§ 3.13 p.m.
§ Report received.
§ Clause 3 [Maps of National Parks]:
Lord Airedale moved the following amendment:
Page 5, line 4, leave out ("act in accordance with") and insert ("have regard to").
The noble Lord said: My Lords, subsection (1 A) at the top of page 5 of the Bill says:
a country planning authority shall act in accordance with the guidelines from time to time issued by the Countryside Commission".
I thought that recently during the passage of the Police and Criminal Evidence Bill several times the House accepted the proposition that statutory provisions and guidelines were separate and distinct matters, and as Kipling would say, "never the twain shall meet". But if you say that somebody shall "act in accordance with" the guidelines, you are in effect giving statutory authority to those guidelines. I simply do not believe that when Parliament set up the Countryside Commission it can ever have been its intention that the commission should be permitted to produce guidelines which were going to have statutory force. I submit that the furthest you can go is to say that people shall "have regard to" guidelines. Of course, it is fair enough also to say that people may disregard guidelines at their peril, and that if a case comes before the court then it may be given in evidence, though not conclusive evidence, that the guidelines were not followed. I think that is so far as one ought ever to go.
§ I am not suggesting that in this particular case any great harm has been done, but that is a bit of luck. What I am hoping is that the Minister will be able to agree that I have drawn attention to a thoroughly bad general principle being introduced giving statutory effect to guidelines, and blurring the distinction between statutory provisions and guidelines. I hope the Minister will be able to say that this has been taken note of and that nothing like this will ever be allowed to happen in any future government legislation. I beg to move.
§ Lord Skelmersdale
My Lords, the noble Lord, Lord Airedale, has raised an important point which, as he said, has general application, and I shall cover the generality a little later in my remarks. At this point I should say that I am afraid that this is such an important general point that it will take rather longer to answer than the time it took the noble Lord to move this particular amendment.
537 Having said that, I can well understand anyone concerned with local authority law being concerned about the apparently dictatorial phrase "act in accordance with" in this particular clause. Since it was the Government who redrafted what is now Clause 3 in the Bill, complete with the offending phrase, I think it is appropriate for me to restate our position in some detail, since my speech in Committee appears to have been misunderstood. Clause 3 extends Section 43 of the Wildlife and Countryside Act 1981 requiring national park authorities to prepare maps showing not only moor and heath, as in the existing legislation, but also mountain, woodland, down, cliff or foreshore.
Regarding the amendments tabled in another place by the Government, we took the view that it would be more helpful if national park authorities were to focus their attention in this particular context on the more important types of natural and semi-natural landscape and vegetation on which the differing characteristics of the individual parks depend. It would be unfortunate, and possibly counter-productive, if authorities felt obliged to include on their maps virtually all the land, and buildings as well, within the parks, lest the omission of any particular area be regarded as an admission on their part that it was somehow unimportant in conservation terms.
This is precisely why the use of guidelines was decided upon. Of course they are statutory. It is simplistic to say so, but anything that arrives on the statute book is statutory. However, the subject that we now have to consider is: what is the meaning of the word "guidelines" in the Wildlife and Countryside Act as amended by this clause? The Concise Oxford Dictionary gives the meaning of "guideline" as "directing principle". In my view, this clearly indicates the general nature of the word. It would, I feel, be helpful to look at an example in a totally different context. The meaning of "guidance" as used in Section 3(2) of the Civil Aviation Act 1971 was considered at some length in the Laker Airways v. Department of Trade case heard in the Court of Appeal in 1977. The observations of the judges are germane to our consideration of this matter.
