Marine and Coastal Access Bill [HL]

My Lords, this has been an interesting and apt debate on which to end our deliberations on the Bill. Although we are disagreeing on the final wording in relation to the review process, we should not underestimate the amount of consensus that has been built. It is very important that, as the Bill leaves the House, we should reflect on that consensus. It has a further journey to travel in another place, where I am sure that our debates here will be reflected upon. No doubt there will be considerable scrutiny there too, particularly in relation to the review process. I listened with great interest to the comments of the noble Lord, Lord Montagu, and I know he is concerned about damage to the environment. I understand that concern. He made it clear that there is a real challenge for Natural England to ensure that damage does not occur to the environment. I agree that the responsibility on Natural England is weighty indeed. I am sure it will be aided by the significant role that local authorities are to be given, as we have debated in previous stages of the Bill. I shall deal with Amendment 27 before turning to my amendments. I want to reiterate and assure noble Lords that the Secretary of State would not depart lightly from the recommendations of the appointed person. Section 52 of the 1949 Act requires the Secretary of State, before reaching a determination on whether to approve Natural England’s proposals with modifications, to consult Natural England and such other authorities and persons as he thinks fit. Paragraph 16(3) to (5) of new Schedule 1A gives the Secretary of State power to make provision in regulations about the procedure to be followed where he is minded to approve proposals with modifications other than modifications made in accordance with the recommendation by the appointed person and to apply any provision of Schedule 1A. Any requirement proposed by such regulation is in addition to the duty to consult under Section 52(1). I am happy to give an assurance to the noble Lord, Lord Pannick, that the Government intend to exercise that power so as to provide for consultation before the Secretary of State decides to approve the proposals with modifications other than any recommended by the appointed person. On the amendment of the noble Lords, Lord Goodlad and Lord Pannick, I, too, reiterate the particular thanks to the committee of the noble Lord, Lord Goodlad, and to the work of the noble Lord, Lord Pannick, in enabling us to come more closely together, even if we have not quite reached agreement yet. However, we have concerns with Amendment 27. First, there is the use of the word "exceptional". I understand the noble Lord, Lord Goodlad, saying that it was a common-sense approach. Unfortunately, as my noble and learned friend Lord Morris has made clear, when it comes to legislation—indeed, as the Chamber has filled up with noble Lords who are, I am sure, taking a close interest in the Bill, the many of them who are distinguished lawyers will know this—the problem is that we do not really know what that word means. It could lead to actual uncertainty and disputes; that is one of our problems here. Secondly, to preclude the Secretary of State from reaching his own view on where the fair balance lies would be inconsistent with his discretion to approve the proposals, with or without modifications, under the 1949 Act. Thirdly, the amendment would prevent the Secretary of State from achieving consistency of approach relating to Natural England’s proposals as a whole and to any other proposals. I think that was a point that the noble Lord, Lord Greaves, made. It is nice to have the noble Lord on my side, if only, alas, on Third Reading. None the less, it is extremely welcome. There may well be other parts of the route where similar considerations arise but which have not been the subject of objections. The question would then arise whether the decision of the appointed person relating to an objection to one part of the route constrained the Secretary of State from achieving consistency between that part and others where no objections had been raised, or constrained him to achieve consistency only in the manner of the appointed person’s decision relating to the objection. It would be difficult to require the inspector to consider everything that the Secretary of State takes into account. It would not seem appropriate to require the inspector to consider representations relating to other parts of the route that are not subject to an objection, but those representations might mention considerations relevant to maintaining a consistent approach to the route which is the subject of the report as a whole, or to the whole English coastal route. I am grateful to noble Lords who have discussed my amendments. Amendment 28 deals with what happens when the appointed person considers a question of fact. It has been produced as a result of discussions that have taken place with noble Lords after the noble Lord, Lord Pannick, made his comments on Report; there have also been helpful discussions since then. The amendment means that where the report of an appointed person on an objection, ""contains a statement of a finding of fact, the Secretary of State in making the determination"," would be ""bound by that finding unless the Secretary of State is satisfied"," either that it was ""perverse or irrational"," in one of the ways in which a court might find an administrative decision perverse or irrational on judicial review, and set it aside, or else that it, ""involves an assessment of the significance of a matter to any person with a relevant interest in land or to the public"." That latter condition is necessary to ensure that the Secretary of State is not precluded from reaching a view on the significance to the landowner or the public of, for example, the proposed position of the route. It provides clarification that such an assessment is not to be treated as a simple "finding of fact" for the purpose of this schedule. It would be wholly inappropriate to include provision which constrained the Secretary of State’s discretion in relation to the essential question that he is required to decide—that is, where the fair balance lies—so that he was bound by the decision of the appointed person and thereby unable to ensure that the proposals submitted for his approval fit together properly and are broadly consistent in their overall approach and with that taken in any other proposals that he has previously approved. Again, that is a point that the noble Lord, Lord Greaves, commented upon. That would be a recipe for unfairness and legal challenge to the overall result, in circumstances when the legislation had in fact tied the hands of the Secretary of State in relation to any matter that had been the subject of an objection and thus of a decision by the appointed person. The conditions in headings (b) to (d) mirror the standard criteria governing the limited circumstances in which a court on judicial review can quash a decision on a finding of fact: that there was insufficient evidence to make it; that it was based on irrelevant considerations or failed to take into account relevant considerations; or that it was otherwise perverse or irrational. Of course, if the Secretary of State himself or herself makes an irrational decision in concluding that the appointed person’s finding of fact was irrational in one of these ways, the Secretary of State would be liable to judicial review. The noble Lord, Lord Pannick, asked me if the exception in heading (b) means that the appointed person could not properly have made the finding on the evidence available to the appointed person at the time. The answer is yes, that is exactly what it means. I hope that Amendment 29 further reassures the House. It means that where the Secretary of State does not follow a recommendation on a statement of fact—that is, in the circumstances noted in Amendment 28 that I have just described—the statement of reason required by paragraph 17(4) of Schedule 1A to the 1949 Act must also include the reasons for not following the recommendation. That paragraph relates to the statement of reasons that the Secretary of State must provide for his decision in relation to an objection when making a determination on a coastal access report. I hope that I can clear up any concern about the Planning Inspectorate. The reason why the Bill does not make a direct reference to inspectors of the Planning Inspectorate is that we would not normally expect to be so specific in the Bill. I readily acknowledge the distinguished record of the Planning Inspectorate, but that inspectorate might alter, disappear or change its name at some time in the future. The current wording of the Bill preserves the ability to change the appointed person in the future if necessary, and it is worth bearing in mind that the Planning Inspectorate is not a body established by statute, so this flexibility is of particular relevance. There may be cases where the Secretary of State might decide that the most appropriate person to refer objections to is someone other than the Planning Inspectorate. I acknowledge that the current wording gives us flexibility to do this, but, if that were to happen, I am happy to assure noble Lords that we would expect that person to be of similar independence and calibre. The intention, though, is that we would turn to the Planning Inspectorate. At the end of the day, there is only a narrow gap between us. The Government have listened carefully, which is why we now have a review procedure. I hope that my amendment provides some reassurance too. The Bill has quite a long way to go, but this is a satisfactory outcome. I am grateful to noble Lords for their contribution.