§ 8.7 p.m.
§ The Minister of State, Department of the Environment (Viscount Ullswater) rose to move, That the draft regulations laid before the House on 13th July be approved [25 th Report from the Joint Committee].
§ The noble Viscount said: My Lords, I beg to move the regulations standing in my name on the Order Paper.
§ The regulations were approved in another place, following the debate on 19th July. My honourable friend the Minister for the Environment and Countryside wrote to honourable Members who had raised points in that debate and copies of his letters have been placed in the Library.
§ The draft regulations to be made under Section 2(2) of the European Communities Act 1972 transpose into national law for Great Britain the provisions of the EC directive on the conservation of natural habitats and of wild flora and fauna adopted by the Council of Ministers in May 1992.
§ The directive was a significant milestone for the conservation of the most endangered habitat types and species in the European Union and these draft regulations indicate the Government's determination to give proper effect to its requirements. The challenge has been to integrate the new requirements of the directive into what we already have.
§ The regulations introduce new provisions arising specifically from the directive but also embrace existing provisions of the Wildlife and Countryside Act 1981 and other Acts, with modifications where necessary. The draft order, therefore, constitutes a single body of legislation for sites and animal and plant species of European importance covered by the directive. The existing law, in so far as it applies to non-European sites and species outside the scope of the directive, remains in force unamended.
§ The draft regulations follow the public consultation which took place last autumn. All those who responded to the consultation have received a letter explaining the contents of the regulations and a copy has been placed in the Library. The letters from respondents plus a 86 summary analysis of their contents have also been placed in the Library. In addition, a summary of responses to the public consultation on the amendments to the general development order effected by these regulations is in the Library.
§ A cornerstone provision of the regulations is the introduction of new duties on Ministers and the nature conservation agencies to exercise certain of their functions in order to secure compliance with the requirements of the directive. In doing so they must use such of the provisions in existing nature conservation legislation and in these regulations as may be necessary to secure the protection of sites and species as required by the directive. A similar duty is imposed on authorities operating in the marine environment, to which I shall return later. All government and public bodies have a new duty to have regard to the directive's requirements in the exercise of any of their functions, and Part IV of the regulations imposes specific duties on certain statutory bodies in respect of certain functions.
§ The regulations provide for the selection and designation of sites which will become special areas of conservation (SACs) as required by the directive. The habitats directive applies a similar protection regime to SACs and special protection areas (SPAs) classified under the 1979 EC Wild Birds Directive. The regulations thus modify the protection regime applying to SPAs and provide a comprehensive legal protection system for all European sites which will in the future contribute to the Europe-wide network (known as Natura 2000) of designated nature conservation sites.
§ The regulations also give effect to the requirement that the Government must submit a proposed site list to the European Commission. Following discussion at community level a European Union-wide network of sites of Community importance will be adopted by June 1998; the regulations require the Secretary of State to designate such sites in this country as SACs within six years. The Government is receiving advice from the nature conservation agencies through the Joint Nature Conservation Committee on their site proposals based on the directive's scientific criteria. We shall consider this advice and intend to publish a list of sites for consultation very shortly.
§ The Government are committed to preliminary consultation with all owners and occupiers and other affected interests on the sites before submission to the Commission takes place. Full and detailed discussions about definition and management of sites will continue before the Community list is agreed. On land, all candidate sites will have been notified and confirmed as sites of special scientific interest before the Community list is agreed. The vast majority are already confirmed SSSIs.
§ The Government have been committed for many years to the conservation of nationally and internationally important sites. It has a whole range of policies to achieve that objective. The SAC network is, therefore, a development of an existing conservation programme. I want to dispel from your Lordships' minds any notion that we are starting from scratch.87
§ The regulations provide for the establishment of a register of European sites which will be open to public inspection. The entry of a site on the register will be notified to owners, occupiers, local authorities and any other interested bodies which the Secretary of State may direct. The register will be the formal means to record the sites subject to the provisions of the regulations.
§ The register will include existing Birds Directive SPAs and new SPAs as they are classified, and SACs, first when they are agreed at European level as sites of Community importance and, eventually, when they are formally designated.
§ The regulations provide that existing legal measures applying to SSSIs and nature reserves are available with certain modifications for European sites. The Government remain committed to the voluntary principle of land management. It is expected that where management is necessary most of the conservation needs of designated sites will be delivered through voluntary management agreements negotiated between owners and occupiers and the nature conservation agencies.
§ For European sites, the regulations continue the existing provisions of Sections 28 and 29 of the Wildlife and Countryside Act 1981 but make certain modifications relating to notification of and consents to operations which are likely significantly to affect the sites' conservation objectives. The nature conservation agencies will be able to amend their existing SSSI notifications for European sites. They will be unable to give consent to a notified operation if that operation would adversely affect the integrity of the site. They must inform the Secretary of State if there is a risk that the owner or occupier will persist with the operation.
§ The Secretary of State can then make a "special" nature conservation order prohibiting damaging operations indefinitely unless a management agreement (subject to existing arbitration procedures) is negotiated or unless he instructs the agency to give consent on grounds of overriding public interest. Existing consents on protected sites must be reviewed in the light of the directive's requirements and may be withdrawn or amended as appropriate.
§ The regulations also allow the making of by-laws to control third party activities and will enable powers of compulsory purchase, similar to those that exist in the National Parks and Access to the Countryside Act 1949, to be used if necessary as the only cost-effective means of safeguarding the conservation value of the land.
§ The regulations introduce a new framework for the conservation of European sites in the marine environment. All Ministers, government departments and public bodies with functions relevant to marine conservation must, under a new duty, exercise their functions to secure compliance with the requirements of the directive. Identified relevant authorities, such as sea fisheries committees, harbour authorities and local authorities are given a new power to join with one another in the drawing up of schemes of management for these sites.88
§ The Government expect these authorities to work together voluntarily to establish such schemes founded on the advice which the nature conservation agencies are under a duty to provide. However, Ministers may, under the regulations, give directions to these bodies in respect of the establishment of a scheme of management and will do so if it seems to them necessary to secure the conservation of the site. Such directions could cover the nomination of a lead agency, a timescale for the preparation of a scheme or even the inclusion of certain conservation measures in a scheme.
§ The regulations introduce, in respect of the species covered by the directive which occur in the UK, a number of technical changes to the existing species protection provisions of the Wildlife and Countryside Act 1981. The 1981 Act provisions were designed to implement the Bern Convention on the conservation of European wildlife and natural habitats into British law. The directive, in its turn, was based on the provisions of the Bern Convention and therefore the need for change to existing domestic provisions is relatively small.
§ Part IV of the regulations contains detailed application of the provisions of Article 6 of the directive in respect of a number of existing legislative regimes for consents, permissions or authorisations of plans and projects or development which would be likely to have a significant effect on a European site. The regulations introduce a general approach to the assessment of such effects. They stipulate the exceptional circumstances in which consent can be given to a plan or project if an assessment shows that it will adversely affect the integrity of a site. Such circumstances are defined as where there is no alternative solution and where the plan or project is necessary for imperative reasons of overriding public interest including those of a social or economic nature.
§ Where a site hosts the very rarest of the habitat types and species, which are defined in the directive as "priority" habitat types or species, the only allowable considerations are those relating to human health or public safety, other environmental factors of primary importance or, subject to the Commission's approval, other reasons of overriding public interest.
§ All these provisions apply to the granting of new consents, permissions, etc., but the regulations also introduce a new requirement to review existing unimplemented or partially implemented decisions which are likely, if carried out, to affect European sites and if necessary to take action to remove harm.
§ The regulations specifically apply these general provisions to a range of existing controls, including the granting of planning permissions, deemed planning permissions and the availability of permitted development rights through the general development order. For England, Planning Policy Guidance Note No. 9 on nature conservation will explain the effects of the regulations fully to local authorities, developers and any other interests. Other guidance will be issued for Wales and for Scotland.
§ I believe that these draft regulations represent a thorough implementation package to comply with the requirements of the habitats directive. I beg to move.89
§ Moved, That the draft regulations laid before the House on 13th July be approved [25th Report front the Joint Committee].—(Viscount Ullswater.)
§ 8.20 p.m.
§ Lord Pearson of Rannoch rose to move, as an amendment to the above Motion, to leave out all the words after ("That") and insert ("this House regrets that the draft regulations laid before the House on 13th July include, insofar as they concern Scotland, provisions which, inter alia,
- (i) allow for an increase in the area of land covered by Sites of Special Scientific Interest (SSSIs); and
- (ii) revoke existing consents for potentially damaging operations within SSSIs and consents for planning in the countryside generally;
§ The noble Lord said: My Lords, I start by apologising to all your Lordships for the tardiness with which I have tabled this amendment. However, it is only in the past few clays that some of my worst fears about the damage which these regulations and the European directive upon which they rest may do, at least in Scotland, have been confirmed. I should perhaps say that I speak entirely personally and in no way seek to portray the official views of the Scottish Landowners' Federation or Scottish Natural Heritage. I should also declare an interest, in that I own land in Scotland which is likely to be affected by the directive. Apart from one question which I shall put to my noble friend, I do not believe that my personal financial interest will be touched by these regulations. I am more worried that various scientific and regenerative schemes which I sponsor may be put in jeopardy.
