Planning and Infrastructure Bill

Report (1st Day) (Continued)

Amendment 22

22: After Clause 12, insert the following new Clause— “Whistleblowing and oversight for nationally significant infrastructure projects(1) For the purposes of this Act, the National Infrastructure and Service Transformation Authority (NISTA) is responsible for receiving and investigating protected disclosures in connection with nationally significant infrastructure projects.(2) In particular, NISTA is responsible for—(a) receiving disclosures of information from individuals or organisations relating to suspected misconduct, mismanagement, breach of environmental regulations, or any other matter of public interest connected to nationally significant infrastructure projects;(b) assessing whether such disclosures fall within its remit and merit investigation;(c) undertaking investigations where appropriate and referring matters to relevant regulatory, law enforcement, or oversight bodies;(d) providing advice and guidance to individuals considering making protected disclosures in relation to such projects;(e) reporting on the nature, volume, and outcome of disclosures received, with appropriate protections for confidentiality and whistleblower anonymity;(f) establishing and maintaining a framework setting out the protections afforded to whistleblowers, including remedies for individuals who suffer detriment as a result of making a disclosure, and procedures for seeking redress.(3) For the purposes of this section, “protected disclosures” are those that meet the conditions set out in section 43B of the Employment Rights Act 1996 (disclosures qualifying for protection), as they relate to the planning, development, or operation of nationally significant infrastructure projects.(4) NISTA is responsible for ensuring it has—(a) an appropriate governance structure;(b) clear processes and criteria for assessing disclosures;(c) mechanisms for collaboration with other statutory regulators or planning authorities.”Member's explanatory statement This amendment places responsibility on the National Infrastructure and Service Transformation Authority (NISTA) to receive, investigate, and oversee whistleblowing disclosures relating to nationally significant infrastructure projects, ensuring protections for whistleblowers and coordination with relevant regulators.

My Lords, I recognise there is a lot of business to get through tonight, so I will be brief.

When whistleblowing was discussed in Committee, speakers from around the Chamber—except, sadly, the Government—seemed to recognise that the current whistleblowing framework is unfit for purpose. It is the framework that left whistleblowers on HS2 and Crossrail at best sidelined and at worst silenced and persecuted. The cost to the taxpayer because trouble was covered up and not nipped in the bud and managed has run into billions. This has happened on many other transport and power projects where problems are covered up and exposed too late.

In Committee, as I have done before, I proposed a new whistleblowing framework, including an office of the whistleblower. In that debate, the noble Lord, Lord Grayling, constructively suggested that, instead of a separate office, the National Infrastructure and Service Transformation Authority, NISTA, could be an effective body in which to place whistleblowing powers and a whistleblowing channel related to infrastructure. A redrafted amendment, Amendment 22, now reflects that proposal.

I still have a preference for a single office of the whistleblower under the Cabinet Office, but I am also a realist. Change on that scale will not be achieved anytime soon. However, if we launch a new drive for infrastructure—which we all recognise is essential for growth—without fixing the whistleblowing framework, we would be fooling ourselves if we expect not to repeat the scandals we have seen historically. Cover-ups will continue and will seriously damage the growth agenda. I hope that the Government, with this revision, will respond more constructively to the issue of whistleblowing and to the approach that places the framework inside NISTA.

My Lords, I will speak briefly. It is a great pleasure to follow the noble Baroness, Lady Kramer, as I did recently in the Moses Room on the same issue of whistleblowing. The noble Baroness is our pioneer, expert and leader on whistleblowing. I signed this amendment because it is important to demonstrate that this is an issue of broad concern.

The noble Baroness made clearly the case that we have huge problems with effectively and cost-effectively delivering major projects so that they do what they say they will do on the tin. The people who are most likely to know that something is going wrong are people within the organisation. It is terribly important to ensure that whistleblowers feel safe and will not tear their life apart if they come forward to report the issue.

The noble Baroness, helped by other Peers, has come up with a creative solution for NISTA to pick up this role in this context. I therefore hope that we will hear some movement from the Government on the issue.

