Lords Sitting of 9 February 1995

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of St. Albans.): The LORD CHANCELLOR on the Woolsack.

Personal Statement: The Lord Lester of Herne Hill
Lord Lester of Herne Hill: My Lords, I should like to make a personal statement. Last week I sent a memorandum to the sub-committee of the noble and learned Lord, Lord Griffiths, on declaration and registration of interests. It was not my intention that the memorandum should be made public, but unfortunately it was leaked to the press, by whom I know not, although I am satisfied that the leak took place outside this House. In the present circumstances I am asking to be heard by the sub-committee at an early opportunity to explain my views publicly.
I ask your Lordships to accept that in making my submission to the sub-committee I believed that I was acting in the best interests of the House. I profoundly regret the embarrassment that my note and its public disclosure have caused to this House and to another place. It caused me great personal distress. I apologise for having inadvertently caused offence to the House and risked blemishing its reputation.

EC Judgment: Implementation
3.2 p.m.
Lord McCarthy Lord McCarthy asked Her Majesty's Government:
When they intend to implement the judgment of the European Court of Justice concerning redundancies and the transfer of undertakings.
Lord Inglewood: My Lords, the relevant legislation on all but one of the points covered by the judgments was amended by the Trade Union Reform and Employment Rights Act 1993. The Government are presently considering what action needs to be taken on the remaining issue concerning consultation with employees' representatives.
Lord McCarthy: My Lords, I thank the noble Lord for that unsatisfactory reply; perhaps he will go a little further. Will he accept that this is another example of the Government refusing to take at face value the spirit of the directives and what is clearly being said? Does he accept that as a result since the mid-1970s workers have been denied simple rights? The Government cannot go on saying that the employer will decide where consultation shall lie. It is clear that that is unlawful. Will the Government say when they intend to publish their views on this matter? Will they also say whether
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their attention has yet been drawn by the Commission to their own attitudes and whether they have had a letter from the Commission along those lines?
Lord Inglewood: My Lords, the noble Lord, Lord McCarthy, asks a number of questions. The important point about the decisions in the two judgments is that it is for the employees to determine who their representatives will be. As the noble Lord will know, the judgments and the law in this area are far from straightforward. We are anxious to make sure that we consider the matter properly. Subsequently we shall discuss our ideas before bringing proposals forward. In this area of the law it is instructive to look back to when the original directives came into effect. In one instance it was four years after the directive came into effect that British legislation was put on the statute book. In the other instance it also took a long time to make sure that we had got it right.
As to the more general question of workers' rights, it is relevant that it was put on record by the noble Lord himself in your Lordships' House that the opposition party's proposals for implementing the acquired rights directive had it won the general election in 1979 would have broken the terms of the directive.
Lord Gladwin of Clee: My Lords, perhaps I may press the Minister in connection with his last answer. Am I to understand that when he talks about discussions on introducing what remains of the judgment of last June the intention is that there will be discussions with employees' representatives? This is a very complex issue. Will there also be discussions with employers' representatives?
Lord Inglewood: My Lords, I understand that the matter has already been broached between the Government and the Trades Union Congress and that in addition there will be discussions with employers.
Earl Russell: My Lords, does the Minister agree that the judgments have the force of law because in the European Communities Act 1972 Parliament, in the exercise of its sovereignty, so decided? Will he further agree that the only question can be about how and not whether we implement them?
Lord Inglewood: My Lords, the noble Earl, Lord Russell, is absolutely correct in his analysis of the constitutional position. I can confirm that he is correct that it is not a matter of whether but how these matters are dealt with.
Baroness Turner of Camden: My Lords, can the Minister say why the Government always adopt such a minimalist approach to these matters? After all, they had to amend their position relating to trade union reform and employment rights legislation and change the TUPE regulations because they were not adequate. There had to be a statement by the Attorney-General spelling out rights in relation to pensions as regards TUPE. Why can the Government not get it right first time instead of having constantly to come back with amending legislation?
Lord Inglewood: My Lords, I should like to make two points. The first concerns what the noble Baroness

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describes rather grudgingly as a minimalist approach. Each member state has discretion as to how it implements directives. We wish to exercise that discretion in the manner we think most suitable for our country.
My second point concerns the nature of amendments to regulations and legislation. It is relevant that in this instance the major problem with which the two judgments were concerned was not identified by anyone in this country but by the European Commission. It is accepted on all sides that this branch of the law is extremely complicated. As I have mentioned, the original legislation that was put in place by the party opposite when in power had to be amended because it was defective.
Lord McCarthy: My Lords, the noble Lord says that I asked many questions. I asked two questions. I think he will agree that he answered neither of them. He throws dust in our eyes. I ask that the next time he wants to insinuate that I said something which I cannot remember and he does not cite he gives me advance notice of the so-called statements I am supposed to have made. Will he even now say whether the Government have had any communication from the Commission and when the Government are likely to decide this question?
Lord Inglewood: My Lords, in response to the points made by the noble Lord, Lord McCarthy, I am not aware of the most recent communications between the Commission and the Government about this matter. The remarks of the noble Lord to which I alluded were those he made in this House on 10th December 1981, reported in Hansard at col. 1486.

