§ 3.22 p.m.
§ Lord Denham
My Lords, it might be helpful if I inform your Lordships that Her Majesty's Government very much hope that it will be possible to complete Part II of the Bill today and at a not too inconveniently late hour. If that should happen and if we should be equally fortunate with Part III on Monday, it may be possible to avoid having to ask the House to sit next Friday, 20th March, in order to complete the Report stage. I believe that the House would be very grateful if this could be done. I shall inform the House at the earliest possible stage as to whether or not a sitting next Friday will be necessary.
§ Moved accordingly and, on Question, Motion agreed to.
§ Clause 23 [Functions of Nature Conservancy Council]:
The Earl of Avon moved Amendment No. 157:
Page 21, line 18, leave out from ("shall") to second ("and") in line 19 and insert ("five years after the passing of this Act").
§ The noble Earl said: My Lords, as Clause 23 now stands, the Nature Conservancy Council may at any time review Schedules 5 and 7 but must, 10 years after the passing of the Conservation of Wild Creatures and Wild Plants Act 1975 and every five years thereafter, review those schedules and advise the Secretary of State whether they are in need of revision. This requirement is very similar to that placed upon the Nature Conservancy Council by Section 12 of the Conservation of Wild Creatures and Wild Plants Act 1975, but would have the effect that the next mandatory review would take place in 1985.
§ The effect of this amendment is to fix a base date for mandatory reviews from the passing of this Bill. That seems to be an altogether tidier and logical arrangement, and I am grateful to the noble Baroness, Lady David, for suggesting it. I beg to move.
§ On Question, amendment agreed to.387
§ Lord Craigton moved Amendment No. 157A:
Page 21, line 34, at end insert—
("(4) The Council may appoint such wildlife officers as they deem expedient to advise and assist the Police and the Commissioners of Customs and Excise in the enforcement by them of the provisions of this Part and of the Endangered Species (Import and Export) Act 1976 and of any orders or regulations made under those enactments.
(5) After section (1)(a)(iv) of the Nature Conservancy Council Act 1973 (which concerns the functions of the Council) there shall be inserted the following sub-paragraph—
(v) The provision of advice and assistance to the Police and the Commissioners of Customs and Excise in the enforcement by them of the provisions of the Endangered Species (Import and Export) Act 1976 and of Part I of the Wildlife and Countryside Act 1981 and of any orders or regulations made under those enactments, and".").
The noble Lord said: My Lords, I rise to move Amendment No. 157A the first four lines of which read:
('(4) The Council may appoint"—
that is, the Nature Conservancy Council—
such wildlife officers as they deem expedient to advise and assist the Police and the Commissioners of Customs and Excise in the enforcement by them of the provisions of this Part and of the Endangered Species (Import and Export) Act 1976 …".
§ It must astonish those who do not know this part of the world that the Nature Conservancy Council has at present no powers to appoint officers.
§ The situation today is that the RSPB and the RSPCA, which are both charities, are policing our wildlife legislation. In the last nine months they have secured six convictions leading to fines of £3,000 in all; 1,500 incidents have been reported to them and only 10 per cent. of those could they investigate. It cannot be a permanent feature in this country that voluntary bodies alone police and investigate offences against the law of the land. But we have just had the Budget and times are difficult, and I appreciate and applaud the unwillingness of anyone to put fresh burdens on the taxpayer at this time.
§ However, it will be a long time before we have another Bill like this one. Therefore, as was done in the Control of Pollution Act, we must legislate for the future when things that ought to be done now can at last be afforded. I recommend this amendment because it begins, "The Council may appoint …" and not "The Council shall appoint …". I just do not believe that the Government could be so shortsighted or uncaring for the future not to accept this. I am sure that they know that the United States of America, Canada and New Zealand already employ people to enforce wildlife legislation, and that nearer home the Irish Government have just appointed 45 full-time wildlife wardens. The Nature Conservancy Council should have the powers to do what ought to be done as soon as the country can afford it, and that is all we ask. I beg to move.
§ The Earl of Avon
My Lords, when this subject was discussed during the Committee stage we expressed our disquiet at a concept that law enforcement duties should be placed on the Nature Conservancy Council. I am glad to see from this amendment that the noble Lords moving it have accepted this situation. I am sure that the Nature Conservancy Council would be willing to perform the functions proposed in this amendment so far as it was possible to do so within 388 the resources available to the council, as my noble friend has said, and provided that the council was in no way involved in an investigatory role. On this understanding the Government can certainly accept the principle of this amendment, and will consider putting down an appropriate amendment themselves.
Unfortunately, as regards the present amendment, I understand that the police as such do not enforce in the sense of bringing legal proceedings; that is done by individual officers acting in their own names in the case of summary offences and by the Crown in the case of indictable offences. I hope that with this early undertaking my noble friend will feel able to withdraw this amendment so that the Government can put down their own.
§ Lord Craigton
My Lords, I am very happy with that reply, and very happy to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 157B not moved.]
§ Clause 25 [Regulations, Orders, Notices, etc.]:
§ The Earl of Avon moved Amendment No. 158:
Page 22, line 1, leave out subsection (1) and insert—
("(1) Any power to make regulations or orders under this Part shall be exercisable by statutory instrument.
(1A) A statutory instrument containing regulations under this Part, or an order under a provision of this Part other than sections 2(6), 3, 5 and 11, shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(1B) No order under section 5 or 11 shall be made unless a draft of the order has been laid before and approved by a resolution of each House of Parliament.").
§ The noble Earl said: My Lords, this amendment seeks to meet a number of assurances given in Committee. They require that all orders made under Part I, except those made under Clauses 2(6), 3, 9 and 11 are subject to annulment in pursuance of a resolution of either House of Parliament; that is by Negative Resolution. This follows the position in the Conservation of Wild Creatures and Wild Plants Act 1975.
§ As I said in Committee to my noble friend Lord Stanley, we do not consider Affirmative Resolution procedure for those matters justified. This is a procedure normally reserved for orders of special concern, such as those on financial matters. However, for orders under Clauses 5 and 11—prohibition of methods of killing or taking birds and animals respectively—the Government have taken note of the concern expressed in Committee that the Affirmative Resolution procedure is justified, even though generally proposals to amend the list may be expected to be uncontroversial.
§ In regard to the orders under Clauses 2(6) and Clause 3, we do not consider that they need a parliamentary procedure. Clause 2(6) orders for the protection of Schedule 2, Part I, birds in the open season, must invariably be made very quickly in order to give protection when it is needed. Such orders last only for 14 days. Clause 3 orders for areas of special protection can be made only if all owners or occupiers in the area proposed for designation agree to the making of an order or at least do not disagree within a three-month period provided for. So again it is not felt that Parliament needs to be involved. I beg to move.389
§ 3.31 p.m.
Lord Stanley of Alderley moved Amendment No. 158A as an amendment to Amendment No. 158:
Line 5, leave out ("and 11") and insert (",11 and 21").
§ The noble Lord said: My Lords, I did not quite realise that I was going to be called now. First, I should like to thank my noble friend for agreeing to the affirmative procedure on the two cases that I asked him for. Even though he did give me the answer "no" to start with, he seems to have given me the answer "yes". However, for reasons that I do not understand, my noble friend has not allowed it in Clause 25, which applies to allowing discussion by Parliament of alterations to the various schedules of birds, animals and plants under Clause 21.
§ I am specially concerned about this now because of the remarks made by the Government on Amendment No. 24 and, in particular, Amendment No. 74. An addition to Schedule 5 could result in a farmer not being able to take emergency action under Clause 10 for animals and Clause 4 for birds. It is therefore essential that the Government should clarify the effect of their Amendments Nos. 24 and 74, and one of the first steps they should take is to grant an Affirmative Resolution procedure. That would help in the Third Reading battle that I see appearing on the horizon. I beg to move.
§ Lord Melchett
My Lords, I must say that I am quite happy with the Government's proposed amendment. It meets what I accept were at the Committee stage some real worries that noble Lords opposite had about the way in which methods of killing animals and birds could be altered in future. I am not so happy with Lord Stanley of Alderley's amendment to the amendment, because there are inevitably going to be a fairly large number of additions and alterations to all these schedules. Plants are going to come on and go off. During the passage of the Bill at least one moth has been discovered that people did not know about and has had to be added. If that is all going to be subject to the Affirmative Resolution procedures, it is going to be a nightmare. I should prefer to stick at what the Government have proposed.
§ The Earl of Avon
My Lords, may I just correct one thing that was wrong in my earlier speaking note? I should have referred in my second sentence to orders made under Sections 2(6) 3, 5 and 11. I said "3, 9 and 11"; I should have read "5".
In answer to my noble friend, while the Government can understand the fears expressed, I would remind him that we have set up an elaborate machinery to ensure that species are not added to, or deleted from, schedule without full discussion. I cannot conceive that an order made by the Secretary of State would not have become well known to all concerned before it was made. In these circumstances, the Government do not see that there is any reason further to burden both Houses with Affirmative Resolutions for schedule changes of this kind. I hope that, with that assurance, my noble friend will not feel that he has to press his amendment to the amendment.
§ Lord Stanley of Alderley
My Lords, I am particularly concerned that the noble Lord, Lord Melchett, thinks 390 that there are going to be a great many changes on these schedules. This reinforces the importance of them being looked at carefully, as my noble friend Lord Avon pointed out. May I ask my noble friend to consider this matter when he is considering his Amendments No. 24 and No. 74, which he promised to take away and look at, because they very much bear together? I beg leave to withdraw my amendment.
§ Amendment to amendment, by leave, withdrawn.
§ On Question, amendment agreed to.
§ [Amendment No. 158B not moved.]
The Earl of Avon moved Amendment No. 159:
Page 22, line 5, leave out ("which relates to the protection of birds").
§ The noble Earl said: My Lords, this amendment is part of a tidying up process on consultation whose effect is to require that the consultation procedures set out in Clause 25(2)(a), (b) and (c) apply in respect of all orders made under Part I, whether for birds or not, with two minor exceptions which I shall mention when moving the next amendments. It is proper that the same procedure should apply generally throughout Part I of the Bill. I beg to move.
§ On Question, amendment agreed to.
The Earl of Avon moved Amendment No. 160:
Page 22, line 7, at beginning insert ("except in the case of an order under section 21(3)").
§ The noble Earl said: My Lords, Clause 21(3) provides that orders made under that section to add or delete animals or plants from Schedules 5 or 7 can only be made following representation from the Nature Conservancy Council. It would therefore be duplication to require consultation with an advisory body which in any case will be the Nature Conservancy Council. I beg to move.
§ On Question, amendment agreed to.
The Earl of Avon moved Amendment No. 161:
Page 22, line 11, leave out ("or") and insert ("affected and, except in the case of an order under section 2(6) or 3, any").
§ The noble Earl said: My Lords, again this amendment seeks to avoid duplication of a consultation requirement. Clause 2(6) and Clause 3 orders have their own requirements for consultation with people directly affected by the making of the order. I beg to move.
§ On Question, amendment agreed to.
§ Clause 26 [Interpretation of Part I]:
The Earl of Avon moved Amendment No. 162:
Page 22, line 37, after ("authority") insert ("or").
§ The noble Earl said: My Lords, this is a drafting amendment to correct omission of an "or". I beg to move.
§ On Question, amendment agreed to.
§ [Amendments Nos. 162A and 163 not moved.]
§ 3.37 p.m.
§ The Earl of Avon moved Amendment No. 163A:
Page 23, line 9, at end insert—
(""domestic duck" means any domestic form of duck; "domestic goose" means any domestic form of goose;").
§ The noble Earl said: My Lords, with the permission of the House, I should like to speak to Amendments Nos. 166ZD and 166ZC at the same time. The noble Lords, Lord Melchett and Lord Kilbracken, expressed concern in Committee that the present definition of poultry might be interpreted to include, for example, normally wild species of duck which were kept in captivity and bred there. I am advised that the term "poultry" as defined could be so interpreted, thus creating a loophole.
§ It is our intention that wild ducks and wild geese bred in captivity should be covered by the Act, and these amendments achieve the desired aim. We originally intended to speak of a domestic form of all birds mentioned in the definition, but are unable to, as domestic forms of other than ducks and geese do not currently exist. However, for practical purposes we believe that the problem area is covered. Also we have removed the prefix "domestic" from the term "turkey" as it serves no useful purpose. I beg to move.
§ Lord Kilbracken
My Lords, I have tried to cope with this question of the definition of poultry in my later Amendment No. 166A, but instead of moving it I should like to make a couple of comments on the amendment moved by the noble Earl. I wonder whether his proposal in fact removes the objections that my noble friend Lord Melchett and I had at Committee stage. He certainly seems to be of the opinion that the word "domestic" in the existing definition applies to all the species or kinds of bird listed in the definition. But we run into problems because of what we normally think of as being chickens, which are referred to as being "domestic fowls". Without the adjective "domestic" we just have "fowls", and that does not mean chickens at all. So the word "domestic" is wholly employed in turning fowls into domestic fowls, and it cannot go on to qualify geese, ducks, guinea-fowls, pigeons and quails. That is the first objection.
The second is that this amendment defines what is meant by "domestic duck" and "domestic goose", but how about the pigeon and the quail? Here are the other two sorts of bird listed in this definition which also exist as wild birds. There are wild pigeons and wild quail. We are not told what is meant by a domestic pigeon or a domestic quail. Thirdly, I do not see how taking the word "turkeys" from where it is and putting it in at the end with another "and" so that it reads "pigeons and quails and turkeys" thereby removes it from the control of the adjective "domestic". I think my Amendment No. 166A is very much better.
§ Lord Melchett
My Lords, this is a complicated and technical matter. It might be wisest for the noble Earl to consider the matter, and I should be interested in having a copy of the letter if he intended to write to my noble friend about it.
§ The Earl of Avon
Indeed I will, my Lords. To comment briefly on what the noble Lord, Lord Kilbracken, said, in our definition of "poultry" at present, as noble Lords now know, when we saydomestic fowls, geese, turkeys, guinea fowls, pigeons and quails392 the word "domestic" qualifies all those. We now have another one, "and turkeys", which means they would not be required, but I agree that that is a minor point compared with what the noble Lord mentioned and I will have another look at it.
§ On Question, amendment agreed to.
Lord Kilbracken moved Amendment No. 164:
Page 23, line 10, leave out ("grouse (or moor game), black (or heath) game") and insert ("red grouse, black grouse").
§ The noble Lord said: My Lords, I return to the battle over the definition of game birds which I raised in Committee with another proposal for amending the references to grouse. The reason for this, as I pointed out in Committee, is largely that the word "grouse", if unqualified, includes both capercaillie and ptarmigan, and the use of the words "moor game" and "heath game", which are those applying under the Game Act 1831, are now practically never used, and what the definition actually refers to are the two species of the red grouse and black grouse. The definition as it stands technically includes the capercaillie, and the ptarmigan appears twice, both under the heading of "grouse" and under its own steam as "ptarmigan". I therefore feel it would be shorter, clearer, more up-to-date and less equivocal if the provision read, "partridge, red grouse, black grouse or ptarmigan". I do not think that would require any amendment of the 1831 Act because it would be saying what that Act says but in a clearer and more up-to-date form.
§ The Earl of Avon
My Lords, I think the noble Lord knows the answer already. Although the amendment would modernise the definition, wording similar to that employed in the definition has been used in the Game Act 1831 and the Protection of Birds Acts for many years without giving rise to any of the problems the noble Lord, Lord Kilbracken, fears. To alter the definition in the Bill would therefore be likely to cause confusion. The Home Secretary is firmly opposed to Government involvement in the amendment of the game laws and the Home Office emphasises that it would be most unfortunate if anyone gained the impression that the Government were contemplating the amendment of a similar definition of "game" used in the 1831 Act or any revision of the game laws. It is for that reason and not because we are out of sympathy with the noble Lord that I hope he will not press the amendment.
§ Lord Kilbracken
I have no intention of pressing it, my Lords. I know the noble Lord, Lord Burton, is interested in the position of the capercaillie and intends to raise this matter again on Third Reading. If, as the result of any discussions he might have with the Minister, there will be any change involving the capercaillie, that would make it more necessary to change the definition of "game birds" here, and of course the capercaillie position is special in that it could not be in the 1831 Act because at the time of that Act it had not yet been established in Scotland. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 165 to 166A not moved.]393
§ The Deputy Speaker (Lord Aberdare)
The next amendment has been wrongly marshalled, my Lords; it comes after No. 166ZC. So the next amendment is No. 166ZB.
§ The Earl of Avon moved Amendments Nos. 166Z B and 166ZC:
§ Page 23, line 24, leave out ("turkeys").
§ Page 23, line 25, at end insert ("and turkeys").
§ The noble Earl said: I have already spoken to these amendments, my Lords. I beg to move.
§ On Question, amendment agreed to.
The Earl of Avon moved Amendment No. 166ZA:
Page 23, line 26, at end insert ("and cognate expressions shall he construed accordingly").
§ The noble Earl said: My Lords, with Amendment No. 33A and many others relating to the same point, we have tightened up the controls on sale. This amendment is part of the same process and improves the definition of "sale" so that some of the more devious ways of offering for sale without actually saying so are caught.
§ On Question, amendment agreed to.
The Earl of Avon moved Amendment No. 166B:
Page 23, line 28, leave out ("with its roots").
§ The noble Earl said: My Lords, the Conservation of Wild Creatures and Wild Plants Act 1975, on which many of the provisions of this Bill in regard to plants are founded, did not treat fungi and algae as plants except in the composite form of lichen. In this Bill we are not making that distinction but are including fungi and algae. We recognise that the definition of "uproot" in Clause 26 is not entirely apt for these plants; they do not have roots and to talk about removing a plant "at its roots" from the land is obviously inappropriate. We are grateful to the noble Baroness, Lady David, for suggesting the amendment.
§ On Question, amendment agreed to.
§ 3.47 p.m.