My Lords, as we said in Committee, Amendment 22, from the noble Baroness, Lady Kramer, is a clear and well-intentioned proposal that raises important questions about how individuals can share their concerns relating to NSIPs. However, as we noted previously, establishing independent bodies through amendments is not straightforward. The former Minister, the noble Lord, Lord Khan, addressed that point, and the Government have set out their enthusiasm to work with organisations that support whistleblowers. We will hold the Government to account on that assurance and continue to work with your Lordships’ House to ensure that whistleblowers are protected.

My Lords, Amendment 22, tabled by the noble Baroness, Lady Kramer, proposes that the National Infrastructure and Service Transformation Authority—NISTA—be given a new responsibility to receive, assess, investigate where appropriate and oversee whistleblowing disclosures related to nationally significant infrastructure projects. The amendment seeks to ensure appropriate protection for whistleblowers and co-ordination with relevant regulators and planning authorities.

I am grateful to the noble Baroness for raising this important issue and have listened carefully to her remarks. While I recognise the intention behind the amendment, I must say again that I do not share the view that there is evidence of whistleblowing being a current, widespread concern within the NSIP regime. As she will know, there is already a well-established framework of prescribed persons and bodies to whom whistleblowers may turn, independent of their employer, as provided for under the Employment Rights Act 1996. They include organisations covering areas such as environmental protection, health and safety, transport, utilities and local government, which are of direct relevance to NSIPs.

Adding NISTA to this list would duplicate existing functions already carried out by regulators, such as the Environment Agency, which have the appropriate expertise and statutory powers. Given this existing framework, we believe that adding another body to the list would create a duplication of roles and, in any event, would not require primary legislation to achieve, as new persons or bodies can already be prescribed through Section 43F of the Employment Rights Act 1996. In the light of this, I respectfully invite the noble Baroness to withdraw her amendment.

My Lords, I am saddened by the Government’s response. The next time we have a major project and there is a major scandal, they will have to take ownership of it. They looked at the framework that delivered us the problems on HS2. The names of the whistleblowers are now public: Doug Thornton and others reported that financials had been distorted, misrepresented and covered up, which delayed the making of a series of appropriate decisions on HS2. In the end, they were fundamental in requiring the truncation of what had been a much larger scheme. Crossrail is a similar example. Until about eight weeks before it was due to open, nobody in political decision-making knew that the project had fallen into deep trouble. It ended up being delayed by four years and was £4 billion over budget. This is repeated again and again. We have had similar problems with Hinkley Point and many other projects. That is what the current framework, which the Minister defends, actually delivers.

If the nettle is not grasped, we will see the same experiences again. Even if it is in only 10% of the projects that are anticipated for the future and that will be relevant to the growth agenda, the consequences will be significant. The existing framework, no matter what it says on paper, has demonstrated that it is unfit. Look at the Post Office scandal, the contaminated blood scandal, the issues in the NHS, the PPI scandal and the series of financial scandals—the framework does not work.

I ask the Minister to take the issue away, speak with some of his colleagues and see what can be done to make sure that, at least within the context of infrastructure, there is an effective channel that works. It must provide protection for whistleblowers in a real way, not just on paper, and lead to the necessary investigations. Given that, I beg leave to withdraw my amendment.

Amendment 22 withdrawn.

