HL Deb 18 December 1990 vol 524 cc732-42

3.6 p.m.

Report received.

Clause 1 [Scottish Natural Heritage]:

Lord Carmichael of Kelvingrove moved Amendment No. 1: Page 1, line 12, at end insert ("and access to").

The noble Lord said: My Lords, I am aware that it may not seem appropriate to raise this matter again at this stage of the Bill. However, the answers given by the noble Lord, Lord Strathclyde, in relation to the insertion of the reference to access in Clause 1(1) were less than satisfactory in my opinion. The words "access" and "enjoyment" are not synonymous. One may wish to use a right of way for the purpose of access with no element of enjoyment involved. If it is said that "enjoyment" subsumes "access" it would introduce a useful clarity into a crucial debate on whether the Bill refers explicitly to access. I am sure that the noble Lord will be aware that access, getting to a place for enjoyment, may be anything but enjoyable in itself. This is a small amendment but it would clarify the point. I beg to move.

Lord Strathclyde

My Lords, noble Lords will know how important we consider access to be as an aim of SNH. We expect to build on and develop the work done in this area over the years by the Countryside Commission for Scotland. Access is an important part of SNH's general aim of facilitating the enjoyment of the natural heritage.

As I said in Committee, however, it would not be proper to single it out over other aspects of enjoyment. When we discussed the issue in Committee, I gave a commitment to table amendments to extend to SNH the access powers contained in Part II of the 1967 Act. As your Lordships will have seen from the Marshalled List, I have fulfilled that commitment. Therefore, I can see no need for this amendment and I hope that the noble Lord will be able to withdraw it.

Lord Carmichael of Kelvingrove

My Lords, we shall come to another long Government amendment on this matter a little later. I do not think we shall get any further with this matter at this stage. It may be rather a fine point, but I believe the amendment should have been accepted. However, obviously that will not be the case. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

Lord Carmichael of Kelvingrove moved Amendment No. 3: Page 1, line 13, after ("heritage") insert ("and resources").

The noble Lord said: My Lords, I believe that "heritage" is too narrow a term and has implications only of cultural and aesthetic values. The whole thrust of the report Scotland's Natural Heritage: The Way Ahead was to widen the agenda for conservation beyond the narrow approach based on interest and aesthetic considerations. It clearly sets the Government's objectives within the terms of the world conservation strategy which seeks to tackle the wider issue of natural resource use. The report reaffirms, the government's commitment to positive action to protect the environment and promote the sustainable management of natural resources". That matter clearly goes well beyond the protection of heritage to include natural resources in general. That must be reflected in the statement of Scottish Natural Heritage's general aims and purposes. I beg to move.

Lord Strathclyde

My Lords, this amendment seeks to relate the aims and purposes of SNH to something described as the natural resources of Scotland, which is apparently viewed by noble Lords opposite as somehow different from the natural heritage of Scotland. The noble Lord, Lord Carmichael, made it clear that he felt there was a difference between natural resources and natural heritage. However, as defined in Clause 1(3) the natural heritage includes flora, fauna, geological and physiographical features. I do not consider that the explanation that the noble Lord offered for including the term "resources" in the Bill adds anything to the scope of Clause 1. I suspect that it would serve to raise confusion on the meaning of "natural heritage" in other parts of the Bill. I do not wish to detract from what the noble Lord has said, but I believe that the scope of Clause 1 covers all the necessary aspects. I hope that the noble Lord will not press his amendment.

Lord Carmichael of Kelvingrove

My Lords, again I believe this is a fine point. I should have thought that the inclusion of the word "resources" would have benefited people's understanding of the Bill. However, in view of the Minister's explanation and the fact that the Bill has a long way to go in another place, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

3.15 p.m.

Lord Carmichael of Kelvingrove moved Amendment No. 4: Page 1, line 13, leave out ("have regard to the desirability of securing") and insert ("take all practicable steps to ensure").

The noble Lord said: My Lords, we believe that the words proposed in Amendment No. 4 reflect far more accurately than the words in the Bill the strength of commitment which Government Ministers have consistently expressed in spoken and written form during the past 18 months. The first six pages of Scotland's Natural Heritage: The Way Ahead contain no fewer than 16 references to sustainability. No reader could fail to gain the strongest impression that the document implies much more than the concept conveyed in the words, have regard to the desirability of securing". The duty in the Bill must therefore be stronger than it is at present. I beg to move.