The Minister of State, Ministry of Agriculture, Fisheries and Food (Earl Ferrers) moved Amendment No. 167ZA:
Before Clause 27, insert the following new clause:
§ ("Areas of special scientific interest
§ .—(1) Where the Nature Conservancy Council are of the opinion that any area of land is of special interest by reason of any of its flora, fauna, or geological or physiographical features, it shall be the duty of the Council to notify that fact—
- (a) to the local planning authority in whose area the land is situated; and
- (b) to every owner and occupier of any of that land.
§ (2) A notification under subsection (1)(b) shall specify—
- (a) the flora, fauna, or geological or physiographical features by reason of which the land is of special interest; and
- (b) any operations appearing to the Council to be likely to damage that flora or fauna or those features.
§ (3) The Ministers shall from time to time, after consultation with such persons appearing to them to represent any interests concerned as they consider appropriate—
- (a) prepare codes containing such recommendations with respect to the management of areas notified under subsection (1)(b) as they consider proper for the guidance of owners and occupiers of those areas; and
- (b) revise any such code by revoking, varying, amending or adding to the provisions of the code in such manner as the Ministers think fit.
§ (4) A code prepared in pursuance of subsection (3) and any alterations proposed to be made on a revision of such a code shall be laid before both Houses of Parliament forthwith after being prepared; and the code or revised code, as the case may be, shall not be issued until the code or the proposed alterations have been approved by both Houses.
§ (5) Subject to subsection (4), the Ministers shall cause every code prepared or revised in pursuance of subsection (3) to be printed, and may cause copies of it to be put on sale to the public at such price as the Ministers may determine.
§ (6) Section 23 of the 1949 Act (which is superseded by this section) shall cease to have effect; but this section shall have effect as if any notification given to a local planning authority tinder that section had been so given under subsection (1)(a).").
§ The noble Earl said: My Lords, this amendment covers the same subject as No. 167A standing in the name of my noble friend Lord Craigton and it may be for the convenience of the House if we discussed both at the same time. Considerable anxiety was expressed in Committee over the preservation of SSSIs, and the amendment has been tabled to try to deal with that problem. These SSSIs are, as we all agree, valuable parts of our heritage and to preserve them we rely basically on two sets of people, first on the Nature Conservancy Council to depict where the sites lie and what scientific interest they contain, and secondly on the farmers and landowners on whose land the sites are to ensure that they help to preserve them.
§ Where there are quite exceptional areas, they can be dealt with under the Bill and be given the super treatment accorded by Clause 27, with all the paraphernalia of orders and discussions with the NCC and the setting up of conditions and rights of appeal, which can lead to inquiries which will require the NCC to justify its reasons for notifying a site. All that may be very time-consuming and expensive, but it is necessary and it is a necessary consequence of the importance of these scientific sites. But there are nearly 4,000 sites and, desirable though it may be in a perfect world that all sites should be given the Clause 27 treatment, it is unrealistic to expect that that will be so, at any rate at the outset, first because the task would be Herculean and secondly because of the limitation of funds, and we are therefore all concerned as to how best to treat the sites which do not receive the super treatment.
§ In the past, farmers and landowners have not always known that they had an SSSI on their land. The obligations which were laid on the Nature Conservancy Council were merely to notify the local authority of the existence of an SSSI and they had, and still have, no obligation to tell the owner or occupier. As a result, the owner or occupier was frequently in ignorance of the existence of a site, and in many cases he may have done something on the site in total ignorance of the fact that he was doing any harm. No one knows in the case of how many of the sites which have been reported as damaged or destroyed each year lack of this essential information was the cause.
§ Therefore, the first step towards preserving the sites is to ensure that the owner of the land knows that he has an SSSI on his land. In order to achieve that it is reasonable to place an obligation on the Nature Conservancy Council to notify the owner that he has 395 an SSSI on his land, what it is in each case that he has on his land which is so unique and what he ought to do, or possibly ought not to do, in order to conserve the object. I think that on that point we all agree.
§ We then come to the problem of how to deal with the people who own sites. First, it is right to acknowledge that the majority of the farming community are just as concerned as anyone else to see nature preserved. The fact that nature has been preserved to date is due largely to the farming community. Their business and their life is dealing with nature, and I think that in the national debate on the Bill, or on conservation in general, it is vital that we should not, either intentionally or unintentionally, polarise people into being, on the one hand, conservationists, or, on the other hand, farmers or landowners.
§ It is essential that these two interests are not seen to be opposing interests, are not seen to be in conflict one with the other. In practice they are not, and they should not be, though we may be in danger of encouraging that inadvertently by over-enthusiasm in one or other direction. If we do precipitate interests out in that way, we shall do a disservice to both, and indeed to conservation in general. What of coin se I recognise is that, as in any group of people who are not stereotyped, there are some who, for one reason or another, will not preserve that which they have, or who may even destroy it; and once a scientific heritage is gone, it is of course gone for good.
§ The problem which faces your Lordships is how best to deal with conservation in the light of the interests of both the agricultural community (with their knowledge of, and aptitude for, the land and nature) and those who wish to conserve, recognising that there may be among the agricultural community a few who will turn out to be unsympathetic.
§ I can understand the feelings of those who say that in the last resort we must have recourse to the courts. That view is reflected in the amendment of my noble friend Lord Craigton, Amendment No. 167A. It lays a statutory duty on the farmer to consult the Nature Conservancy Council; and it places upon him a statutory restriction, preventing him from doing what he wishes to do until the Nature Conservancy Council has had time both to consider the matter and to try to persuade him, if necessary, to do something different. Under the amendment, if in the last resort the farmer goes against the opinion of the Nature Conservancy Council he will find himself subjected to prosecution. I would not seek to deny that there is much strength in that argument and that from the point of view of conservation it may be theoretically desirable. But the purpose of Parliament must be to make sure that as far as is possible legislation which we pass achieves the effect which is desired; and very often human nature is such that we achieve the reverse effect to that which is desired.
§ I recall that when a schoolboy I used to learn about various laws, such as Ohm's law, Boyle's law and Faraday's law. I coined a law, which obviously I was compelled to call Ferrer's law, which stated that everything has the reverse effect to that which is intended—and I can assure your Lordships that it frequently does. I recall the occasion when the National Gallery 396 bought the Goya painting of the Duke of Wellington. It was hung for everyone to see. Then someone stole it. The fact emerged that the number of people who went to see the place where the picture had hung was greater than the number of people who had gone to see the picture when it was there.
§ I fear that if we are not careful the amendment in the name of my noble friend Lord Craigton might have the reverse effect to that which he intends. In an endeavour to close a bolthole against a few misguided people we may well antagonise the whole of the farming community, upon whom we ultimately rely for the care of their land and upon whom we rely for co-operation in carrying out the wishes of Parliament. To have such people taken to court and treated as though they had done something criminal would I think cause great hostility in the agricultural community. If your Lordships set up this criminal procedure you will have to accept the inevitable corollary that a farmer or a landowner will have to be given the right, at an earlier stage, to dispute the imposition of an SSSI on part of his land, against which at present there is no legal right, nor avenue of challenge.
§ Inquiries would be necessary, with expert witnesses called by both farmers themselves and the Nature Conservancy Council, and that would bring in its wake great expense and a whole bureaucratic system of legal intricacies. Your Lordships will see that Schedule 10 to the Bill sets out what those intricacies and complexities will be. I hope that your Lordships will agree that such a system may be acceptable in relation to the protection of Grade 1 and Grade 2 sites, but that it surely cannot be justified in relation to the generality of sites on the assumption that a mere handful of farmers or landowners will offend against the conservation spirit.
§ Though I can well see the arguments for it, I really do not think that the imposition of these legalistic restrictions on the agricultural community, such as is proposed in the amendment of my noble friend, would work. Indeed, I think that it would have the reverse effect to that intended. It would sour goodwill. It would cause resentment and antagonism—and that is not the best method by which to secure the cooperation that is needed. In the most extreme cases there might be some people who, foreseeing what the Bill may be providing when it becomes an Act, would take immediate action, and precipitate action, in order to ensure in advance that they did not have such a site on their land when the proposed régime came into operation. The maverick, the one we are after and the one who is the wrecker, may well do his wrecking before the Bill comes into operation, which at present he is legally entitled to do. Meanwhile, the remainder of the agricultural community would become grossly disenchanted.
§ Recognising the considerable and, indeed, justifiable concern which your Lordships expressed at the Committee stage, the Government have tried to see whether there is not another route through the difficulty between, on the one hand, the farmer or landowner being free to cock a snoop at the NCC and the SSSIs, and, on the other hand, the imposition of a rigid, legalistic system over what is, in effect, about 5 per cent. of the agricultural land. I think that there is such a route, and it is contained in the amendment in 397 the name of the noble Lord, Lord Bellwin, which we are discussing.
§ The effect of this amendment is that, other than on sites which are due to have the super treatment under the Bill, a farmer will be notified that he has an SSSI. He will be notified what it is that creates the SSSI, and he will he told what he ought not to do so that it is preserved. There will then be a voluntary code of conduct, which will be agreed between the interested parties—both the Nature Conservancy Council and the agriculturists and which will state the course that a farmer or landowner should take when in the position of having an SSSI on his land.
§ Under the amendment Ministers will be obliged to lay the code of practice before Parliament for Parliament to approve by Affirmative Resolution. So the code, though voluntary, will have all the statutory backing and authority of Parliament. The code would be likely to explain in simple, non-legal language what SSSIs are, how they are selected, why they are necessary and what needs to be done about them. It would indicate the procedures which the Nature Conservancy Council would be expected to follow in relation to the initial notification of SSSIs, and subsequently in their relations with owners and occupiers of land within SSSIs. It would indicate that owners and occupiers, for their part, would be expected to give appropriate advance notification to the Nature Conservancy Council of proposed operations which would be likely to damage the conservation value of these sites.
§ I feel that a voluntary code of practice along these lines, with the statutory backing of Parliament, would be warmly welcomed by farmers, by landowners and by nature conservationists. I readily acknowledge that it does not go to the ultimate resort, which some would like to see, of farmers being taken to court for destruction of a site. However, I believe that it would bring harmony, co-operation and understanding among the three interests concerned, and that antagonism would be removed. I for my part am quite sure that this is the right path to go along, and I would seek your Lordships' support for this amendment as being in the best interests of the ends which we are all trying to achieve. If there are sites which are in real danger of being extinguished, then of course there is always the possibility of employing the super-treatment under Clause 27.
§ What we should be seeking is to encourage a better climate for collaboration and mutual trust between farmers and owner-occupiers, on the one hand, and conservationists, on the other—though, as I said at the outset, I think it is wrong that these two interests should become polarised. I very much hope that your Lordships will find this flexible and more human method of dealing with the problem preferable to the more rigid one which will result if the amendment in the name of my noble friend Lord Craigton were to be accepted instead of the amendment which I now formally move.
§ Lord Melchett
My Lords, I agree with the noble Earl that it is sensible to take the Government amendment and the all-party amendment, Amendment No. 167A, which follows it, and to discuss them together. Perhaps I could first make the point that I do not think there is any difference among any of us about the importance of what we are discussing. 398 We are talking about the protection of wildlife habitats. As the Secretary of State for the Environment said in 1979, shortly after he had taken up his duties:We have to do more than protect our green belts, we also have to preserve the habitats of wildlife …".He went on to say:Particularly harmful are the effects of draining wetlands; enlargement of fields by hedge removal and clearance of small woodlands; ploughing up of permanent pastures; infilling of ponds and ditches,and so on.
A booklet which I quoted at Committee stage, produced by a committee of those interested in game and shooting and conservation, which included Mr. Marcus Kimball, MP, representing the British Field Sports Society, and a number of other organisations, including the Country Landowners' Association and the NFU, said in its introduction:All experienced game managers will agree that the most important factors are in the local habitat—seasonal cover and food factors influencing carrying capacity and brood survival …".So there certainly is agreement, I think, among everyone about the importance of habitat conservation.
What I think there is a good deal less agreement about is the two alternative proposals which your Lordships' House has to consider this afternoon. It seems to me that there is a real danger of polarisation. I speak as a farmer and as a nature conservationist, and I agree with the noble Earl that there should not be a conflict between the two. The question we have to decide is whether the Government's proposals on their own are least likely to lead to that conflict or whether the all-party amendment is likely to lead to that conflict; and my very firm view is that if the Government amendment on its own is put into the Bill, conflict is inevitable. I will try to explain why I say that by going through what the Government are in fact proposing, about which the noble Earl was fairly reticent, because he did not touch the provisions in the Bill; he simply spoke to the amendment, and it is necessary to look at the whole package.
Before I do that, perhaps I could simply make this point. I think it is extremely unlikely that the code of practice is a starter anyhow. The National Farmers' Union, in the brief with which they have supplied your Lordships for today's debate, have said simply that they are considering the Government's proposals carefully; that their initial reaction is that they would be prepared to accept the principle of such a code of conduct; and that they believe that given the goodwill and co-operation of all the organisations involved it could be made to work. That co-operation and goodwill simply does not exist, because although the noble Earl suggested that this would be supported by nature conservationists it is bitterly opposed by all nature conservationists, including the Government's own statutory advisers.
Sir Ralph Verney, commenting on the Government's proposal to introduce a code of conduct over these sites, said in a press release yesterday:Even if a voluntary code of conduct were compiled jointly by the Agricultural Departments and NCC, with full consultation with landowning and farming organisations, and backed by the statutory authority of Parliament, it would not be effective in restraining either that small minority of farmers who care nothing for conservation or those who feel, in present economic circumstances, that they have no option but to maximise production ".399 Sir Ralph Verney, the chairman of the Government's statutory advisers on nature conservation, went on to say:A code of conduct has existed in various forms for a number of years … despite these efforts the situation continues to deteriorate".But I go through the Government's proposals on the assumption (which, as I say, I think is an extremely shaky one) that the code of conduct is a starter at all.
What we would have, looking at Amendment No. I67ZA first of all, is notification by the NCC under subsections (1) and (2) to landowners and farmers when they have an SSSI on their land and why it is important. That is agreed by all parties as being a highly desirable first step, and the same provisions appear in the all-party amendment. The next step under the Government's proposals would be that they would prepare a code of conduct, which would be voluntary and which, as the noble Earl said, would explain what SSSIs were and encourage farmers and landowners to inform the NCC if they intended to damage them. But, to use the noble Earl's words, at the end of the day, once somebody had been sent the code of conduct, the farmer and landowner would still be free to "cock a snook" at any SSE that they wanted.
In addition, because the Government are not prepared to do anything more than go for a code of conduct, SSSIs would not be a local land charge, as I think noble Lords on all sides of your Lordships' Committee felt they should be. Indeed, amendments were moved by the noble Lord, Lord Stanley of Alderley, and others to this effect at Committee stage, but were not pressed. Therefore, although these notices would be sent to existing owners and occupiers of SSSIs, any change of ownership or any change in farming tenants, or whatever, would mean that both the code of conduct which had arrived through the post and the original notification from the NCC would not automatically pass to successors in title, to new farming tenants, to people that buy the land and so on. So there is no guarantee that future owners or occupiers or farmers would know anything about either the SSSI or the code of conduct.
Going on from that, and assuming that the Government then turn to the provisions in the Bill for sites of special scientific interest, we have the position as follows. About 30, 40 or 45 sites are notified by the NCC to the Secretary of State for this Clause 27 procedure to apply. This is the part that the noble Earl did not really go into, and where it involves legal sanctions and at the moment, as the Bill stands, even imprisonment—that is, the Government's proposals, not those of the all-party amendment.
What would happen here is that presumably the NCC would try to pick those sites at risk of change or damage, but there would be no guarantee of that because there would be no guarantee that those changes would be notified to the NCC. So the NCC would in effect take 30 or 40 important sites out of the hat, some of which would not be threatened with change and some of which would. Then they would go to the Government, and the Government would put a compulsory order on them under Clause 27. The compulsory order, which appears in subsection (1) of 400 Clause 27 as it stands—the conditions that have to be complied with are in subsection (2), and subsection (4), on page 25 of the Bill, says what the order can prohibit—prohibits for 12 months the carrying out of any operation that would damage the land. As to the penalties, I know the Government intend to change them but at the moment, on page 26 of the Bill, it is provided that on summary conviction an offender is liable to a fine and, on indictment, to imprisonment or a fine.
So there is nothing between us about whether we want to have legal sanctions. The Government have them in the Bill, just as the all-party amendment does, except that ours exclude the possibility of prison, just as the Government intend to if an amendment to Clause 27 is carried later. But the Government proposals apply only to 30 or 40 sites and delay damage only for a year. They do not necessarily apply to sites which are actually at risk but could apply to sites which are not at risk at all and to landowners who have no intention of destroying them. There is nothing in Clause 27 which says it applies only to a site which is at risk because the Government have no procedure for ensuring that those are the sites which come forward for consideration. Here we have 30 or 40 sites. They have had an order applied to them and damage and destruction are prevented for 12 months. What do the Government then do if the landowner wishes to destroy or damage the site? There is nothing in the Bill to tell you. But the Government say that the NCC would use their existing powers of compulsory purchase to purchase the site if funds exist. That is the Government's proposal. It seems to me to be illogical, unworkable, unpopular with nature conservationists and regarded by them as a step backwards from the existing position—a disaster.
I go back to the beginning of the Government proposal, the voluntary code of conduct: what happens if the farmer or landowner does not stick to the code or if he does not know about it? Nobody has asked me—I farm an SSSI—whether I am prepared to agree to the code of conduct. The noble Earl sent me a copy of the amendment after the NFU brief arrived; but he did not ask me, or others who own an SSSI, whether I or they agree to it. Nobody has been consulted. The NFU is thinking about it. I do not know if the NFU in Wales is doing anything about it and it is usually more robust on these matters than the NFU. There has been no consultation and there is no possibility of realistic consultation. I think it is inevitable, because there is no way to ensure that successors in title know about the deal, that the code will be broken regularly on a fairly large scale.