The noble and learned Lord, Lord Denning, stated:So long as the guidance given by the Secretary of State keeps within the due bounds of guidance, the authority is under a duty to follow his guidance. Even so, the authority is allowed some degree of flexibility … So, while it is obliged to follow the guidance, the manner of doing so is for the authority itself. But if the Secretary of State goes beyond the bounds of guidance, he exceeds his powers: and the authority is under no obligation to obey him".In the same case, Lord Justice Roskill, taking a similar line and making a distinction between the words "guidance and "direction", said:guidance is assistance in reaching a decision proffered to him who has to make that decision but that guidance does not compel any particular decision".I think, perhaps, those are the words for which the noble Lord, Lord Airedale, was asking.
Our amendment linked the scope of the maps to the range of landscape defined as "open country" in Section 59(2) of the National Parks and Access to the Countryside Act 1949, as amended by Section 16(1) of the Countryside Act 1968. This adds to moor and heath, areas of mountain, down, cliff, foreshore and 538 woodlands and, in our view, provides sufficient flexibility to cover the more important features in all the national parks.
More importantly, in this context we considered it desirable to clarify what we believed should be two separate aspects of the consultation process. In our view, the Countryside Commission's main concern should be to advise national park authorities on matters of general principle with a view to achieving, among other things, the sort of uniformity of approach which I think all concerned recognise to be desirable. That implies some form of centralised advisory mechanism in which the commission should play the predominant role. The issue of guidance is the appropriate form for this to take in such circumstances.
It has, however, never been our intention that the Countryside Commission's guidelines should supplant national park authorities' responsibility for the detailed decisions involved in the map making process. Accordingly, the Bill as now before the House provides for national park authorities to prepare and review their maps in line with guidelines issued by the Countryside Commission and prepared in consultation with interested bodies. It also provides for a second stage in the consultation process by requiring national park authorities to seek the views of those bodies which they consider to represent interests concerned with matters affecting their particular park.
This clause also introduces a more relaxed timetable for the map making process than that currently laid down in Section 43 of the Wildlife and Countryside Act. Under that section, the maps of moor and heath had to be prepared within two years of commencement and reviewed at 12-monthly intervals thereafter. The Government took the view, which was supported by national park authorities, the Countryside Commission and the Council for National Parks, that it would be more sensible to set the clock ticking for the two-year period of initial preparation for the new maps from the date when the commission's guidelines are issued, and to provide for five-yearly, rather than annual, reviews in parallel with the statutory arrangements governing the review of national parks plans as laid down in Schedule 17 to the Local Government Act 1972.
The amendment of the noble Lord, Lord Airedale, which we are now discussing would bear upon only the first stage of the preparations, relieving the national park authorities of the obligation to abide by the guidelines issued by the Countryside Commission, but requiring them instead to "have regard to those guidelines". They do not have to abide by them, but merely have to have regard to them.
Although, as I have said, this amendment would bear upon the process, I do not think that it would actually affect it. That is because, as I made clear at Committee stage, we can rely upon the commission not to issue guidelines which are generally unacceptable to the authorities or subsequently to review them in any way which is generally unacceptable to them. I have previously given an assurance that the Government will discuss the proposed guidelines with the commission before they are issued so that their contents can be checked for their likely acceptability to the authorities.
539 I hope that in the light of this, the noble Lord, Lord Airedale, will realise that in practice the obligation placed on national park authorities to prepare and review their maps in accordance with the guidelines will not prove to be onerous or jeopardise their freedom to draw up maps which delineate all those areas of open country that they believe are particularly important to conserve.
I can go on and dilate at great length on comparable instances of non-governmental organisations issuing guidelines in the same kind of form, but I hope that the noble Lord, Lord Airedale, will agree that, in the light of the explanation and the assurances I have already given, his amendment in this particular case and more generally is unnecessary.
§ Lord Airedale
I do not think that I have ever had such a comprehensive answer to any amendment I have moved. I am deeply grateful for the great industry that has gone into the preparation of it. I was raising a purely general point and I was using this clause simply as a peg on which to hang it. I commend to the Minister for light reading over the week-end our debates upon statutory provisions versus guidelines during the passage of the Police and Criminal Evidence Bill a short time ago. With those few words, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.