§ I fear that it is inevitable that I shall have some fairly straight questions for my noble friend the Minister, in view of what I regard as the Government's folly in signing up to this particular directive. However, for what it is worth, I should like to exonerate my noble friend from any blame whatsoever, since he was doing other things at the time and is new to some of the finer and more dangerous nuances that I shall discuss. Likewise, I feel sure that his brief will not be of much help to him or to me. So I can but trust that this evening's proceedings will leave our very old friendship entirely intact.
§ Indeed, my noble friend's position is even more awkward than that, because not only will he hear what I expect may well be my lone voice urging him to abandon these regulations entirely; he will also have other noble Lords criticising the Government for not going a good deal further than they have done. He will thus be caught in what I always think is the unnecessary crossfire between the environmental lobby and the occupiers of land.
§ I know that there are many noble Lords who believe that our environmental problems are so worrying that surely any legislation which seeks to tackle those problems must be good. I do understand that view. But, as a Member of your Lordships' Select Committee on 90 Europe and in particular its sub-committee on the environment, I do not share it. We last debated this matter on 21st January 1993, when we discussed the Select Committee's Report on the enforcement of European environmental legislation and when I foresaw precisely the position in which we now find ourselves. If my noble friend could take the time to read what I said then (at cols. 987 to 990), I feel that he would understand my frustration now, even if he is not free to share it.
§ I still doubt, as I did then, whether European legislation is the right vehicle for international environmental regulation. My reasons still hold good— such as that Euro-legislation is made at national level, whereas in Germany, Spain, Holland and Belgium responsibility for the environment is vested at the local level of government. There is also the problem that most other member states simply have no intention of obeying Euro-rules with the same enthusiasm that we British do.
§ That gives me the opportunity to ask my first two questions of my noble friend. First, what evidence is there that any other countries of the European Communities are treating this directive with relish similar to our own or that they will be similarly obedient to it? Secondly, how much has each of them budgeted to spend in its pursuance?
§ Turning now specifically to Scotland—though I feel that what I have to say may apply as much to the rest of the United Kingdom—I contend that we do not need this directive at all. To support that contention I need to remind your Lordships of a little of the history of Scottish Natural Heritage. When the SNH Bill appeared in your Lordships' House, it proposed to give SNH much the same sort of coercive power which is now to be found in these regulations. At the time, sites of special scientific interest were broadly unpopular in Scotland and many of us felt that an independent system of appeal against them should have been introduced. After a certain amount of to-ing and fro-ing with the other place, my noble friend Lord Strathclyde brought forward a far-sighted government amendment which set up a new advisory committee under the auspices of SNH to which aggrieved landholders could appeal if they felt that their land was being designated on less than valid scientific grounds.
§ The amendment was accepted in your Lordships' House by a massive majority and confirmed by the other place. But there was an outcry from the leftish-greenish environmentalists, who claimed that the new advisory committee would be overwhelmed with appeals and that the work of SNH would be gummed up to the end of the century. I fear that they were even so uncharitable as to suggest that that was indeed the intention of the wicked landlords in your Lordships' House. How wrong they were. There have been only two appeals to the advisory committee and both have been decided in favour of SNH. However, there can be little doubt that the existence of the advisory committee has done much to curb some of the SNH's over-zealous designators of SSSI's, and it is safe to say that the SNH Act of 1991 heralded a new era of harmony and co-operation in Scotland.91
§ Much of the credit for that of course must go to SNH's chairman, Sir Magnus Magnusson, and his team, with whom even deer forest owners were now looking forward to collaborating voluntarily in setting up the new natural heritage areas envisaged by the Act, which seemed to most of us the sensible and modem way forward.
§ But then along comes this wretched directive, which I fear will restore all the old antagonism and distrust between SNH and those who own and work the land, at least in Scotland. I regard the situation as tragic and I am afraid that I also regard it as somewhat sinister. It is as though some hidden hand failed to grab the power it sought through the SNH Bill procedure but has now succeeded in doing so through the back door of Brussels.
§ It is against our custom to criticise civil servants generally, let alone to name them individually, but I have discussed my worries with a number of noble friends in this House and with honourable and right honourable friends in the other place and find that I am not alone in reaching that conclusion. With one exception, convention further restrains me from naming my friends in question because they are today all Ministers of the Crown and therefore should not be drawn into controversy of this sort about a department in which they no longer work. However, I fancy that my noble friend Lord Hesketh (I am sorry to see that he is not with us), who has laid down the burdens of office, may know what I am talking about and may have some sympathy with it.
§ That brings me specifically to the amendment itself. I fear that the directive and these regulations will have at least six damaging effects, of which I have indicated two in the amendment. In discussing those defects, I would point out that we are being asked to agree to these regulations without knowing precisely, or at all, what their effect may be. We do not yet know what areas will be designated as special areas of conservation (SACs) by the Secretaries of State on the advice of our conservation bodies, so we do not know the magnitude of the problem that we may be facing. We can, however, see the principles—or lack of them—which underlie this particular piece of subservience to Brussels, so I shall address myself to those.
§ First, the regulations will result in a large increase in the area of land to be covered by SSSIs, at least in Scotland, and thus by the new Euro-designation of SAC. I say that because, after half a dozen Written Questions, my noble friend Lord Arran was able to tell me, in a letter dated 25th March this year, that SACs will only be declared on land which has already been fully confirmed as an SSSI, allowing consultation and possible review by the advisory committee in Scotland to run their course. My noble friend Lord Arran admitted also that those new sites which will make up the new Euro-SACs could involve several hundred owners and occupiers. I now learn that entire river systems may be designated because Brussels fears for the future of the Atlantic salmon. So we are clearly talking about very large new areas.92
§ That seems to be particularly inappropriate. SNH has already designated all the land which it considers necessary to protect our natural heritage, amounting to about 10 per cent. of the Highlands. Can my noble friend tell us therefore—this is one of my more important questions—how much further land will have to be designated in Scotland and elsewhere? How do the Government justify handing over that land in effect to the diktat of the Brussels bureaucrats? Do the Government think that Brussels knows more about the natural heritage of Scotland, and indeed anywhere else in the United Kingdom, than SNH and other conservation bodies? If so, why?
§ My second point is that the regulations will force our conservation bodies to revoke consent for what are known as potentially damaging operations, which are rightly permitted within existing SSSIs with the consent of the conservation bodies. It will also force local authorities to revoke some planning consents which have already been granted in the countryside but upon which work may not have started. Here again, we have no idea of the scale of these extraordinary reversals of arrangements which have already been sanctioned by Parliament. Can my noble friend tell us how the Government have the brass nerve to justify them? Can he in fact give us any idea of the scale in question before we are invited to sanction the retrospective overturning of the will of Parliament, and by regulation at that?
§ My third point is that the directive introduces a new crime of what I call the "knock-on effect" in the countryside. One will be breaching the regulations if one carries out an operation which damages one of the new Euro-SACs nearby or even a long way away. Can I ask my noble friend whether the Government have given any thought as to the muddle in the world of planning which that part of the directive or regulation may cause? Who will decide whether a particular operation outside a Euro-SAC is likely to damage something Brussels judges to be important within it?
Fourthly, the regulations will weaken and perhaps nullify our present systems of appeal to the advisory committee in Scotland and to the Secretaries of State as ordained by Parliament. Can my noble friend tell us whether the advisory committee will judge appeals in future on the same scientific criteria it would have used before the directive came into force, or whether it will have to deliver its advice influenced by what the Secretary of State may have decided is scientifically important—he in turn having taken his marching orders from Brussels? By the same token, is not the judgment of the Secretaries of State going to be fettered by having to look over their shoulders at the regulations before deciding whether a specific development is or is not necessary for what Brussels describes as,
imperative reasons of overriding public interest"?
§ My fifth point relates to money. Because the suite of Scottish SSSIs as sanctioned by Parliament is widely known to be complete, land-holders will not be co-operative about the new Euro-SACs which are shortly to be forced upon them. That means that the new management agreements will be more expensive than those which already exist. It also means that the power of compulsory purchase will be more likely to have to 93 be used in future. Both those unwelcome developments will cost money. Furthermore, I gather that SNH's budget has had to be substantially increased to cope with its extra workload, a large part of which comes from— and has already come from—the directive. Can my noble friend tell us how much extra taxpayers' money the Government budgeted to see the regulations through? I see no estimate in the regulations themselves. That is perhaps because we do not appear to dare to count the cost of our membership of the European Community on any front. So can my noble friend help us here with a figure, perhaps to the nearest paltry million pounds or so?
