'(1) In section 321 of the principal Act (planning inquiries to be held in public subject to certain exceptions) after subsection (4) there are inserted the following subsections—

''(5) If the Secretary of State is considering giving a direction under subsection (3) the Attorney General may appoint a person to represent the interests of any person who will be prevented from hearing or inspecting any evidence at a local inquiry if the direction is given.

(6) A person appointed under subsection (5) must have a general qualification for the purposes of section 71 of the Courts and Legal Services Act 1990 (c.41).

(7) The Lord Chancellor may by rules make provision—

(a) as to the procedure to be followed by the Secretary of State before he gives a direction under subsection (3) in a case where a person has been appointed under subsection (5);

(b) as to the functions of such a person.

(8) Rules made under subsection (7) must be contained in a statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.''

(2) In Schedule 3 to the listed buildings Act (determination of certain appeals by person appointed by the Secretary of State), in paragraph 6, after subparagraph (7) there are inserted the following subparagraphs—

''(7A) If the Secretary of State is considering giving a direction under subparagraph (6) the Attorney General may appoint a person to represent the interests of any person who will be prevented from hearing or inspecting any evidence at a local inquiry if the direction is given.

(7B) A person appointed under subparagraph (7A) must have a general qualification for the purposes of section 71 of the Courts and Legal Services Act 1990 (c.41).

(7C) The Lord Chancellor may by rules make provision—

(a) as to the procedure to be followed by the Secretary of State before he gives a direction under subparagraph (6) in a case where a person has been appointed under subparagraph (7A);

(b) as to the functions of such a person.

(7D) Rules made under subparagraph (7C) must be contained in a statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.''

(3) In the Schedule to the hazardous substances Act, in paragraph 6, after subparagraph (7) there are inserted the following subparagraphs—

''(7A) If the Secretary of State is considering giving a direction under subparagraph (6) the Attorney General may appoint a person to represent the interests of any person who will be prevented from hearing or inspecting any evidence at a local inquiry if the direction is given.

(7B) A person appointed under subparagraph (7A) must have a general qualification for the purposes of section 71 of the Courts and Legal Services Act 1990 (c.41).

(7C) The Lord Chancellor may by rules make provision—

(a) as to the procedure to be followed by the Secretary of State before he gives a direction under subparagraph (6) in a case where a person has been appointed under subparagraph (7A);

(b) as to the functions of such a person.

(7D) Rules made under subparagraph (7C) must be contained in a statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.''.'.—[Keith Hill.]

Brought up, and read the First time.

I beg to move, That the clause be read a Second time.

With this it will be convenient to discuss the following:

Government new clause 8—Special provision in relation to planning inquiries: Wales.

Government new clause 40—Special provision for certain circumstances where disclosure of information as to national security may occur: Scotland.

New clauses 7 and 8 deal with the arrangements for planning inquiries when national security is at issue. I have good news for members of the Committee who are dismayed by the amount of material in the new clauses. The substance of what we shall debate is in new clause 7(1), which adds four subsections to section 321 of the principal Act—the Town and Country Planning Act 1990. The remainder of new clause 7 repeats that for the listed buildings Act and the hazardous substances Act—the other two planning Acts. New clause 8 sets out how the

arrangements will differ for inquiries in Wales. Again, that is set out three times, once for each planning Act.

I shall describe what the new clauses do and how we expect the new arrangements to work in practice. New clause 7(1) adds subsections (5) to (8) to section 321 of the principal Act. To make sense of that, I shall start with the existing section 321. It provides that all oral evidence at planning inquiries must be heard in public and that documents must be open to public inspection. There is, however, an exception, which applies when there would be public disclosure of information relating to national security, or to the security of any premises or property, and when public disclosure would be contrary to the national interest.

In those circumstances, the Secretary of State may direct, under section 321(3), that specified evidence should be restricted. That provision has been in the planning legislation since 1982, but as far as we know there has never been a section 321 direction. In some ways that is unsurprising, as national security is a matter for the Crown and the Crown has not been bound by the planning Acts. Once the Crown is bound by the Acts, there will be the distinct prospect of planning applications being made that have national security implications, so we have had to devise a procedure for dealing with material that would be the subject of a section 321 direction, without violating human rights under article 6 of the convention.