The worse damage to SSSIs tends to come from people buying farms, new owners from Europe, perhaps, a company buying a hit of land, or a young son taking over from his father and thinking that a new broom is needed and that old hedgerows should he cut down and so on. We have all seen that happen in the countryside. What will happen in those cases? The code of conduct is broken. Who will be criticised? Who will the nature conservationists pillory? Who will they write to the papers complaining about? Who will they try to get condemned on television? Not the Government. They will go for the individual farmer and landowner, That is the only option they 401 have been given by the Government. There will be widespread, virulent criticism of the individual farmer and landowner for breaking a code of conduct about which no one has been consulted and about which some do not even know. That is the Government proposal.
Let us look at the alternative all-party amendment, No. 167A. That proposes that, first, the NCC should tell everyone if they have a bit of land which is an SSSI and why it is important. The notice served would take effect from the day it is served. That is a slight alteration from the Government amendment. It is significant because the notice under this proposal has some effect and the Government notice served under the code of conduct has no effect and therefore there is no need to put it in the Bill—and it is not in the Bill. This takes effect and, as has been made clear in subsection (12), these notifications would amount to a local land charge; so the all-party wish for an SSSI to be a local land charge would be carried out. In subsection (4) the landowner or occupier must notify the NCC if he is going to do something to damage or destroy the site. If he fails to do that there is a criminal penalty and a fine. That is on the next page in subsection (10) and that is the same as the proposal in the Bill at the moment; but we are being consistent and covering all SSSIs. In subsection (5) the NCC must decide within two months. If they cannot make their mind up, do not know or do not mind, or if there are no resources to deal with the application within two months, the farmer goes ahead and does what he wants. There are no awkward orders going to the Secretary of State and so on. If the NCC offer an agreement, they proceed under subsection (6) and there is a further ten months (12 months in all) from the original notification, with compensation, as provided already in the Bill—again this is different from the Government procedure. In that period, everybody hopes voluntary agreements will be reached. If not, and the NCC think that they cannot reach voluntary agreement, then we go to subsection (7), where there is a significant difference between the all-party amendment and the Government proposal. The Bill leaves the NCC if all else fails with only the option of compulsory purchase.
The all-party amendment suggests two alternatives: either a compulsory purchase order under subsection (7)(a) or a compulsory order-making power under (7)(b), with compenstion. I know that the NFU and others feel that a compulsory order-making power is less attractive to the farmer than a compulsory purchase order. I cannot understand it, but that is how they feel. The all-party amendment makes clear that the landowner or farmer has a choice between two courses of action—not the NCC and not the Government. That is a significant difference from the Bill's proposal, where, if they have the funds, the NCC go ahead with compulsory purchase whether the landowner likes it or not. My own view is that many people would prefer an order prohibiting them from, say, ploughing or afforesting a small part of their land, with compensation payable, to a compulsory purchase by the NCC, but that is a personal view. It is left in this all-party amendment to the personal choice of the landowner or farmer concerned.
The rest of the amendment is straightforward. Subsection (8) gives the NCC time to complete a com- 402 pulsory purchase order. Subsection (9) brings in the compensation provision. Subsection (10) ensures no imprisonment. In subsection (10)(b) there is a misprint. It ought to read:on conviction on indictment, to a fine.And not: "… to a fine or both". Subsection (11) is the same as in the Bill.
Which of these two proposals is likely to lead to polarisation? Which is likely to lead to conflict? It is clear that the all-party amendment will lead to conflict with the Government. The all-party amendment falls down and does not protect sites if there is no money available. Then the NCC cannot make their compulsory order and they have to let the farmer do what he wants. If there is no money available, the NCC cannot issue a compulsory purchase order; they have to let the farmer do what he wants. All of us, NFU, CLA, conservationists, criticise the Government for not making sufficient funds available. What happens under the Government proposal? There the thing breaks down sooner than that. Because it is only a voluntary code of conduct, which is going to be ignored by a large number of people, at that stage conflict occurs, and it is then that people get pilloried and aggravation occurs—not directed to the Government for failing to provide sufficient funds but to the poor individuals and thankless farmers and landowners who, possibly unwittingly, have broken the code of conduct. For that reason, the Government propose their amendment and for that reason I hope that everyone in the House will support the all-party amendment after we have got the Government amendment into the Bill.
§ Lord Middleton
My Lords, the noble Lord has made a compelling speech condemning the Government proposal and recommending what he calls the all-party one. I should like to deal first with the uncontroversial part. Having deplored both at Second Reading and in Committee the lack of any statutory duty on the NCC to inform the occupier or owner about the SSSI on his land, I need hardly say that I welcome the first two subsections of Amendment No. 167A. That is especially so since the amendment lays a notification duty on the NCC, not just for any new sites but for all existing ones as well. We have repeatedly been given alarming statistics about damage to biological as distinct from geological sites, and we have been told of the destruction of four key sites. About half the damage is due to action by such bodies as internal drainage boards, and I think we are told that the other half is due to damage by farming and forestry operations. In the light of NCC past practice, this is not very surprising.
I can give yet another set of statistics. The CLA last month carried out a survey of owners who knew that they had SSSIs—and a great many of them do not. In 63 per cent. of the cases, covering 71 per cent. of the area, the NCC had not had any discussion whatever with the owners about land management. Perhaps the NCC thought that the great majority of owners are true conservationists anyway, as indeed they are. Whatever the reason, that is an example of past NCC practice; and, much as I respect the NCC, it has to be said that they bear some part of the blame if sites 403 have not been adequately looked after. So this new statutory duty upon the NCC will go a long way towards the safeguarding of sites.
The noble Lord, Lord Melchett, is arguing that the Government's proposal is purely a voluntary arrangement which will not prevent a farmer from doing something harmful if he decides to ignore the code of behaviour being proposed in the amendment. At the same time, I have no doubt, he would forfeit the respect of his fellow farmers. The noble Lord, Lord Melchett, is arguing that something tougher is required, such as is contained in Lord Craigton's amendment.
I understand that point of view. I acknowledge that, although the Bill provides for a restraint order under Clause 27, which the noble Lord, Lord Melchett, is criticising, where a site is in danger and no one knows that it is in danger then the Clause 27 procedure does not get triggered off, so there is gap. Therefore the noble Lord, Lord Melchett, would say that a statutory code of conduct is not enough. I thoroughly understand the reason which has led to the drafting of the all-party amendment, but I must say that I have not found it easy to choose which of the two alternatives being put in front of us to support. I see a great deal of merit in Lord Craigton's amendment, and of course his method of control—
§ Lord Craigton
My Lords, if the noble Lord will forgive me, is he considering these two amendments as alternatives? Can they not both go in the Bill?
§ Lord Middleton
Surely they can, my Lords. I am looking on them as alternatives. Of course, they could both be in the Bill if the House so decided. Lord Craigton's amendment does not take two factors sufficiently into account. The first is the lively and growing awareness among farmers of public interest in the countryside. This has been, and will continue to be, fostered by their own organisations, as I have said in Committee—the National Farmers' Union and the CLA. The Countryside Commission have also done a great deal of work. This will continue to be fostered by the farming and wildlife advisory groups. The other factor is the undoubted fact that one gets much better results from willing farmers than from coerced farmers. I have had a long and happy experience of working with fellow farmers. I know very well that while they can be led a long way, one cannot push them one inch.
I believe that a system which relies as much as possible on voluntary co-operation by farmers is in the long run the best way to achieve what we all want, which is good conservation. It is perfectly true that the Government are taking a risk in that with a voluntary system which does not involve (as the amendment in the name of Lord Craigton does) compulsory notification by the farmer one might on occasion get vandalism—and my noble friend Lord Ferrers referred to a maverick—and the type of man who perpetrated the disaster in Suffolk that we all deplored so much. However, after a good deal of thought my support goes to the Government's alternative, as I am calling it. That involves trusting the farming community to behave responsibly once they are fully informed by the NCC.
I must finish with this warning. Any system of site 404 protection, particularly one which lays emphasis on management agreements, can be effective only if there is sufficient money made available to the NCC. We all know that in the country's present financial situation it would be difficult to provide extra financial assistance. Without it no system can work, whether it is the one that I hope will be adopted, which is the voluntary one, or whether, like Lord Craigton's, it contains more complicated procedures. This point has been made many times, and no one made it better than my noble friend Lord Buxton on Second Reading. I make no apology for emphasising it again. It is absolutely crucial if we are to achieve what the Bill is trying to achieve and what we are all trying to achieve, which is good conservation.
§ 4.27 p.m.
§ Baroness White
My Lords, I should like to say a few words as I came in on this point at the Committee stage. What concerns me is the proposal for a code of conduct (which, as I was in my native land yesterday, I did not even see until this morning) which is to be laid before Parliament and which has to obtain the assent of Parliament. Yet, once Parliament has given that assent, there is no means whatever by which that code of conduct can be put into effect. Parliament is being asked to enact something which is not legislation in the normal sense of the word: it is simply asking people to follow a no doubt most desirable code, which surely could be done by administrative action.
I should like the Minister to explain to us why we need to go through this procedure in both Houses of Parliament with something which has no bite. It is asking people, and I am not against that—but why should we pretend? It seems to me, frankly, that this is something of a conjuring trick. It is suggesting that something is going to be done in Parliament with the assent of both Houses which will then not have the force of law, as I understand it. I should be glad on purely constitutional grounds if it could be explained to us just why the Government think that this particular parliamentary procedure is required at all for something which, so far as I can understand, has no force.
On the point of maintaining an equable climate in the countryside, no one wishes that more than myself. In my own small way I endeavour to encourage such an outlook in the Principality, where I have some influence with the conservation lobby. I have been looking at the NFU's own journal, Insight—the special number published in late January which devoted itself to this Bill. I must admit that it is not easy to feel full confidence about the great difference we are hoping there will be if this code of conduct is promulgated when one reads of some of the remarks made. Referring to the clause now under discussion, having gone into the proposals in the Bill (as it then was) it says:given public opinion on conservation and the NFU's policy of caring for the countryside, it might be unwise for the Union to lock horns with the conservation lobby".But it also says that a clausewhich introduces an element of compulsion [is] a concept which is wholly contrary to the NFU's policy of encouraging a voluntary spirit of co-operation in the countryside ".I am quite sure that the purpose behind the amendment in the name of the noble Lord, Lord Craigton, and 405 others is that compulsion should be an absolutely last resort. Nobody wants to start with compulsion. It would be quite stupid ever to do so. On the other hand, surely it is not proper for citizens of any civilised and democratic body politic to suggest that they should have a different attitude to the law from that of any other citizen. We are all, being members of a community, subject to certain constraints and certain compulsions. There is nothing unknown about that.
I must say that I find it very difficult to go on trying to work for peaceful solutions when one has the attitude that the farmers, landowners and perhaps even the timber-growers are so special that they must not contemplate being bound in the sort of way that so many of us, after all, in so many different situations in life, accept as part of the price to be paid for being members of a civilised society. Why should they be exempt? Everyone wants the matter to be reasonable.
I looked further in this publication; and this is not a comment from the NFU as such but a comment from the National Adviser and Organiser of what is commonly known as FWAG, the Farming and Wildlife Advisory Group, in which he is referring with what seems to be a certain despair:Many efforts have been made to show that farmers do care"—that is to say, about conservation. Of course the great majority do and we are not worried about the people who go to seminars and meetings and discuss. They are not the ones who cause the trouble; it is the ones who do not. He goes on to say:In November 1977 the NFU and the CLA issued a joint Statement of Intent, Caring for the Countryside"—and I am sure that many of us will remember that so clearly. It came out more or less contemporaneously with the Strutt Committee sittings and we all felt that here at last was some sort of a breakthrough and something which really meant something. These are his words and not mine:The sentiments were admirable. Unfortunately it was a 'two-day wonder '. Even among farmers who work with FWAG I failed to find any great enthusiasm for it, and apart from the work which FWAG did before its publication and continues to do since, little practical resulted".I just mention these matters to try to put into some sort of perspective the apprehensions which I know the great majority of voluntary environmental organisations in this country have unless there is some longstop—and, after all, we are asking for no more than that—and one would certainly hope that with the very much improved procedure proposed in the Government amendment and included in the amendment proposed by the noble Lord, Lord Craigton, things will work and the situation will be improved.
The final point is that the noble Lord, Lord Middleton, is absolutely right when he says that the key to most of this is cash. It is not really ill will, except in exceptional instances: it is mostly money. I should like just to say something about the amendment of the noble Lord, Lord Sandford, because he has put his finger on one of the really important things which the Government have not faced. To my mind, this is really the great disappointment of the Bill. Those of us who thought this was going to be a real step forward in connection with conservation recognise, as do all the agricultural and forestry interests, that the basic problem 406 of all this is not the lists in Part I, nor even so much what we are arguing about under this clause. It is the fact that you must recognise there are two sides to the equation; that if you do not pay agricultural grants you ought to have some money to pay for conservation, and that you are not necessarily going to spend any more but you will achieve different results—results which many citizens in this country would prefer, for varying reasons. This has not been faced anywhere in the Bill and it has not been faced in any speech that I have heard so far from the Government Bench. This lies behind the attempts many of us are making so to improve this Bill that it will really be the step forward for which we have all been waiting for so many years.
§ Viscount Massereene and Ferrard
My Lords, I think that the noble Baroness has made the most amazing statement. I understood her to say that farmers and landowners considered themselves above the law—
§ Baroness White
My Lords, I did not suggest for one moment that they would do anything illegal; I do not wish to be misunderstood. "Above the law" usually means that you are trying to do something illegal. What they are asking for is that the law should be different for them, which is not quite the same thing.
§ Viscount Massereene and Ferrard
My Lords, I accept what the noble Baroness says in her explanation but I think she is quite wrong there. Farmers and landowners are most law-abiding people, and especially if we compare them to another section of the community—the trade unions—who do consider themselves above the law—and, of course, to a great extent they are above the law. But I will not enlarge on that. I should like to say that I personally will support the Government alternative on this. The only reason for that is that I think it would be quite wrong to bring in any coercion under the criminal law regarding this question.
I remember once a small hill farmer tenant of mine chased an agricultural executive officer down the hill with a scythe because the man was trying to coerce him, presumably, and had there not been two other men there he would really have done him some damage. But that is a great exception with farmers. Really it is far better to deal with matters without the criminal law. As my noble friend Lord Middleton said, the real crux of this matter regarding farmers and SSSIs is that if enough funds are available in the coffers of the NCC to compensate farmers, there will he no trouble at all. Even if the farmers are a bit thin, I do not think there will be any problem.
§ Lord Buxton of Alsa
My Lords, perhaps I might speak on this, although I was not intending to since I am going to move Amendment No. 167A in the names of my noble friend Lord Craigton, myself and others. But since the two are being taken together perhaps it might help if I. were to say a few words now. I shall be very concise, but I want to say straight away that I am not going to be hurried. I am not going to have it said by my grandchildren and descendants—or by anyone else's—that I could not press the case for wildlife conservation because of the timetable.
407 The noble Lord, Lord Melchett, has helpfully explained most of the points contained in Amendment No. 167A and so I need not go through that again now. I am completely puzzled—because I was in the Falkland Islands during the Committee stage—as to what really this is all about. It seems to me quite incomprehensible. We seem to be locked in some kind of phantom struggle about SSSIs. I feel almost as if I were struggling and fighting in a rugger scrum and becoming increasingly aware that the ball is not there.
Everybody in this House agrees about the importance of the conservation of wildlife and wildlife habitat. Everybody in this House deplores the damage that has been done. I read with horror of some of the cases quoted in the Committee stage by my noble friend Lord Onslow, and by the noble Baroness, Lady White, who mentioned a case in Suffolk, and so on. There is nobody here who does not deplore that. Nobody has said a word against SSSIs in principle, or suggested that they should be abolished, and I am certain that if we reconvened elsewhere at a conference there would be absolute unanimity and agreement. The position is therefore completely incomprehensible and I have tried to assess and analyse what it is all about.
It has never entered my head that I am not standing shoulder to shoulder with farmers, landowners and conservationists, all of whom have exactly the same interest as myself. I happen to have the additional interest of being bird mad, but that does not make one either long-haired or peculiar. It is simply an additional hobby which is shared by millions of people in this country. Therefore, there is no disagreement.
To polarise the matter and keep talking about farmers and conservationists is nonsense, because we are all interested in the same subject and so is the public. I therefore conclude that there is some kind of eminence grise in the background, who is trying to manipulate us in this House in our attitude to this Bill. There is simply nothing in this amendment that could possibly be objected to, if it applied to anything other than SSSIs.
I feel that I share the interests very closely with my noble friend Lord Middleton. I have never disagreed with him about anything and I did not disagree with anything he said today, except when he said that these amendments are alternatives. I disagree with that. I see no difficulty whatever—it may require a little bit of clerical tinkering—in both amendments being accepted. But 1 will say this to my noble friend. I do not see why any one segment of the population should be allowed to adopt a different attitude to the law.
I do not know what it is about farmers not being able to be pushed. All I can say is that they had better become businessmen, bankers or anything you like and then they will know what life is like. Why should they not be pushed in the national interest? It is perfectly reasonable to have to observe the law. There is absolutely no need or reason to fear that they would be in the slightest danger of getting into trouble or of going to gaol. In none of the amendments is it suggested that anybody should go to prison; that would be preposterous. There is no need for anybody to get into trouble at all.
408 Under our amendment, all that farmers and landowners are asked to do is to notify the Nature Conservancy Council when they want to do something. That is perfectly easy and is just a question of sending a postcard. Then there is a process which takes some time—and why not? In a few cases, the Nature Conservancy Council will say "No, you can't do that". Then the landowner or the farmer is given the option of saying, "All right, you must get the Secretary of State to make an order", or, "All right, have a compulsory purchase order".
If at that stage the Government say, "Sorry, we have not got any money", that will be the end of the matter. Nobody has gone to prison, nothing has happened, but the machinery and the safety net are there if they are ever needed. If the country is ever rolling in money again and wants to splash it around—I nearly said as they do with the arts, but I will not—then the machinery can operate and these places are safe.