Amendment 23

23: After Clause 12, insert the following new Clause— “Decisions in cases of development consent orders for critical national priority projects(1) In the Planning Act 2008, after section 117 insert—“117A Orders granting development consent: critical national priority projects(1) Schedule 3A applies to an order granting development consent for a project that is a critical national priority if, at any time before the order was made, the applicant for the order had made a request in writing to the Secretary of State that Schedule 3A should apply to the order.(2) A project is a critical national priority if a national policy statement that has effect in relation to the application for development consent for the project specifically identifies the project as a critical national priority.”.(2) After Schedule 3 to the Planning Act 2008, insert—“Schedule 3AParliamentary confirmation of orders granting development consent for critical national priority projectsOrders granting development consent subject to this Schedule 1 (1) An order granting development consent to which this Schedule applies may only come into force if approved by an Act of Parliament passed in accordance with this Schedule.(2) Sections 130 to 132 (special parliamentary procedure in relation to National Trust land, commons, open spaces, etc) do not apply to an order granting development consent to which this Schedule applies.Introduction of order confirmation Bill 2 (1) As soon as practicable after making an order granting development consent to which this Schedule applies, the Secretary of State must introduce into Parliament a Bill for confirmation of the order, which is to be treated as a public Bill.(2) The Bill must include the order as a Schedule to the Bill and must be accompanied by an Environmental Report prepared by the Secretary of State.(3) The Environmental Report mentioned in sub-paragraph (2) must set out a summary of the likely significant effects on the environment of the project granted development consent by the order and the main measures proposed to be taken to avoid, reduce and, if possible, offset the major adverse effects of the project.Petitions against order confirmation Bill 3 (1) If, within the period of 21 days beginning with the day on which a Bill to which this Schedule applies is introduced into either House of Parliament, a petition is deposited against the Bill in that House, the petition stands referred to the Chairmen for examination in accordance with this paragraph and Standing Orders.(2) Within the period of seven days beginning with the day on which any such petition is deposited, the Secretary of State responsible for the Bill or the applicant for the order may deposit a memorial objecting to the petition, or any part of the petition, being certified as proper to be received, stating specifically the grounds of their objection.(3) As soon as practicable after the expiration of the period of seven days mentioned in sub-paragraph (2), the Chairmen must take into consideration all petitions referred to them under sub-paragraph (1) and any memorial deposited under sub-paragraph (2), and if the Chairmen are satisfied with respect to any such petition that the provisions of this paragraph and of Standing Orders have been complied with in respect of the petition, or part of the petition, they must certify that the petition or the specified part of it, is proper to be received.(4) The Chairmen must not certify that a petition, or any part of a petition, is proper to be received if the petition, or that part of the petition, relates to matters considered during the examination of the application for the order conducted under Chapter 4 of Part 6 of this Act and subsequently by the Secretary of State under Chapter 5 of that Part, other than—(a) matters relating to sections 130 to 132 (special parliamentary procedure in relation to National Trust land, commons, open spaces, etc), or(b) matters relating to the compulsory acquisition of any interest in or right over land provided for by the order.(5) In respect of every Bill to which this Schedule applies, the Chairmen must report whether any petitions have been presented against it and, if so, what petitions or parts of them, have been certified as proper to be received and whether any amendment to the Bill proposed by the petitions would, if made, alter the scope of the Bill or affect the interests of persons other than the petitioners; and subject to Standing Orders, every such report must be laid before both Houses of Parliament.Proceedings following petitioning period 4 (1) Where a petition or part of a petition has been certified by the Chairmen under paragraph 3 as proper to be received, the Bill—(a) after being read a second time in the House in which it is presented, is to be referred to a joint committee of both Houses of Parliament for the purposes of the consideration of that petition or part of it, except where either House has resolved within the period of 21 days beginning with the date on which the report of the Chairmen referred to in paragraph 3 is laid before it, that the petition or part of the petition should not be so referred,(b) after it has been reported by the joint committee, is to be ordered to be considered in the House in which it was presented as if it had been reported by a committee of that House, and (c) when it has been read a third time and passed by that House, is to be treated as having passed through all its stages up to and including committee stage in the second House.(2) A joint committee shall consist of three members of the House of Commons and three members of the House of Lords, in each case to be nominated by the House’s Committee of Selection within 10 sitting days of the Chairmen’s report having been laid before both Houses of Parliament under paragraph 3.(3) Where no such petition or part of any petition has been so certified by the Chairmen under paragraph 3 as proper to be received—(a) the Bill is, after its presentation, to be treated as having passed all its stages up to and including committee in the House in which it is presented,(b) the Bill is to be ordered to be considered in that House as if it had been reported from a committee of that House, and(c) when the Bill has been read a third time and passed in that House, the like proceedings on the Bill are to be deemed to have been taken, and to be taken, in the second House.Powers and proceedings of joint committee 5 (1) Where any petition or part of a petition against a Bill to which this Schedule applies is referred to a joint committee under paragraph 4, the Bill is to stand referred to that committee for the purpose of the consideration of the petition or part of the petition, and the committee must report the Bill either without amendment or with such amendments as they think expedient to give effect, either in whole or in part, to the petition or to the part of the petition, and with such consequential amendments, if any, as they think appropriate.