New clause 7(1) provides the framework for such a procedure and is modelled on the special advocate procedure of the Special Immigration Appeals Commission, under the Special Immigration Appeals Commission Act 1997. Subsections (5) and (6) deal with the appointment of the special advocate by the Attorney-General. Subsections (7) and (8) make provision for the Lord Chancellor to make rules, subject to the negative resolution procedure, to govern the procedure to be followed by the Secretary of State in making a section 321 direction and the functions of the special advocate.

I shall briefly digress to new clause 8 to describe the variations for Wales, before continuing to discuss how this will work in practice. New section 321A, which is inserted by new clause 8(1), provides that in Wales the Counsel General to the National Assembly for Wales, who is the Assembly's chief legal adviser, will appoint the special advocate. The Assembly may make regulations covering the same ground as the Lord Chancellor's rules and, if it does so, the Lord Chancellor's rules will not apply. Subsection (6) is a technical provision that prevents any regulations made by the Assembly from being subject to the negative resolution procedure in either House of Parliament.

I return to my main theme—how the provisions will work. The procedure is aimed at addressing two scenarios. In the first, a Crown body, such as the Ministry of Defence or one of the security and intelligence services, might need to undertake some development. That body would submit a planning application with as much information as possible, which might include most things required for a planning application to be determined, such as the location, size, bulk and external appearance of the

building as well as the expected traffic generation. The use of the building and what might be inside it might be omitted, because to reveal such information could compromise national security.

If the information provided were enough to enable the local planning authority to make a decision on the planning application, that would be all well and good. Even if the application were rejected, provided that no extra information was required a normal planning appeal could follow. The applicant Department would probably be aware from pre-application discussions of whether the local planning authority had enough information to make a decision. If the expectation was that the local planning authority would not be able to determine the application because it needed information that the applicant Department could not reveal, the applicant would ask the Secretary of State to call in the application and to make a section 321 direction for the subsequent planning inquiry. Even if the local planning authority rejected or failed to determine an application on the ground of lack of information, the section 321 procedure could be applied to a recovered appeal.

We envisage that the Lord Chancellor's rules will cover the procedure for showing the classified material to the special advocate and the procedure for the special advocate to make representations. If the Secretary of State is minded not to make the direction, the rules will also contain a procedure for both the applicant and the special advocate to make representations. If the Secretary of State does not make the direction, he can decide the application or return jurisdiction to the local planning authority.

The second scenario in which the special advocate procedure might be invoked would be one in which a private person's planning application interfered with some aspect of national security. For example, a proposed tall building might overlook a restricted site or interfere with a communications system. In that situation, the Crown would be an objector and it could ask the Secretary of State to call in the application.

To work properly, the system will need further secondary legislation to be made under existing powers. For example, the inquiries procedure rules will need to be amended, or separate ones made, for planning inquiries that require a special advocate. We shall also need to make provision in the Town and Country Planning (General Development Procedure) Order 1995 under section 62 of the principal Act, as substituted by clause 41 of this Bill, for the Crown to withhold such information as might be the subject of a section 321 direction.

Members might also wonder how we would deal with developments that are classified in their entirety, not just in detail. We propose to do that by creating a new permitted development right in the 1995 order to give legal cover for developments whose existence cannot be admitted. Almost by definition, such developments would have no planning implications. If no one knows they are there, they could hardly have a planning impact.

A development that might come into this category would be a house converted to an operational building

for the security and intelligence services. It would still appear to be a house, but the conversion would constitute a development. If the neighbours noticed some activity and approached the local planning authority, it would be for the developing Department to come up with an appropriate cover story, as it would have to do today in the non-statutory system. I hope, in the circumstances, that I have given the Committee all the information it needs.

I congratulate the Minister on introducing an exceedingly complex, although necessary, subject. Clearly, we must deal with issues of national security or the security of a building. In my former life, I was a signatory of the Official Secrets Act, so perhaps people do not even know that I exist.

The Law Society has made representations to us on the new clause and I think that I can do the Committee a service by simply reading them out. It says:

''New Clause 7 extends the existing exception to the requirement for planning inquiries to be held in public in relation to national security. The sub-clauses to be inserted into the Town and Country Planning Act, the Listed Buildings Act and the Hazardous Substances Act limit the persons who can represent a party, who for reasons of national security cannot themselves appear before this type of inquiry, to qualified lawyers with the right of audience in any part of the Supreme Court or all proceedings in county courts or magistrates courts.

