Growth and Infrastructure Bill

Lord Judd Excerpts

Wednesday 30th January 2013 Lords Chamber

[Lord Judd]

My Lords, I am very glad to be able to warmly support the noble Baroness, Lady Parminter, for the proposition that the clause should be removed. The more I look at this legislation and hear the discussions around it, the more I wonder whether on Report it will not be necessary to return to the very first clause of the Bill. For something which is crucial to the well-being of the nation, it is interesting to see the list of specific organisations that are exempted from these positions, and to see that this totally ignores the national parks authorities. It seems to me quite extraordinary. Many of them are bodies related to urban matters, but not to these qualitative matters for the nation as a whole.

I have to declare an interest. I am a vice-president of the Campaign for National Parks, and I do live within a national park. I am very glad to have broadband and want it to be as good as possible. It is no good causing any confusion over that; most of us who live in national parks want broadband.

The issue is about what is and what is not necessary, and about how it should be done. We have moved a long way; less than a year ago in the National Planning Policy Framework, the Government said this:

“Great weight should be given to conserving landscape and scenic beauty in National Parks, the Broads and Areas of Outstanding Natural Beauty, which have the highest status of protection in relation to landscape and scenic beauty. The conservation of wildlife and cultural heritage are important considerations in all these areas, and should be given great weight in National Parks and the Broads”.

That was a fine statement; I could not question it. It was a good, reinforcing statement about the importance of the parks. It is necessary—as the noble Baroness did—to stress how essential the parks have been seen to be since that period immediately after the Second World War. In that period there was, in the best democratic tradition, a lot of controversy, but about some things there was a lot of qualitative cross-party consensus. We were interested in the kind of Britain we wanted; we wanted a qualitative as well as quantitative Britain. We saw the economy and the measures put in place for the operation of society not as an end in themselves, but as a means of underwriting and strengthening the kind of society we wanted. With all the pressures that operate in society, all the impersonal technological development and all the stress and strain that this puts upon people, we desperately need—if we are to be a healthy, effective, and prosperous nation—these special areas that provide total contrast with the hurly-burly of life outside. They are places for reflection, for physical engagement with nature and its surroundings, and have the ability to raise the spirits by the beauty and culture of what is there. That is crucial to the psychological well-being of the nation.

I was saddened but not altogether surprised the other day when I heard that there was a rather acute discussion going on—I have to say, this was about the area in which I live; it was about the future of nuclear waste disposal. An official of some significance within the area of energy said, “Of course, we have to remember that we are concerned about the practicalities of what is important for the nation. The arguments about national parks are emotional”. Of course, there is a great deal of emotion about the national parks and what they mean to the nation. It would be a sad place to be if that emotion did not exist.

I suggest that that official, and all those involved, should take on board that this is actually a debate about quantity versus quality and how to get the kind of society you want. It is about ensuring that quantitative considerations are of course taken immensely seriously and driven forward with all possible vigour—the survival of the nation depends on this—but that we are absolutely determined to preserve the qualitative elements that make the nation a good place to live and which play into the health and well-being of the workforce, if that is how we are to look at people, and those who service the economic machine.

This part of the Bill raises very serious issues. It is rather sad when in situations of this kind, acute as they are, Ministers or others can get up and say, for example in the context of committee work, “Well, we have published a consultation paper”, when of course the consultation paper was published yesterday. That really does not give very much time for people to consult with those of us who have the privilege of being able to speak in Parliament about the issues.

I have taken the opportunity of having some telephone conversations in order to discuss some of the immediate reactions to the situation. I hope the Committee will bear with me if I refer to those briefly. The first thing that becomes very clear in the consultation paper is that the Government intend to press ahead with the changes set out in the Bill. Indeed, they are resolute in wanting to do that. Well, we take that position seriously. It is important to consider why it is so fundamentally important to press ahead before the outcome of the consultations has become clear. Of course, a Government who are sensitive and open to persuasion would want to take those consultations into account before they decided they were going to press ahead at all costs.

Paragraph 1.7 of the consultation paper refers to the establishment of a code to support best practice. It is interesting to note that to date DCMS has not sought any input on this from the English National Park Authorities Association. Although a number of organisations have been charged with the preparation of the code, the ENPAA, Defra, Natural England and the National Association for Areas of Outstanding Natural Beauty are not listed. Can the Minister give an assurance that the Government will actively be asking for the input of NPAs and AONBs?

Secondly, it is important to recognise that the code in no way addresses our main concern over the precedent that would be set by removal of the “have regard” duty in Clause 8. Paragraph 1.4 begins to create a division between different protected areas; for example, SSSIs are to continue to be protected, but national parks and areas of outstanding natural beauty are not. Perhaps we could hear a bit more about why this is.