Lord Strathclyde

My Lords, we discussed this matter in Committee. The noble Lord, Lord Carmichael, said he hoped to find a middle way between what the Bill proposes and what is contained in these amendments. I do not believe that that has happened in this case. I regret therefore that we are in danger of repeating the same arguments. I am obliged to reiterate that the Government do not consider this amendment to be realistic. It would not be practical to encourage unlimited interference by SNH in the activities of others. In the long run that would be very likely to prove inefficient and ineffective. SNH will of course do all that it reasonably can to seek to ensure that the work it undertakes at its own hand is done in a sustainable way. It will persuade others to do likewise. The Bill provides for that. I do not consider the amendment would serve the purposes which the noble Lord hopes to achieve. It could cause confusion rather than produce effective solutions.

We thought carefully about the wording in the Bill when we included the words, have regard to the desirability of securing". We felt that those words implied the right kind of duty rather than the stricter duty implied in the words, take all practicable steps to ensure". I realise that one could argue about this matter for ever. However, I hope that the noble Lord, Lord Carmichael, will accept my assurance that we have looked at this matter with extreme care. We believe we have produced the right form of words. I hope that the noble Lord will feel able to withdraw his amendment.

Lord Carmichael of Kelvingrove

My Lords, the Minister said that this measure was a repetition of an amendment proposed at an earlier stage. I had hoped to obtain fresh words for the amendment but with my limited resources that is difficult. I am glad that the Minister, with his vast resources, was able to reconsider this matter. I am sure that he has reconsidered the matter honestly. If he cannot find words that cover exactly what I and my advisers were attempting to convey, I doubt whether I can at this late stage. The Bill, however, will pass to another place, where perhaps more resources can be devoted to the wording and more time will be available to debate such matters. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carmichael of Kelvingrove moved Amendment No. 5: Page 1, line 15, after ("undertaken") insert ("overall").

The noble Lord said: My Lords, this amendment seeks to persuade the Government to take a wider view. The aim is to ensure that some developments which may cause some loss of heritage occur at some locations but are balanced by no development at other locations. The concept of sustainability should be applied strategically to the whole of Scotland and to major areas. It should not be applied on a small site-by-site basis which could, cumulatively, be quite destructive to the Government's aims in the Bill. I beg to move.

Lord Strathclyde

My Lords, the noble Lord is right in that I have at my disposal the vast resources of the Scottish Office which enables me to counter the arguments that the noble Lord proposes. However, I should point out that although the noble Lord's resources may be meagre, his arguments are effective and he has made us think again on many occasions in Committee and now again on Report.

This amendment presents me with some problems. I am rot entirely sure how the amendment would operate. I consider that the intention of the amendment is to weaken the idea of sustainability by requiring that anything done should be, undertaken overall in a manner which is sustainable". It implies that some activities which were not sustainable could be supported. This is not the Government's intention. I am sure it is not the noble Lord's intention, either.

As I explained in Committee, sustainability is an important and increasingly understood concept, and one which is fundamental to the Government's approach to environmental matters. We do not wish to see it weakened. An activity may either be considered sustainable or not sustainable; and the addition of the word "overall" will make it more difficult for SNH to interpret its aim under Clause 1(1).

As I said in Committee, the Government feel that the sustainability duty should be applied to individual activities and more generally to support schemes and policies. It is not a question, as this amendment implies, of one or the other. It is, of course, the case that there will be variations in the extent to which particular activities which are otherwise entirely necessary or desirable can be carried out in a sustainable way. That does not make sustainability any less desirable as an objective.

I hope that the noble Lord, Lord Carmichael, followed that explanation. I felt myself getting lost half way through, and my thoughts may have become rather confused. We are dealing here with sustainability in given areas. If we include the word "overall" we shall diminish sustainability rather than enhancing it.

The Earl of Selkirk

My Lords, my noble friend has convinced me that the noble Lord, Lord Carmichael, was right and that my noble friend is wrong. The word "overall" means overall. It does not diminish sustainability, it extends it to the whole area. I should have thought that that was desirable.

As it stands the Bill provides that if one can say that some part of what is done in relation to the natural heritage is sustainable then one fulfils the purpose of the Bill. That is exactly what we do not want. We want the major aspects of a development to be sustainable overall and to extend to the whole area of the development. I should have thought that the amendment would be a valuable addition to the Bill in maintaining the overall development—whether in forestry, land or some other development. In that sense it is a balanced, overall development, which I should have thought would be the wish of Parliament.

Lord Mackie of Benshie

My Lords, I do not like to disagree with the noble Earl, Lord Selkirk. However, it appears to me that the phrase: is undertaken overall in a manner which is sustainable is hardly English. It is certainly not comprehensible to me. I should have thought that leaving out the word "overall" would be of great benefit to the simplicity of the clause.

