Plenary, 20 Nov 2003

Meeting date: Thursday, November 20, 2003

Official Report 819KB pdf

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Planning and Compulsory Purchase Bill

The next item of business is a debate on motion S2M-543, in the name of Margaret Curran, on the Planning and Compulsory Purchase Bill, which is UK legislation, and one amendment to the motion.

There was much discussion on the bill at the Communities Committee recently, and I have followed up that discussion with letters to members who asked individual questions. However, I am more than happy to try to respond to any questions that members still have.

I move,

That the Parliament endorses the principle of including in the Planning and Compulsory Purchase Bill provisions to remove Crown immunity from planning controls for development and agrees that the relevant provisions to achieve this end should be considered by the UK Parliament.

I now call Patrick Harvie to speak to and move amendment S2M-543.1. Mr Harvie, you have four minutes.

The minister's motion asks us to approve the UK Parliament's intention to legislate to bring Crown land into the planning system. That objective is, of course, to be warmly welcomed. It is clearly unacceptable for the Crown to have immunity from the planning rules that affect the rest of society; I have no objection whatever to removal of that immunity.

The purpose of my amendment is to highlight three areas in which the Crown will retain unreasonable advantages in the planning system—advantages that private applicants for planning permission will not have. Because of those advantages, objectors in Crown planning cases will not get a fair crack of the whip. I would like to outline briefly the circumstances in which those Crown advantages will apply.

In cases in which it is believed by the Scottish ministers or the Secretary of State for Scotland that disclosure would compromise national security, planning inquiries that would otherwise have been held in public will take place behind closed doors. That will limit the ability of objectors to make their cases. The proposal to allow the Lord Advocate to appoint a special advocate to represent the interests of individuals will not make up for that disadvantage. In discussions in the Communities Committee, the reassurances that Mary Mulligan, the Deputy Minister for Communities, gave were in my view insufficient to ensure that the rights of objectors would be maintained. It is still unclear what should happen if the Lord Advocate decides not to appoint a special advocate.

The second matter that concerns me is that of urgent planning applications. In such cases, the local authority will be bypassed; the application will go directly to the Scottish ministers. The skipping of a stage in the normal planning process will put objectors at a time disadvantage.

Enforcement is my third concern. The Crown's exemption from prosecution is to be maintained, and courts will be unable to deal with problems of enforcement. As enforcement is such a perennial problem in private planning cases, with work being done without planning permission or outwith the terms of a successful application, objectors can often lose all confidence in the planning system. Enforcement is a crucial issue that should be addressed.

There are, of course, enormous problems with the planning system in general; the Executive agrees with that, having made a commitment to reform it during this session of Parliament. When that time comes, we will argue that the presumption in favour of development should be replaced by a presumption in favour only of sustainable development. However that debate goes, Crown planning applications—either before or after the reforms—should not be given unreasonable advantages. I ask Parliament to send those concerns to the UK Parliament.

I move amendment S2M-543.1, to insert at end:

"but, in so doing, expresses its concerns over several provisions contained in the Bill, namely those relating to national security, urgency and enforcement; believes that these provisions could face objectors with a greater disadvantage in Crown planning cases than they are faced with in private planning cases, and considers that the UK Parliament should address these issues during its consideration of the Bill."

I thank the minister for making herself available to the Communities Committee. The change in the way in which we deal with Sewel motions, whereby they go to committee, is a valuable change to parliamentary procedures. It was useful to hear from the minister; the committee successfully—and reasonably amicably—dealt with a number of issues that might have exercised the wider Parliament. The committee had scheduled 10 minutes for dealing with the matter, but I think that we took 50 minutes. At the end of the debate, we divided on whether we should report certain matters to the Parliament—five members voted against the proposal, three members voted in favour of it and there was one abstention. Those who did not support the proposal were from three different political parties; therefore, it is entirely right to bring some matters to the full Parliament for discussion.

First, I want to speak to Patrick Harvie's amendment, with which the SNP sympathises. We believe that it would be useful for the issues that are raised in the amendment to be discussed in Parliament so, on that basis, we will support his amendment at decision time. If the substantive motion remains unamended, we will abstain because we believe that it is more appropriate to have discussions on matters that affect Scots law and procedure in the Scottish Parliament than to have them elsewhere.

I want to turn to the matter that concerned me in the committee. We welcome what is happening with the bill at Westminster—the changes will be useful and we have no objection to them. The removal of Crown immunity in respect of the three planning acts is a useful move forward, albeit that there are reservations, which Patrick Harvie spoke about. However, we remain in a position whereby, if the Crown chooses not to obey the law, no criminal sanctions can be brought against it if there is such deviation from the law as it stands, although I accept that it is unlikely that that will happen in practice. The memorandum that we have been provided with states:

"The pivotal opening amendment makes it explicit that abolition of Crown immunity will mean that … the Planning Acts will bind the Crown."