§ While on the subject of costs, I was surprised to see that the regulations opine that they will cause no extra burden for business. If so, perhaps I may ask my noble friend the one question in which I could have a direct personal interest. Will I be allowed to carry out one of the Government's new native pinewood schemes on land which is not at present an SSSI but which will in future form part of an SAC?
§ My sixth point is that the regulations will do exactly what the leftist conservationists accused your Lordships of doing when we created the advisory committee in Scotland. They will gum up the work of SNH to the end of the century and they will gum it up with work which is by definition superfluous to sustain our natural heritage. I deplore the antagonism against SNH which they will generate, and let me assure your Lordships that I am not alone in that. They will make it impossible for SNH to do many other things for conservation, not least to retain the positive support of landowners for our future together.
§ And so I come to subsidiarity. As I said earlier, I know that there are some noble Lords who believe that the scale of our environmental problems is such that all member states should be subservient to the Commission in all environmental matters. I regret that the Government appear to share that view. But I hope that I have said something to show that that theory does not necessarily hold good, in this country at least, when we are considering our own unique natural heritage.
In my view there cannot be much doubt that the directive should fall under Clause 3b of the Maastricht Treaty—the subsidiarity clause. After all, when the Government unfortunately signed up to the Habitats directive in 1992 we had not ratified the subsidiarity clause. The Government assured us constantly, through all our debates on Maastricht, that subsidiarity was to be our glowing shield against any further erosion of our sovereignty to Brussels. It may help your Lordships if I again quote the clause in question:
In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community".
§ There can be little doubt that any reasonable objectives of the Habitats Directive have already been amply achieved in this country. So can my noble friend tell us how they can be better achieved by the 94 Community—if your Lordships will forgive the Euro-speak—by reason of their proposed scale or effects?
§ I fear that my noble friend will have some difficulty in answering that question, at least to my satisfaction. So I propose that we do not pass into British law these regulations, which reflect yet another unnecessary, interfering, expensive and misguided directive from Brussels and which risk doing much harm to our natural heritage. I beg to move.
§ 8.38 p.m.
§ Lady Saltoun of Abernethy
My Lords, perhaps I should declare an interest as the owner of a small estate in Scotland, while other members of my family have an interest in a rather larger one. The regulations are in accordance with the European directive and I understand are also consistent with action being taken in other European member states. I give them a guarded welcome. Perhaps I am not as starry eyed about them as I should be because I have some anxieties. Although they are of relevance generally, some are particularly important in Scotland where the total area of designated sites is likely to be proportionately greater.
Members have stated that the Government, while complying fully with the directive, will do so with the lightest possible touch. That certainly is welcome. But it only applies to the present Government and to the present Ministers. There are still anxieties that the regulations will introduce a much greater measure of compulsion to the management of designated sites and that there may be an erosion of the voluntary principle which is currently working well in achieving objectives for the natural heritage. Implementation of the regulations may divert the resources of Scottish Natural Heritage and of English Nature from other important conservation work, as indeed they already have. I should be grateful for the Minister's comments on these concerns and also on a number of other specific issues.
The regulations make significant changes to planning law. Development which is liable to affect the integrity of European sites will not be permitted unless there are imperative reasons of overriding public interest. For sites hosting priority habitats those reasons are clearly set out. However, for non-priority habitats and species, a careful balance will have to be struck between the natural heritage interest and the economic and social interests. This matter is open to many possible interpretations and it is important that there should be a consistency of approach throughout the United Kingdom and indeed throughout the European Community. It should not be left to the interpretation of individual planning authorities. I would ask the Minister to explain how the balance between these interests is to be achieved, a consistency of approach ensured and what detailed guidelines will be given to planning authorities, including those in Scotland, on this matter.
Permitted development rights for such things as farm roads and drainage will be removed for developments likely to have a significant effect on European sites. That is wholly acceptable for potential developments on the sites themselves, but I fear will create great uncertainty and potential risk for farmers and 95 landowners when applied, as it does—I think the noble Lord, Lord Pearson, has already mentioned this—to developments on other land. For instance, in the case of a river, drainage high in the catchment area may affect water flows and the integrity of a site which could be some miles downstream—possibly many miles downstream—and of which the potential developer may be totally unaware. In that situation it is, I suggest, unreasonable to expect the developer to know that permitted development rights had been removed and that he must obtain the approval of the planning authority in accordance with Regulations 60 to 62. I would ask the Minister to explain whether guidance will be given to owners and occupiers of other land where European sites may be susceptible to damage from what is presently permitted development on that other land; and if so, how this might be achieved. I would also ask what notice will be given to, for example, owners of sites higher up in the catchment area that they have to be careful what they do because of the possibility of doing damage to sites lower down. How will they be informed?
Again in relation to Regulations 60 to 62, these regulations do not state that a planning authority must take into account economic and social factors in reaching its decision. The directive does require those factors to be considered. Would the Minister confirm that Regulations 60 to 62 are subject to Regulations 47 to 49 and that for non-priority sites planning authorities are obliged to take into account economic and social factors in reaching their decisions?
Part of the regulations deals with the protection of species whether on designated sites or not. The number of species is not large, but I am uneasy that Regulation 39 appears to allow the possibility of prosecution for accidental damage to a breeding site or resting place of a European protected species. This is notwithstanding the provision in Regulation 40 that damage which is caused as the incidental result of a lawful operation and which could not reasonably have been avoided will not be penalised. Would the Minister confirm that there is no intention to penalise a genuine accident where, for example, the person carrying out the operation was unaware of the existence of the breeding site or resting place in question?
There is considerable interest and some concern in Scotland at the likely designation of some river systems as habitats of the Atlantic salmon and of other species. Salmon fishing is of great economic importance, directly and indirectly, to the economy of some rural areas. I would hope that the Minister could confirm that the measures to be introduced by way of management agreement and otherwise will not include restriction on rod and line fishing or the prevention of fishing improvements to the banks and bed of a river, but will rather focus on seeking to improve spawning beds, water quality and the habitat of such rivers generally.
Finally, it is of the greatest importance for the success of these measures that owners and occupiers are fully consulted and can be in sympathy with the objectives. I know that the Scottish Landowners' Federation has had very constructive discussions with the Scottish Office 96 and Scottish Natural Heritage on implementing the regulations, but the Minister might nonetheless wish to confirm that there will indeed be full consultation with owners and occupiers and that the regulations will be implemented in the most sensitive way possible.
§ 8.45 p.m.
§ The Earl of Lytton
My Lords, this is a welcome opportunity to debate a very important matter and I pay tribute to the Minister for the able way in which he has outlined the regulations. I should make it clear that I feel unable to make much observation on what happens north of the Border and therefore I shall restrict my remarks to the original Motion. In doing so I must, like the previous two speakers, declare an interest as an occupier and manager of land within an English national park.
I am always concerned at new regulations, particularly on top of existing ones and especially on countryside matters. But a European standard linking habitats and species is desirable even if it is not comprehensive and even if it doubles up on existing law. I share the concern already expressed that in some cases special areas of conservation may extinguish existing consents and existing permissive uses. I have always thought that it was wrong for nature conservation to be put in such obvious conflict with matters which may, after all, be regarded as part of daily life and certainly part of conventional land management. Who will be responsible for compensation on rescission of existing consents, or will there be none? How does one prove loss when it is measured in terms of an irritation factor and decline in private management commitment? That is an off balance sheet matter which we would do well to consider.
The existing system established under the Wildlife and Countryside Act is effectively restated in these measures. Like the noble Lord, Lord Pearson, I am concerned about the "penumbra effect", as I would call it, where off site activities that might just be considered damaging to an SAC will be caught in the list of proscribed activities. This creates uncertainty. It may be capricious in application depending on the view of a particular official and it certainly does not engender confidence in terms of countryside management. I believe that every land manager is entitled to know where he stands in law and not be subject to administrative uncertainty. But the burden of proof never seems to fall on the regulator; it always falls on the person who is regulated. This damages land manager commitment. Consultation, as was mentioned by the noble Lady, Lady Saltoun, is all the more important. I would be particularly pleased to hear further from the Minister exactly what consultation will be undertaken.
I turn to the question of management agreements under paragraph 16 of the regulations and what follows thereafter. I preface my remarks by saying that land management, particularly good land management, follows attractive prospects. Where as legislators we fail in taking account of this, land management in SACs will fail also. But that is not inevitable unless those factors are not taken account of.