I really do not believe, first, that there is any danger to any farmer. Secondly, I cannot understand what are the fears or apprehensions, because landowners and owners of historic houses do not object to these very simple safeguards and restrictions. Thirdly, I am concerned with only the tiny minority, the little fraction of unfeeling people who really do not care a fig. I am absolutely wish my noble friend Lord Middleton in thinking that 99 per cent. of farmers and landowners have no problems about this. Most of them are probably rather proud of their SSSIs. Perhaps their children and their wives are deeply interested in reedwarblers or whatever it is. There is very rarely an occasion when there is any problem.
But my noble friend Lord Onslow, the noble Baroness, Lady White, and others have shown what can happen. I myself have seen a young son, as the noble Lord, Lord Melchett, said, go crazy with bulldozers and JCVs, and those people must be caught in the net before the worst happens. There are also foreigners, if I may use that word, who are buying up places in this country and do not live here. Why should they care a fig? They will simply tell the manager to get on with it.
This amendment is not directed towards the admirable members of the CLA and the NFU. It is a sensible measure to catch the rogues, if there are any, such as we have constantly in the North Sea; and I am always having to talk about the 15 per cent. of substandard tankers and sub-standard crews. All the main oil companies and the reputable shipping companies are fine; it is just that little 15 per cent. In this case, it is perhaps 1 or 2 per cent.—I have no idea—but nothing is being done about them. I am just asking for a safety net and a bit of procedure. I just wanted to make a few remarks as the amendments are being taken together and I shall, if I may, put the amendment when the time comes.
My Lords, I shall be very brief. I just want to say how glad I was to hear the noble Lord who has just spoken and, at the risk of plagiarising and repeating what I said at the Committee stage and on Second Reading, I should like to remind your Lordships that when we talk about the 99 per cent. who co-operate and the 1 per cent. who have been described by the noble Lord, Lord Buxton, as rogues, we are thinking not of any very small minority of rogues. 409 At the present time, we are legislating for the next decade or more. During that time, it is quite inevitable, in the nature of things, that there will be this very small minority of rogues who, in aggregate, over 10 or 15 years, can do an extraordinary amount of harm without that safety net.
§ Lord Sandford
My Lords, I am impressed by the argument brought forward by my noble friend in support of Amendment No. 167ZA, that we should as far as possible proceed by voluntary means. But we do not know about this code. It has only just been thought of and there has been no consultation on it. I cannot, however, understand why he has to resist Amendment No. 167A, because if his code works the procedures in No. 167A will never have to be invoked; they will not be needed. If his code—about which there has been no consultation and we do not know whether or not it will work—does not work, then we shall certainly need Amendment No. 167A. So why resist it?
§ Baroness David
My Lords, may I make just two brief comments? First, I should like to speak on something which the noble Lord, Lord Middleton, said, about the CLA survey which also came into my hands. I understand that only about 90 people replied to it, and the noble Lord gave only percentages and not actual numbers of who had said what. So that the percentages could be rather misleading, suggesting that many more people answered than had, in fact, done so. Of those 90 who replied, I think that 34 were SSSE owners who were members of the RSPB, so it does not count for quite as much as the noble Lord suggested.
Two years ago the Nature Conservancy Council wrote to all SSSI owners in Wiltshire, requesting a discussion on management to promote nature conservation and the NCC received replies from only 2 per cent. of those owners or occupiers. May I comment on what was said by the noble Viscount, Lord Massereene and Ferrard, about coercing the farmers and trying to make them out to be criminals. If he will look at subsection (8) of Clause 27 on page 26 of the Bill he will see that there the Government have inserted these words:A person who, without reasonable excuse, contravenes subsection (3) shall be liable—
I admit that imprisonment is to be deleted by a later amendment.
- (a) on summary conviction, to a fine not exceeding the statutory minimum;
- (b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both".
§ 4.50 p.m.
§ Lord Stanley of Alderley
My Lords, the real snag is that we are all agreed that no money is available. I am entirely with my noble friend Lord Buxton of Alsa. We want the greatest number of sites to be conserved, and if no money is available the voluntary system will go much further than the compulsory one. We are both on the same side; it is just a question of how one looks at it. I could quote thousands of cases where farmers are looking after very good sites for nothing at all. They will not even enter into a 410 management agreement. If, however, one introduces compulsion they will be very tempted to enter into management agreements and get money. In that way we should conserve fewer sites of special scientific interest. That is why I am in favour of the voluntary system.
I accept that there is a danger of antagonism between the Nature Conservancy Council and the farmer. I would blame the Nature Conservancy Council, while they would blame the farmer. It is natural in life that we should quarrel. However, they ought to try to understand that many farmers with sites of special scientific interest are farming in a small way. To come along with the clipboard approach, which they do, I am sorry to say, particularly in Wales, is unfortunate. Now that Sir Ralph, who has a farm in Anglesey, is chairman of the NCC, no doubt things will be much better.
Noble Lords have also said that a large number of sites have already been destroyed. Some have, but the number has probably been exaggerated. I never believe figures, anyhow; I see so many of them. Two very important points have been included in the Bill. The farmer is to be notified and he is also to be notified of what is there. I will give two disgraceful examples on the part of the Nature Conservancy Council to make the bet even with the noble Baroness, Lady White. The Countryside Commission has a demonstration farm in Worcestershire. In fact, they have 12 throughout the country. On the demonstration farm in Worcestershire neither the farmer nor the Countryside Commission knew that there was a site of special scientific interest. When they looked at the site, they said that it would be very nice to put trees upon it, so they planted trees there and ruined the site.
I will give noble Lords another example from Gwynedd in Wales. That site is owned by none other than the chairman of the Minister of Agriculture's agricultural panel. He is no backwoodsman. He was not even told that he had a site of special scientific interest and he destroyed it unintentionally. So we have made, I hope, some progress.
What we need is a voluntary system. I go along with the Government; we shall achieve more by that method. Of course we shall have rogues. Every system will have rogues. However, the way to deal with rogues is, as my noble friend Lord Middleton said, for their neighbours to lean on them. In the countryside, an awful lot of leaning is done by neighbours. I believe that that, rather than any statutory system, will stop more rogues. Apart from the fact that I should like my noble friend Lord Ferrers to take out subsection (5), I would go along with the voluntary system, not with Lord Craigton's.
§ Lord Donaldson of Kingsbridge
My Lords, the noble Lord does not give credit to his colleagues. First, we accept the voluntary system and it will be included in the Bill, but we want to add to it something, after a year's negotiation and discussion, to deal with an abuse, which everybody who cares about the countryside deplores. The noble Lord has spoken rather gaily about the clipboard approach. I have an example here of the very opposite to the clipboard approach. It is an example from Herefordshire. It is a nationally rare example of unimproved permanent grassland, 411 of particular importance for its orchid species. The Nature Conservancy Council regarded the site as very important and approached the landowner on a number of occasions wishing to negotiate a management agreement, or to lease or purchase the site. Despite its tiny size, this the owner steadfastly refused to do, even when MAFF and ADAS advised him to come to an agreement. Last year ADAS arranged a further meeting between the Nature Conservancy Council and the landowner over the future of the site. That meeting was short because the owner had ploughed it up during the morning. That was not a clipboard approach. That was what happened after a year of negotiations. Then there was absolutely deliberate defiance. Do the members of the National Farmers' Union and the Country Landowners Association who agree with us about conservation want this to happen? The argument of the noble Lord, Lord Middleton, was the wrong way round. He said, rightly, that such people are more and more taking an interest in conservation and using their best efforts to effect conservation. The more they do this, the less of these cases there will be. The noble Lord, Lord Sandford, said the last word on this. If the voluntary system works then the compulsory system will not be necessary. And if it does not work, we must have compulsion. I hope we shall accept this amendment and then the next. Then we shall be on a proper basis.
§ Lord Gibson
My Lords, one always prefers the voluntary approach. I very much hope that the Government's voluntary code of practice will be enshrined in legislation, but that in any case it will be adopted. The issue is whether or not we should have a reserve power. What I find so difficult to understand in the argument put forward by the noble Earl, Lord Ferrers, is that we are jeopardising the goodwill of the farming community if we take a reserve power. This does not apply in any other sphere of national life and I cannot see why it should apply in this one. I want a reserve power so that the kind of case illustrated by the noble Lord, Lord Donaldson of Kingsbridge, cannot happen. It will happen increasingly seldom if there is a voluntary code of practice, but it will happen sometimes and it ought to be prevented. I hope very much that noble Lords will support Amendment No. 167A, if it is pressed, because I cannot see otherwise how we can halt the speed at which sites of special scientific interest are disappearing. I should have been much readier to support only the voluntary code of practice if we had not been told at what a very great rate the sites of special scientific interest are disappearing. We simply cannot afford not to have the reserve power, but I hope that it will hardly ever be used.
Earl De La Warr
My Lords, much has been made by noble Lords on the other side of the fact that this is an all-party amendment in order, presumably, to create the impression that no politics are involved. That is not so. There are just a handful of maverick Peers on my side who, in their obsession about this subject as they are such good countrymen, have forgotten the very simple fact that the Tory Party does not believe in compulsion but believes in letting people 412 do things on a voluntary basis, unless it is absolutely necessary to legislate. I reject entirely the implication that this is an all-party amendment.
My Lords, before the noble Earl sits down, when he tells us that his colleagues around him do not believe in compulsion may I remind him that some years ago a Government of another party from that of the noble Earl introduced the Highway Code which was purely advisory and could not be enforced, but that later a Conservative Government found it necessary to introduce legislation to make it legally enforceable?
§ 5 p.m.
§ Viscount Thurso
My Lords, the noble Lord has made a point here because indeed if we do adopt a code of practice it may well be that after trial and adjustment that code of practice could become law. But that is not really what I wanted to say on this particular occasion. What I wanted to do was to point out once again that the problem of SSSIs has arisen because there was no obligation to consult the people who were most vitally concerned. The whole object of the SSSI procedure was to deal with change of use—not to deal with already agreed use under planning Acts and so forth. The point of declaring an area an SSSI was to warn the planning authority that if that area ceased to be used for agriculture, then something that was of special scientific interest might be damaged. As a result of that the Nature Conservancy Council declared a number of places SSSIs without ever even notifying the owners of the property or the farmers concerned, because they were not obliged to do so.
Each of these amendments that we are discussing has in it at the beginning the very desirable provision that full information will be given to the people who are the guardians of this particular land and who have rights upon the particular piece of land; they will be informed not only of what is the question at issue, what is the species or what is the natural habitat that is to be preserved, but will be told also what are the operations which, as farmers or landowners, they might be expected to undertake and be entitled to undertake and have the right to undertake, which would damage the species or the habitat.
This is extremely helpful because, as has been said already in your Lordships' House, I am sure that the vast majority of farmers and landowners would like to co-operate but very often in the past they have not been given the chance; they have not been told what is to be preserved nor how they should set about preserving it. When one introduces an element of compulsion one then removes from the farmer a right which he already possesses. It seems to me that the farmers are not trying to do something illegal; they are not trying to break the law or to acquire something which is not theirs. They already have it; they already have the right to plough up land which is in their possession. Therefore, if you say to them, "You shall not plough up this land—no never, no more" you are taking from them a right which they already possess. They may not have exercised that right in the past for reasons which may then have been valid but the agricultural climate may change, the economic climate may change 413 and it may be desirable—indeed, from their point of view as farmers it may be necessary—to carry out an operation which would damage the habitat and if you have taken away from them the right to do so without compensation then you have taken away from them something which they previously had.
I can see where the dilemma is. The dilemma is that if you say to people "Right! We are going to take away certain rights which you possess, and if you want to be compensated for that you may go to a compulsory purchase inquiry and you may bring evidence and put your case", every sensible farmer will go to such an inquiry to start with. If he enters into an agreement to begin with he will lose his right and then he will not have received compensation.
This will be a very heavy expense upon the public purse and this, I can concede, is what the Government are principally frightened of, but I should like to think that we could do this by voluntary agreement—by a code of conduct which later could perhaps become law. It may well be that we have to do it with some sort of compulsion, but if we do it with some sort of compulsion it is only right that we give compensation to those people from whom we compulsorily take something that they possess; we must give them compensation.
§ Lord Donaldson of Kingsbridge
My Lords, if the noble Lord will allow me to intervene, because this is an important point, he spoke as though compensation could not be paid in a management agreement. Of course, it can be paid.
§ Viscount Thurso
Yes, my Lords; it has to be paid to begin with, otherwise it will be no good. One might enter into a management agreement, saying that he will do this, that or the other, or he will not do this, that or the other, but he can then not turn round at a later stage and say, "Oh, I am very sorry but I now think that I ought to plough up this field ". If he has not taken compensation to begin with, he will not have it, so he is going to have to ask for compensation. What I am saying is that the money will not be there, either with management agreements or with compulsory purchase, to meet all of these obligations in every case. I think that is the dilemma which the Government are facing.
§ Lord Burton
My Lords, I am delighted to hear sound sense coming at last and coming from the noble Viscount, Lord Thurso, because it comes from Scotland. A lot of this fury appears to have arisen in England, although in proportion Scotland is far more acutely affected. At preceding stages I have been accused of not giving figures. Scotland of course represents only a small proportion of the land area of the United Kingdom but one-third of all the SSSIs in the United Kingdom refer to land in Scotland and one half of the total acreage covered by SSSIs lies north of the Border. For instance, the whole of the Tweed valley is classified as such.
The observations made by the noble Viscount, Lord Thurso, and myself at an earlier stage of the Bill were queried but I think these figures fully justify what we said then. Many areas covered are not of very great importance. Vast areas are covered—so much 414 so that in the Highland region there has been quite an amount of friction between the planners, the local authority and the Nature Conservancy Council. It has not been so much between the landowners and the Nature Conservancy Council, as some noble Lords might like to think, but between the planners and the Nature Conservancy Council. I think there are very few landowners on the planning committee, otherwise they might have seen more sense. It is important that large areas are not sterilised. With the passing of Part I of this Bill the sporting rights will undoubtedly suffer, so that these areas will not even have the sporting rights to fall back on if they are sterilised as SSSIs.
I should like to give a warning to the so-called conservationist lobby—and I say "so-called" because I think most of us are conservationists—and great aggravation will be provoked in the countryside. The only thing that can be lost in this is conservation. It would be a great pity if there were conflict. The supporters of this amendment have referred to it as only a "back-up power". This is not the case. It will apply to every SSS1. It is not just a safety net, as has been said; every SSSI will be affected if Lord Craigton's amendment goes through.
To show my goodwill, in the last few weeks I have asked the Nature Conservancy Council to designate four wetland areas where there are a lot of wildfowl and other small birds. I know that two of these are threatened because the planners have already been at them and also the British Waterways Board wanted to take over one of them. But the Nature Conservancy Council has refused to designate them as SSSIs. They have not even been looked at and yet the Nature Conservancy Council have taken over enormous areas in Scotland.
Having said that, I understand that there could be a problem here. However, I feel that my noble friend's amendment goes much too far and that the Government's proposals are much nearer the mark. Although we cannot do it in this House because I am afraid it is too late now, perhaps the Government could consider a compromise which I think might meet the wishes of most people on both sides of this controversy. It would not seem to be too onerous and I hope it will meet the support of noble Lords. Would it not be possible, on notification of so-called injurious actions on SSSIs, for there to be notification to the NCC as suggested in subsection (4) of this amendment? In fact, having got one-way notification by the Government's proposals, perhaps we could now have reverse notification also. I do not think one need go further than that.
If we do this, what need is there for the remainder of the amendment of the noble Lord, Lord Craigton? If the NCC have been given two months' notice, surely, if the potential damage is such, then there is a breathing space for the Secretary of State designating the area under the rest of Clause 27. I would have thought we could have got together on this and agreed. I think there have been polarised positions, particularly from the conservation lobby, which have tried to go too far and will cause friction.
§ Lord Craigton
My Lords, I know the House wants to come to a decision, so I would ask your Lordships to consider only three small points before deciding 415 whether or not to support our amendment. First, why should it not be an offence to destroy irreplaceable parts of the land of Britain? It is the same as with ancient monuments and historic buildings. Secondly, why should our amendment cause conflict or offence among the majority of farmers, who, as the Minister said, are conservationists. It may well cause resentment among those landowners the Minister described as reckless, and why should it not? Finally, why should our amendment not be a longstop in case the voluntary agreement system fails?
§ Lord Renton
My Lords, I want to make only one brief point and ask my noble friend Lord Ferrers whether he will answer it when he replies. I find this an exceedingly difficult matter. The point which is troubling me most of all is this, that the Government in order to protect the areas that they may designate in the future as SSSIs have asked Parliament for a penal power as a last resort. But in the case of the 3,800 areas which are to be protected in future under the Government's amendment there is no penal power. I do not see why we should have this differentiation. There may be a good reason for it, but I think we deserve to be told.
§ Lord Monk Bretton
My Lords, I must emphasise the difficulties about compulsion, however much they are last resort back-up powers, because they will be used as a handle. This is the great fear of the agriculturists, that it will lead to inadequate offers under management agreements and then to hostility from there on. That is the great fear. That is why I believe it would be very much better that we stick to the Government's amendment as it is and the voluntary principle. It will give us at once in any case an ally on the spot, as nothing else will. So far I do not think we have achieved this, because so far, with all the difficulties we have had about lack of information from one side to the other, we have not really been approaching a voluntary system sensibly. Now I believe we are going to do just that and the great thing to do is to try to do that.
§ Lord Beaumont of Whitley
My Lords, I do not want to carry this on too long, but although we have heard from the Liberal Benches we have not yet heard from the Liberal Front Bench on this particular matter.
§ Noble Lords: Yes, Lord Winstanley!