Paragraph 1.5 refers to providing greater planning certainty. It can be seen that the overwhelming majority of planning applications and prior notifications are approved. My noble friend Lord Adonis, who made a very powerful case for the points that I and all those who feel the same way are trying to make, drew attention to this point.

We are told that the measures will provide greater planning certainty, but, as my noble friend said, all the evidence is that there have been no difficulties in this area. Please establish what the difficulties are which are used in support of this draconian legislation. More than 90%—almost 100%—of applications are approved. They are approved with good will because there has been consultation, points have been taken on board, and modifications and constructive and sensible compromises have been made.

Paragraph 2.2 makes the case that undergrounding new lines is more expensive. So it seems, although I am not totally convinced about this; I am not sure that imagination has been exercised with as much drive when considering different methods of undergrounding as the Government are bringing to the Bill as a whole. This is sometimes a very emotional argument which is not altogether practically borne out with evidence—but I shall not advance that case at this moment. However, it would be useful to know what other options have been considered for reducing the costs of digging before going to the option of weakening the protection of national parks.

Paragraph 2.16 refers to the prior notification process relating to cabinets. As I understand it, the park authorities would be happy to work with operators to assess locations for cabinets more strategically, one by one. There may even be a willingness to review the 56-day limit for this, but I have no authority to say that; I just have the impression that they might be open to discussion.

Paragraph 3.5 seeks to reassure that changes will be used only for broadband and not mobile masts. The explanation given is fair enough, but there would not appear to be anything to stop this or to stop future Governments using the changes for masts of other kinds. Indeed, EU rules prevent the Government giving such technology-specific assurances even if they wanted to.

The consultation makes no reference to wider concerns expressed about the precedent that risks being set for other policy areas. That is crucial; it is the thin end of the wedge. Everybody has realised up till now that, with all the pressures that operate on society—with which the national parks and the areas of outstanding should be a contrast—it is important to have very firm and unquestionable protection of their special and unique status. Once you break that, where is it going to end? One argument leads to the next and, before you know it, you have ended up with a home county. There are many very delightful Home Counties, but they certainly cannot provide what national parks and areas of outstanding beauty provide for the nation.

This is a very dangerous clause. It is also a very sad clause, because it is another spur to the altogether-too-evident trend in our society towards knowing the price of everything and the value of nothing. It is a society that has lost its values. It has lost its sense of aesthetic priority, which makes for a civilised society. I want Governments of every persuasion to stand by the principle that we all want to live in a civilised Britain. I do not believe that the Bill will help in that respect.

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[Lord Marlesford]

My Lords, I put my name to these amendments for very much the reasons put forward by the noble Lord, Lord Adonis. Clause 8 is really not necessary. I declare an interest as president of the Suffolk Preservation Society. I have some experience in this area, because I did 12 years on the Countryside Commission, under the distinguished chairmanship of the noble Lord, Lord Barber of Tewkesbury, and was lucky enough to get to know the national parks very well during that time. In eight of those years, I was also on the Rural Development Commission under the chairmanship of my noble friend Lord Vinson. One saw then the importance and possibility of combining the conservation and protection of our finest countryside with economic development, which the noble Lord, Lord Cameron, so rightly pointed out.

I have always regarded the planning system and, with it, the creation of the national parks, as one of the two great venerable icons of the Attlee Government—the other, of course, being the National Health Service. Over the years, it has worked extremely well. I have seen at close quarters how it works. Of course, it is necessary to have new technologies, and indeed they are to be welcomed. Indeed, the broadband technologies, which make new forms of economic enterprise possible in remote areas is one of the least intrusive.

There has been a lot of talk about undergrounding, and I have a bit of experience of that, too. I am very keen on undergrounding. For some years, I was a non-executive director of the Eastern Electricity Board, both before it was privatised and for a while afterwards, when it was taken over by Hanson. I persuaded my co-directors to start a scheme for undergrounding wires in designated areas, which worked extremely well. It is not wildly expensive. Of course, the 440 kilovolt pylons are hugely expensive to underground, but the network of wirescaping, which can so badly damage a landscape, is remarkably inexpensive to underground. We did it in some 30 designated conservation areas on the heritage coast. The first one was in my own village, and I was attacked by Paul Foot in Private Eye, on the grounds that I lived in the village, because I had banged on about it for about five years before they did it. But it is a perfectly good scheme to do things such as undergrounding. All this can be done very well under the existing arrangements. Broadband can and will come, and it is crucial that it should do so. However, absolutely no reason that I have heard of or read about justifies the necessity for introducing Clause 8 to give special treatment to broadband.

I do not believe that we should for one instant consider damaging the unique quality and status of these most precious landscapes by weakening control over them. I believe it is unlikely that this Government would seek to do so, but if they were to do so, it is most unlikely that your Lordships’ House would agree to it.

