Marine and Coastal Access Bill [HL]

My Lords, I support the noble Lord, Lord Goodlad. The background to Amendment 27 will be very familiar to your Lordships. As originally drafted, the Bill lacked an appeal provision for those affected by the coastal access duty. This was criticised by your Lordships’ Constitution Committee, chaired by the noble Lord. In Committee, many noble Lords suggested that an appeal procedure was necessary. To his great credit, the Minister listened. He and his hard-working officials tabled on Report the detailed amendments which are now Schedule 19 to the Bill, creating a right to have the matter considered by the person appointed. These provisions, however, have a serious defect. They leave it entirely to the discretion of the Secretary of State whether to accept or to reject the views of the person appointed—indeed the factual findings of the person appointed. There is no attempt in Schedule 19 to confine the power of the Secretary of State to overturn the recommendation of the person appointed to issues of policy or to cases where there are broader implications of the recommendation. As often occurs in planning matters, as the noble and learned Lord, Lord Morris, suggested, the noble Lord gave a very good example from his own experience. I entirely accept that in that type of case the Minister should have power to overturn the findings of the person appointed. Amendment 27 seeks to confine the discretion of the Secretary of State to overturn the recommendation of an independent person who has the statutory responsibility of considering representations and doing so in a context concerned with a person’s rights—here the right to property. This is particularly important when the Joint Committee on Human Rights has advised that a lack of an appeal to an independent person with a power to determine questions of fact would be a breach of the European Convention on Human Rights. I thank the Minister and his officials for their considerable courtesy in discussing this matter with the noble Lord, Lord Goodlad, and with me during the past week. As I understand the departmental concern—the Minister will explain it more fully and more eloquently—it is that the Secretary of State must have the power to take account of the general implications for the coastal route. The person appointed is concerned only with the specific piece of land. The Secretary of State, however, needs to have in mind the broader picture. I understand and accept that policy concern. I do not understand, however, why it justifies the breadth of the discretion conferred on the Secretary of State. On Report, the Minister told the House at col. 50 that it would be "extremely unlikely" that the Secretary of State would depart from the recommendation of the person appointed. Since the Minister recognises and accepts that it would be extremely unlikely for the recommendation of the independent person to be displaced, surely it is appropriate to include in the provision a sub-paragraph that recognises that matter and gives a degree of assurance to landowners and to all other interested persons. Our amendment therefore seeks to make the position clear in this respect. If Amendment 27 were to be approved, the Secretary of State would still have ample power to overturn the recommendation of the person appointed in the type of case that the noble and learned Lord, Lord Morris, envisages. That is a case where there is some policy concern and some general issue relating to the coastal route which has not been adequately addressed by the person appointed. The noble and learned Lord, Lord Morris, asks, "What does ‘exceptional circumstances’ mean? It is a broad and general phrase". Precisely so. The purpose of the amendment is to confer a discretion on the Minister to depart from the views of the person appointed but to do so only if there is something unusual or exceptional about the case and not simply because he disagrees with the person appointed on a matter of fact. The Minister has tabled Amendment 28, which goes a long way towards meeting the points that I have raised. I am most grateful to him and his officials for listening and for acting on the points raised by the noble Lord, Lord Goodlad, and by me. However, I have concerns about that amendment. It states the principle that the Secretary of State will be bound by the opinion of the person appointed but it makes this subject to four exceptions. Exceptions (c) and (d) are, I accept, principled exceptions. Of course it is right that the Secretary of State should not be bound by a finding by the person appointed which is made, ""by reference to irrelevant factors or without regard to relevant factors"," or a finding that is "perverse or irrational". That is entirely so. Exception (b) provides that the Minister is not bound by the factual conclusion of the person appointed if there is, ""insufficient evidence to make the finding"." That, too, is principled if—and I should welcome the Minister’s assurance on this—it means that the Secretary of State concludes that the person appointed could not have properly made the finding on the evidence available to the person appointed at the time that he made his recommendation. That leaves exception (a), ""that the finding involves an assessment of the significance of a matter to any person with a relevant interest in land or to the public"." That causes concern because it allows the Secretary of State to conclude that, even though the person appointed finds that the matter is of great importance to the landowner and even though that finding cannot be challenged under exceptions (b), (c) and (d)—in other words, there is sufficient evidence for the finding, it is based on relevant factors and is not perverse—he can still substitute his view for that of the person appointed on that factual matter. I therefore prefer Amendment 27. It is clear, it is sufficiently flexible and it accords with the Minister’s assurance on Report that only in rare cases would the Secretary of State override the views of the person appointed. Perhaps I may briefly mention two other matters. I understand that the Secretary of State will be making regulations to ensure that, if he proposes to depart from the findings of the person appointed, a fair procedure must be followed which gives the landowner an opportunity to address the issues before the Secretary of State. I should very much welcome the Minister’s confirmation that such regulations are intended to be made. The second and final matter I ask the Minister to deal with is this: I understand that, contrary to the expectation he stated on Report, it is no longer envisaged that the person appointed will be a member of the Planning Inspectorate. Can the Minister clarify who will now be the appointed person or persons to perform this important function, and can he assure the House that they will be independent, and seen to be independent, of the Secretary of State?