§ Lord Beaumont of Whitley
My Lords, I will only be very short. It is not so that it is only those landowners and farmers who have not been informed that there are SSSIs and what they are about who have behaved badly and caused some of the wreckage of the SSSIs I know my noble friend feels very strongly about the cases where this has happened, but we all know of other well-documented cases where it has happened and where the farmer or the landowner has known perfectly well and has gone ahead. It is that situation that we must deal with. If we pass both these amendments we will get the best of both worlds, because if the Government are right and, if their amendment works, the second amendment will never need to be used, but the second is there as a fallback and it is important that it is a fallback.
416 My noble friend Lord Thurso said that it was now legal for farmers and landowners to destroy an SSSI. Yes, it is legal, but it is profoundly immoral, and that is a matter which has been accepted by farmers and landowners belonging to all parties throughout the history of this country, not least by noble Lords sitting on those Benches who have, as landowners and farmers, regarded themselves as the custodians of the countryside. To noble Lords on those Benches compulsory purchase is not a new thing, as the noble Earl, Lord De La Warr, would have us believe. There was the great Industrial Revolution, for part of which the Conservative Party was responsible, with the building of railways and canals and a great deal of improvement. A lot of those Acts were passed when there was a Conservative majority. The Conservative Party has always known that from time to time for the good of the community you must introduce compulsion, and this is one of those occasions. The arguments which are being put up against these amendments, or against the second one, do not greatly stand up, and they certainly do not stand up when we look at the irreversibility of the damage which may happen if we do not pass it.
§ Earl Peel
My Lords, if I may, I suspect, come in as almost the final speaker on this, I must admit that I came into your Lordships' House today very much in two minds. I think I am probably speaking for one or two others as well. This is not a clearly defined subject. The differences which seem to exist between the two sides are small, but obviously very deeply felt. Having considered all the points put forward, I suppose I can say that I am most impressed by the point made by my noble friend Lord Middleton. This to my mind sums up the whole aspect of the voluntary agreement, the fact that it never really has had the opportunity to be tried, because the Nature Conservancy Council, through no fault of their own, have not in the past informed landowners and farmers about the aspects of an SSSI. So I would hope that with this now being brought into the Bill there will be every good reason for landowners and farmers to adhere to the ideas behind the Government's voluntary system. I cannot say which way this will go, and no doubt it will go to a Division, but I do on behalf of those Members of your Lordships' House who are going for a voluntary agreement urge landowners and farmers in the future to show restraint and to recognise that we have faith in them and that they will try their best to work out a sensible policy on SSSIs.
There is one final point I would put. I say to the Government and I say to the Nature Conservancy Council—and this was the point I made in my maiden speech at Second Reading—that, whatever the outcome is, I urge both the Government and the NCC to consider the size of SSSIs in relation to what they are trying to protect, so that we do not find ourselves in the position where very large tracts of land are being put under SSSI when all that is being protected is something very small, important though it may be.
The Viscount of Arbuthnott
My Lords, I apologise for rising so late in what has veen an extremely interesting debate. I must also apologise for my absence 417 during the Committee stage. However, on Second Reading I reminded your Lordships that I have an interest in that I am a member of the Nature Conservancy Council; indeed, I am its deputy chairman. I want to be very careful about what I say, but I have come to the House with a completely open mind. I have been very interested in the debate and the points which have been made on both sides, and I should like to take up one or two of them.
Compulsion is already in the Bill; it is in the Government's clause. Therefore, if anyone is concerned about compulsion I point out that it is there already. We are talking about voluntary agreements. I think that what is being proposed is a code of practice. Codes of practice, although very often most nobly supported by the National Farmers' Union and the land-owning organisations, have not been as effective as they should have been.
Noble Lords have talked about the exaggeration of losses of SSSIs. I do not think there can be any exaggeration. I personally am quite satisfied that, under the present circumstances, there has been a serious loss. One of the procedures that will be introduced by the amendment is that of reciprocal notification. I do not think that enough has been made of that point. If, as I feel is right, the NCC should be obliged to notify SSSIs and the reasons for their being created, I think that if there is to be a change in use then, reciprocally, there should be a statutory obligation for notification to be given by the person intending to change the use.
I believe that we are also at sea over numbers. There has been a great deal of talk about the number of SSSIs, and some give a figure of nearly 4,000. However, there will always be constraints upon what any Government or organisation can do. Those constraints have been mentioned, and one of them is finance. There may be no need to inhibit the owner from what he wishes to do. I do not think one should feel that if the second amendment is accepted there will automatically be a very great increase in the number of cases that have to be covered. Finally, we must remember that we are not now talking only about the SSSIs that might come under the compulsory designation orders. We are already concerned with a much wider range of SSSIs where there is an obligation on the part of the owner and the grant-aiding organisation to have consideration for the fact that the development which would be grant-aided occurs within an SSSI.
Much of the procedure that is being considered within these amendments has already come into force in some way, and I feel that the second amendment is merely rationalising something that has already become part of the natural consultation process between the NCC and those who seek to develop their land. I feel that the second amendment is the one that the House should follow; but I would also like to see it backed, and indeed preceded, by an attempt to solve most cases by voluntary agreement and acceptance of the codes of practice.
My Lords, one of the great virtues of this Bill is that it has been totally non-party political, and, indeed, I think there has been fair enough evidence of that this afternoon. One of the other great virtues 418 of this Bill and it has been seen all the way through—is that it is an endeavour to try to get the right answer in the end. On a number of occasions, as the noble Lord, Lord Melchett, will recall, we have accepted amendments put down by noble Lords on all sides of the House which originally the Government might have considered were not what they had in mind. Indeed, such is the fund of knowledge on all that has gone into this Bill so far that somebody said to me that your Lordships' House itself should be considered as a site of special scientific interest!
The amendment I have put down today is another example of how the Government have tried to meet your Lordships' wishes. When the Bill was first drafted we did not have the arrangement which will be put in either by my amendment or by my noble friend's amendment, because we thought that the Bill was right as drafted. Let us just recall the situation. There are SSSIs, and under Clause 27 there will be the possibility of giving particular sites special protection (giving them what has been described as super treatment) which will then bring in all the rigmarole of consultations, management orders, rights of appeal and so on. However, that was to apply to only a limited number of sites. When your Lordships said in Committee that it did not go far enough, we then tried to find out whether there was a way in which we thought your Lordships' wishes could be met. Then, the first thing that happens is that the noble Lord, Lord Melchett, blasts one out of the water for saying that there has been no consultation. Indeed, the noble Baroness, Lady White, said the same, and I think my noble friend Lord Sandford did, too.
§ Lord Melchett
My Lords, I said that it was a nonstarter because the NFU simply said that it was considering it and thought that it would work if everyone agreed. The NCC, the Government's statutory advisers, have said that they do not think that it is any use on its own. That is what I said.
All right, my Lords, but the noble Lord said a good many other things as well which were pretty uncomplimentary.
My Lords, I apologise for that, but I attempted to give the noble Lord, Lord Melchett, my noble friend Lord Craigton and others who had put down the amendment advance warning of what was going to be put down. The noble Baroness, Lady White, will realise that we have been operating under a certain amount of difficulty, and I certainly apologise to her and to the remainder of your Lordships that this amendment was not put down in advance so as to give your Lordships more of an idea of what the Government were trying to do. This was a genuine attempt to meet the conflicting views. It 419 may be a compromise, but that is no bad thing. The whole of this jolly old Bill has been one solid compromise. We have been trying to find a compromise between, on the one hand, doing away with what is believed to be an antagonistic situation which might be created, and, on the other hand, the desire to see that sites are protected as far as is possible.
There is no doubt that in a perfect world all the SSSIs would probably come under what might be described as the super protection. But if we provide for that we then become involved with the arrangements for management orders, compulsory purchase and, at the end, compensation as well. The funds are just not there for 3,800 sites. That is one of the reasons why we could not assume the obligation to cover all the sites. Therefore, my noble friend is absolutely right: if the money is not there to do all this, then we have to rely on a certain amount of voluntary help and voluntary co-operation, and not antagonism. That is why we tried to see whether we could not find this particular route.
The noble Lord, Lord Gibson, said that he was horrified by the number of sites that had been destroyed. I agree with him; I think it is a matter of great concern. But one of the reasons why that has come about, as we said earlier, is that many owners did not know that they had such sites. Let us remember that at the moment the NCC can designate a site because they believe it to be, rightly or wrongly (and very likely rightly), a site of scientific interest. They then designate that site and at present the owner does not know. So if the owner or the people in question destroy that site, it may be done without knowledge of its designation. That is one point which quite clearly must be put right.
But if a person is to have part of his land made a site of scientific interest and all the rigmarole applied to him such as appears in Clause 27—and, indeed, such as appears in the amendment set down by my noble friend Lord Craigton—then he must have the right to complain, the right to say, "You have designated this as a SSSI, but I do not agree He must have the opportunity to go along to the court and complain, or have some kind of appeals procedure; and in the end, probably the Secretary of State will have to make up his mind. But when my noble friend Lord Craigton says," That is fine, let us have both these amendments; let us have yours first, with the voluntary effect, and let us have mine as a fall-back ", if we accept his amendment we are really imposing on those sites which have been designated, without appeal or recourse to appeal, certain obligations which are very considerable. I think that that goes too far.
My noble friend's amendment goes one step further than even Clause 27, as it is at present drafted. The effect of subsection (9) of his amendment will be to empower the Nature Conservancy Council to stop an owner-occupier from carrying out a specified operation. This means that the Nature Conservancy Council would be able to refuse a management agreement, except on its own terms; it could refuse to purchase compulsorily and yet still stick to prohibition by order.
§ Lord Melchett
My Lords, if the noble Earl will allow me, perhaps he would read the last four lines 420 on page 5 of the Marshalled List, because he will see that what he has just said is not accurate.
My Lords, if what I have said is not accurate, I shall certainly look at that again. My understanding is that that is so. The noble Lord, Lord Melchett, shakes his head.
My Lords, I cannot read and speak at the same time. I know that the noble Lord, Lord Melchett, is peculiarly versatile.
My Lords, I have the capacity to read it out loud, as has the noble Lord, Lord Melchett, but he has had an opportunity to make his speech and perhaps he would give me the opportunity to make mine. If your Lordships have both these amendments, in my judgment you cannot have a voluntary system and then a compulsory system, and at the end of the day still retain Clause 27 because it just does not make sense. If you have my noble friend's amendment, then you obviate entirely Clause 27. Far be it from me to generate any heat; the whole purpose of this amendment was to try to meet everyone's wishes, and all it seems to have done is to have stoked up everyone. I would simply say to your Lordships that the basic point is that there are not enough financial resources to give all these 3,800 sites super treatment—the Clause 27 treatment. Either one accepts what is in the Bill—which is to say that there will be the funds and that there are the obligations and abilities to do this on a certain number of sites, and then try to protect the remainder—or one says that the system will not work.
I hope that your Lordships will agree that, on the whole, under this Bill we are trying to give certain sites the proper treatment, the super treatment, the right of appeal and the right of compulsory purchase, and that we are trying to give the remainder a system which I believe will work. The noble Lord, Lord Melchett, said that there has been no consultation; indeed, many people said that. In fact, there has been consultation. I even consulted with the noble Lord, but perhaps he forgot that or does not regard that as consultation. But in the limited time available there has been consultation with a number of interested bodies, including the Nature Conservancy Council.
I hope that your Lordships will go along the path of voluntary agreement which will be statutorily backed by Parliament, which the noble Baroness, Lady White, said is a charade. But it is not. If it has the full backing of parliamentary approval it makes a great deal of difference. I hope that your Lordships will accept that so that all people can work together and not take the more restrictive and legalistic attitude which is represented in the amendment of my noble friend Lord Craigton. I beg to move.
§ Lord Gibson
My Lords, before the noble Earl sits down, perhaps I could ask a question to clarify a point that I do not understand. Is he saying that if we give the possibility of protection to all the sites, we must have the resources to implement that protection 421 for all those areas? I have always understood that it could be measured against the resources that we actually have. I understand that we do not have to give the protection.
My Lords, the noble Lord is quite right to make that point. At the moment where the Nature Conservancy Council wishes to operate Clause 27 it can do so, but at the end of the road it comes to a question of finance. If it says "This is what we want to do", and the Secretary of State lays an order on a person saying "This is to be an SSSI", then under this system the farmer or landowner can object. So you go along that particular route, at the end of which you come to management orders and compulsory purchase. It is at that juncture where the limitation is bound to come in, because the resources are not there. I would suggest that the amendment which I have moved is the most likely one to catch the remaining sites.
§ Noble Lords: Order, order!
§ On Question, amendment agreed to.
§ Lord Buxton of Alsa moved Amendment No. 167A:
§ Insert the following new clause—
§ (".—(1) Where the Nature Conservancy Council are of the opinion that any area of land is of special interest by reason of any of its flora, fauna, or geological or physiographical features, it shall be the duty of the Council to notify that fact—
- (a) to the local planning authority in whose area the land is situated; and
- (b) to every owner or occupier of any of that land,
§ (2) A notification under subsection (1)(b) shall specify—
- (a) the flora, fauna, or geological or physiographical features by reason of which the land is of special interest; and
- (b) any operations appearing to the Council to be likely to damage that flora or fauna or those features and the notice shall have effect as from the day on which it is served.
§ (3) Section 23 of the 1949 Act (which is superseded by this section) shall cease to have effect.
§ (4) The owner or occupier of any land specified in a notice under subsection (1) shall not carry out on it any operation specified in the notice as being likely to destroy or damage its flora, fauna, or geological or physiographical features or cause or permit the carrying out of such an operation, unless—
- (a) one of them has given notice to the Council of a proposal to carry out the operation, specifying its nature and the land on which it is proposed to carry it out; and
- (b) one of the conditions specified in subsection (5) is fulfilled.
§ (5) The said conditions are—
- (a) that the operation is carried out with the Council's written consent;
- (b) that the operation is carried out in accordance with the terms of an agreement under section 16 of the 1949 Act or section 15 of the 1968 Act; and
- (c) subject to subsections (6), (7) and (8), that two months have expired from the giving of the notice under subsection (2).
§ (6) If before the expiration of the period mentioned in paragraph (c) of subsection (5) the Council offer to enter into an agreement with the person who gave the notice under subsection (4) either for the acquisition of his interest or under section 16 of the 1949 Act or section 15 of the 1968 Act, that 422 paragraph shall have effect as if for the said period there were substituted—
- (a) where the agreement is entered into before the expiration of twelve months from the giving of the notice, the period expiring on the day on which it is entered into;
- (b) in any other case, twelve months from the giving of the notice or three months from rejection of the offer to enter into the agreement, whichever period last expires.
§ (7) If it appears to the Council that any agreement specified in subsection (6) is unlikely to be reached before the expiration of the period mentioned in paragraph (c) of subsection (5), or that paragraph as it has effect by virtue of subsection (6), the Council may, before the expiration of that period:—
- (a) make an order for the compulsory acquisition by the Council of the interest of the person who gave the notice under subsection (4); or
- (b) make application to the Secretary of State for an order under subsection (9) to be made on the day upon which that period expires.
§ (8) If before the expiration of the period mentioned in paragraph (c) of subsection (5), or that paragraph as it has effect by virtue of subsection (6), the Council make an order for the compulsory acquisition of the interest of the person who gave the notice under subsection (4), the said paragraph (c) shall have effect as if for the said period there were substituted the period expiring—
- (a) in the case of an order which is confirmed, on the day on which the Council enter the land;
- (b) in any other case, on the day on which the order is withdrawn or the Secretary of State decides not to confirm it.
§ (9) An order made by the Secretary of State under this subsection may prohibit the carrying out without the Council's written consent on the land to which the order relates of any operation specified in the order as being likely to destroy or damage the flora, fauna, or geological or physiographical features of the land, subject to such conditions as may be specified in the order; and the provisions of Schedule 10 shall have effect as to the making, confirmation and coming into operation of an order made under this subsection.
§ (10) Any person who, without reasonable excuse, contravenes subsection (4) or the provisions of any order under subsection (9) shall be liable—
- (a) on summary conviction, to a fine not exceeding the statutory maximum;
- (b) on conviction on indictment, to a fine or both.
§ (11) It is a reasonable excuse in any event for a person to carry out an operation if—
- (a) the operation was authorised by a planning permission granted on an application under Part III of the Town and Country Planning Act 1971 or Part III of the Town and Country Planning (Scotland) Act 1972; or
- (b) the operation was an emergency operation particulars of which (including details of the emergency) were notified to the Council as soon as practicable after the commencement of the operation.
§ (12) A notice under subsection (1) and an order under subsection (9) shall be a local land charge.
§ (13) A notice served under subsection (1) or an order made under subsection (9) of this section may be amended or revoked by a subsequent notice or order.").
§ The noble Lord said: My Lords, I move this amendment in the names of myself, my noble friend Lord Craigton and others. As the discussion has already taken place, I am sure that your Lordships will not want to go through it again in detail. Therefore, I want to make only one or two small points. I am glad that at long last I understand the problem and I am very grateful to my noble friend Lord Ferrers for making it clear that one big stumbling block is money. I always suspected that, but there is no pro- 423 blem there because it has been made abundantly clear from all the discussions that 99 per cent., 90 per cent., or whatever it may be, of the problems of these SSSIs will never arise and become subject to compulsory purchase orders. If a small number do, as we have said over and over again, the end of the process included in our amendment may still be reached and then it would still be a question whether or not the Government have the money.
§ But the shelter or the safety net is there for future decades and for our descendants. It is monstrous if we simply leave matters to trust and hope that the voluntary system will work. Of course it will work for most members of the CLA and for most members of the NFU. We are simply concerned with a handful of people who do not care a fig, and I cannot understand why we want to protect them. Finally, I want to say a few words about a matter about which I feel very deeply. I said previously that I wondered why we were being so persistently cajoled, having our arms twisted and so forth. It is clear that we have a very unsatisfactory compromise in the Government's amendment. I do not believe that it is sound for this House to have its arms twisted or to be pressured by any particular lobby. I am not here representing the conservationists, the landowners or the farmers, although I happen to be all three. I am here to consider what is in the best interests of the public and of the nation for the future. I do not like the idea of having to meet one party half-way at the expense of all the others. Therefore, in moving this amendment, I must make it quite clear, having been in the media for over 20 years, that I am not happy about the idea that "Lords submit" to whatever lobby it is. It will not look very good. There is nothing for any member of the CLA or the NFU to fear in our amendment, unless he deliberately wants to break the law.