(2) The joint committee must conduct its consideration of the Bill and of all petitions and counter-petitions in accordance with any instruction given by the House concerned after second reading of the Bill, and must report the Bill in accordance with any programme set out in the instruction.(3) Subject to Standing Orders, the report of the joint committee is to be laid before both Houses of Parliament.Costs 6 (1) A joint committee considering a Bill to which this Schedule applies has the same power to award costs as a select committee of either House in relation to a Provisional Order Bill under sections 9 to 12 of the Parliamentary Costs Act 2006 (as a result of section 15(4) and (5) of that Act); and sections 9 to 12 of that Act apply accordingly subject to any necessary modifications.(2) Sections 2 to 8, 13 and 14 of that Act apply with any necessary modifications to costs incurred in respect of a Bill to which this Schedule applies, as they apply to costs incurred in respect of a private Bill.Standing Orders 7 (1) Except as may be provided by Standing Orders made under sub-paragraph (2), the Private Business Standing Orders, and the custom and practice of Parliament relating to private business, do not apply to a Bill to which this Schedule applies.(2) Standing Orders may be made by the House of Commons and the House of Lords for any purpose relating to the provisions of this Schedule, to the extent they are compatible with this Schedule, and in particular— (a) for regulating the manner in which petitions against a Bill to which this Schedule applies must be framed and deposited,(b) for regulating the manner in which memorials relating to petitions against a Bill to which this Schedule applies must be framed and deposited,(c) for extending the periods prescribed by this Schedule in relation to the deposit of petitions and memorials in any case where either period expires on a day on which the House concerned is adjourned for more than four days,(d) for providing, in the case of any amendment to a Bill proposed by a petition, for a counter-petition to be deposited by any person or body whose interests would be adversely affected by the amendment; and for prescribing the cases in which a counter-petitioner has the right to be heard before the joint committee, and the cases in which the counter-petitioner may be allowed to be heard by the joint committee if the committee thinks fit,(e) for the withdrawal of petitions, memorials and counter-petitions,(f) for enabling the functions of the Chairmen under this Schedule to be performed by any deputy appointed in accordance with Standing Orders,(g) for regulating the proceedings of the Chairmen in connection with the examination of petitions and memorials under this Schedule,(h) for prescribing the cases in which a petitioner whose petition, or any part of the petition, has been certified as proper to be received, has the right to be heard before the joint committee, and the cases in which the petitioner may be allowed to be heard before the joint committee, and for enabling the Chairmen to determine in the case of any particular petition whether the petitioner has such a right to be heard or may be allowed to be heard by the Chairmen,(i) for prescribing the quorum of any joint committee, and(j) for regulating the proceedings of any joint committee.Effect of order confirmation Act 8 (1) Any Act of Parliament made with reference to this Schedule is a public Act of Parliament that may not to be questioned in any court or tribunal.(2) In the case of any order granting development consent confirmed by an Act of Parliament made with reference to this Schedule, any reference in this Act to the date when an order granting development consent has been made, published or comes into force, and any reference in the order to when it was made, published or came into force, is instead to be taken as being the date on which the Bill for the Act receives Royal Assent.(3) Section 134 of this Act applies to any order granting development consent confirmed by an Act of Parliament made with reference to this Schedule with the following further modifications—(a) in section 134(7) after “A compulsory acquisition notice is a notice” omit “in the prescribed form”, and(b) omit section 134(7)(d).(4) In all other respects any order granting development consent that is confirmed by an Act of Parliament made with reference to this Schedule is to be treated as an order granting development consent.(5) In particular, an order granting development consent confirmed by an Act of Parliament made with reference to this Schedule may be— (a) corrected through the exercise of the power contained in section 119, and(b) changed or revoked in accordance with section 153 and Schedule 6.Non-justiciability of proceedings in Parliament 9 A court or tribunal may not question any Bill or proceedings in Parliament that purport to be conducted in accordance with this Schedule.Interpretation 10 In this Schedule—“the Chairmen” means the Chairman of Ways and Means and the Chairman of Committees,“the Chairman of Committees” means the Chairman of Committees of the House of Lords, and includes any deputy acting on their behalf in accordance with Standing Orders,“the Chairman of Ways and Means” means the Chairman of Ways and Means in the House of Commons, and includes any deputy acting on their behalf in accordance with Standing Orders,“joint committee” means the joint committee to whom a Bill is referred under paragraph 4,“the order” means the order granting development consent proposed to be confirmed by the Bill mentioned in paragraph 2,“the Private Business Standing Orders” means the Standing Orders of the House of Commons relating to Private Business 2019 ordered to be printed on 19 December 2019, and the Standing Orders of the House of Lords relating to Private Business 2018 ordered to be printed on 18 December 2017, and“Standing Orders” means standing orders of the House of Lords and of the House of Commons made under paragraph 7(2).”.(3) After section 118(1) of the Planning Act 2008 (legal challenges relating to applications for orders granting development consent), insert—“(1A) Subsection (1) does not apply to an order granting development consent for a project that is a critical national priority for the purposes of section 117A and to which the provisions of Schedule 3A apply, and accordingly such an order is not to be questioned in any court.”.”Member’s explanatory statement This clause would provide for a development consent order relating to a critical national priority project to be confirmed by an Act of Parliament after the order had been made by the Secretary of State, if the applicant for the development consent order had requested that before the order was made. In the normal way the resulting Act of Parliament would not be subject to legal challenge in the courts. Once confirmed by such an Act, subject to some necessary modifications, the development consent order concerned would be treated like any other development consent order and could be changed or revoked through the existing procedures contained in the Planning Act 2008.