This is unduly restrictive. Why should a competent planning consultant be excluded when the issues to be considered are related to the planning merits of an application before an inquiry even though the inquiry is not being held in public because of national security considerations?''

On that relatively narrow point of who can represent the Government in these so-called secret applications, is the clause unduly restrictive? I have no further questions on the amendment.

I would like to ask a similar question. The Law Society has done us a favour in bringing it forward. Before the Minister replies, may I give him some reassurance? New clause 7(1)(5) states:

''the Attorney General may appoint a person to represent''.

There will always be the cover that the Attorney-General can make sure that the person who is appointed has been cleared for security purposes. That person does not have to be a lawyer. All sorts of people are cleared for security purposes, as we well know. It is beyond me why they also need to be a lawyer, particularly when we are dealing in this instance with a planning matter.

The Minister said that that provision was based on the Special Immigration Appeals Commission Act. I can see that immigration cases require lawyers. Here, we are dealing with planning, not immigration, and I should have thought that specialist planning consultants who have been positively vetted would be just as suitable if not more so.

In introducing the new clause, the Minister said that new regulations would be developed to cover the situation in which the existence of buildings could not be admitted. It is not just that houses are altered for operational purposes; most Members will be aware that some buildings in our countryside do not appear on any map. Those structures have been put up

without any planning permission. They are not always completely unnoticeable and some are obvious from considerable distances. We are not only dealing with the internal conversion of a house for operational purposes, as there are also substantial structures, perhaps mostly underground, that do not officially exist. How will the new regulations cover those circumstances?

I start by echoing the point made by the hon. Member for Ludlow. As a child, I lived in a house that overlooked Rugby radio station, which occupied around 10 or 12 square miles in a wide valley consisting of numerous masts, eight of which I think reached 850 ft in height. However, the station did not appear on any Ordnance Survey map until I left the area, although I am not sure whether my departure from the area was associated with the station's appearance on the Ordnance Survey map. I suspect that that is exactly the kind of structure to which the hon. Gentleman was referring.

Will the Minister give us more information on the breadth of the new clause, particularly in view of the rather tight title? I understand that the title does not form part of the legislation, but all the references made by the Minister in his introduction used the words ''national security''. Section 321(4) of the principal Act refers not only to ''national security'', but to

''measures taken or to be taken to ensure the security of any premises or property.''

The power of the Secretary of State, which is referred to in section 321(3), applies if making evidence

''available for inspection would be likely to result in the disclosure of information as to any of the matters mentioned in subsection (4)'',

and,

''that the public disclosure of that information would be contrary to the national interest''—

not national security but the national interest.

Will the Minister confirm that the application of the new clause is broader than merely—although that is perhaps the wrong word—national security? For example, does it cover the security arrangements in a prison, or the configuration of buildings within the curtilage of a prison or other premises provided for custody? It might even include arrangements for the security of other premises or property—to prevent people from getting in rather than out.

I am concerned that the new clause is drawn widely. It is necessary to protect part, but not all, of the information that may go before a planning committee as part of the planning application. Is it the Minister's intention that a public inquiry would be divided in two, with some parts confidential and others held in the open? What information might the person appointed by the Attorney-General be entitled to provide to objectors about the information made available in the secret part of such an inquiry?

Finally, it is important to return to the point made by the hon. Member for Ludlow. The public should be entitled to object to a development even if it is for national security, because there might be an equally

appropriate, but less obtrusive, place in which that development might take place. Even if it is possible to have divided public inquiries, few sessions should be held entirely in private. I hope that the Minister will accept that a development of 10 or 15 square miles for the purposes of an 850-ft mast cannot be kept confidential for very long. Members of the public might object to the sheer disturbance caused by such a development or to the conversion of land from greenfield to brownfield, which would be implicit in the development. They are entitled so to object and to have an inspector weigh in public whether it is the most appropriate site for such a development.

First, may I apologise to you, Mr. Hurst? In the debate on the last group of amendments, I spoke of two subsequent amendments to be debated if there were time, and wondered whether they should have been incorporated with the ones that we were discussing. There was no implied criticism of the Chair; I would be foolish to do that. I apologise to you and to the Minister, as I referred to him too.