§ 5.39 p.m.
§ On Question, Whether the said amendment (No. 167A) shall be agreed to?
§ Their Lordships divided: Contents, 100; Not-Contents, 109.425
|Ampthill, L.||Davies of Leek, L.|
|Arbuthnott, V.||Diamond, L.|
|Ardwick, L.||Donaldson of Kingsbridge, L.|
|Avebury, L.||Drumalbyn, L.|
|Aylestone, L.||Elwyn-Jones, L.|
|Bathurst, E.||Foot, L.|
|Beaumont of Whitley, L.||Gaitskell, B.|
|Beswick, L.||Galpern, L.|
|Birk, B.||George-Brown, L.|
|Blease, L.||Gibson, L.|
|Boston of Faversham, L.||Goronwy-Roberts, L.|
|Briginshaw, L.||Gosford, E.|
|Brockway, L.||Gray, L.|
|Buxton of Alsa, L.||Greenwood of Rossendale, L.|
|Byers, L.||Gregson, L.|
|Caccia, L.||Hale, L.|
|Caradon, L.||Hanworth, V.|
|Chelwood, L.||Hayter, L.|
|Chorley, L.||Houghton of Sowerby, L.|
|Collison, L.||Howie of Troon, L.|
|Cooper of Stockton Heath, L.||Hunt, L.|
|Craigton, L. [Teller.]||Jacques, L.|
|Cudlipp, L.||James of Rusholme, L.|
|Dacre of Glanton, L.||Janner, L.|
|David, B.||Jeger, L.|
|Kaldor, L.||Ridley, V.|
|Kennet, L.||Robbins, L.|
|Kinloss, Ly.||Ross of Marnock, L.|
|Kirkhill, L.||Rugby, L.|
|Leatherland, L.||Sandford, L.|
|Llewelyn-Davies of Hastoe, B. [Teller.]||Seebohm, L.|
|Longford, E.||Spens, L.|
|Loudoun, C.||Stamp, L.|
|Lovell-Davis, L,||Stedman, B.|
|McCarthy, L.||Stewart of Alvechurch, B.|
|McNair, L.||Stewart of Fulham, L.|
|Melchett, L.||Stone, L.|
|Mersey, V.||Strabolgi, L.|
|Milverton, L.||Swinfen, L.|
|Newall, L.||Underhill, L.|
|Noel-Buxton, L.||Waldegrave, E.|
|Ogmore, L.||Wallace of Coslany, L.|
|Onslow, E.||Wells-Pestell, L.|
|Oram, L.||Whaddon, L.|
|Peart, L.||White, B.|
|Perth, E.||Wigoder, L.|
|Phillips, B.||Winstanley, L.|
|Pitt of Hampstead, L.||Wootton of Abinger, B.|
|Ponsonby of Shulbrede, L.||Wynne-Jones, L.|
|Armstrong, L.||Kemsley, V.|
|Auckland, L.||Killearn, L.|
|Avon, E.||Kilmany, L.|
|Balfour of Inchrye, L.||Kinnaird, L.|
|Bellwin, L.||Lauderdale, E.|
|Belstead, L.||Lindsey and Abingdon, E.|
|Bessborough, E.||Lloyd of Kilgerran, L.|
|Burton, L.||Lloyd-George of Dwyfor, E.|
|Carrington, L.||Long, V.|
|Cathcart, E.||Lucas of Chilworth, L.|
|Chesham, L.||Lyell, L.|
|Cockfield, L.||McFadzean, L.|
|Colwyn, L.||Mackay of Clashfern, L.|
|Cottesloe, L.||Macleod of Borve, B.|
|Craigavon, V.||Mancroft, L.|
|Craigmyle, L.||Mansfield, E.|
|Cullen of Ashbourne, L.||Margadale, L.|
|Daventry, V.||Marley, L.|
|De La Warr, E.||Marshall of Leeds, L.|
|De L'Isle, V.||Massereene and Ferrard, V.|
|Denham, L. [Teller.]||Middleton, L.|
|Digby, L.||Monk Bretton, L.|
|Duncan-Sandys, L.||Monson, L.|
|Dundonald, E.||Mottistone, L.|
|Eccles, V.||Mowbray and Stourton, L.|
|Ellenborough, L.||Murton of Lindisfarne, L.|
|Elliot of Harwood, B.||Northchurch, B.|
|Elphinstone, L.||Nugent of Guildford, L.|
|Falkland, V.||Orr-Ewing, L.|
|Ferrers, E.||Peel, E.|
|Fortescue, E.||Reigate, L.|
|Fraser of Kilmorack, L.||Renton, L.|
|Freyberg, L.||Rochdale, V.|
|Gainford, L.||Romney, E.|
|Geoffrey-Lloyd, L.||St. Aldwyn, E.|
|Gisborough, L.||St. Davids, V.|
|Glasgow, E.||St. Just, L.|
|Glenkinglas, L.||Salisbury, M.|
|Gormanston, V.||Sandys, L. [Teller.]|
|Grantchester, L.||Selkirk, E.|
|Greenway, L.||Sempill, Ly.|
|Gridley, L.||Shannon, E.|
|Grimston of Westbury, L.||Skelmersdale, L.|
|Hailsham of Saint Marylebone, L.||Soames, L.|
|Stanley of Alderley, L.|
|Hemphill, L.||Strathcarron, L.|
|Henley, L.||Strathclyde, L.|
|Home of the Hirsel, L.||Strathspey, L.|
|Hornsby-Smith, B.||Swansea, L.|
|Hylton-Foster, B.||Swinton, E.|
|Inglewood, L.||Thurso, V.|
|Trenchard, V.||Vivian, L.|
|Trumpington, B.||Westbury, L.|
|Vaux of Harrowden, L.||Wise, L.|
|Vickers, B.||Yarborough, E.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ Clause 27 [Orders designating certain areas of special scientific interest]:
§ 5.47 p.m.
Lord Melchett moved Amendment No. 167BA:
Page 24, line 36, at end insert ("or, in the case of land that joins land to which subsection (1) applies, any land on which any operation covered by subsection (3) might destroy or damage the flora, fauna, or geological or physiographical features of land to which subsection (1) applies.").
§ The noble Lord said: My Lords, this is an attempt to re-draft an amendment which we discussed at Committee stage. I shall not go into the problems with which the amendment is designed to deal because I did it at some considerable length at that stage of the Bill. When we discussed the amendment before, the noble Earl, Lord Avon, said, at column 382 on 12th February, that the Government accepted this in principle and would consider tabling amendments along the lines of this point. I do not think that there is an amendment on the Marshalled List along the lines of this point. At least, I have not been able to find it in the short time I have had to study all the amendments.
§ I am really moving my amendment in the hope first that it is a slightly better version of the one we had before and that it will be acceptable to the Government as they accept the general principle of this; or, secondly that the noble Earl will be able to tell me whereabouts the Government amendment is if I have missed it. I beg to move.
My Lords, the noble Lord, Lord Melchett, is entirely correct. If, despite his assiduous researches into the Marshalled List he has not found that the Government have tabled a particular amendment, that does not mean that we did not consider it. We did consider it, and have come to the conclusion that the powers in the Bill are already sufficient to cover the points that the noble Lord has in mind. So far as designated sites are concerned, both the Nature Conservancy and the Secretary of State will be able to ensure that, where practicable, the site is large enough to safeguard the scientific interest, and his amendment therefore will be unnecessary. Where this is a large site and it may possibly cover a number of owners, the site itself will be so designated and will be sufficiently large to cover the problems he envisages.
§ Lord Melchett
My Lords, that certainly is not the case at the moment in a number of areas, particularly where sites are affected by land drainage. After the debates at Committee stage I was given some more information about a neighbouring county to the one where I live, Suffolk, which gave us some information about the number of SSSIs that have been lost or damaged recently in that county.
I will give the noble Earl some examples of SSSIs which have been damaged and the reasons why. At Lakenheath Poors Fen, a Suffolk County Trust reserve, 426 its biological interest has greatly diminished by the lowering of the water-table to improve the nearby arable land. The same problem has occurred at Thelmethan Fen, where a nationally rare plant was lost to Suffolk as a result. At Lophan and Redgrave Fens, probably the finest valley fen in Britain and also a County Trust reserve, its character and vegetation have been adversely affected by the extraction of water from a nearby bore-hole; one nationally rare and several regionally rare plants have been lost in consequence. Pashford Poors Fen, another Trust reserve already suffering from a lowering of its water-table, is now threatened by the sinking of a bore-hole nearby. Cornard Mere, a County Trust reserve in Suffolk managed for its wetland flora and fauna, is now threatened by the sinking of a bore-hole nearby. Danes Hole, once a good wetland site, is now dry due to a spring failing owing to the water-table having been lowered.
The examples are numerous and those are simply the first seven on a list I have been sent by somebody involved in nature conservation in Suffolk. Those are all examples of the kind of problem the amendment would have done something to avoid. The Government have gone some way—we will come to this on later amendments—to meeting the problems I had with the actions of internal drainage boards and I hope they will have something encouraging to say about water authorities; they told me in a letter they would have. It may be that that is as far as I can expect the Government to go on this matter. There is a real problem here, but if the Government are not prepared to safeguard sites of special scientific interest themselves, I suppose it is asking rather much for them to do something to ensure that operations on neighbouring land do not lead to the destruction of SSSIs. I am afraid this is part of the war, which I think was started by the Division on the last amendment, which we are going to have to fight once the Bill has gone through rather than on the Floor of the House today, and I therefore beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 5.53 p.m.
§ Lord Melchett moved Amendment No. 167BB:
Page 25, line 22, at end insert—
("( ) Where the Council receives notice of a proposal to carry out an operation and paragraph (b) of the previous subsection does not apply, the Council shall—
§ The noble Lord said: My Lords, I move this amendment simply in the hope of getting an assurance about access to information. We had a long discussion about this in Committee, when it was said that the NCC 427 would keep a register as suggested in this amendment and that it was unnecessary to have a statutory obligation on them to do that. I am hoping that the noble Earl, Lord Ferrers, will give the sort of assurance his noble friend Lord Avon gave on Part I when we talked about a register of licences; namely, that if responsible non-governmental organisations such as the NFU, CLA or those interested in wildfowling, game shooting or game conservancy or those interested in nature conservation, such as the RSPB or the County Trust, want information about notifications, the NCC will make it available to them and will not unreasonably withhold it. I do not expect a categorical assurance, which I did not get on Part I, but so long as there is an assurance that this information will not be unreasonably withheld, that will be sufficient. I beg to move.
My Lords, I am grateful to the noble Lord, Lord Melchett, for saying he tabled the amendment to see if he could have an assurance, as opposed actually to seeing it inserted in the Bill, for I should not be able to accept it if the latter were his wish. I was sorry that in this final words on the last amendment the noble Lord used the word, "war". The one thing we have been trying to do with the Bill all along and with all the problems is to avoid wars, battles and confrontations. We have been trying to seek a reasonable and reasoned way through the difficulties and I hope that will be the last we hear of that expression.
That is a pity, my Lords, because that sort of thing has not been the case with the Bill up till now.
The noble Lord says it was my decision, my Lords. It was not my decision; it was the decision of your Lordships' House. He put his view, I put mine and my noble friend Lord Craigton put his, and then your Lordships decided. It was not my decision and I hope the noble Lord will withdraw that remark.
On the substance of the amendment, I understand that the Nature Conservancy Council is prepared to maintain a register of such applications at the appropriate regional offices and to make it available for inspection in relation to those sites which have been designated by the Secretary of State.
§ Lord Melchett
My Lords, I am grateful to the noble Earl for that assurance. Probably we had better leave our discussions on the safeguarding of habitats to another occasion. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Earl Ferrers moved Amendment No. 167BC:
Page 26, line 7, leave out from ("to") to end of line 8 and insert ("a fine").
§ The noble Earl said: My Lords, this removes imprisonment from the Bill. I beg to move.
§ On Question, amendment agreed to.428
§ Lord Melchett moved Amendment No. 167C:
Page 26, line 8, at end insert—
("( ) A court before which a person is convicted of an offence under subsection (8) may, on application by the Nature Conservancy Council, make an order requiring that person to carry out to the satisfaction of the Council such operations as may be specified in the order for the purpose of restoring the special interest of the land, so far as it is reasonably practicable to do so, to the state in which it was before the offence was committed.").
§ The noble Lord said: My Lords, this is a more important amendment. Although we discussed the proposition raised in the amendment in Committee, I will explain it briefly. It is intended that the court should have the power detailed in the amendment if somebody destroys one of the 30 or 40 sites which the Government version of Clause 27 will make it a criminal offence to destroy. We are now speaking of a very small number of all the important sites; as I say, between 30 and 40, if I understand the Government's intention. These will be the only sites in the entire country which will receive any protection and they will be protected for only 12 months, and those will be the ones subject to criminal penalties. If in those 12 months they are destroyed, that will obviously be an extremely serious matter. In the last amendment the Government removed the power of imprisonment, and I think we all agree that should be done, as it has been throughout the Bill.
§ However, in Committee there was a great deal of support from all sides for the idea that the most effective and reasonable penalty, if somebody destroys the scientific interest of the land, is that where it is practicable and reasonable to do so and where the court decides it is sensible to do so, the landowner, farmer or whoever it is should be required as far as possible to restore the site. In Committee, the noble Lord, Lord Hunt, said that would be in line with modern penal practice and thinking in that it would make the penalty fit the crime. It would clearly be more desirable than a fine, it seems to me, and it would obviously be a much more effective deterrent, it being known that this power was avaliable.
§ I agree that in many cases it will not be practicable, but in Committee I gave some examples of where it would be. The amendment has been drafted to make sure that the Government's scientific advisers in these matters, the NCC, would have to apply to the court for it to be done, so it would be considered by a court only where the Government's statutory advisers suggested to the court that it was a sensible possibility. In those cases it would still be entirely up to the court to decide whether this penalty, or some other, should be imposed. So I hope that we have met the very few objections that were raised at the Committee stage and that the amendment will now be acceptable to the Government. I beg to move.
My Lords, we are returning once more to sweet harmony, and I am delighted to see that. I find the noble Lord's amendment attractive, but I must also say that I cannot accept it as such because the Government will have to have more time to examine its detail. As drafted, the amendment presents some difficulties. It raises certain questions which may take some time to resolve. There are questions such as whether it is appropriate to extend the powers of the 429 courts to enable them to deal with a matter of this kind, and whether it is appropriate to use the Nature Conservancy Council as a law enforcement agency in this instance. If I may, I should like to write to the noble Lord after I have been able to consider the position more fully. I hope that he will accept that assurance and not press the amendment.
§ Lord Melchett
My Lords, may I take it from that reply that the noble Earl intends to write to me before the Third Reading? We debated both the principle and the detail of this matter very fully at the Committee stage, when it received considerable support. I have before me a note to the effect that at the Committee stage the Government said that they would consider the point. I appreciate that they have had much to do particularly in regard to this part of the Bill. However, I do not think that it would be reasonable for me to withdraw the amendment unless I have an assurance that before Third Reading the Government will come to a conclusion, so that I can come back at that stage with the amendment if the Government have not got in touch with me. If the noble Earl wishes to intervene to give me such an assurance, I should be grateful.
My Lords, if I may once more have the leave of the House, I would say that I should be delighted if the noble Lord were to feel that I could meet his case by writing to him before the Third Reading. However, I am bound to tell him that I doubt whether the Government will come to a conclusion before the Third Reading. I wish to make it plain to him that I say that not in order to be difficult or obstructive. Deep matters of principle are raised here and they would have to be considered much further. I doubt whether that could be done by Third Reading. However the noble Lord, with his usual parliamentary knowledge, will realise that there are other facilities available if a decision has been arrived at before the end of proceedings on the Bill as a whole.
§ Lord Melchett
My Lords, yes, I know that the Bill is to be considered by another place, but as the noble Earl, with his deep knowledge of parliamentary procedure, will know, if the Bill leaves here without containing this amendment, and the Whips are on in another place so as to ensure that the amendment is not included there, then there will not be another chance for this House to consider the matter. Given the wide level of support that the proposition attracted, I think that it probably would be desirable for this House to have a chance to decide whether it wants it included in the Bill before it leaves here. If the noble Earl is saying to me, "Well, if that is the case, it would be better for you to press it now", I think that that would be the best course, but if he wants to think about it further and give me a considered response before Third Reading, I should be quite happy to withdraw the amendment in the spirit of reasonableness and light which now pervades the understanding between the noble Earl and myself. I should like a little more guidance from the noble Earl. I do not want to withdraw the amendment and then perhaps have to spend much more time on the matter at Third Reading to no great avail.
My Lords, I have great hesitation in speaking again and indeed in craving the indulgence of the House to do so because this is not a Committee stage and I do not wish to offend against the principles, when I criticise others for doing so. However since the noble Lord, Lord Melchett, has specifically asked me a question, I am bound to tell him that I doubt whether the Government will be able to come to a decision before Third Reading. That is my opinion. if the noble Lord wishes to press the amendment, he may do so, but I must tell him that I could not advise the House to accept it. I say that because of the hesitations that I mentioned when I originally replied. To include this proposal in the Bill would raise fairly fundamental issues and I think that it would be wrong to do so until the issues have been resolved.
§ Baroness White
My Lords, may I put to the noble Earl for reflection between now and Third Reading the point that if on Third Reading my noble friend wishes to revert to the matter, we could at least get in this House a declaration of general intent. That could then be amended in the other place at the instance of the Government. Then we would at least be giving the other place some lead as to the intent.