I am somewhat perplexed as to how that can be true in a strict legal sense if the Crown cannot be prosecuted for failing to consider itself to be actually bound by what is happening.

At the root of the matter is the fact that we are starting to strip away some of the constitutional nonsense that straitjackets the Scottish Parliament, this country and indeed our colleagues south of the border, which includes the convention that the Crown cannot prosecute the Crown. My SNP colleagues and I think that it would be useful if Parliament could discuss the proper structure and form of a legal system in the 21st century as part of a wider-ranging discussion about the removal of Crown immunity in relation to planning. After all, in my view—and I suspect in the view of a great majority of people in Scotland—prosecution really takes place in the name of the citizens of Scotland. The Crown is merely a mechanism that dates from many hundreds of years ago and it is a convention whose time has passed.

In making that point, I say nothing whatever about the person of the Crown, but of the use of that person's title for a purpose that is far removed from the individual who, pro tem, happens to be the wearer of the crown.

What about the heir?

We will not give airtime to that matter.

On the ability of the Lord Advocate to appoint a special advocate, the Ministry of Defence is the real problem where sensitive matters are concerned. We share such concern—we are in the era of open government and we disadvantage our citizens if we do not treat all information in an open and accountable way.

I have great pleasure in supporting Patrick Harvie's amendment and in saying that we shall abstain on the substantive motion, if it is unamended.

In the previous session of Parliament, the Procedures Committee examined the Sewel procedure and made some interim recommendations on it. I am glad that the Executive and the SNP are content with one of those recommendations, which was to set up a procedure whereby ministers attend a discussion at the relevant committee to handle much of the substantive debate on the issues involved.

A considerable academic lobby has built up on the issue—which is backed to a degree by echoes in the press—to the effect that there is something sinister about the Sewel mechanism; that it in some way claws back powers from the Parliament to Westminster and that because the mechanism exists, the Parliament is somehow cribbed, cabined and confined in what we can do with the powers that were devolved to us. The Executive's counter position, which was put in a memorandum to the previous Procedures Committee from Patricia Ferguson, is that the Executive initiates Sewel motions when it sees the opportunity to apply in Scotland legislation that the UK Parliament is producing and which would be of benefit in Scotland.

This afternoon's motion is a classic case of the Sewel mechanism working to our advantage. There is no question that there is a pressing desire for an absolutely uniform planning structure in the UK, because we have separate structures and laws in Scotland. There is no need for the legislation to come through the Sewel mechanism, but the advantage of doing so is that we will obtain the benefit of ending Crown immunity as soon as the bill is enacted. The alternative is to wait for the passing of legislation through the Scottish Parliament under the devolved powers.

Members will be aware that the Executive's stated intention is to pass a planning bill, but we have only a consultation paper about what might be included in the scope of that bill. Therefore, we might not be able to legislate on the issue next year, the year after or even the year after that. The proposed bill might not be considered until late in the life of this Parliament.

The Conservative group thinks that it is entirely logical that we take advantage of the bill that is before the UK Parliament and that we agree to the Sewel motion this afternoon. I congratulate Patrick Harvie on the sensible line he has taken in his amendment, which reserves his position and raises the issues that are significant to him, without getting in the way of obtaining the benefit of ending Crown immunity. I cannot guarantee that we will agree with all the points that he raises, but I have sympathy with his point about the lack of information for objectors in the planning process and some of his points about the lack of openness.

I will throw in my tuppenceworth, which is that there are areas that are not Crown properties in which the utilities are allowed to bypass the planning mechanisms using emergency-power orders. Scottish Water's recent construction works at Milngavie are a case in point—objection was not possible, nor was public participation. That is a related issue, which we will have the opportunity to consider, debate and discuss when the proposed planning bill comes before the Parliament.

Will Murray Tosh clarify the Conservative's position on what would happen if a Sewel motion were a matter of political controversy at Westminster? Should English Labour MPs abstain from voting on such matters?

That was a nice try, but we will judge the issues on their merits. Our position on the voting practices of members from various parts of the United Kingdom in relation to various pieces of proposed legislation is well known and has been well publicised in the past few days.

I am pleased that Stewart Stevenson, perhaps in response to the sensible way in which the Sewel mechanism now operates in the Parliament, gave a sensible response, which was to abandon the somewhat ritualistic past habit of always opposing Sewel motions. Stewart Stevenson said that he will abstain on the substantive motion, which is an outbreak of considerable common sense, especially for him.