97 Where designations ring fence an area to the exclusion of a land manager's instinctive objectives, poor management almost invariably follows. I draw the attention of the House to the National Audit Office report entitled Protecting and Managing Sites of Special Scientific Interest in England which was published in May 1994. It states therein:Insufficient or inappropriate management is the main cause of deterioration of sites of special scientific interest in England".I know of no effective regulation or sanction against poor management. It can be monitored but it cannot be eliminated. So we have to get away from the notion that agriculture and forestry and other conventional activities in the countryside are inherently harmful, because they are not. We have to understand that the management of land is a tool which is deployed as part of achieving some longer-term objective. It is necessary to comprehend that where activities involve net cost or are awkward and difficult, without eventual benefit to a supplier of goods, those goods simply cease to appear on the menu. Habitat management in farmed areas is a good of just that sort.
Moreover, habitats are not static but are in a constant process of evolution and transition. What habitat management does may simply be to interrupt the natural process and no more than that. My personal preference would be to see all land farmed with biodiversity in mind and all prescriptive regulation abandoned. Good management and environmental consciousness are part of a frame of mind fashioned by economic necessity and personal conviction, not something procured by administrative diktat.
But it would be wrong for me not to say that there are now welcome signs of a more focused approach to encouraging management through agreements that do in fact set targets, with a broad measure of freedom as to how they are achieved. That freedom may mean that there is some damage to working environmental capital in the process of creating balanced, fixed environmental capital. It is a balance sheet that we are all familiar with. I call to mind the old adage of country folk which is, "Live your life as if you would die tomorrow but farm your land as if you would live for ever". That approach indicates that we need a short-term fix but as part of a long-term strategy.
So if management agreements are to be a functional long-term strategy—and they are a main plank of how these special areas of conservation are to be managed as far as they are in private sector ownership—much more needs to be done to consult and to give a power of representation and appeal to land managers. Clear targets need to be set and not yet more regulations. I draw to your Lordships' attention the old farm grants administered by the Ministry of Agriculture in the 1970s. They were successful because of simplicity and clarity of purpose. The farmer did the work and was paid retrospectively when an officer had been round to see that it had been done satisfactorily. Why then are we still talking of five-year or 10-year agreements and of cross-compliance in an ever more complex web of paperwork? It is enough to turn anybody off.
98 We should be looking at a much greater dialogue with land managers in an effort to understand why in the real world certain activities are carried out and how farm units operate, particularly in the more sensitive and agriculturally deprived areas. We have to understand how managers deal with the natural processes and what happens when they fail. The empirical evidence is there for anyone who cares to look. I suggest that it is appropriate that we and the conservation agencies start looking before this traditional source of knowledge goes to its grave or gets fed up because, if land managers have a stake in policy making and in its implementation, they are more likely to give it time and commitment. But if they continue to be largely ignored, management skills will be in limited supply both for sites of special scientific interest and special areas of conservation. That means setting targets which are sensible and not those which seek to procure the preservation of species on the outer margins of their range. That is something with which I have had some personal involvement.
But for the present, my final point is that the management of habitats remains grossly underfunded. English Nature has said to me that it does not have funds for certain purposes. Other agencies have also said that they have no funds for those purposes either. Sooner or later that will have to be rectified and with it the rather negative approach of blanket designation and the imposition of management prescriptions on what I might rather crudely describe as the "hit first, ask questions later" principle. It is at best a lazy way of administering a vitally important matter for the future of our countryside and for biodiversity. It has to change if these new regulations and the existing ones already in place are to have a lasting benefit. For these reasons I fear that I can give the regulations as they stand only four or five points out of a total of 10.
§ 8.57 p.m.
My Lords, the habitats directive is potentially the most important piece of legislation for the conservation of biodiversity to be adopted in the foreseeable future. The significance of the habitats directive is that member states must recognise in statute, for the first time, their responsibility for the protection of wildlife and wild places in the European context.
The habitats and species in question are to be maintained and/or restored to "a favourable conservation status"; in other words, when the species population and range is stable or increasing and there is a sufficiently large area of habitat available to maintain its population on a long-term basis. In the Wildlife Trust's response to the DoE consultation paper on the implementation of the habitats directive, the many on-going degradations of marine habitats which the habitats directive is designed to prevent, were pointed out.
One example of this is the annual destruction of reefs supporting slow growing and nationally important sea fans sponges and other soft corals by mobile fishing gear in South Devon. Also, a recent survey by the Cornwall Wildlife Trust indicates that over 2,000 porpoises are killed each year by gill nets in the Celtic Sea which lies between Cornwall, Brittany and Ireland.
99 Great meadows of sea grass —the only flowering plant able to survive underwater—continue to suffer from wasting disease, possibly related to pollution. Sea grass swards have already disappeared from estuaries in Cornwall. It would be reprehensible if this opportunity to protect our wildlife resources was missed.
The seas around Britain are richer in marine habitats, communities and species than for any country on the European Atlantic coast. In English waters this richness and diversity includes the kelp forests of the Farne Islands and the Western Channel, the invertebrate and seaweed communities of rocky coasts of South West England and the mud and sandflats of the central North Sea. Our estuaries and seas support millions of seabirds and waterfowl, whether as visitors to our shores or as residents, often in internationally significant numbers. Our coasts provide vital haulout, and breeding areas for seals and feeding areas for many species of whales, dolphins and porpoises. Over 120 species of fish occur in coastal waters. Some are rare or endangered. Others are food for seabirds, seals and cetaceans as well as for people.
The nature conservation interests of our seas are considerable. Already 300,000 hectares of seabed in England below mean low water have been identified as being of particular importance for nature conservation, with probably in excess of 200,000 more hectares required to provide essential ecological support.
Man's use of the marine environment which supports that treasury of wildlife has, however, been considerable, and in most cases is not sustainable. Our coastal waters provide harvestable resources of minerals such as aggregates and sand; sources of food such as fish, crustaceans and molluscs; and a renewable source of energy in the form of tidal power. Since early times, the sea has carried our ships and our trade, and nowadays it also provides recreation, enjoyment and inspiration for millions of people.
There are some points which are critical if the realisation of the habitats directive is to work towards conservation of the marine environment. I ask my noble friend the Minister: why are measures for marine and terrestrial conservation not equal? Conservation measures to protect wildlife and habitats on both land and sea need strengthening. It is clear that measures for marine conservation lag behind those for conservation on land.
Instead of putting marine conservation on a equal footing with that of land, the draft regulations perpetuate their inequality. Although the habitats directive states explicitly that activities having a negative impact on special areas of conservation, but taking place outside their boundaries, should be controlled, the regulations make a special exception in the case of marine sites. One striking example of that is the facility to introduce by-laws to maintain the integrity of SACs. Nature conservation agencies can use those powers both inside and outside SACs, but not in the case of marine SACs.
It is essential that conservation measures are taken both inside and outside the designated protected areas due to the very nature of the marine environment, with few boundaries and many of its species being extremely 100 mobile. Not taking those measures will seriously compromise efforts to reach conservation objectives in the marine environment.
One of the main aims of the regulations is to promote nature conservation. Despite that, the regulations do not give the Secretary of State for the Environment a lead role over directions concerning SACs. That will create conflict, confusion and delay over the management of SACs. Priorities for fisheries, transport, mineral extraction and other activities can be in serious conflict with nature conservation objectives. A lead role for the Secretary of State for the Environment is not unusual in the case of terrestrial protected areas; for instance, the direction of Section 29 orders under the Wildlife and Countryside Act 1981 to assist the conservation of SSSIs which should be introduced for marine SACs.
I refer to draft Regulation 35. If or when the situation arises, how is MAFF to decide between a conservation issue on the one hand and the acquisition of resources such as oil, marine aggregates or detrimental fishing practices on the other? I ask my noble friend the Minister: can there be ministerial intervention if a conflict of interest occurs?
A mandatory management scheme is needed for all SACs. Statutory conservation agencies should be given a clear duty and powers to designate and implement the management of SACs. The regulations do not require the preparation of a management scheme for each SAC. Under such circumstances, how will it be possible to assess whether the conservation objectives of the site are being achieved, and what monitoring is required to provide a coherent programme for the restoration of sites?
Management schemes for SACs are voluntary at the moment. If all user parties are not in agreement with the voluntary scheme, the scheme will not be effective in securing wildlife protection. A mandatory management scheme is a far superior method of making compliance with the management compulsory.
It is clearly vital that the principle of the Conservation (Natural Habitats, &c.) Regulations should be approved. The provision for SACs at sea is a major step forward in conservation for the marine environment. But in essence the regulations for the directive do not fully address the problems concerning the conservation of biodiversity and sustainability in the marine environment. Even if implemented perfectly, there is a need for further measures.