Murder/Manslaughter Charges
3.10 p.m.
Lord Carver Lord Carver asked Her Majesty's Government:
When they intend to introduce legislation to give effect to the recommendation of the Criminal Law Revision Committee in its 14th report in 1980 relating to the charge of manslaughter rather than murder to be brought against a person who kills another person by using excessive force in legitimate self-defence or in the prevention of crime.
The Minister of State, Home Office (Baroness Blatch): My Lords, my right honourable friend the Home Secretary is considering the recommendation as part of the review of the law on murder, which he announced on 24th January in response to the concerns expressed by this House sitting in its judicial capacity in the case of Private Clegg.
Lord Carver: My Lords, I am grateful to the noble Baroness for that encouraging reply. Does she agree it is regrettable that in the almost 15 years which have passed since that recommendation was made nothing has been done to put it into effect? The result has been that members of the Armed Forces, when called upon to act in aid of the civil power, have continued to find
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themselves liable to prosecution for murder, with its statutory penalty of life imprisonment, when they reasonably believed that they were doing their duty.
Baroness Blatch: My Lords, both the Government of the day and subsequent Governments have taken the view that it was not necessary to review that aspect of the law. The Private Clegg case has clearly thrown that issue into relief. My right honourable friend now believes that it is timely to review the situation.
Perhaps I may also make the point that the Criminal Law Revision Committee, the Law Commission Report in 1989 and the Select Committee of the House of Lords which considered murder and life imprisonment were not referring only to security forces. Their considerations encompassed all aspects of security and non-security personnel.
Lord Harris of Greenwich: My Lords, does the noble Baroness agree that if the Government had accepted the recommendation of the House of Lords Select Committee and the decision of this House when it debated the issue, the problem regarding Private Clegg would not have arisen in the first place? Is she not aware that the real problem relates to the mandatory life sentence? It means that a mercy killer and the person who destroyed the aircraft over Lockerbie are regarded in precisely the same manner?
Baroness Blatch: My Lords, I do not agree with that. First, it would be quite wrong for me as a politician at the Dispatch Box, or for this House, to second guess the judiciary in these matters. Whether that situation raised a problem for Private Clegg, or whether the recommendation would have made a difference, we know that at both the first appeal in the Northern Ireland Court of Appeal and subsequently at the House of Lords appeal the judges questioned having at their disposal at least the flexibility of the lesser charge of manslaughter. That is the matter now being looked into.
Lord Gisborough: My Lords, does the noble Baroness agree that the mandatory sentence takes justice out of the hands of the court and puts it into the hands of the police? The sentence depends entirely upon the section under which the police prosecute.
Baroness Blatch: My Lords, no, it certainly does not put the matter into the hands of the police. This young man went before the courts; a judgment was made; and subsequently the appeal judges in both appeals said that they would have liked to have at their disposal at least the possibility of considering—that is all it was—the lesser charge of manslaughter.
Lord Ackner: My Lords, I am sure that the Minister will agree—but I must formally ask her whether she does so—that, had the recommendation of the Criminal Law Revision Committee and of your Lordships' Select Committee been implemented, the following would have been the consequences. First, the whole range of sentencing options from life imprisonment downwards would be available to cover the situation being discussed, thus making it possible to fit the sentence to the crime—the "just deserts" philosophy urged by the Government during the passage of the Criminal Justice