Lord Carmichael of Kelvingrove

My Lords, the noble Earl, Lord Selkirk, has such a reputation in the House for clear thinking, gained over many years, that after the Minister's explanation I was very glad to hear his explanation, which was made on the hoof as it were. I think that we are on to something here. I agree that the wording may not be quite right; and perhaps the noble Lord, Lord Mackie of Benshie, has a point in that the English is not as good as it might be.

We are concerned that developments should be considered from an overall point of view, and I hope that the Minister will think again and agree to take the matter back between now and Third Reading.

Lord Strathclyde

My Lords, with the leave of the House, because it is Report stage, perhaps I may add one or two points. May I say to my noble friend that the purpose in writing the Bill in this way is to make sure that conservation and sustainability are the primary functions. Naturally, in carrying out its functions Scottish Natural Heritage will have a duty to look at other aspects of the development of forestry, agriculture and other areas in relation to that overriding duty. In the Government's view adding the word "overall" would weaken that duty. The noble Lord, Lord Carmichael, admitted that there may be some aspects which are not sustainable.

I am sorry that I cannot give any undertaking to the noble Lord, Lord Carmichael, on this issue. We have gone through it at some length. I hope that he will read what I have said before he decides what to do at Third Reading.

Lord Carmichael of Kelvingrove

My Lords, I believe that we shall return to the concept of sustainability fairly soon. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 6 not moved.]

Lord Carmichael of Kelvingrove moved Amendment No. 7: Page 1, line 23, at end insert: ("(4) For the purpose of this Act, "sustainable" shall mean "consistent with the principles of preserving biological diversity, protecting major natural ecosystems, and using natural resources only in such a way as protects them from long term degradation or depletion".").

The noble Lord said: My Lords, as I understand it, this is the first time that the word "sustainable" appears in United Kingdom legislation. After extensive promotion of the concept in the World Conservation Strategy and the Brundtland Report, the Government have adopted the concept in countless references in government publications and Ministers' speeches. It must be clearly defined in the Bill, in the terms in which it is used in the Brundtland document, in the report Scotland's Natural Heritage: The Way Ahead and the environment White Paper This Common Inheritance. The Minister will be aware of that helpful definition. I hope that he will accept the amendment. I beg to move.

Baroness Nichol

My Lords, I should like to support my noble friend on this point. When we discussed the definition of "sustainable" at Committee stage it was clear that a number of us needed clarification as to what the word meant. It would be very helpful if the definition was included in the Bill at an early stage. I hope that the Minister will look kindly on the amendment.

Lord Strathclyde

My Lords, I congratulate noble Lords opposite on this attempt to define the word "sustainable". I welcome the approach. There is no doubt that the concept of sustainability is essential to the setting up and operation of Scottish Natural Heritage. I recognise that the definition emanates from the World Conservation Strategy and that it was, as the noble Lord said, set out in our consultation paper. I have no difficulty with that.

Where I have difficulty is with the idea that it is desirable to enshrine any definition of sustainability into statute. On the one hand there is no disagreement on what "sustainable" means in a natural heritage context. The key aspects are related to the nature, range and intensity of usage, and it is those aspects which Scottish Natural Heritage will keep in mind. The more agreement there is on the meaning of the concept the less the need for a statutory definition.

There is a further general disadvantage to statutory definitions. By including the definition in statute the noble Lords who propose the amendment could unwittingly restrict SNH. I believe that it would be better to leave "sustainable" undefined. Circumstances can change and while the definition may seem satisfactory to us now it may not always be so.

It is in that spirit that I ask the noble Lord, Lord Carmichael, to withdraw his amendment. I hope that he will appreciate that we are not opposed to what he said but that we do not want to impose a straitjacket on SNH through a definition of sustainability.

Baroness Phillips

My Lords, having just listened to a debate in another connection on that marvellously vague phrase: such force as may be deemed necessary", which no one has ever been able to define, it seems to me that here again we shall create a field day for the lawyers if "sustainable" is not clearly defined in the Bill. In every Act of Parliament there are certain phrases for which everyone has a different interpretation, leading to endless litigation. Surely, in a Bill of this character, it cannot be beyond the wit of the civil servants and Ministers to deal with this very serious issue.

Lord Carmichael of Kelvingrove

My Lords, I am grateful for the support of my noble friends Lady Phillips and Lady Nichol. The Minister suggested that the world changes. Of course it does, but I should have thought that it would be easier, and—as my noble friend Lady Phillips said, we shall provide a field day for the lawyers if we do not include the definition—perhaps it would take some work away from the lawyers and make their pleadings somewhat shorter if such a definition were included.