§ 9.4 p.m.
§ Lord Moran
My Lords, all over Europe wildlife habitats and species of birds, animals, plants, insects and fish are disappearing or threatened. In our country, wetlands, heathlands, lowland wet grassland, heather moorland, peat bogs, estuaries with their mudflats and species such as the corncrake, the bittern, the marsh fritillary and the early gentian, vanish. The same is true of other European countries.
At the risk of being regarded by the noble Lord, Lord Pearson of Rannoch, as one of the Left-ish, greenish conservationists of whom he disapproves, I have to say that I regard the Community's habitats and species 101 directive as a welcome and necessary measure and, as the Minister has said, something of a milestone in European conservation.
The Government's regulations which we are now considering will, I hope, be approved, but your Lordships should be aware that they have been a disappointment to conservationists. They had hoped that the Government would take the opportunity to introduce primary legislation which would produce much needed improvements to wildlife conservation and countryside management in this country. As it is, the Government appear to have done as little as possible to fulfil their Community obligations, to have adopted a minimalist approach and to have contented themselves with amending existing legislation.
I must say that I was startled to see a report in The Times on 1lth October that the Government were giving guidance to local authorities, telling them to reduce protection for wildlife—Bournemouth, for example, being told that it should not lay down presumptions against developments on SSSIs or greenbelt land and local wildlife sites but should merely take ecological and environmental importance into account. I should like to ask the Minister whether that disturbing report is correct. If it is, the Government's attitude, at a time when they claim to be increasing protection for wildlife, seems to be hard to understand.
It is sad that the Government are not doing more, but we must nevertheless be grateful for small mercies, welcome the advances which are being made and inquire how precisely the new arrangements will work. I therefore wish to ask the Minister one or two questions of which I have given him notice, although I am afraid only short notice. If he cannot answer them all tonight I should be grateful if he would write to me.
The Minister has explained the scope of the directive. I wish to ask first about the procedure for selecting sites for special areas of conservation. I understand that the list of proposed sites must be sent to the Commission by next June, only eight months away. The Government and the statutory agencies are committed to full consultation on proposed European sites. When will the selection process be complete, and how long is being allowed for this consultation? Can it be done in time? It is clearly important that European sites should also be large enough to ensure that listed habitats and species are maintained in what is defined in the directive as "favourable conservation status". I believe that Plantlife is right in urging the Government to designate as SSSIs all sites where Annex II(b) species occur for the botanical importance of sites to be fully recognised and attention given to the needs of all nationally rare plants and site selection.
Article 6 of the directive implies a general presumption against development in or affecting SACs which needs to be made clear to planning authorities and everyone else concerned. Will the Government do this?
I turn to the wider countryside. It is clear that for most and perhaps all the listed species and habitats which occur in the United Kingdom the protection and management of SACs will not be enough to obtain favourable conservation status. Species such as the otter, to name only one, travel great distances and are not 102 confined to particular sites. Consequently, new and more effective policies are needed for the wider countryside. The Government appear to be relying entirely on existing countryside schemes but most of these —such as the environmentally sensitive areas— are purely voluntary. We surely need something stronger to achieve protection and management on the scale required.
The chief executive of English Nature has, I understand, called for a review of all existing countryside schemes to target funds effectively towards achieving all the aims of the directive. Do the Government recognise the need to bring in new policies and incentives for the wider countryside? If so, how do they propose to do this? Do they agree that a review of the existing schemes, as proposed by Dr. Langslow, is needed?
In Article 6(2) the directive imposes a firm duty on the Government to prevent deterioration of important wildlife sites. This is badly needed and has been welcomed by English Nature and the Countryside Council for Wales. English Nature states that it reinforces its plan to achieve a positive management of all SSSIs. However, the Government's regulations appear to introduce no new measures to prevent the deterioration of important habitats through the owners' neglect, and the Wildlife Link report, SSSIs: A Health Check, identified neglect as the greatest long-term threat to SSSIs. Can the Minister say whether the Government will introduce new measures to encourage positive land management, with adequate financial incentives?
Can the Minister also explain why the word "deterioration" in the directive has been replaced in the regulations by the word "damage"? Damage requires a conscious act whereas deterioration can, and usually does, occur as a result of inaction. That appears to be a significant misrepresentation of the directive and if that is so it needs to be remedied.
In Regulations 2, 3 and 40 the Government have also inserted a new derogation not to be found in Article 16 of the directive exempting death or injury as an:incidental result of a lawful operation".That appears to be a very large loophole. Will the Minister explain why this derogation has been added and how the Government justify it?
The directive and the regulation placé additional duties and responsibilities on the statutory agencies. In order to meet these obligations, English Nature, the Countryside Council for Wales and Scottish Natural Heritage will need additional resources over and above what they now have. It will clearly be unacceptable to have resources reallocated into SACs if that is to lead to damage being caused on SSSIs not designated under the directive or to reduce other necessary work done by the statutory agencies. I hope that the Minister will assure us that these additional resources will be forthcoming.
Regulation 55/5 provides a loophole covering planning permission granted or deemed to be granted by a public general Act of Parliament. This would, it appears, exempt damage caused by projects such as the Cardiff Bay Barrage or the Channel Tunnel. However, 103 there is no such loophole in the directive. Is the Minister satisfied that this regulation does not put Her Majesty's Government in breach of the directive?
We, like other members states, are required to report every six years on the implementation of the directive, including conservation measures taken and the impact of those measures on the listed habitats and species. To do that, do we not need a national inventory and monitoring scheme covering SACs and SSSIs? I hope that the Minister can tell us what the Government have in mind in order to carry that out. Even if we cannot have complete inventories immediately, we must surely work as rapidly as possible towards them.
We all know the sad story of the marine nature reserves. After years of effort, only two, Lundy and Skomer, have been set up. But the regulations about the marine environment, about which the noble Viscount, Lord Addison, has just spoken so persuasively, are based once more on the voluntary principle and seem to require agreement among a number of bodies. It is true that the Minister has reserve powers under Regulation 35. But clearly it would be disastrous for proposals for marine SACs to get bogged down in interminable discussion without agreement. I believe that the Minister covered that point in his opening remarks by saying, as I understand it, that, if necessary, Ministers could and would give directions to those concerned. I understand that the Countryside Council for Wales has suggested a time period of perhaps two years during which a management scheme must be drawn up ready for implementation. That seems sensible. Will the Minister assure us that something on those lines will be introduced, or, alternatively, that the reserve power will be used after a reasonably short interval? Will he tell us also how many marine SACs are being considered for designation and how they are to be protected?
Article 10 of the directive refers to the,ecological coherence of the Natura 2000 network",specifically the management of features of the landscape which are of major importance to wild flora and fauna such as rivers, field boundaries, ponds and small woods. It would be helpful if the Minister could tell us how the Government propose to implement that article.
I hope that the Government will press on with the implementation of those regulations. They are clearly of very considerable importance and conservationists in this country will be watching carefully to see how matters progress.
§ 9.17 p.m.
§ Lord Beaumont of Whitley
My Lords, to say that this is a disappointing document which we are asked to approve is to put it mildly. The Government appear to be in a kind of tired, cynical mood. If a proposal appears from Brussels, they conform reluctantly, doing the bare minimum, like a child recognising rebelliously that his mother is stronger than himself but being determined to do nothing which could be construed as enthusiastic. There no longer seems to be any power of discernment. There is no ability to separate the good, of which there is much, from the bad, of which there is, unfortunately, a little. They will not give a lead in what is worth doing.
104 The preservation of habitats is definitely worth while and this country, which prides itself on being less bad than others in this respect, should be giving a lead. This should have provided an opportunity to increase our efforts in this field. We should not have this minimal, if barely that, compliance.
At the end of last year the Government-commissioned countryside survey of 1990 was published. It revealed a decade of decline in our wildlife. The 1990s and the next decade should be better. After all, now that we do not allow farmers to farm, what other suggestions have we for the countryside?
The Government should be introducing far-reaching stick and carrot schemes. While there is no such thing as absolute ownership of land, which we all hold in trust either from God or the community or both, as all good farmers and landowners know, it is helpful to encourage and reward those who do well.
When I saw that this debate was coming up, as a spokesman who is not leftish and greenish but left and green, I started to ask the various conservation bodies for briefs. There was a meagre response at first. It soon became a flood. It is clear that there is probably not a conservation body in the country which is not deeply disturbed by the regulations; which does not have considerable fears about what has been left out and what is fudged; and which does not have detailed questions to ask.