By agreeing to the motion, we will introduce in Scotland a perfectly sensible and worthwhile measure that has been consulted on in this country—I think that the consultation started in 1992—and for which no space has been found in our legislative programme. Although, in the widest sense, our planning law may well in two or three years encompass the issues that are involved, it makes sense to agree to the motion today. I hope that we all agree so to do.

I have found scope for agreement with all three speeches so far, on different parts but not always on the whole. Murray Tosh set out the argument about Sewel motions very well. I am one of those who have grave doubts about them, but I have not yet thought of any better system. Until I do, I will go along with Sewel motions. However, as Murray Tosh said, the way in which the matter was dealt with in committee was an improvement on what happened in the past.

I agree with Stewart Stevenson that the use of the term "Crown" to cover the Government—with the Crown's prerogative to do all sorts of things meaning that Mr Blair or his successor can do those things—is pernicious. We should try to combat that. Nonetheless, I am not sure that that applies to the specific proposals.

I share some of the concerns expressed by supporters of the amendment; however, on balance, I think that we should go with the motion. Removal of Crown immunity is, as other members have said, a very great prize and we do not want to muddy the waters. We should assist in the removal of Crown immunity from planning as soon as possible.

Patrick Harvie raised the issue of national security. I think that we are often conned on the subject of national security, but Governments must have the power to do such things. Recent events have shown that security is important. Even if we think that the security people go overboard in various respects, real security is important. The provisions do not say that a whole inquiry will be held in private if there are any security implications, but that those parts that are to do with the security of a building will be dealt with in private. That is how I understand it; if I am wrong the minister can say otherwise.

Would Donald Gorrie consider that an automatic right to the appointment of a special advocate would at least be some improvement on what is proposed, which is a discretionary right to such an advocate?

That is the point that I was coming on to. It may be a mistake to say that an advocate would have to be appointed, because there are people—especially in planning issues—who are totally unreasonable and would make frivolous cases. There would be no need to go through a huge apparatus of activity for every case. I hope that the Government will treat any serious planning issue that was raised in a serious manner and that the Lord Advocate will appoint somebody to deal with it.

We must consider how the provisions will work in practice. There are reasons for urgent Crown developments. For example, if a sea wall is breaking down, the Government must act quickly and must have the powers to do so. As I understand it, there are opportunities for objecting, although that would have to be done rather speedily and I suppose that the Government would still judge its own case. However, that is what already happens in planning matters. One has to have some hope that there will be Chinese walls or glass ceilings—all the funny bits of architecture that we are expected to have.

On enforcement, as I understand it the authorities can take enforcement action; however, if a civil servant has erred, he will not be sent to jail, although perhaps he should be. Nevertheless, considerable progress is being made and what is proposed in the bill is reasonable. We should go along with it while keeping an eye on the important issues that have been raised to see how they work out in practice.

Although I am the convener of the Communities Committee, I am not speaking on behalf of the committee, given the fact that the committee agreed not to report on the matter to the full Parliament. However, I think that I bring a particular perspective to the matter as someone who sat through the committee meeting.

The committee was asked to consider the issues in relation to the memorandum that is attached to the Sewel motion, not whether it was appropriate to use a Sewel motion: it is important not to mix the two things up. I echo some of the points that have been made about the usefulness of Sewel motions. It is a matter of regret to me that we did not take the opportunity of using a Sewel motion when the legislation to regulate the private security industry was going through Westminster because we are now awaiting a legislative vehicle in Westminster that will allow us to do that. Members will note that it has taken since 1992 for an appropriate legislative vehicle for the planning provision that we are discussing today to appear. Thank goodness for devolution, because it means that in many cases we do not have to wait for such legislative vehicles. We should think of Sewel motions as being a positive option that is available to us, not as a threat.

As has been said, it is important that substantial discussion was held in committee on all the issues that are relevant to the proposal. Anyone who knows how I chair meetings should take comfort from the fact that, although the item was scheduled to last 10 minutes, it ended up lasting 54 minutes. I would not lightly allow such slippage in any debate, even if it were a matter of life or death. Members should take that as a sign of how seriously the committee took the issues that were being highlighted. We were grateful to the minister for the time that she gave the committee that day.

We went into a significant level of detail and there were a number of votes on issues that have been commented on today and which the committee might have wanted to highlight to Parliament. I point out that the committee as a whole found none of the concerns to be compelling: indeed, the concern that was raised by Patrick Harvie was defeated by six votes to one, with two abstentions. I do not think that a compelling case was made for a report to be made to Parliament.