My Lords, I am pleased to move Amendment 23 in my name; I believe it to be of fundamental importance. A similar amendment, Amendment 52, was moved on day one in Committee on 17 July by the noble Lord, Lord Hunt of Kings Heath, and I spoke in support of it. The amendment was not supported universally in the House, and it has since been modified to take account of the advice of officials from the Ministry of Housing, Communities and Local Government, and indeed of the noble Lord, Lord Banner. The noble Lord, Lord Banner, was concerned that it should be made clear that the provisions of the amendment should apply only to infrastructure projects of significant national importance.

In July, I observed that our planning system has become sclerotic. The time that it takes, on average, to secure planning permission, known as development consent, for major infrastructure projects has more than doubled in the last decade to more than four years. The development consent system is nowadays beset by objections and judicial reviews, with several judicial reviews sometimes affecting the same project. The effect of the delay may be to cause an otherwise viable project to become uneconomic and unaffordable.

I gave the example of the Stonehenge tunnel, which was delayed by over four years by two sets of judicial reviews relating to two separate development consent orders—DCOs. A similar delay was caused to Manston Airport, which has reopened recently. There were two sets of judicial reviews necessitating two development consent orders, and there was a delay of almost four years.

In 2020, a judicial review affecting the airports national policy statement took over two and a half years before the principle of a third runway at Heathrow was endorsed. The Government’s current judicial review reforms contained in the Bill are very modest. They will make little difference, because they relate only to the prior permission stage for judicial reviews. Approximately 75% of judicial reviews are given permission by the court to be brought forth when they proceed to a substantive hearing, which, in turn, can take a considerable length of time.