I am sorry that the Minister, while agreeing with the principle, finds it impossible to support the amendment. I am sure that this will be a matter which will be discussed again at a later stage of the Bill. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carmichael of Kelvingrove moved Amendment No. 8: Page 2, line 23, after ("persons") insert: ("() the power to guarantee obligations arising out of loans or otherwise incurred by any person receiving assistance from SNH;").

The noble Lord said: My Lords, in Committee the noble Lord, Lord Strathclyde, argued that Highlands and Islands Enterprise does not have the power to guarantee obligations and therefore no requirement could be seen for Scottish Natural Heritage to have such a power.

I think that on reflection the Minister is bound to agree that the Highlands and Islands Enterprise and Scottish Enterprise will have such a power. It is defined in Section 8(1)(c) of the Enterprise and New Towns (Scotland) Act 1990. Under Section 13(1) of that Act, Scottish Enterprise is restricted to using the power only to provide financial assistance to persons carrying on any commercial activity. There appears to be no restriction upon Highlands and Islands Enterprise.

However, the point is that Scottish Natural Heritage, as a body empowered to foster environmental enterprise and support or promote private sector involvement in services or activities to do with the care or enhancement of the natural heritage, should have at least the same portfolio powers as the enterprise agency. The gist of the argument is contained in that. I shall not go to any great length to explain it further, unless the HIE and Scottish Enterprise do not have the powers which I am told the Minister wrongly said they do not have. I hope that the amendment will be accepted. I beg to move.

3.30 p.m.

Lord Strathclyde

My Lords, the noble Lord, Lord Carmichael, moved an identical amendment in Committee. I said then that I did not see the need for SNH to have such a power, and I stand by that statement. SNH is not an economic development organisation. Noble Lords will surely agree that it is the role of private sector financial institutions to guarantee loans and mortgages. It would be wholly wrong to transfer the contingent liabilities to the public purse by accepting this amendment.

As tae noble Lord himself pointed out, I suggested in Committee that equivalent powers did not exist for Highlands and Islands Enterprise. I am now advised that I was wrong and that that body does have such powers, in addition to Scottish Enterprise. Nevertheless, I do not think that there is any logical parallel between those two bodies charged with furthering economic development and Scottish Natural Heritage. In this area of operation, HIE and SE might expect to make some use of such powers in particular circumstances with a long-term aim of securing important jobs and investment for a particular area. Such guarantees would be given subject to strict financial guidelines to limit any liabilities to an absolute minimum. Furthermore, both Highlands and Islands Enterprise and Scottish Enterprise have the knowledge and experience of operating such projects developed over several years by their predecessor bodies, HIDB and SDA.

It would be wrong to place additional responsibility of that nature on SNH by asking it to make decisions on such matters which are well beyond its remit. SNH will have significant opportunities to make grants and loans to the private sector and the Government see that as an appropriate and sufficient extension of its powers in that area.

I hope that that explanation puts at rest the mind of the no Lord, Lord Carmichael and that he will agree that it is better for SNH to look after its environmental duties and allow HIE and SE to look after their economic development duties.

Lord Carmichael of Kelvingrove

My Lords, I am glad that I was able to help the Minister to clear up a difficult point. I am sorry that I did not perhaps speak for as long as I could have done on the ability to expand economically and commercially. I accept that guaranteeing obligations could put a considerable burden on the public purse if it were not well controlled. However, I am sure that there is scope for the Treasury to come to an agreement with SNH as to the level of guarantee that might be appropriate under a range of circumstances.

This matter will have to be pursued, although I can see the dangers to which the Minister pointed where a body is not quite so commercially oriented as the other two which have such powers. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carmichael of Kelvingrove moved Amendment No. 9: Page 2, line 29, at end insert ("and (h) the provision of advice and guidance to any government department or public body on the preparation of an environmental strategy which sets out how that department or body will have regard to the desirability of securing that anything done in relation to the natural heritage of Scotland is undertaken in a manner which is sustainable, and assisting in periodic review of the implementation and effectiveness of such a strategy.").

The noble Lord said: My Lords, this amendment allows for Scottish Natural Heritage to tender advice to the Government or other public bodies concerned with the environment. Ministerial statements have made clear that the overriding concern of government is to secure a sustainable natural heritage and to ensure that when change occurs in the use of land or water resources it does not irretrievably damage the natural environment and imperil the heritage that we wish to hand on to future generations. We believe, and the Minister also, I think, feels that Scottish Natural Heritage is a significant step in that direction. But it is illusory to imagine that SNH is the only body to he concerned with Scotland's natural heritage. Indeed, much of the conservation versus development conflict in Scotland in recent times results from different bodies or agencies pursuing different objectives to their individual or mutual advantage.