I understand that the SNP is reluctant to leave the little comfort zone from which it makes points about Sewel motions. I find it bizarre, however, that SNP members have indicated that they will support Patrick Harvie's amendment and abstain on the main motion. Surely, one either supports the Sewel motion process or does not. Those who support the process might want to reflect on why Patrick Harvie's amendment did not win support in the committee but is now being supported by the SNP group in the chamber.

I genuinely do not understand why the Green party has felt the need to push for a short debate in the chamber on the matter when the Official Report of the Communities Committee's discussion does exactly what Patrick Harvie's amendment calls for. In our discussion, we highlighted issues that are of concern to him and to others. The Official Report of that discussion reflects that broad general debate and details what people thought one way or another and, in the committee, we clarified that the Official Report of our discussion—which is in the public domain in any case—would be made available to those who are considering the matter in Westminster. We have to be cautious about assuming that if we do not ask a question, a question will not be asked. We have to be careful that we do not degrade others' democratic commitment—whether at Westminster or in local authorities—to asking the questions that are being posed today.

We should welcome the procedure that has been brought forward and the commitment of the Scottish Executive to participate in it, and we should reflect on the fact that the committee did not feel the need to report any matters of concern to Parliament.

I urge members to support the Sewel motion so that we can ensure that we can apply a more accountable decision-making process to Crown lands as speedily as possible.

I thank Stewart Stevenson for giving us an early indication that he was going to raise the issue of the Sewel motion. I was going to answer his specific points but, as Johann Lamont has done that most eloquently, I will move on to dealing with the substance of the matter that is before us.

On national security, the relevant bill provisions specifically recognise issues of national security and the security of property and premises while ensuring that the interests of individuals who are concerned about such proposals are taken into account. The provisions will allow ministers to make directions that restrict disclosure of information at a planning inquiry that relates to such security information, where disclosure would not be in the national interest. That is appropriate, especially as it would be only the part of the information that was considered to be relevant to national security that would be restricted.

The same provisions will also introduce powers for the Lord Advocate to appoint special advocates to represent the interests of persons affected by the restrictions on disclosure, which could mean objectors or the planning authority, for example. The intention is that, when consideration is given to making a direction that would restrict the disclosure of security-sensitive material at an inquiry, ministers will request the appointment of a special advocate by the Lord Advocate. When there is a restriction on disclosure of information, the Lord Advocate will appoint somebody to represent those views. Therefore, we consider that the new arrangements taken together will provide appropriate safeguards for the interests of individuals or communities who might be affected by any proposed development.

Does the minister mean that those two measures that she has outlined will always be used together; in other words, that there will never be circumstances in which national security is invoked without the appointment of a special advocate who has access to all the information?

Yes. The special advocate would be appointed and would have access to the relevant information that was not being disclosed because it was security sensitive.

The bill's provisions on urgent development will impose publicity and consultation requirements; first, on the developing department that seeks to use the procedure and, thereafter, on the Scottish ministers when they consider proposals under that procedure. Those requirements are additional to those on publicity and disclosure of information, which apply to any inquiry into such a planning application. The aim is to ensure that developments of national importance that are required urgently can be considered as quickly as possible while still allowing planning authorities and local people an opportunity to be involved in the process of determining applications.

The purpose of the proposed amendment of the provisions on enforcement is that the Crown remain immune from prosecution from any offence under the planning acts. Planning authorities will be able to initiate enforcement action by serving enforcement notices or by issuing revocation orders, but they will not be able to enforce those by entering land, bringing proceedings or making applications to the court without the permission of the appropriate authority. The point of allowing enforcement notices is to ensure that an entry is made on the planning register to the effect that the development has been subject to enforcement action. In exercising its discretion to give consent when that is required for further enforcement action, the Crown will be required to meet the usual requirement of reasonableness. If the Crown did not act reasonably in exercising its discretion, it would leave itself open to judicial review. In resisting any valid enforcement action, the responsible minister would be accountable either to the United Kingdom Parliament or to the Scottish Parliament, as appropriate. Means of redress are therefore available in that regard.

What we are doing today is removing Crown immunity from planning applications. If members oppose Crown immunity's being removed, it will continue to apply. I do not think that that is something that Parliament wishes. Crown immunity would continue to apply until we found a legislative slot in which to deal with the matter. Given that we are in the process of consulting on planning matters, it could be some time before any such legislative slot was found. Therefore, I say to members who wish Crown immunity to be lifted that they should support the Sewel motion.