My Lords, I support the amendments and the stand part debate proposed by the noble Lord, Lord Faulkner, and express some concern about the amendments in the name of the noble Lord, Lord Berkeley.
We are talking about open space. The law relating to open space is quite complex and is nothing like as simple as might be suggested. The problem is that a little bit of this particular Bill intervenes on the law on open space in one or two instances, potentially causing considerable confusion, not least about the definition of “open space”. In Clause 22 is set out the proposal that in some circumstances where it is proposed to develop on and remove open space—it does not refer to commons; the position on commons will remain the same—the special parliamentary procedure will not apply. Those circumstances are when,
“it is strongly in the public interest for the development for which the order grants consent to be capable of being begun sooner than is likely to be possible if the order were to be subject (to any extent) to special parliamentary procedure”.
It is an important bit to read out. The crucial words are,
“it is strongly in the public interest”.
That decision will have to be made by the Secretary of State, which is why what the noble Lord, Lord Faulkner, said about the threat of a relatively large number of delaying judicial reviews is so crucial. What is and is not in the public interest is clearly debatable, and the question of whether the Secretary of State is making a reasonable judgment on what is in the public interest is clearly judicially reviewable. That is the constraint in here which means that it is poor legislation; it is vague and not very clear about what it means. It might mean different things in identical circumstances to different Secretaries of State.
There are other reasons why Clause 22 is undesirable. As the noble Lord said, there have been very few references to or uses of special parliamentary procedure. Once again in this Bill, the Government come forward wanting to do something without providing any clear evidence of why it is necessary. The first thing that the Minister has to try to do is to give us some evidence of why this is necessary in the real world, not of why, in some theoretical future, there might be a problem or two, but evidence that it has been a serious problem in the past. If it has been only in one or two cases, then that does not add up.
The other rather vague and, I believe, judicially reviewable phrase is “long-lived”. These new provisions apply to circumstances in which the removal of the open space is temporary but possibly long-lived. Perhaps the Minister can tell us what “long-lived” means. I suspect that she cannot tell us very precisely because, again, it is a matter of judgment, and it may lead to more delays than even a special parliamentary procedure.
Has the noble Lord, Lord Berkeley, spoken to his amendments? He has not. I thought that perhaps I had been asleep and had missed him when the noble Lord, Lord Adonis, jumped in. I will speak to them, with his permission, and then he can tell me why I am wrong.