Sustainability is dependent on fostering a common purpose. It is a helpful suggestion that Scottish Natural Heritage should be available to give advice to the Government and to public bodies in respect of any developments that will affect the environment of Scotland. In that spirit I beg to move.

Lord Strathclyde

My Lords, there appear to be two elements to the amendment. The Government do not see the need for statutory provision for either of them. First, the amendment would give a specific function to SNH to provide advice and guidance on the preparation of an environmental strategy. We are certainly not against SNH providing advice to government departments and public bodies; indeed specific provision is made for it in paragraphs (a) and (b) of Clause 2(1). We do not, therefore, see the necessity for this further specific provision.

Secondly, by implication the amendment suggests that departments or bodies will prepare environmental strategies, and will periodically review their implementation and effectiveness, particularly focusing on securing activities that result in the natural heritage of Scotland being sustainable. I am pleased to see that the Opposition accept the Government's view that departments and government bodies should have such responsibilities. Obviously they have read and taken on board the proposals in our White Paper This Common Inheritance. For example, there is a nominated Minister in each department who is responsible for considering the environmental implications of all of that department's policies and spending programmes as well as for following up the relevant parts of the environment White Paper.

Furthermore, annual departmental reports can also set out the action that they have taken to follow up the White Paper and any other environmental initiatives which they are proposing. The Government have also set work in hand to produce guidelines for policy appraisal where there are significant implications for the environment in the work of government departments.

I hope that the noble Lord will believe me when I give him the assurance that the Government are committed to a co-ordinated departmental strategy to deal with the environment. No doubt he will feel free to withdraw his amendment.

Lord Carmichael of Kelvingrove

My Lords, I thank the Minister for that explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Carmichael of Kelvingrove moved Amendment No. 10: Page 2, line 29, at end insert ("and (h) the duty to keep under review all matters relating to the provision, development and improvement of facilities for the enjoyment of the countryside and the need to secure access for the purposes of open air recreation, and to encourage, assist, or promote the implementation of any proposals with respect to the enjoyment of the countryside, being proposals which SNH consider to be suitable.").

The noble Lord said: My Lords, this amendment seeks to avoid a certain amount of doubt that could arise. Along with mentioning explicit nature conservation functions, we believe that there should continue to be explicit reference to access and recreation. Without the amendment the Bill appears to fail in its attempt fully to bring together the work of both the Nature Conservancy Council and the Countryside Commission for Scotland. The existing reference to enjoyment and amenity is insufficiently precise. If the amendment is accepted it will ensure that the functions of the Countryside Commission for Scotland as detailed in Section 3 of the Countryside (Scotland) Act 1967 are properly carried forward within the new agency. I beg to move.

Lord Strathclyde

My Lords, the amendment seeks to retain the provisions of Sections 3(a) and 3(b) of the Countryside (Scotland) Act 1967. We do not think that these provisions are necessary on the statute book in the degree of specificity which the amendment suggests. Indeed, I go further. The aims and purposes set out in Clause 1 could not be pursued, and the general advisory functions in Clause 2(1)(a) and (b) could not be undertaken by SNH without keeping under review all relevant matters which would include enjoyment of the natural heritage. Similarly, when undertaking its more specific powers—for instance, grant aid under Clause 8 and development projects or schemes under Clause 5—SNH would need to have a broad strategy to enable it to make decisions on individual cases and proposals.

We are quite satisfied that the general powers in Clause 2(1), in particular paragraphs (b), (c) and (g), will give Scottish Natural Heritage all the powers that it needs to achieve this. The amendments as drafted are unnecessary, as well as being backward looking in their terminology. They refer back to statutes which are well over 20 years old. We are trying to achieve a synthesis of the legislation. These amendments would perpetuate the language of the 1967 Act. In particular, the concept of designated countryside to which the amendment harks back is being abolished. I cannot therefore accept it.

Perhaps I may say to the noble Lord that we are trying to achieve a degree of flexibility. The amendment does not allow that. I hope that the noble Lord will feel able to withdraw it.

Lord Carmichael of Kelvingrove

My Lords, I believe that we are all in favour of flexibility. However, there are some aspects in law that one wishes to pin down or one finds that one has not achieved what one had believed when the Bill was passed. The Minister gave a full and interesting explanation. I shall consider it. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.