At this time of night, one can scarcely begin to deal with a series of briefs which are two to three inches thick. Some of the questions have already been asked in the debate, in particular by the noble Lord, Lord Moran, and the various bodies have doubtless tried to extract answers from the department. Therefore, I shall content myself with three fairly superficial questions, but, in imposing on myself that self-denying ordinance, for which your Lordships will no doubt be grateful, I must warn the Government that, if they do not answer very fully the questions which they know are being asked, whether or not they have been asked in this House this evening, this is an area which noble Lords on all sides of the House will feel must be explored in some depth in the coming Session.
As I said, I have three specific questions. They all deal with how far we can go with the regulations and how we can improve them. I wish that I had time to refer to some of the previous speeches. I rather gather from the look on the face of the noble Lord, Lord Williams, that he will probably be doing that himself. As always, I should have liked to analyse the speech of the noble Earl, Lord Lytton. However, I shall just pick up one remark that he made. The noble Earl seemed to think that the countryside should be left to the traditional expertise of landowners, influenced by economic considerations. But that is exactly what it has been left to and that is exactly why nature conservation is in such a terrible state at present all over Europe.
I turn now to my three questions. One follows up the questions posed by the noble Viscount, Lord Addison, in his most admirable speech concerning the special areas of marine conservation. How many are the Government considering for designation and what 105 actions do they propose to implement to ensure their protection? The noble Lord, Lord Moran, also mentioned that question.
Secondly, what are the Government proposing to do to stop the continuing drain on peat? One only has to go to the local garden centre, as most noble Lords do from time to time, to see the many firms which boast of the peat in their composts and the number of peat products on sale. The true cost of peat to the biodiversity of the planet is vast. A swingeing tax on peat products would no more than represent a tiny portion of the very real cost to the future of our planet.
Thirdly, I should like to pose a question which the CLA is asking. It is one which strikes a chord in my memory. Occasionally I am asked whether, as a Member of the House of Lords, I have ever achieved anything. I reply that I did once. With the help of the noble Lord, Lord Windlesham, always a thoughtful and helpful Minister, I once succeeded in making the possession of an opium pipe not an absolute offence. Therefore, if any noble Lords have among their curios a Victorian or oriental opium pipe, they will not automatically be convicted of a criminal offence if found in possession of one. Thanks to me and to the noble Lord, Lord Windlesham, they will be able to explain that their grandfather brought it back from the Far East and that they never actually use it.
In the same way, it should be possible for the owners of European specimens of rare and protected species which were collected and preserved more than 20 years ago not to be open to prosecution. Is that, or is it not, the case? The position does not seem to me to be entirely clear. If it were, the CLA would not be asking that question.
Apart from those questions, those posed by the noble Lord, Lord Moran, and the questions which have been asked in tonight's debate, there are also those which are being asked throughout the whole conservation world. If the Government do not give satisfactory answers to such questions, I can assure the Minister that we shall return to the matter again and again because it is a subject which must be pursued. Having said that, we in this party give lukewarm support to a lukewarm document and, needless to say, we completely oppose the Motion tabled in the name of the noble Lord, Lord Pearson.
§ 9.25 p.m.
§ Lord Williams of Elvel
My Lords, the House will be grateful to the noble Viscount, Lord Ullswater, for introducing this order and the Motion. For my part, I would join with the noble Lord, Lord Beaumont of Whitley, in being somewhat less grateful to the noble Lord, Lord Pearson, for introducing his amendment, but I am sure he will understand the reasons why the noble Lord, Lord Beaumont, and I would oppose this amendment if he decided to take it to a Division.
I have first to declare an interest as the president of the Campaign for Protection of Rural Wales which is interested in this particular matter. I hope your Lordships will allow me to continue in spite of the fact that I think that this is rather a poor document in respect of Wales. The noble Lord, Lord Pearson, may think it 106 is a poor document in respect of Scotland and I, for other reasons, think it is a poor document in respect of Wales.
The problem as I see it with this order is that it is really a Bill. It is a statutory instrument which has 75 pages. As such, unlike a Bill, it cannot be amended and it must be agreed to, or not agreed to, by your Lordships this evening without—given our self-denying ordinance of voting on statutory instruments—any dispute. I say it should have been a Bill because there are a number of what I would respectfully call Henry VIII provisions in the order, but because it is an order they are the son of Henry VIII, who was, I think, Edward VI, so I will call them Edward VI orders. The Edward VI orders, to which I would refer your Lordships, are in paragraph 22 of the document we have in front of us—which concerns the power to make a special nature conservation order. There the document gives powers, if it is approved by your Lordships, to the Secretary of State to specify all sorts of things by order. In paragraph 28 there are provisions for by-laws. It states that the,appropriate nature conservation body may make byelaws".Paragraph 32 indicates powers of compulsory acquisition. I just instance these as provisions which normally would be debated in a Bill and, such is the procedure of your Lordships' House, would be referred to the Delegated Powers Scrutiny Committee of this House before your Lordships agreed we would have an opinion from that committee. So the Edward VI provisions in the order we have before us seem to me to be something which your Lordships would wish to reflect on.
The second point I have to make is that, as other noble Lords have said, there is in the directive a distinction between deterioration and damage. The habitats directive requires member states to make it an offence to permit the deterioration of breeding sites or resting places of annexed species. The annexes are all in the directive. The Government's regulations, which we have in front of us, replace the word "deterioration" with the word "damage". Damage, as the noble Lord, Lord Moran, has quite rightly pointed out, requires a conscious act whereas deterioration can occur, and indeed frequently does occur, through inaction. That is a serious derogation, in our view, from the words of the directive.
The third point I would make—I do not wish to detain your Lordships for long—is on the voluntary principle that the noble Viscount mentioned in his introduction. In many respects we are an overpopulated island. There are many areas in Scotland and Wales which are not overpopulated, but the broad swathe of England, South Wales and the industrial belt of Scotland are overpopulated. In order to preserve habitats for the species outlined in the directive we need active management rather than passive management. That is where we take issue with the Government. Active management means saying to people, "Let's try and do rather better". Passive control means saying, "Do not do this or that". There is a difference here between ourselves and the Government that needs to be explored.
107 My last point is that Article 17 of the directive requires member states to draw up a report on its implementation every six years. That report:shall include in particular information concerning the conservation measures referred to in Article 6(1) as well as evaluation of the impact of those measures on the conservation status of the natural habitat types of Annex I and the species in Annex II and the main results of the surveillance referred to in Article 11".If the Government are to fulfil that obligation it seems to us to be essential to implement some form of qualitative inventory and monitoring scheme in relation to what is happening at present. Then, having established the inventory, it will be necessary to monitor the development of what is contained in the inventory in relation to the species and habitats listed in the directive.
I join with the noble Lord, Lord Beaumont of Whitley, in welcoming the fact that the Government have at long last acceded to the legal requirement to implement a directive. I also join with the noble Lord, Lord Beaumont, in saying that this is the minimum that was required by the directive, and all conservation bodies, including my own (CPRW), believe that this is the minimum that the Government could have done. I believe that the Government could have done very much better.
§ 9.33 p.m.
§ Viscount Ullswater
My Lords, I am grateful to noble Lords for devoting such attention to these draft regulations this evening. I consider that they make a highly significant addition to our existing body of legislation for nature protection and will ensure that we play our part with our European partners in preserving biodiversity and conserving our most endangered habitats and species. In giving effect to the legislation, we are among the leaders in Europe.
The existing SSSI system and the protection enshrined in it will continue to be the bedrock of nature conservation in Great Britain. We are proud of this approach, which works and wins the co-operation of the vast majority of those most concerned with the stewardship of our countryside. We are extending the co-operative approach to the marine environment, and our nature conservation experience and expertise is recognised throughout Europe. The measures agreed across the European Union through the habitats directive ensure that those sites and species recognised to be most at risk at this international level are protected on a common basis.
Perhaps I may turn to my noble friend's amendment. My noble friend has indicated the reason why he tabled the amendment to the draft regulations. Before I respond to the points made, I recognise that my noble friend is no enemy of conservation but in fact a stalwart supporter. It is with that knowledge that I shall do my best if I can—I wonder whether I am able to do so—to reassure him as regards many of his anxieties.
My noble friend asked whether other member states were implementing the directive. I understand that member states are actively engaged in implementing the directive and that some have already done so. Of course, 108 all member states are legally bound to implement European law, and Community rules ensure that laws are applied universally and uniformly.
My noble friend also asked me how much was budgeted by member states for pursuance of the directive. I cannot answer for other member states. However, in due course I shall give figures on what this country will be putting forward, especially SNH.
The amendment specifies two specific matters. The first concerns the increase in the area of land covered by sites of special scientific interest. It may prove necessary before the sites can be designated as European sites to notify and to confirm as SSSIs some areas of land which are not currently already notified as SSSIs. However, to qualify as European sites those areas of land would be among the most important of areas in nature conservation terms and they are areas which would in due course have been notified as SSSIs in any case.
