Contribution
My Lords, Amendment 47 relates to Clause 33. We debated this in Committee at some length, but the result of that debate was not in any sense satisfactory from my point of view. I wish to take this opportunity to express my thanks for the letter written to me by the Minister after the Committee debate, which covered a number of points, including this, but added only to the veil of obscurity surrounding this issue rather than clarifying it.
Perhaps I could just explain the political background to this, which gives rise to concern. As a conservative party, we are the party of property rights, and when we see clauses coming forward that appear to extend the rights of compulsory purchase on behalf of the state, we wish to explore and understand them and see whether they are absolutely necessary—especially when they appear, effectively, as a one-line clause at the bottom of a left-hand page in a Bill that appears to be largely about other matters. As I said in Committee, this issue could well deserve a Bill in itself; it certainly deserves proper scrutiny and clarity about what the clause is doing.
I will give the Government something for free: the National Farmers’ Union strongly supports this clause. I will briefly read out its reasoning for doing so and its account of the clause. It says:
“This is a positive step for landowners as, presently, National Highways can only apply for powers of compulsory acquisition to enable to it to use the land needed for a scheme. Under the Bill”—
that is, as a result of this clause—
“developers using the Highways Act for a project will be able to temporarily use and possess land rather than acquire it”.
That is a much clearer and better account of what the clause is doing than any I have heard from the Minister or the Government so far. But the first question one has to ask is whether the National Farmers’ Union’s understanding of the clause is correct. Can the Government say what it is doing? For example, in the letter that the Minister sent to me, he said that the clause “put beyond doubt” the department’s “existing power”, but the National Farmers’ Union believes that this is a new power, not a matter of putting something beyond doubt. Legal advice that I have formally taken outside the Chamber suggests that it is indeed a new power and not simply putting something beyond doubt. Can the Government state clearly and crisply what the clause is doing and what is new about it? That is the first question.
The second question relates to the issue of whether the clause can be used for the temporary acquisition of the ownership of land—that would be something akin to requisitioning in the Second World War, and it would be totally new—or whether it relates to the possibility of occupying land, traditionally done by means of a licence, a way leave or something of that sort, so that you have rights over somebody else’s land for a period but the land remains their property throughout. It is unclear which of those two it allows—or is it both?—because the clause refers specifically to “possession or occupation”, suggesting that there is a difference in the minds of the drafters between possession and occupation.
That question is tested by the wording of my amendment, which would leave out the words “possession or”. That would test whether this is tautologous or there is a genuine distinction. If there is a genuine distinction, could the Government explain what it is and whether it includes the temporary acquisition of the title to land in some fashion or other? That would be completely new and definitely worth closer scrutiny. If they are tautologous and there is no distinction, could the Government accede to the proposal in my amendment that one of them be left out, so that we have one that is operative and works?
The third thing is that there is no promise of any guidance to accompany this. In creating this new power—I assert, on advice, that the power is new and does not put something that exists beyond doubt—questions of a practical character arise that should be covered by guidance before it becomes operative. For example, how long can somebody temporarily acquire land for? How long beyond completion of the works are they allowed to keep occupation of the land? It might be as simple as: how long can construction huts be left on the land beyond the point when they are actually needed? What is the state in which the land is to be returned if it is temporarily acquired? That would all be useful to know in strong guidance from the Government that would accompany this new power. Again, that is all completely absent.