§ Lord Melchett
My Lords, I have given way both to the noble Earl and to my noble friend in the course of my remarks, which I think I should now bring to a conclusion. It seems to me that it would be right to give the Government a little more time in the hope that they can give some firm assurance at Third Reading, or before hand, in which case we would not need to trouble them with the amendment again; but if not, I think that I shall bring it back on Third Reading so that the House can make a decision on it. For the time being I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 6.5 p.m.
Lord Melchett moved Amendment No. 167D:
Page 26, line 18, at end insert ("and only if no reasonable means of meeting the emergency without damaging the land to which subsection (3) applies was available.").
§ The noble Lord said: My Lords, this amendment raises another point on the clause, and I apologise to your Lordships for bringing forward so many points. I hope it will be accepted that this is through no fault of my own. The Government simply have not had time to consider a number of points that they said they would consider. I can understand why that should be so; they have had considerable difficulty with this clause since the Committee stage, and I suppose that they may continue to do so. That is why I have put the amendments down again. They are, I think, all amendments with which the House had some sympathy or which the Government said they would consider.
§ We debated this particular matter at the Committee stage. As drafted, Clause 27 relates to the sites to which an order under the Government's proposals applies. It would be a criminal offence, subject to a large fine, to destroy such sites. Quite reasonably, there is a let out if someone has to take action in an emergency. I worry, as I did at the Committee stage, 431 that from reading the Bill it is not entirely clear what would, and what would not, amount to an emergency, and what extent of damage would be reasonable to meet the emergency if one was destroying one of the top 30 or 40 sites—the very few in the country—receiving temporary protection.
§ It was suggested that the amendment I proposed at the Committee stage went a little too far, and that it might constrain someone who was having to act in an emergency. In re-tabling the amendment I have tried simply to ensure that when in an emergency someone takes action which involves destroying the site, or part of it, he is acting reasonably. If he uses the emergency as an excuse to destroy in an unreasonable way one of the top 40 sites, that would be very unfair, and the Bill should not give him any excuse for so doing. I hope that my amendment no longer—as it did at the Committee stage—restricts the action that it would be necessary to take in an emergency, but at the same time it meets my worries. I beg to move.
My Lords, I am grateful to the noble Lord for explaining the purpose of his amendment and indeed explaining how he has curtailed it compared with the one that he put down at the Committee stage. At that stage the Government expressed concern that we should not place too many obstacles in the way of people who have to deal with an emergency. We have of course proposed amendments to other provisions in the Bill concerning emergency action, but those amendments related to instances where the alternative course to immediate action was fairly clear cut. That is not so in this case.
I readily acknowledge the noble Lord's concern that a person should not use a disaster as an opportunity to ruin a site of special scientific interest. On the other hand, in instances of fires or floods, where emergency action has to be taken immediately, it would be wrong to impose upon people an obligation to cast around for all the possible alternatives that they might adopt, lest they be held up in the courts as not having done something which subsequently might appear to have been the better course but which at the time of the emergency did not so appear. So I hope that the noble Lord feels that what I have described is a reasoned approach and that he will not press the amendment.
§ Lord Melchett
My Lords, I do not find that reply entirely convincing. I feel there is a real possibility that even the very few sites that the Government are putting forward for protection for a 12-month period are still in jeopardy in a number of ways. I say that partly because, unless we have something along the lines of my previous amendment, the penalties will be nowhere near adequate to deter people from destroying a site illegally, and also because it would be possible to destroy an SSSI of 5,000 acres and be fined only £1,000. That is the current position, and in the circumstances the amount of the fine would be extraordinarily small. Secondly, because the Bill itself gives people some grounds for feeling that there might be ways around even that minimum penalty and that seems to me to be one of the most glaring. I should like to think about what the noble Earl has said and 432 perhaps this is something that should be pursued, if not in this House, then in another place. For the time being, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ The Deputy Speaker (Lord Jacques)
My Lords, Amendment No. 167E is printed in the wrong place on the Marshalled List. It will be called after Amendment No. 168A. In the meantime, I call Amendment No. 167F.
§ [Amendment No. 167F not moved.]
Lord Craigton moved Amendment No. 168:
After Clause 27, insert the following new clause:
§ ("Maritime nature conservation
§ .(1) The Secretary of State shall keep under review the needs of marine nature conservation and if he is satisfied, after consultation with, or on advice from, the Nature Conservancy Council and taking into account the requirements of international obligations that it is expedient for the purpose of marine nature conservation either—
- (a) that a marine nature reserve should be designated; or
- (b) that a marine nature reserve should cease to be so designated, he may by order direct that an area of sea up to the limit of the territorial waters adjacent to Great Britain and any adjacent areas of land necessary for the aforesaid purpose, or such larger areas of sea as may be desirable to fulfil any international conventions, shall become, or, as the case may be, cease to be, a marine nature reserve, as from such date as may be specified in that behalf in order; and the provisions of Schedule 10 of this Act shall have effect as to the making and coming into operation of orders under this section and an order shall be made by Statutory Instrument subject to negative resolution.
§ (2) The Secretary of State may by order made under this section make provision for any of the following purposes, that is to say—
- (a) for restricting any person entirely, or on conditions, from—
- (i) entering that area or any part of it at all or any times;
- (ii) intentionally killing, injuring, disturbing or taking any wild animal or intentionally picking, gathering, uprooting or destroying any wild plant, and including the reproductive stages of such plants and animals;
- (iii) damaging or destroying any structure or place which any wild animal uses for shelter or protection;
- (iv) disturbing the sea bed;
- (v) removing any natural object or matter from the sea bed;
- (b) for the installation or removal of permanent markers indicating the existence and extent of a marine nature reserve;
- (c) for any other purpose incidental to the purposes aforesaid.
§ (3) The Secretary of State may delegate all or any of his functions in respect of areas designated by an order under this section to the Nature Conservancy Council who may appoint persons to act as wardens and may provide such structures, buildings or facilities as they see fit, for the purposes of the management of marine nature reserves.
§ (4) An area designated by an order under this section shall be known as a "national marine nature reserve".
§ (5) The restrictions in subsection 2(a) above do not apply to activities specially licensed or authorised for that area, or any part of it, by or under any other Act.
(6) In this section—
nature conservation has the same meaning as in section 1(2) of the Nature Conservancy Council Act 1973 and
"marine nature conservation" shall be construed accordingly;
nature reserve" has the same meaning as in Part III of the 1949 Act and "marine nature reserve" shall be construed accordingly.
§ (7) An order relating to at least one area shall be made under this section within 2 years after the passing of this Act.
§ (8) This section shall come into force on 1st January 1982.").
§ The noble Lord said: My Lords, this amendment is about marine reserves. As some of you will remember, I moved in Committee, an amendment authorising the Nature Conservancy Council to create marine reserves by the simple method of permitting them to designate an SSSI up to three miles out to sea. Therefore, marine reserves are already in this Bill on page 33, Clause 38(4)—put there by the Committee of this House by 98 votes to 54, a majority of 44. In advising the Committee not to accept the amendment, the Minister suggested that he might discuss with his right honourable friend enabling powers to establish marine reserves. The Minister did not put down an enabling amendment, so my noble friends and I have done so.
§ It might be asked, why put down an enabling clause when marine reserves are already in the Bill? I am advised that the amendment I am now moving provides greater flexibility for the Government in deciding what exactly to do for the best. I will stop there and listen to the Minister, before deciding what to do about my later amendments 173H, 173J, and 173Q collectively.
§ The Earl of Avon
My Lords, I am sure the House will be happy to know that the Government accept the principle of the inclusion of enabling powers in the Bill to allow the provision of statutory protective marine nature reserves, and will consider further with a view to resolving any outstanding difficulties.
Noble Lords will appreciate that it is essential to take into account the views of all sectors of the community with legitimate interests in our coastal waters and to allay the fears of, for example, our fishermen. I know that those who argue the case for MNRs consider that these fears are unjustified and that conservationists and fishermen should be working together in the matter, to the benefit of both. Nevertheless, the fears are genuine and it will not be helping the cause of marine nature conservation at all if the very people whose goodwill will be vital to the successful operation of the reserves are quite unnecessarily antagonised. We must write into our legislation the safeguards which all those interested in the marine environment consider essential to their needs. The proposed amendment is deficient in this respect and in a number of points of detail. However, we will not oppose its inclusion at this stage of the Bill but will take the opportunity of seeking to remedy any omissions in the other place.
§ Lord Melchett
My Lords, I am sure that all of us who have taken part in this discussion will welcome very warmly what the noble Earl has said. I received an interesting letter from the Association of Sea Fisheries Committees, which I think was also sent to one or two other noble Lords. They feel that they have a very important role to play in the setting up and operation of marine nature reserves, and I am sure there are a number of legitimate interests who will also have a role to play. I think this will be an improvement on 434 Lord Craigton's existing amendment if for no other reason than that it gives the Government rather more flexibility when considering the best way of implementing marine nature reserve provisions once they have completed their consultations. I hope that the noble Earl, Lord Avon, is going to accept this amendment and that the noble Lord, Lord Craigton will move an amendment to delete the provisions which were put into the Bill at the Committee stage.
§ Lord Craigton
My Lords, while the noble Lord, Lord Melchett, is on his feet, I should like him to ask the Minister whether he wants my amendments left in or whether he wants them to be left out.
§ Lord Melchett
My Lords, I think the noble Earl, Lord Avon, wants the amendments left out and I would certainly echo that myself. I believe it would be better to put this clause in and to take the other ones out, a straight substitution, because it seems to me that this amendment has a number of practical advantages from everybody's point of view. I am delighted by what the noble Earl has said on behalf of the Government.
§ Lord Mowbray and Stourton
I should like to congratulate the noble Lords who put down this amendment on their success, and the noble Earl on the extreme sensibility and reasonableness with which he has accepted this. Like the noble Lord, Lord Melchett, I, too, had pointed out to me in a letter from the Association of Sea Fisheries Committees that they would like to be consulted, and I imagine from what the noble Earl was saying about other interests that he will include those particular bodies. I am glad to have his acknowledgment of that. I should just like to express my extreme happiness at this stage of the Bill.
§ Lord Burton
My Lords, as one who also advocated this at the Second Reading, may I also add my congratulations to my noble friend. I was a little concerned about consultations because I understood this morning that one body which has an interest was not asked to make their observations before August, which seems to me to be a little late. Provided the Minister is happy that consultation will take place before this Bill finishes its passage through the other place, then it is very satisfactory indeed and we must congratulate all concerned.
§ Lord Craigton
After losing "bats in the roof" by four votes and the SSSIs by eight votes, I am glad, on behalf of the conservationists, to have moved this amendment.
§ On Question, amendment agreed to.
§ Clause 28 [Compensation where order is made under S27]:
The Earl of Caithness moved Amendment No. 168A:
Page 26, leave out lines 36 to 38.
§ The noble Lord said: My Lords, I beg to move Amendment No. 168A and to speak at the same time to Amendment No. 169A. We moved amendments similar to these at the Committee stage. We withdrew 435 them and took them away to read what the Government had said. One is not very impressed by what the Government said, because, in my view, they said, in effect, that they are trying to prevent natural justice.
If one refers to Hansard of Thursday, 12th February, 1981 (column 366), my noble friend Lord Avon said:
Neither are the Government convinced that an order is likely to result in any appreciable reduction in the value of an interest in land when one weighs the advantages of designated land".
§ The amendment in my name and that of my noble friends deletes that part of the Bill which says no person is entitled to make a claim. My amendment permits a claim to be made. But the claimant has to prove his claim; there is no automatic right to compensation. He has to go through the normal processes under the Land Compensation Act in order to establish whether he has a valid claim. If there is no claim, then he does not get any money. If he is entitled to claim, then he must have the right to do so under the Bill.
§ I should also like to ask my noble friend Lord Avon a parallel point. What happens if one owns a piece of land adjacent to an SSSI which is subject to a Clause 27 order and one applies to drain a field? What happens if the Nature Conservancy Council hear about the application to MAFF to drain this field? In consultation with MAFF, the Council may say that, if permission is given to drain the field, it will affect their SSSI. What happens if MAFF agree that this is a valid argument and permission is not given, and therefore the drainage works do not take place? As a result of this there is probably a very good case for saying that the value of one's land has been depreciated as a result of the Clause 27 order, albeit not on one's own land. May I therefore have clarification as to whether a person is entitled to claim for loss in those circumstances?
§ Lord Middleton
My Lords, if there is a restriction on land imposed by a Clause 27 order which depreciates the value of that land, compensation should be paid accordingly. This is a modest proposal. In most examples of legislation, where compensation for capital depreciation is made that compensation is payable when the restriction is made. What my noble friend is suggesting is that compensation should not be payable then but later, when there is a disposal. I can think of two examples from the 1971 Town and Country Planning Act. If an Article 4 direction is made which prevents a farmer from developing, and if the value of his farm is thereby depreciated, he can claim under the provisions of Section 164 of that Act. Under Section 169 of that Act, if a farmer applies and is refused planning permission for, say, an agricultural building, he can claim for consequent loss of capital value of his home. He might have tried to get maximum potential out of, say, a hill farm by creating a dairy unit, and, his application for planning consent having been refused for the necessary cowsheds, the value of that holding is pegged as a hill grazing farm; under that section he can be compensated.
Perhaps more appropriately, I should quote an 436 example of provision of compensation following an order by a Minister, which is what we are talking about in this Bill. If a Minister makes an oil pipeline way-leave order, there is an Act which says that if by virtue of the wayleave order the value of any interest in land to which the order applies is depreciated, there shall be payable compensation equal to the amount of depreciation. When my noble friend Lady Elliot and Lord Caithness moved similar amendments in Committee, the Government reply seemed to be totally inadequate. The Government argument then was that an owner would be sufficiently compensated in two ways: first, by the provision in the Bill for payment for abortive expenditure; and, secondly, by reason of CTT relief on the area of the site itself. The first of these has nothing to do with loss of value—it is incidental—and neither does the second. The CTT relief is an incentive, a sweetener, to encourage the owner to accept designation of his land. If he dies or transfers the land, he is not taxed on the value of the area covered by the site. I doubt whether there is any enhancement of value by reason of designation. As my noble friend Lord Onslow suggested in Committee, no one will buy sites at their best use value because of CTT relief. CTT relief will be given merely on the reduced value of the site.
In Committee we had a delightful homily from the noble Lord, Lord Houghton of Sowerby, about the descendants of Nell Gwynne having no right to talk about compensation. Let us forget about Nell Gwynne and talk about a Welsh hillfarming family who, by sheer hard work, have saved and acquired a stretch of the Berwyn Mountains. I speak with no knowledge of this particular area—certainly not with such knowledge as the noble Baroness, Lady White, would have—but maybe the only value of this kind of land lies in its potential as forestry land. Along come the NCC and declare, as they intend to declare, 50,000 acres of the Berwyn Mountains as an SSS1. Along comes the Secretary of State and places a Clause 27 order on the land in question, forbidding the planting of trees so as to provide an open habitat for hawks, which is the reason why this particular, very large area of land will be designated. That family may have to sell and maybe the compulsory purchase provisions in the Bill may have to come into play. Surely there should be some compensation to this family for consequential loss in value if they have to sell what is now a doubtful asset. I support my noble friend.
§ Lord Wise
My Lords, I, too, should like to support my noble friend because I have in the past been adversely affected by a proposed SSSI in selling my own property where the prospective buyer was prepared to pay a substantial sum of money more than I obtained if he could have reclaimed some waste woodland. While I regret losing money, I am glad in a way that it could not be done because I had nurtured this land for many years. I am not concerned about that. I am concerned about the small farmers who may possibly need to increase their acreage in order to retain a viable unit. Possibly they may need to sell this land in order to obtain more land. It seems to me that they would be adversely affected if they did not receive some form of compensation by virtue of the fact that their land would be lessened in value.
§ Viscount Massereene and Ferrard
My Lords, I should like to support my noble friend. A small farmer can get a grant (or used to be able to do so) if he wants to increase his acreage in order to make the farm more viable. If as a result of an SSSI a farmer or occupier with a small farm cannot plough a large part of his farm, obviously it will lose value. It seems unfair that he cannot be compensated for that. Owing to the fact that he does not have as much arable land as he needs, perhaps he would buy some land beside his farm if such land was available. Under existing law he can get a grant to do that, and it is encouraged.
I cannot understand why, if you have some of your land made unviable, you cannot get compensation. Perhaps we might take a lesson from the Republic of Ireland in this respect. In the Republic of Ireland, if you are going to sell an estate and if the Irish Government do not like the party you are going to sell it to, if he is a foreigner—and I will not say that they are racist on this; but they are strict about the disposal of land to foreign buyers—and you arrange to sell your land to this foreigner in the hope the Government will allow it but they do not allow it, then the Government will give you the same price as you would have got from that foreign purchaser. It is not entirely relevant to this amendment but it shows that the farmer will get compensation in that case because he might not find a purchaser who will pay the same price. I support this amendment.
§ Lord Stanley of Alderley
My Lords, before the Minister replies I should be interested in what the noble Lords, Lord Melchett and Lord Winstanley, might have to say about this.
§ Lord Melchett
My Lords, I am waiting with interest to hear what the Government will say when they get a chance to put a word in among the serried ranks of landowners pleading for compensation. When the Government have said something I shall be happy to give the noble Lord my views.
My Lords, I thought that the noble Lord, Lord Melchett, was giving the noble Baroness, Lady David, his views. I can understand the motive which caused my noble friends to put down these amendments. I can understand their feeling if they consider that somebody is going to lose as a result of an SSSI. They are rightly concerned that landowners should be compensated fully for any loss that they might suffer as a result of orders under Clause 27 being applied to their land. I agree with that concept and that is why the Bill provides that compensation should be paid for any loss arising from more than three months' enforced delay to an owner's planned operations. I do not think that the Nature Conservancy Council should be forced to pay twice-over, though. If we accept this amendment, one owner who had no plans to develop this land and who suffered no delay might claim capital compensation for a reduction in the value of the land, although we think that any such reduction would be more than offset by the possibility of obtaining compensation following the service of a notice.