There was a concern that the amendment raised complex constitutional questions about the balance between Parliament and the judiciary, and that this procedure might fundamentally unsettle the balance in our constitution. I believe that there can be no risk of it causing any kind of constitutional difficulties. That parliamentary procedure is adopting, with some necessary modifications, procedures that are still on the statute book; namely, the Private Legislation Procedure (Scotland) Act 1936 and the procedure for Bills to confirm ministerial orders that are subject to a process called special parliamentary procedure under a 1945 Act. The parliamentary procedures proposed by the amendment would take considerably less time—estimated to be between four and eight months—than the alternative, which is a judicial review of a decision to make the DCO, followed by a redetermination of the DCO application in the event of a judicial review being successful. As has been observed, such processes can take several years.

The parliamentary process proposed by the amendment includes a petitioning mechanism and Joint Committee scrutiny, ensuring that public concerns can be raised and considered, if not already considered during the DCO process. It includes safeguards that would enable meaningful public involvement in relation to points not raised during the DCO process. All these provisions are included in the lengthy schedule. This might still require some fine-tuning, which could incorporate the advice of various parties, parliamentary draftsmen, and so on. I urge Ministers and their officials to consider this amendment in the light of the very real challenges that large infrastructure projects face and that they will continue to face, even with the measures already in Part 1. I therefore commend my amendment to the House.

My Lords, this is a significant proposed new clause, which the noble Viscount, Lord Hanworth, spoke to in Committee, where he made broader remarks on the functionality of our planning system, which he has repeated today. I recall the comments about the length of time it was taking to get a bypass round Stonehenge, and my comment that it will take longer to build that bypass than Stone Age man took to build Stonehenge.

We agree with the issue that the noble Viscount is seeking to address: that the planning system does not work all the time for these large national infrastructure projects. They take too long, the costs go up and deliverability goes down. So I have immense respect for those who have taken the time to draft this new clause reflecting some of the comments made in Committee—I really appreciate the time that that has taken. The noble Viscount proposes that each order determining an application to be a critical national priority must be presented to Parliament as a full public Bill. Paragraph 3 of the proposed new schedule then sets out a petitioning process, a counter-petitioning process and a reporting process. The remaining parts of this lengthy amendment provide a highly detailed description of how such a Bill would progress through a Joint Committee and then complete its passage.

However, we do not consider that presenting a Bill to Parliament with all the associated procedures would be a proportionate proposal. We are somewhat sympathetic to confirmatory Acts in areas such as nuclear, but this is a prescriptive amendment and therefore one that we cannot support, even if we understand the issue.

I thank the noble Viscount for Amendment 23, which builds on a previous amendment tabled in Committee. It proposes a process for projects designated by the Secretary of State as “critical national priority”, where development consent orders would come into force only once approved through an Act of Parliament. This amendment seeks to bypass judicial review and insulate these projects from challenge and thereby speed up the building of infrastructure.

Although the provision does not directly alter the judicial review process itself, it uses parliamentary process to significantly reduce the public’s ability to challenge government decisions on these types of critical projects. This amendment proposes a mechanism for the Secretary of State to designate certain classes of development as “critical national priority”, based on identification in a relevant national policy statement.

It is important to remind the House that this status already exists and is actively applied—for example, to renewable and low-carbon energy projects through the energy NPS, to strengthen the need case for such infrastructure. However, this amendment seeks to go much further. I cannot support it for a number of key reasons. First, the proposed ouster in new Section 118(1A) would shield decisions from judicial review even where they were unlawful. For this reason, it is an approach which the courts have historically resisted. Given that this would be applied to some of the biggest and most controversial schemes, it is likely that challenges would be lodged in respect of the confirmed DCO, thereby undermining the time savings sought in the first place.

Secondly, the amendment would result in a constitutional confrontation between Parliament and the courts. This may result in questioning of well understood constitutional conventions, inviting further legal uncertainty.