Contribution
My Lords, we are now back on the Transport and Works Act. This clause relates to the holding of an inquiry when the powers of that Act are used. Since it will come up at some point later, it is worth reminding noble Lords, although I am sure they know all this, that for major construction works and infrastructure projects there are three methods available to a promoter for getting permission. One is planning permission from the local authority, and one—since 2008—is to go for a development consent order. When I say that there are three methods, there are really four, because there are also hybrid Bills. But there is also the intermediate thing of getting a Transport and Works Act order under that statute. In doing so, of course, one almost inevitably impinges on the property rights of others, so the possibility of having objectors and holding inquiries to examine those objectors must of necessity arise. That is the part of the Transport and Works Act that we are dealing with.
There are two things going on in the Bill, as far as I can make out. One is that it is currently the case that, if somebody raises an objection, the Secretary of State may hold an inquiry or may appoint somebody to hear the objector. However, they do not have to appoint someone to hear that objector if the Secretary of State considers that the objection is frivolous or trivial. There is a seriousness test, if you like, before the Secretary of State is obliged to respond to the objection by appointing someone to hear it or, indeed, by holding an inquiry.
One of the things happening in the Bill is that that seriousness test is being changed so that it now has to be something considered “serious enough” by the Secretary of State—no longer the very low bar of frivolous or trivial, which are terms quite well understood in legal circles, I believe, and therefore testable objectively, to some extent. Now, it becomes an entirely subjective test on the part of the Secretary of State as to whether it is “serious enough”—enough for what? No definition is offered. This moves the balance of power away from the citizen and in favour of the promoter, who is very often the Government, in a way that deserves inquiry. That is what these amendments are intended to highlight and invite the Government to comment on.
In addition, there is the question of whether the Government have to hold an inquiry or appoint a person. At the moment, in the Transport and Works Act, they “may” do so, but with the rising of the seriousness test—if that is admitted—it seems to me that, if someone passes the seriousness test, it should say “must” hold an inquiry or appoint a person on the part of the Secretary of State. After all, if it is admitted that the objection is serious enough—again, enough for what?—surely it must follow that an inquiry or a hearing should take place. If we are going to have a different balance, I am trying, not unhelpfully, to get the right balance. It would be worth hearing what the Minister has in mind here, and whether there is any give on his part.
Finally, I turn to my Amendment 53L, which relates to what is, as far as I can make out, a new power for inspectors in relation to Transport and Works Act inquiries—not planning inquiries but specifically Transport and Works Act inquiries—to impose costs on those who appear. At least in the planning realm, with which I am more familiar, inspectors can indeed impose costs on one side or the other, and in some cases on both, but only if there is some sort of delinquency on their part that has caused damage and held up the inquiry, such as a failure to provide documents on time or not turning up at hearings, which create costs for the other side.
The inspector can hold a separate costs hearing and can, and does, impose costs. I think we would all agree that that is a sensible measure to try to minimise delinquency on the part of those attending hearings. But a general power to defray the costs of the inquiry could have a chilling effect on objectors. That may be the Government’s intention—it may be that the Government want only the well-heeled to be able to appear before inquiries. If so, it would be as well to say so. But, if not, this new power needs to be either removed or very severely moderated. With that, I beg to move.