposes of enabling the Secretary of State to exercise functions under this section.
(4) In producing the Localism Act post-legislative impact assessment, the Secretary of State must have regard to—
(a) any relevant guidance issued in relation to new financial burdens placed on local authorities;(b) any relevant pre-commencement regulatory impact assessment; and(c) information submitted by relevant authorities as the Secretary of State may require.(5) In this section “relevant authorities” means—
(a) county councils in England;(b) district councils in England;(c) London borough councils;(d) the Common Council of the City of London in its capacity as a local authority;(e) the Greater London Authority;(f) the Council of the Isles of Scilly.”

[Lord Jenkin of Roding]

My Lords, my estimate as to when we would reach the end of Report took me up to midnight, so I reckon that I have 25 minutes in which to speak. Like my noble friend Lord Attlee, I have two speeches. One was a very short speech which said, “I think this is a good idea”. The other one was a rather longer speech which said, “I think that this is a very good idea”. The Explanatory Notes to the Localism Bill estimated at paragraph 491 that the charge to local authorities would amount to £21 million per annum. I have seen an estimate of the net value of all the changes in the Bill as having a range of between £20 billion and £35 billion. There have been changes and many amendments to the Bill. However, local authorities are worried that they will still have to meet expenses substantially in excess of the Government’s estimate of £21 million. The purpose of this measure, which is not, of course, a full post-legislative assessment—I have no doubt that the Government will want to do that anyway—is to place a very firm date on when there should be an estimate of the actual costs that will be incurred by local authorities.

I have here a three-page speech but I will not read it out. However, it seems to me that given that so much of this Bill has affected the way that local authorities are to carry out their duties, it is only fair for the Government to be prepared to have that estimate examined so that there can be a proper assessment of what local authorities have to pay and what will otherwise fall on council tax payers. I will read no more of my speech but I think this is a very just proposal which is supported by the local authorities. I beg to move.

[Lord Beecham]

My Lords, it is fitting that the noble Lord, Lord Jenkin, should effectively conclude Report stage after his many distinguished contributions to the Bill’s proceedings thus far and, indeed, his previous very substantial record in government. I have a couple of questions. I entirely endorse the thrust of the noble Lord’s amendment. I hope that it will be acceptable to the Government. This is more a matter of process. We are not entirely clear how the new system of post-legislative scrutiny will work and what pieces of legislation will be included in it. I hope that this will be one of them. I do not know whether the Minister can indicate whether that is so but in any case it is understood from the impact analysis that the Government intend to draw up the finer details of the review methodology in the months ahead, as they put it. Since the relevant document was written some time ago, that will presumably be done through a soon to be formed Localism Bill review steering group. Has such a group been formed or will it be formed? Who will be involved in it if it has not already been set up? When is it likely to report? How will it work? These are the crucial procedural questions. The noble Lord, Lord Jenkin, rightly refers to the financial aspect and we entirely endorse the view that as this will effectively be a new burden on local government, it will presumably be within the new burdens doctrine. It will be good to have an assurance on the record that any additional costs of that kind will be met by central government.

[Lord Shutt of Greetland]

My Lords, Amendment 249 would mean that the department has to produce a post-legislative impact assessment setting out the additional expenditure incurred by relevant authorities as a direct consequence of this Bill. An established process is already in place for post-legislative scrutiny of Acts. As set out in Cabinet Office guidance, departments are required to submit a memorandum to their departmental select committees three to five years after Royal Assent of an Act. This memorandum sets out a preliminary assessment on how the Act has worked out in practice, relative to objectives and benchmarks identified during the passage of the Bill.

In addition, each of the individual impact assessments for the specific policies in the Bill is accompanied by a post-implementation review plan. The amendment to insert a further requirement to produce a post-legislative impact assessment is therefore unnecessary. Inevitably, putting the provisions of this Bill into practice will mean local authorities taking on some new responsibilities. However, the Government are committed to ensuring that any additional burdens on councils are funded in accordance with the new burdens doctrine. The impact of the Bill has been assessed in the usual way, and the necessary funding will be made available.

I regret that I am not cited on the localism group referred to by the noble Lord, Lord Beecham. Obviously, I shall have to drop him a line on that point. I hope that my noble friend Lord Jenkin will feel able to withdraw his amendment.

[Lord Jenkin of Roding]

My Lords, I am very grateful for the kind remarks made by the noble Lord, Lord Beecham. I am not wholly reassured because this is such a very special and particular post-legislative assessment that it will be necessarily picked up in that form by the full PIR. However, my noble friend has made the Government’s case on this. I have argued that local authorities generally want to know early the total extra burden, but I am happy to withdraw the amendment.

Amendment 249 withdrawn.