I want to raise two matters. First, I take up the points made by three previous speakers about the fact that, in proposed new subsection (6) of section 321 of the principal Act,

''A person appointed under subsection (5) must have a general qualification for the purposes of section 71 of the Courts and Legal Services Act 1990''.

I have not read that, but my understanding is that the person could be somebody other than a lawyer. If it has to be a lawyer, I join my hon. Friend the Member for Isle of Wight in putting down a marker to the effect that I protest most vehemently. I can now do that more openly than I might have done; I have resigned as a fellow of the Royal Town Planning Institute, so I cannot possibly be a planning consultant. I should have hoped that that provision included people other than those with a legal qualification, particularly because we are essentially discussing town and country planning matters. I do not want to anticipate the Minister; he could say that there are many distinguished planning consultants, some of whom have legal qualifications, so it would be a town and country planning consultant who happened, also, to be a barrister. However, the air should be cleared on the matter.

My second point is more nebulous, but I think that it is at the root of the issue, particularly in new clause 7. Under the Human Rights Act 1998, the Government have incorporated all the decisions and legislation of the European Court of Human Rights into our legislation. Previously, if the European Court of Human Rights made a decision, the Government, of whatever hue and whether or not they agreed with it, incorporated it into our legislation. The problem with the Human Rights Act is that our judges have to second-guess what the decisions of the European Court of Human Rights will be on any subject, even if it has not made a decision. That is getting into the barmy land of craziness, a point that I made when the Act was going through Parliament. The English or British courts have to anticipate what the European Court of Human Rights might say, and the judgment it might give.

Most of this clause could prove to be superfluous because it will be overridden by the European Court of Human Rights. I am not asking the Minister to make a declaration or a studied statement. The Government's legal officers may already have gone into the matter and be pretty satisfied, and positive and hopeful, about this part of the legislation. I believe that a lot is wrong with the Human Rights Act on this matter, but the European Union—God bless its soul and its ambition—is now proposing a charter of fundamental rights.

Order. The hon. Gentleman may have anticipated that he is straying wider into geographic matters, and that he ought not do so.

I apologise, Mr. Hurst, for the second time in five minutes. It must be some sort of record. I agree with what you say, but although the Government may have a problem with the Human Rights Act, they will have additional problems if ever a charter of fundamental rights comes into being.

I hesitate to suggest this to my hon. Friend, who has far greater knowledge than me on this matter, but I believe that a derogation from the provisions of the Human Rights Act exists on the ground of national security. I suspect that the clause may come under that derogation. My hon. Friend may have some knowledge of that; if not, the Minister will.

I am grateful to my hon. Friend. He may be right in theory but not in practice, for the very reason raised by my hon. Friend the Member for Isle of Wight, which is that the judges may say, ''But there are private interests that, irrespective of it being a security matter, should rightly be expressed in public; and the third party or the person who wants to resist an application should have that right.''

The hon. Members for Cotswold, for Ludlow and for Chipping Barnet raised issues relating to the qualifications of those who are allowed to act as special advocates. The broad argument was that the

provisions are unduly restrictive. We need to be aware that we are dealing with issues of national security, and with the security of premises and property. We therefore need to exercise proper care. We want to be reasonably confident about the capacity of officers acting as special advocates to observe confidentiality on such weighty matters. It could be that not every planning officer has those qualifications. Notwithstanding the well-known libertarian instincts of the Liberal Democrat party—now, as we discover, firmly in control of its economic policy—we need to exercise a degree of caution.

I agree with the exercising of a degree of caution, but the new clause states that

''the Attorney-General may appoint a person''.

Presumably, whether or not that person has a general legal qualification, he will be positively vetted by the security services before being appointed. We need a limit on who can be proposed for such an appointment, but why rule out those with expertise on planning but include others who may not have that expertise?

The hon. Gentleman makes a perfectly fair point. I note his important reference to some kind of vetting or scrutiny of the background and qualifications of the individual concerned. However, all hon. Gentlemen, including the hon. Member for Cotswold who leads for the Opposition on behalf of the Law Society, make a reasonable point. I assure the Committee that we will consider the matter.

I turn to the point raised by the hon. Member for Ludlow about substantial new structures being carried out by an applicant authority. They will be subject to the planning procedures under a section 321 direction.

It being One o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Four o'clock.