His successor might subsequently claim for losses caused by delays to his operations. It would mean 438 that compensation therefore had been paid twice over and I do not think that this is acceptable. There are other examples where designation of land in a particular way might be held to reduce the expectation that development would be permitted and so to reduce the value of the land without provision for capital compensation. National parks, areas of outstanding natural beauty, conservation areas and, indeed, areas of special scientific interest immediately come to mind.
The compensation which is paid would be paid on the basis of a reduction of the income which would be available as a result of an SSSI. If that is so, the capital value of the land ought to remain the same even when sold because the next person would in turn be able to get a similar management agreement.
§ Lord Melchett
My Lords, the reason why I was waiting for the noble Earl to respond to the amendment is that the real answer involves the noble Earl pointing out to his noble friends behind him that Clause 27 is totally ineffective. In a fairly convoluted way that was more or less what he did. Maybe I can put it more simply. This is nothing to do with SSSIs. Noble Lords opposite are misleading themselves if they think that their amendment applies to SSSIs. What is applies to is the 30 or 40 sites on which orders are placed under Clause 27.
I am glad that some noble Lords opposite at least are nodding, although it is perfectly clear to me that a number of noble Lords opposite still totally misunderstand the Government's proposals in this Bill. First of all, that is all that is being dealt with, 30 or 40 sites to which an order under Clause 27 applies. They may be SSSIs. It does not say anywhere that they have actually got to be because SSSIs are not a legal definition of something. But, still, be that as it may. The orders apply to these sites for only 12 months. That is what the noble Earl should stress to his noble friends. This is not a way of protecting habitats. It is not a way of protecting SSSIs. Orders under Clause 27 only apply for 12 months and then the landowner or farmer can destroy the site. In other words, the capital value of the site is not going to be affected for very long.
§ Lord Burton
My Lords, surely they can go on reviewing this. It would be quite valueless if they did not go on reviewing the special—or whatever you like to call it—SSSI.
§ Lord Melchett
My Lords, there has never been any indication, as I understand it, from anybody that that is the Government's intention. The intention of Clause 27 is to put an order on a site which is liable to be destroyed so that 12 months are available for negotiation. If that fails, the NCC either compulsorily purchases the site or the landowner goes ahead and destroys it.
The noble Lord, Lord Burton, raised an interesting possibility: that Clause 27 orders could be applied continuously to sites and we could get 30 or 40 a year. That is not what the Government intend to do. It is simply a delaying procedure in Clause 27 so that there is time for negotiation. If that fails, the landowner destroys the site. The noble Lord, Lord Burton, has confirmed my view that nobody on the opposite side 439 understands what the Government are proposing. If they had done so, and if they had listened to some of the speeches on the earlier amendment, perhaps the vote would have gone a different way. They really cannot have it both ways. They have a Bill which does nothing to stop the destruction of SSSIs, and they want massive compensation as a result.
The Earl of Caithness
My Lords, I think that the noble Lord, Lord Melchett, is slightly exaggerating the case—and perhaps the word slightly "should be withdrawn. Regarding the remarks of my noble friend Lord Ferrers, through the natural laws of compensation—and if the matter is taken to the Lands Tribunal—in assessing compensation that should be paid, if any, the Lands Tribunal will take into account whether the compensation is fair and just, and what compensation has already been received by the farmer. Those are the two points that defeat his argument. In taking those into account, the Lands Tribunal might decide that the farmer is still entitled to receive compensation for loss of value.
In view of the supplementary point that I raised of land being contiguous to a site of super interest, perhaps it is wise to withdraw the amendment at this stage. But I notify the Government that I shall probably come back at Third Reading if the issue has not been satisfactorily resolved meanwhile. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ The Deputy Speaker (Baroness Wootton of Abinger)
My Lords, your Lordships must now go to page 8, Amendment No. 167E, which was wrongly marshalled.
§ 6.38 p.m.
Lord Melchett moved Amendment No. 167E:
Page 26, line 38, at end insert (", or in respect of any potential loss of revenue from any activity not carried out on such land in the previous twenty years and that is prevented by the making of the order.").
§ The noble Lord said: My Lords, this amendment is moved in order to ask the Government to tell me what their views are as a result of our discussions in Committee. When we discussed an identical amendment, the noble Earl, Lord Avon, said that I had raised a point of deviousness that even this Government had not been able to think of. In saying that I am paraphrasing rather than quoting. He said he would consider the point. As with a number of other amendments, I have not had any response so I have put the amendment down. I shall not waste time in repeating all the arguments until I hear what one of the noble Earls says. I beg to move.
I hope, my Lords, that the noble Lord will not waste your Lordships' time by repeating all the arguments after he has heard what one of the noble Earls has to say. The amendment would seek to prevent any compensation arising from a delay of longer than three months which an owner might experience and which was brought about by his need to inform the NCC of his intention to carry out operations specified in an order made on his land by virtue of Clause 27, if—and this is the crux—he had not 440 undertaken that activity on that piece of land in the previous 20 years.
The suggestion, I believe, behind the amendment is that some owners or occupiers would see some gain accruing to them, by notifying the Nature Conservancy Council of their intention to carry out an operation proscribed in the order, when they either had no intention of undertaking that particular piece of work, or it would never have occured to them to do so had an order not been made. It was to meet the situation when a person had such an intention that the noble Lord, Lord Beaumont, during the Committee suggested that compensation should be possible if the notifier could show that at the time the order was made he had every intention of undertaking the proscribed operation. Notwithstanding that very helpful suggestion, we find it difficult to accept the amendment. The Government believe that irrespective of the length of time the management of the land has followed a particular pattern, it is not unreasonable that a notifier should be able to consider changing his style of management. It may be that some people will see a way of cashing in on Clause 27 seeking management agreements and the payments they would bring when previously the thought of changing the way they used their land, or of entering into an agreement with the NCC, would never have entered their head.
I should like to think that there will not be many such people. If there are some, then that is a situation the Government are prepared to face, for we believe that we should accept that, unless in the national interest a man is delayed from doing something which he could otherwise expect perfectly legitimately to be able to do, he should be able to have the opportunity of obtaining compensation for the loss occasioned by that delay. In normal circumstances, the delay could not amount to more than a year or so and the amount of compensation would not be disastrous.
§ Lord Melchett
Yes, my Lords, that was the point that I was making on the previous amendment—that all that is going to happen is a year's delay before the site is destroyed, so we are not talking about very much loss of value. I am sorry the noble Earl did not say that more clearly on the previous amendment because it might have satisfied his noble friends.
My Lords, I do not wish to interrupt, but the noble Lord is really being peculiarly mischievous. He keeps on saying that the site is going to be destroyed. Of course the site will not be destroyed. The whole purpose of delay is to come to an agreement.
§ Lord Melchett
Yes, my Lords, I accept that is the purpose of the delay, and that is exactly what I said earlier. If there is not an agreement the site will then be destroyed or compulsorily purchased, in which case the compenation is assessed as it would be normally for a compulsory purchase, and as it can be now when the NCC have powers of compulsory purchase.
It seems to me that this point underlines another weakness in the proposals of Clause 27 as they stand: sites which are not at risk and where landowners and farmers have no intention of damaging the site or changing their practice may nevertheless get sucked up into this enormously bureaucratic and complicated 441 procedure in Clause 27. Under the proposals which the Government did not accept that would never happen, but the Government's proposals envisaged an innocent landowner who has no intention of changing an SSSI or doing anything to damage it nevertheless being subject to an order, because there is no way of ensuring that that does not happen under proposals that it seems to me in some way are designed to ensure that most of the sites are sites which people did not intend to damage, because they are meant to be the top 30 or 40. I believe it was the noble Lord, Lord Stanley, who made the point at Committee stage that most of those sites are not at risk anyhow.
That seems to me to increase the incentive for the kind of spurious claim for compensation which the noble Earl very fairly admitted was a possibility. We now have the position—and I hope the noble Earl will not accuse me of being mischievous because I am merely trying to reflect accurately what has been said at rather greater length by him and by his noble friends—that 30 or 40 sites, most of which will not be at risk, are put under Clause 27 procedures. People who did not intend to do anything to damage them may then say they want to do something that would damage them, and have to be paid compensation by the Government to safeguard them. I cannot believe that really is a satisfactory situation but if the noble Earl is satisfied I will not at this stage press the amendment and attempt to reduce the ridiculous and embarrassing position which I think the Government have got themselves into. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 6.44 p.m.
Lord Winstanley moved Amendment No. 169:
After Clause 28, insert the following new clause:
§ ("Protection of hedges and trees alongside highway
§ .—(1) The local planning authority may make byelaws for the prevention of damage to the land, or any features on or in the land, within any area designated under section 23 of the National Parks and Access to the Countryside Act 1949 as an area of special scientific interest.
§ (2) Without prejudice to the generality of subsection (1) above, byelaws under this section relating to any area may prohibit, restrict or regulate—
- (a) the riding of any bicycle, tricycle or similar machine,
- (b) the driving, riding, exercising or breaking in of horses, and
- (c) the use of metal detectors;
The noble Lord said: I beg leave to move this new clause, which noble Lords will recollect appears in precisely the same form as at Committee stage. It is not necessary for me to repeat the arguments but perhaps I could repeat some words which your Lordships will see appearing in the rubric alongside the new clause—
Protection of hedges and trees alongside highway".
I repeat that this new clause has nothing to do with that very necessary and laudable activity. Perhaps there is somebody in the printing office who is very anxious to protect hedges and trees alongside highways, and for that we should all be grateful; but my amendment has nothing to do with that.
§ This matter appears at the request of the Borough of Barrow-in-Furness, which had found particular difficulty in being unable to control what they call certain non-development activities within four sites of special scientific interest within the borough. All this amendment seeks to do is to give similar bylaw protection to SSSIs as already exists for statutory nature reserves.
§ Originally the Borough of Barrow-in-Furness included this as Clause 41 in the Cumbria Bill which is now before your Lordships' House, but were then advised by the Department of the Environment that perhaps the clause would be more appropriately placed in this Bill. For that reason they then put it in this Bill, and my reason for bringing it up again is that when I moved it at Committee stage the noble Lord, Lord Sandys, was very much in sympathy with the aims of the new clause but advised us that this borough and others—because others have the same problem—could make access orders under Section 65 of the National Parks and Access to the Countryside Act. That would give them a consequent power to make bylaws, as contained in Section 90.
§ I undertook to consult with various local authorities as to whether or not they regarded that as a satisfactory solution. The answers which I have had from them all are, first, that to some of the SSSIs about which they are worried there is completely unrestrained access already, and therefore it would seem somewhat illogical to apply for an access order. Secondly, others of these sites are those where the last thing they would want to do is to increase access, and merely to apply for an access order as a roundabout way of applying these bylaws seemed to be a bit illogical, if access was not what they wanted. I wonder whether the noble Lord who replied last time has had an opportunity of thinking about this further and I should like to hear what he has to say.
§ Viscount Ridley
My Lords, before the noble Lord sits down, could he explain what he means by "local planning authority"? We have had enough confusion between county and district planning authorities. I think it would be helpful if he could say whether he means a district or a county planning authority.
My Lords, since the whole process was initiated by the Borough of Barrow-in-Furness that clearly would be the district, and the local planning authority would be whatever the local planning authority happened to be. It cannot be an authority which is not a planning authority. I think in this particular case it is the planning authority in which the site of special scientific interest happens to be situated.
My Lords, since I live in the county of Cumbria which is concerned and that area is particularly important, I rise very briefly to support the noble Lord. This is a very simple provision and is not covered by access agreements, as was suggested in the Government's reply at Committee stage. The SSSIs in the neighbourhood of Barrow-in-Furness can very easily be destroyed by access just as historic houses can easily be destroyed by the feet of those thousands who come and visit them. I should like the Government to consider this again, if not before the next stage, at least when the Bill conies before another 443 place. There is also the unfortunate feature that this clause first appeared in the Cumbria Bill and the people concerned were advised by the Department of the Environment that it would be more appropriate in this Bill. I wish the Minister would address himself to that point, because it seems extremely hard to go through these different processes and at the end of the day find that the Government turn them all down. I support the noble Lord and hope that the Government will look rather more favourably on this now than they did before, even if they cannot agree straight away.
§ Viscount Massereene and Ferrard
My Lords, I should like to say just a few words, and I have an interest to declare, as president of Ponies of Britain. I do not want to oppose the amendment, but I should like to make a special plea to the planning authorities, whoever they may be, who are going to make these by-laws, that they will look favourably on horses and ponies, especially where young riders are concerned. I quite agree that if you have an SSSI or a designated area which is near a town, in wet weather riders can do a lot of damage to ground but I hope that the authorities will be very sympathetic regarding riders, especially children on ponies.
§ Lord Sandys
My Lords, I am grateful to the noble Lord, Lord Winstanley, for the care with which he has explained his concern to protect areas of special scientific interest, both on this occasion and when he moved a similar amendment during the Committee stage, as well as for agreeing to consider the proposal which was put to him at that time that access orders might provide a suitable means of control. The Government, too, have been considering this question since the Committee stage. I now appreciate that access orders would not be an appropriate way of controlling activities of the public which might harm such areas. However, I am still not convinced that the amendment, as it stands, is necessary.
There are three categories of land which might need protection; that is, land owned by a local authority, common land and land in private ownership. For the first category, local authorities may establish local nature reserves under Section 21 of the National Parks and Access to the Countryside Act 1949 and may make by-laws in respect of those reserves. On common land, local authorities may make by-laws under Section 1 of the Commons Act 1899 and other legislation. On private land, local authorities may make agreements with owners under Section 21 of the 1949 Act, and subsequently declare the land a local nature reserve and make bylaws. Full powers already exist, therefore, to enable local authorities to control activities by the public on land of nature conservation interest. I apologise to the noble Lord, Lord Winstanley, for giving a less complete answer when he raised this matter at Committee stage, but in these circumstances I hope he will not press his amendment.
§ Lord Melchett
My Lords, it seems a bit tough on the local authority concerned, and those involved in this subject, if, when they moved the amendment to the Private Bill, the Cumbria Bill, they were told that it ought to be in the Wildlife and Countryside Bill, 444 and when they move it to the Wildlife and Countryside Bill the noble Lord, Lord Sandys, says that they should not press it. I really do not know quite where that leaves them, but there is a certain amount of confusion, to put it mildly. If the noble Earl wants me to give way, I shall be happy to do so.
§ The Earl of Avon
My Lords, if the noble Lord will allow me to intervene, we are trying to find out more about this. The whole point is that we cannot find out where this advice to Cumbria came from.
§ Lord Melchett
My Lords, a number of us have received fairly lengthy and detailed communications from the local authority concerned, and that is what they say was said to them. This amendment strikes at some important abuses. One that particularly worries me is the question of the use of metal detectors. It seems to me that the unrestrained use of metal detectors in the countryside causes enormous problems. I know that there is a voluntary code of practice, but it seems to me, from my personal experience, to be honoured a great deal more in the breach than in the observance.
Unlike ramblers, nature conservationists and the other people who visit my own farm, the people with metal detectors seem unique in their inability to tell the difference between a growing crop and a piece of grass beside the road. I have been told that my fields of sugar beet, barley, carrots and numerous other things were, they thought, grass and therefore they were quite at liberty to dig them up, which of course they were not. So this is a problem.
It is one thing if a small part of a large field of barley or carrots is dug up, although highly undesirable. It is another thing if the only site where a rare orchid, or some other rare plant or animal, lives is dug up which may destroy it for ever. So it seems to me that the amendment has some considerable advantages. I do not know what the noble Lord, Lord Winstanley, intends to do about it, but were he to press it to a Division we would certainly support him as much as we could.
My Lords, I am indeed grateful to the noble Lord opposite for the sympathetic nature of his reply and, indeed, for the very careful consideration which has obviously been given by the Government to this amendment since it appeared on the Marshalled List at Committee stage. I am also grateful to other noble Lords for their support, and to the noble Lord, Lord Melchett, for what he said. He has made a number of very important observations regarding what are genuine problems, not only at Barrow-in-Furness but in all SSSIs which are situated very close to urban populations and to recreational areas. These are problems which will have to be dealt with in some way or another.
I agree, too, that the point to which the noble Viscount. Lord Ridley, referred, as to who or what is the planning authority, will sooner or later have to be determined. But I am sure that he would not wish me to involve myself in any disputes between counties and districts up in Cumbria, which he knows very well have been going on for a very long time, and he knows which side I am on as well. I would perhaps 445 add to the noble Viscount, Lord Massereene and Ferrard, who said that he hoped they would be sympathetic in their attitude towards horses, that this is, of course, an enabling clause. It says that the authority, "may prohibit, restrict or regulate" various activities,except in the exercise of any lawful right".It would be entirely appropriate for the authority concerned, if they acquired this power by any means, to act in that way.
I am now placed in the situation of having to decide what to do. I have, in fact, decided and I would say to the noble Lord, Lord Melchett, that, despite his encouragement to me to divide on the amendment, the noble Lord, Lord Sandys, seems to me to have oozed reasonableness from almost every pore on this matter. Perhaps I may also say that this battle is not wholly lost, because despite the advice given by the Department of the Environment—and I understand inquiries are being made into that—this clause still remains in the Cumbria Bill and, therefore, the matter is not at an end if it is not pursued here.
The various people who worked indefatigably at Barrow-in-Furness will be glad that their problems have had such a close airing. Perhaps this will assist them in dealing with this matter when it comes in another measure. Therefore, I would thank noble Lords for their support, and the noble Lord opposite for his sympathy on the matter. With that, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 169A not moved.]
§ Lord Skelmersdale
My Lords, since it is now three minutes to seven, I think that this would be an appropriate moment for your Lordships to break for one hour exactly. I therefore beg to move that further consideration on Report be now adjourned.
§ Moved accordingly, and, on Question, Motion agreed to.