My noble friend stated too—the matter has been commented on by others, including the noble Lord, Lord Williams—that the regulations revoke existing consents for potentially damaging operations within SSSIs and consents for planning in the countryside generally. There are two issues here. Regarding the first, approval of the regulations will not result in the wholesale revocation of existing consents for potentially damaging operations within SSSIs. The regulations provide the statutory nature conservation agency with a power to review existing consents but only within the European sites. Under the regulations, it is open to landowners and occupiers to reapply for consents that are withdrawn or modified. The landowners and occupiers may require the agency to refer the matter to the Secretary of State if consent is further refused. However, in deciding the matter, the Secretary of State must also have regard to the requirements of the directive.
In the great majority of European sites, a sensitive, sustainable management and use of the area which has continued over many years and maintained the high conservation value for which the site is recognised is expected to meet the aims of the directive and existing management agreements will continue unchanged.
With regard to the second of the two issues, the regulations also require the review of planning consents. That issue has been raised by others. However, it is not the planning consents in the countryside generally which are to be reviewed but only those existing permissions which are likely to have a significant effect on a European site and which have not already been fully implemented. In the vast majority of cases, the high nature conservation value of the site will already have been recognised and the sites will have been well protected under the planning system. Accordingly, relatively few permissions should need to be reviewed and in even fewer cases should further action need to be taken. Modification, revocation or discontinuance should be exceptional.
The modification, revocation and discontinuance orders are subject to confirmation by the Secretary of State. Anyone affected by such an order has a right to be heard before the Secretary of State decides whether to confirm it. Should the permission be modified, revoked or discontinued, the existing rights to 109 compensation under the town and country planning legislation would apply. A developer would not need to stop work while the planning permission was being reviewed.
My noble friend also asked me whether the role of the advisory committee would be compromised. I do not believe that the advisory committee on SSSIs in Scotland is affected by the habitats regulations. The Government will not propose to the European Commission for designation any site on land (SAC) which has not been notified and confirmed as an SSSI. The role of the committee will, therefore, not be pre-empted by the habitats regulations.
The establishment of the advisory committee in Scotland balances the legitimate concerns of owners and occupiers of land with the importance of maintaining the integrity of the SSSI system on a GB basis. My noble friend has already indicated that only two cases have had to be referred to the committee which reflects the considerable success which Scottish Natural Heritage has had over the past two years and also an increasing understanding of and support for the SSSI system.
My noble friend asked me how much money SNH would receive. SNH received further budget increases in 1993–94 of 6.5 per cent. and in 1994–95 of 10.5 per cent. Its 1994–95 budget is £39.9 million. These increases were given to SNH to meet new priorities which have emerged since it was established. The implementation of the habitats directive is just one of those, but there is also the implementation of the agreed recommendations of the Secretary of State's working parties on the Cairngorms, Loch Lomond, the Trossachs and environmental education.
I believe that the main anxiety of my noble friend is whether the test of subsidiarity should be applied to the regulations. I am quite firm about this and I believe other noble Lords are also. Nature just does not respect national boundaries. The preservation, protection and improvement of the environment is an area of concern which needs to be addressed on a European level. On that basis, the habitats directive has been accepted by this Government and I believe, quite rightly, we are bound to implement it. I remind the House that the regulations are based largely on our existing highly effective legislation and that the voluntary principle continues to be an underlying principle of this Government's approach to nature conservation. These regulations represent the minimum that is necessary to implement the directive.
Perhaps I may write to my noble friend on the remaining question that he asked about the native pinewood regeneration. I am conscious of the time that I have already taken.
The noble Lady, Lady Saltoun, wanted to be reassured about the voluntary principle. This, I have to say, is the essence of the Government's approach, to act through co-operation and consent, and that voluntary principle still underpins the approach to conservation which can be truly successful only through the consent of those involved and of the wider community. However, we recognise that there may be some occasions when that is not possible and the regulations 110 provide a legislative framework within which Ministers, conservation agencies and other statutory bodies must act in order to fulfil our duty to secure the integrity of the site.
The noble Lady also asked whether a balance would be struck between natural heritage interests and social and economic interests. The regulations employ the framework set out in Article 6 of the directive for assessing proposals affecting sites. The Secretaries of State will normally call in for decision planning applications which are likely significantly to affect European sites. In such cases, the Secretary of State will decide whether a development should proceed on overriding public interest grounds and will give due consideration to the need to strike a balance between the natural heritage interest and social and economic interests. The guidance will be undertaken by Planning Policy Guidance Note PPG9 on Nature Conservation which will shortly be reissued. That will provide guidance to local authorities on control of the development affecting the sites. Similar planning guidance will be issued for Scotland and for Wales. That will be important for local authorities when they draw up their plans.
My noble friend Lord Pearson, the noble Earl, Lord Lytton, and the noble Lady, Lady Saltoun were concerned as to whether guidance would be given to owners and occupiers of adjacent land who might be affected by the designation of these sites. All I can say is that the Government plan to provide extensive publicity to owners and occupiers of European sites and others affected by that designation. Owners and occupiers of land who are concerned that an adjacent European site may be susceptible to damage from what is presently permitted development on their land can always check with the statutory nature conservation agency or local planning authority on what the implications of the proposed development will be for the European site. Perhaps again I may refer back to Planning Policy Guidance Note 9 on Nature Conservation.
The noble Lady also asked whether Regulations 60 to 62 would mean that permitted development will not be available for developments which will adversely affect the integrity of the European site. A developer who wished to proceed with such a development on grounds of overriding public interest would need to make a planning application. The decision on that application would be subject to Regulations 48 and 49 and considerations of overriding public interest will have to be taken into account in determining the application.
I believe that Regulation 40(3) (c) states that a person shall not be guilty of an offence under Regulation 39if he shows that the act was the incidental result of a lawful operation and could not reasonably have been avoided".The words that are used in the regulations are pretty explicit. I believe that the noble Lady herself understood what they mean. I can give no further assurance than that I believe that to be the case.
The noble Lord, Lord Moran, and the noble Lady, Lady Saltoun, were concerned about river systems if they were designated as habitats of the Atlantic salmon and whether there would be intentions to restrict rod and 111 line fishing. In practice, the management of a river for salmon fishing purposes is likely to be compatible with the nature conservation interest a SAC designation seeks to conserve. I cannot give an unqualified assurance, but my reading is that that would be the case. It would need to be looked at on a site-by-site basis. I want to reassure noble Lords that there will be full consultation at all stages, as I indicated in my introductory remarks.
The noble Earl, Lord Lytton, gave a "four or five out of 10" sort of welcome for the regulations, and the noble Earl asked about compensation for existing consents. The management agreements are subject to agreement with English Nature. If they are changed, they then may be subject to compensation. That is the basis on which they are drawn up at the moment, and I see no reason why these regulations would alter that.
Noble Lords, including the noble Lords, Lord Moran and Lord Williams of Elvel, and the noble Earl, Lord Lytton, asked about the deterioration of sites and quoted the NAO report. I believe that the monitoring as indicated in the regulations and the directive will be the duty of the conservation bodies. If anything is detected which will damage or destroy the site, a management agreement could be negotiated. I believe that in most cases the SSSIs will be managed on a voluntary basis, without the need for a management agreement. There is always the power to make a management agreement and at the end of the day even a special nature conservation order under Regulation 22 can be made. I should like perhaps to come back to that point a little later.
My noble friend Lord Addison drew our attention to measures for marine and terrestrial conservation. He started by suggesting that they were not being applied equally. I understand that. The reason for it is quite simple; namely, that there is already a different basis for management and control on the land and the sea and ownership does not always apply to uses of the sea as it does on land. Therefore we have adopted the cross-sectoral approach from existing jurisdictions. We expect the new marine conservation measures to be effective. All bodies with jurisdiction will have the duty to act in ways which conserve the areas.
That sectoral approach to control marine SSSIs means that it is appropriate for the relevant Secretaries of State or the Minister of Agriculture to give directions to the bodies over which they have jurisdiction. All Ministers must take account of the obligations of the directive in considering whether directions are appropriate and Ministers will intervene by directions if necessary in order to conserve the site.
We expect that in a majority of cases there will be a scheme of management drawn up. The nature conservation agencies will be responsible for monitoring the conservation status of the sites and advising the relevant authorities and Ministers as to the sites' conservation objectives. However, I still feel that we ought to take care that we do it on the voluntary principle and not be too mandatory about using the power to make agreements.
The noble Lord, Lord Moran, started with an attack on the Government for downgrading our conservation status and mentioned the report in The Times which 112 indicated that. My Lords, the report in The Times was just mistaken. The Government are not downgrading the importance of nature conservation. In fact they seek clarity in the development plans. In practice that will strengthen the nature conservation policies of a plan.
