My Lords, I tabled this probing amendment following discussions with the Compulsory Purchase Association. It sits as a singleton and does not relate to the amendments I moved previously in connection with compulsory purchase. I hope I can be brief and that it will be recognised as an attempt to
free up the processes and will have general support as it actually removes something from the statute book rather than adding something.
The background to the amendment relates to the certification process when the infrastructure planning commission has accepted an application for an order granting development. Noble Lords will doubtless know of the procedure. Section 56 of the Planning Act 2008 provides that notice is to be given to persons of a particular category and in the form prescribed. Section 58 then deals with compliance with that general provision and, in particular, states at subsection (3):
“A person commits an offence if the person issues a certificate which … purports to be a certificate under subsection (2), and … contains a statement which the person knows to be false or misleading in a material particular”.
It relates to “knowingly” doing something that is offensive. Subsection (4) states:
“A person commits an offence if the person recklessly issues a certificate which … purports to be certificate under subsection (2), and … contains a statement which is false or misleading in a material particular”.
I have bit of a philosophical battle regarding the difference between the use of “knowingly” and “recklessly” in other matters. I should mention that “recklessly” is always a materially reduced standard of proof; however, the practicalities of this in relation to nationally significant infrastructure projects are, of their very nature, complex and involve large numbers of interested persons. All such projects are listed in the 2008 Act, many of them under various headings. The very idea of attaching a criminal offence to something of that degree of complexity borders on the absurd.
My amendment seeks to remove subsections (3) to (7), which contain the provisions for this sanction. The Committee may feel that that is going a little too far and I am quite happy to hear from the Minister that that might be the case. However, while an infrastructure provider on a large and complex scheme, which perhaps covers a substantial geographical area and a lot of different interests, may be expected, not unreasonably, to use its best endeavours to notify to all interested parties, having a criminal sanction is going a step too far. The Compulsory Purchase Association certainly feels that the provision is an impediment and stands in the way of getting these things done in a timely manner, while everyone carries out their due diligence in order to try to make sure that there is nothing lurking there which, unbeknown to them, could give rise to this criminal sanction.
My argument pivots on the term “recklessly”, which that indicates that the circumstances in which there might be some element of risk are known but that someone somewhere thinks that you have not done enough to take account of those risks. The standards of proof are not as robust in terms of a convicting authority as they would be otherwise. The amendment removes risk and possible abuse in the setting in place of various bear traps, tripwires and anything else that people might want. The amendment will shorten timescales and remove a sanction that ultimately is unnecessary. I beg to move.