[Lord Judd]

The noble Lord referred to world heritage. I am sure he will be aware that the Lake District, where I live, is seeking world heritage site status. This will have immense significance for the British economy and for attracting visitors and tourists. Will this process be helped or hindered by these unnecessary provisions in the Bill?

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[Baroness Hanham]

My Lords, as I understand it, the rules in conservation areas are not to be changed.

Under the measures on which we are consulting, local authorities will still be involved and will have more of an opportunity to put forward their views on the siting of poles and boxes, and on their appearance. The existing regulations require, and will continue to require, consultation with local authorities. In addition, providers will work to a new code of best practice on the siting of infrastructure. This will contain an agreed set of overall principles on sensitive siting, together with specific requirements for consultation with local communities about new overhead line deployment. My noble friend Lord King asked whether these measures were related to fixed broadband. As I said in my Second Reading speech, these measures cover fixed broadband—poles and boxes.

We will outline the main principles of the code of practice by Report, and the code will be agreed before changes are brought into effect by regulations. We expect broadband operators to adhere to the code that they will be involved in drawing up. We believe that the sector should have responsibility for its own code. I can confirm that the English National Park Authorities Association will be invited to join the group that is drafting the code of practice.

Importantly, local authorities will also be able to influence how new broadband services are deployed when procuring projects under the Broadband Delivery UK programme—including, for example, determining whether lines should be run overground or underground. As I said, the underground aspect is not being removed. This will be balanced against how much coverage can be provided.

I turn now to the specific amendments. I do not agree that there is a need to place conditions on the Clause 8 enabling power.

[Lord Judd]

Before the noble Baroness turns to the amendments, perhaps I may ask her a question. I have great respect for her as a person and a Minister; I know that she very much cares about the qualitative dimensions of British life. On reflection, would it not have been better for the Government to say, “Our objective is to have the most efficient possible economic performance in Britain. We will include the rural areas in this objective. We are determined to have the best possible facilities to service that economic activity. However, we not only want our broadband system to be the best in Europe, we want our areas of outstanding natural beauty, including the national parks, to be the best in the world”? The Government’s purpose is to find a policy that enables both objectives to be reconciled.

[Earl Attlee]

My Lords, I remind noble Lords that we are in Committee. Noble Lords may speak as many times as they like, but it might be for the convenience of the Committee if we allow the Minister to respond initially to the amendments and then I am sure my noble friend will be delighted to take further questions.

[Lord Judd]

I assure the Committee that I will not repeat what I have already said, in spite of what we have just been advised is the best way forward.

[Baroness Hanham]

My Lords, I am beginning to feel like a jack-in-the-box. I hope that I do not look like one, but I am beginning to feel like one. The noble Lord, Lord Judd, asked a philosophical if not a practical question. We are where we are. My job is the legislation before us. It is not to proffer a view on that. This is how the Government feel it is necessary to proceed in order to do precisely what the noble Lord said, which is to get broadband across the country as quickly as possible and in the best way possible. As I tried to say as I was going along, the only way that you can get broadband is through masts, lines and boxes, and somehow that has to be dealt with in the best way possible.

Turning to Amendments 59A and 59C, tabled by the noble Lord, Lord Adonis, I do not think that there is a need to place conditions on the Clause 8 enabling power in the way that the noble Lord proposes, and I have referred to the existing consultation requirements in the regulations. That consultation must be considered before further action is taken. The relevant secondary legislation—the Electronic Communications Code (Conditions and Restrictions) Regulations 2003—already includes both general and specific statutory requirements for consultation with planning authorities. This will continue to be the case.

Communications providers will be required to notify local planning authorities about the equipment that they propose to install and where they propose to install it. The regulations will make it clear, as they do currently, that planning authorities will have an opportunity to influence the siting and appearance of that equipment and can put forward objections, as is currently the case. Communications providers will be required to make changes, if they are reasonable.

Communications providers are under a strong incentive to ensure that they follow the statutory requirements for consultation with local planning authorities. If they do not, this would be considered a breach of the permitted development rights under which they install their equipment and could lead to planning enforcement action.

The noble Baroness, Lady Whitaker, called for the regulations to be subject to the affirmative procedure rather than the negative procedure as is currently the case. The requirements for consultation with local planning authorities that we propose to introduce for protected areas are not new. They are already well established and work well for non-designated areas. I am confident that they can work well in protected areas with the co-operation of communications providers and local planning authorities alike. At present, I do not see the need for the affirmative procedure. This is not new. It is not novel: it is how things have happened in the past.

The noble Lord, Lord Adonis, also proposed Amendment 59B. As I said at Second Reading, we are unable to draft legislation in such a way that is specific to broadband infrastructure. I explained then that this is because of Article 8(1) of the Framework Directive 2002/21/EC, which requires technology neutrality so far as the primary implementing legislation is concerned.