The noble Lord also said that the countryside measures should be much stronger and that we had perhaps missed an opportunity in these regulations of not putting that into practice. I believe that the countryside measures are being taken forward. They can be taken forward only on the basis of consent. It is very important to respect those who live and work in the countryside. But the biodiversity plan mentions a number of initiatives which the Government are taking on the wider conservation and countryside measures in England, Scotland and Wales. I believe that I have answered the noble Lord on the incidental results of the lawful operation. But he asked whether we may be in breach of the directive with the Cardiff Barrage Bay Act and the Channel Tunnel Bill. I believe that careful attention was paid to both those Bills and the nature conservation interest, together with other national interests. There are no public general Acts which otherwise give planning permissions. Ministers will take the requirements of the regulations into account when promoting the new Public Bills.
The noble Lord, Lord Beaumont, took me to task for not taking the opportunity to amend the 1981 Act. I believe that it is just as important to put the regulations—which, as the noble Lord, Lord Williams, said, form a considerable document—into our law; it builds upon the 1981 Act. For instance, it puts the SPAs into legislation for the first time.
Perhaps I can answer just one of the questions of the noble Lord, Lord Beaumont, because I believe that I have talked about the marine ones. He asked whether we should stop draining the peat; whether we should put a swingeing tax on it to prevent it being drained away. The Government recently published for public consultation proposals for safeguarding peatlands important for nature conservation while allowing legitimate commercial interests to be pursued. That provides an appropriate framework for reconciling the various legitimate interests which still exist.
In regard to inherited specimens, if people possess inherited specimens of European protected species from their forebears, they need not be concerned about the provisions of Part III of the regulations. They will be regarded as being legally taken because they pre-date the 1981 Wildlife and Countryside Act.
The noble Lord, Lord Williams, asked whether the Henry VIII provisions—he retitled them the Edward VI ones—needed to be considered as though this were primary legislation and subject to Committee procedures. When the noble Lord looks at Regulation 22 he will see that Schedule 1 indicates what would be necessary for procedures in connection with orders under Regulation 22. It indicates that there may be local inquiries, and arbitration may be put forward by the Secretary of State. Suggestions put forward by the noble 113 Lord of it being a draconian measure should not be taken without reading Schedule 1, which indicates the procedure.
§ Lord Williams of Elvel
My Lords, perhaps I can interrupt the noble Viscount to say that I was not suggesting that it was a draconian measure. The Government have introduced these measures— draconian or otherwise—for a long time. I was suggesting that it is odd, to say the least, to have an order of this size which gives extra powers to a Secretary of State—whatever the qualifications of Schedule 1, which I have read—to make delegated legislation under an order. I accept that it may be possible under an Act of Parliament; but under an order that is extremely rare.
§ Viscount Ullswater
My Lords, I take the noble Lord's point but perhaps he did not hear some of the words that I used in my opening speech. A lot of the words in the regulations are taken from the 1981 Act and are repeated in the regulations in order to form a body of legislation which can then be referred to rather more easily than using purely secondary legislation to implement a directive on to the 1981 Act. That is where Regulation 32 on compulsory purchase orders falls because it repeats in a different form of words or perhaps in a different place the existing regulations in the 1981 Act. I am sorry that the noble Lords, Lord Williams and Lord Moran, are questioning the concept of deterioration and are not seeing that the damage to the sites would not be protected in the way that the regulations allow it to be done. The noble Earl, Lord Lytton, indicated that protection of these habitats must be done on a continuing basis and that if damage is seen it is possible to come up with a management agreement which takes into account that kind of damage.
The noble Lord did not like the idea of a voluntary principle and wanted a more mandatory principle. I believe that we should start with the voluntary agreements, which is what is allowed for in the regulations. If those do not work there is the possibility of management agreements. If those do not work there are special nature conservation orders. It is a building of one upon the other.
The noble Lord asked how we would report on implementation every six years. Monitoring is done by organisations such as the British Trust for Ornithology and the register of the SSSIs in England, Wales and Scotland. I believe that it is possible for the nature conservation organisations to monitor the situation with regard to the SSSIs and therefore I believe that the report can be done. It may be that the inventory, as the noble Lord suggests, is not in the detail that he wants it; but I believe that the research and registration already apply sufficiently for the document to be worthwhile.
All I can say in conclusion is that I am very pleased to be able to debate these issues with the President of the Campaign for Protection of Rural Wales and I hope that my noble friend will feel able to withdraw his amendment and that the regulations can be agreed.
§ Lord Moran
My Lords, before the noble Viscount sits down, he has been very patient and helpful but I 114 wonder whether I can ask him to say something about additional resources for the statutory agencies. I know that this concerns both English Nature and the Countryside Council for Wales because they will have new duties imposed on them and they want to know whether they have additional resources to do that.
§ Viscount Ullswater
My Lords, I understand that the total budget for the three conservation councils has been increased by 7.6 per cent. for this year. I believe that that is sufficient for the implementation of the habitats directive. I shall look carefully at the other points raised by the noble Lord, Lord Moran, and at the points raised in other speeches. If I have missed points, I shall write to noble Lords.
§ 10.3 p.m.
§ Lord Pearson of Rannoch
My Lords, I am most grateful to all noble Lords who have taken part in the debate on my amendment and in the debate generally. I was interested and saddened to hear what my noble friend Lord Addison had to say about the degradation of marine sites, about which I must confess I do not know as much as I think I know about land based SSSIs and future SACs. My point to my noble friend Lord Addison would have been that surely national legislation could do what he feels is necessary; and it sounds as though he is right. I do not believe that we should have to rely on a European directive in this respect.
As regards the speech of the noble Lord, Lord Moran, it pains me to have to disagree with him on any European matter, especially on a European directive of this kind. Perhaps I may confirm for the record that I would never describe him as a Leftish, greenish conservationist, or whatever he feels that I may have thought him to be. I accept that the environment is being damaged in Europe and also here. My point again is that any wrongs can be put right in this country by primary legislation here. My fear is that this directive is unlikely to have the desired effect in the rest of Europe.
As to the contribution from the noble Lord, Lord Williams of Elvel, I was grateful to him in a rather ghastly and fearful sort of way for his summary of the Henry VIII or Edward VI clauses in this Bill. I can only hope that if ever his party were to come to power—and I am sure it will not—those clauses would not be used in a way which would be more aggressive.
§ Lord Williams of Elvel
My Lords, I am most grateful to the noble Lord for giving way. May I remind him that this is not a Bill but an order?
§ Lord Pearson of Rannoch
My Lords, I take the noble Lord's point. It is a point which he made very clearly; namely, that it should have been a Bill. But these are regulations and, rather like the Maastricht Treaty, we have no opportunity to debate their content. As I understand it, we have either to take them or to leave them. I would leave them, and, despite what the noble Lord said, he is going to take them. I hope he understands that I take them in a fearful sort of way.
The contributions of the noble Lord, Lord Beaumont of Whitley, together with those of the noble Lord, Lord Williams of Elvel, were a little harsh on my noble friend 115 and on the Government generally. They said that the Government were dragging their feet and doing the very minimum on this occasion. I remind your Lordships that Article 10 of the directive says that,Member States shall endeavour, where they consider it necessary, in their land-use planning",to introduce these Euro-SACs. It is because they consider it necessary that entire river systems are about to be designated to protect the Atlantic salmon and so on. I believe that the British Government, or British officialdom, are clearly guilty here of Mr. Christopher Booker's theory of British officialdom. I do not believe that the Government can be accused of dragging their feet.
As regards the reply of my noble friend the Minister, I am extremely grateful for all the points that he made. But I believe that he is being a little optimistic when he says that other member states will have these rules applied uniformly. I am surprised that he said that all these Euro-SACs would have been notified as SSSIs 116 anyway. I take his word for it, but as regards Scotland I would have thought that that would have already been done.
Concerning the revocation of consent, my noble friend said that the councils and nature conservation bodies will be able to amend the existing consents. My understanding of this directive and the regulations is that they will have to revoke consent in certain cases. Nevertheless, I am grateful to my noble friend for the remainder of his replies. I fear that he underestimates the size of the problems which these regulations will cause, but I accept that he does so in complete good faith. I hope that in the fullness of time I am proved wrong.
I believe that his answer to my point on subsidiarity is a trifle shallow. I do not believe that it goes to the root or the intention of the clause or, as many of us hoped and were assured, the way in which it would be used in future. Even so, given the lateness of the hour, I am nevertheless grateful to my noble friend and others who have spoken. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Motion agreed to.
§ House adjourned at ten minutes past ten o'clock.