We can, though, be specific in secondary legislation. As I made clear at Second Reading and make clear again today, and as our consultation also makes clear, our proposed changes relate to broadband cabinets and overhead lines—in other words fixed broadband technology. As I said, that cannot be done in primary legislation. It will be done in secondary legislation.

The amendment also suggests that specifying consultation with local authorities on changes to secondary legislation is necessary. Consultation with local authority interests already happens under the existing provisions of the Communications Act 2003. Section 109(4) provides that before making regulations, the Secretary of State must consult Ofcom and any other persons as she considers appropriate. As I mentioned earlier, a large proportion of the existing regulations consists of the requirements for consultation with and notification to highway and planning authorities; this will not change, and of course we are now consulting on our proposed approach. The Local Government Association and others such as the national park authorities will want to make their views clear on the proposed planning changes.

My noble friend Lord Greaves has proposed Amendments 59D to 59H. These would remove what we believe are necessary subsections to ensure that other legislation relating to protected areas is amended so as to be consistent with the Secretary of State’s powers in Section 109 of the Communications Act. If we remove them, Clause 8 would not deliver the result the Government are seeking to achieve. It would also risk creating great uncertainty and inconsistency in the law. My noble friend Lady Parminter raised this with us at a meeting we held yesterday. We explained to her then that this was the way we had to deal with the matter legally, and although it may seem rather cumbersome, it is essential. I have heard nothing to change my mind since our discussion, but I did undertake that we would consider the reasons why. I also understand the intention of my noble friend Lord Greaves and I want to reassure him that the amended legislation will continue to make it explicit that the Secretary of State shall have regard to the need to conserve the natural beauty of the countryside when making regulations in relation to the Electronic Communications Code.

As with the relaxation of prior approval in protected areas for cabinets and poles, these subsections also only apply for a period of five years, which I hope gives some comfort to noble Lords. The provision of broadband to business and communities across the country is vital to ensure that we have growth. We want to see the economy grow right across the country.

I have spoken at some length regarding the existing and proposed consultation requirements that will be necessary through the secondary legislation that Clause 8 will enable. Perhaps I may go over those requirements again. Communications providers will still be required to consult with local authorities on the siting of infrastructure and to take on board any reasonable objections, which is the current situation. The proposed code of best practice for the siting of infrastructure will contain an agreed set of overall principles for siting, as well as specific arrangements for consultation with communities on new overhead wires. Local authorities will be able to influence how services are deployed in their area in consultation with their supplier when procuring under the Broadband Delivery UK programme. There is a great deal of scope for local authorities to influence what is going on, and it seems to me that broadband providers are going to find it much easier to get their work done if they co-operate and co-ordinate their activities with local authorities to ensure that between them there is a sensitive recognition of the environment.

As a side issue, I was asked about advertising on boxes, an issue that has been the cause of a lot of concern. Advertisements are not permitted unless specifically approved by the local authority. Permission has to be sought to do that. My noble friend Lady Parminter asked about the siting of equipment. A number of statutory requirements are set out in the Electronic Communications Code (Conditions and Restrictions) Regulations 2003 which are aimed at ensuring that the amount of electronic communications apparatus and its impact on visual amenity is kept to a minimum, and these provisions will remain unchanged. The relevant provisions are in the general conditions, under Regulations 3(1)(b), 3(3)(a) and 3(4). Regulation 3(1)(b) requires communications providers to,

“consult … planning authorities in relation to the installation of electronic communications apparatus, including installation in a local nature reserve”.

Under Regulation 3(3)(a), communications providers,

“when installing any electronic communications apparatus, shall, so far as reasonably practicable, minimise … the impact on the visual amenity of properties, in particular buildings on the statutory list of buildings”.

Under Regulation 3(4) they,

“where practicable, shall share the use of electronic communications apparatus”.

There is nothing in this legislation to change any of that.

I hope that I have dealt with more or less everything that has been said. If not, I am sure that somebody will remind me and ask me again. I hope, with those explanations, that the noble Lord will withdraw his amendment.

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[Lord Judd]

The Minister said that she was willing to consult, which is encouraging. Can she say a little bit about the thinking that has gone on in government about any requirements for such installations to be removed as soon as advances in the technology make them superfluous?

[Baroness Hanham]

My Lords, I am sure that that is worthy of an amendment on Report. I am sure that they will be expected to be removed, but I take the noble Lord’s point that sometimes these things are put up and are not then pulled down. However, it is not part of this legislation; I will find out whether consideration has been given to that; and I will find out what the precedents are, because we have got boxes all over the place for cables and all the rest of it, some of which are not used again.

[Lord Judd]

But it is highly relevant to this legislation, because that is a cost to be borne in mind when a company is making its decisions.

[Baroness Hanham]

My Lords, I think that we will not take that any further.