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Bill 1991. Secondly, the period actually served in prison would have been determined judicially on relevant facts, in public, and subject to appeal; whereas, as the matter now stands, it is determined by a politician, in private, upon undisclosed facts with no appeal. If the noble Baroness so agrees, why has it taken this length of time to remedy the situation?
Baroness Blatch: My Lords, that range of options would have been available to the court. That was the question raised by the Northern Ireland Court of Appeal and the House of Lords' judges in their summing up. My right honourable friend has responded to that.
All I can say is that in the intervening period, between the report by the Criminal Law Revision Committee and today, the Government took the decision not to review the issue. In the light of the Private Clegg case, they have now decided to review the issue.
Lord Merlyn-Rees: My Lords, underlying the question by the noble and gallant Lord, Lord Carver, and supplementary questions, is the role of soldiers in Northern Ireland since they first went there when the RUC was overwhelmed. I do not suggest that the Army withdraws from Northern Ireland. However, given the change in the RUC's strength and role, has the time not come to consider whether British soldiers should be on street corners in Belfast facing that situation?
Baroness Blatch: My Lords, I cannot answer that question in this context. What I can say is that the soldiers on the streets of Northern Ireland are, as are soldiers anywhere, bound by the yellow card rules of engagement. As I have already said, there is to be a review. The status of the yellow card rules of engagement will be taken into account in the course of that review.
Lord Wigoder: My Lords, is not the present situation regarding the use of self-defence totally insupportable when a person who is recognised as having the right to use force in self-defence finds himself with only two choices: doing nothing or of using force which, by its very nature, is bound to be excessive?
Baroness Blatch: My Lords, I am not a lawyer, but I understand that in the case of Private Clegg it was possible to pray in aid self-defence or provocation. That was open to the courts to consider. My understanding is that the issue was properly considered and the conclusion of the courts was that it was not an action in self-defence. Therefore, as I said earlier, it would be inappropriate for me, or indeed for this House, to second guess such a judgment, or the judgments of the appeal courts.
Lord Hailsham of Saint Marylebone: My Lords, clearly one sympathises with my noble friend in her present situation because of her lack of legal qualification.
Noble Lords: Oh!
Lord Hailsham of Saint Marylebone: My Lords, am I wrong? I apologise at once, unreservedly, if I am wrong. However, still feeling sympathy with her, notwithstanding any mistake I may have made, may I
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ask her whether, in the case of Private Clegg, four shots were fired, three of which were in self-defence, and whether the fourth shot was decided not to be so? Is that not an absurd situation? Is it not absurd that anyone of that age, in a battle scenario, faced with that situation in the dark, should be charged with the abominable crime of murder?
Baroness Blatch: My Lords, tempting though it is to get into the debate raised by my noble and learned friend, I really must not. I believe that to do so would be improper, with or without knowledge of the law. However, the specific point raised by my noble and learned friend is precisely why this area of policy is to be reviewed.
Lord McIntosh of Haringey: My Loris, the noble Baroness referred to a government review. Will she include in that review the more numerous cases of domestic violence which involve the issue of justifiable force? Will she also consider looking again at some of the judgments involving cases between husband and wife?
Baroness Blatch: My Lords, the focus of the review has been triggered by the specific case of Private Clegg. However, as I have already said, the three major reports which addressed the issue did not confine themselves to the security forces. I would expect the review to take that consideration into account.
Lord Craig of Radley: My Lords, in view of the close interest which members of the Armed Forces clearly will have in the review, will the Minister assure the House that the views of chiefs of staff will be obtained in the course of that review?
Baroness Blatch: My Lords, I am not sure that I am in a position to give a personal guarantee that that will take place. I believe that it is essential that their views are taken into account. However, I have to make two points. First, the issue does not exclusively relate to security forces. Secondly, because that specific case is the focus of the inquiry, I believe that that will happen. If I am wrong in my answers, I shall write to the noble Lord.

The Building Industry
3.20 p.m.
Lord Dormand of Easington: My Lords, in the absence of my noble friend Lord Dean of Beswick, and at his request, I beg leave to ask the Question standing in his name on the Order Paper.
The Question was as follows:
What discussions they have had with representatives of the building industry about current trends in that industry.
The Minister of State, Department of the Environment (Viscount Ullswater): My Lords, Ministers and officials from the Department of the Environment regularly meet representatives of the construction industry to discuss topical issues. In addition, a joint working group comprising officials and

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representatives of the main trade organisations meets to produce a twice-yearly report entitled The State of the Construction Industry. Copies of the latest issue, which was published on 7th February, have been placed in the Library.
Lord Dormand of Easington: My Lords, will the Minister comment on the Latham Report which, from the news release, appears to be or could be of some significance, not least because Sir Michael Latham is highly respected in both Houses?
Viscount Ullswater: Yes, my Lords. Coming out of the Latham review, which was set up jointly between the industry and the Government, Sir Michael reported in Constructing the Team. The Government and the industry have agreed to set up a construction industry board to oversee the continuing work of the working groups which were set up in the wake of the review. The board will also channel comments by industry and clients on any subsequent legislation which may be required.
Lord Williams of Elvel: My Lords, we have seen the news release to which the noble Viscount referred and which sets up the construction industry board. Can the Minister tell the House where is the urgency in it? Sir Michael Latham drew attention to the urgency of reducing the cost of construction projects by 30 per cent. by the year 2000. We have no promise of legislation in the review, unless the noble Viscount can tell me differently. As I understand it, all we have is a proposal that Mr. Gummer himself will be president of the board and will take the chair at least twice a year. Is that a true sense of urgency?
Viscount Ullswater: My Lords, the Review Implementation Forum which followed the Latham review of midsummer 1994 had a six-month period in which it set up a number of working groups. One of them has already reported. As the noble Lord said, there is a target of 30 per cent. by the year 2000. We felt that the best way of supervising the remaining work—and there is much to be done on changing the nature of the industry to stop it being so adversarial—is that it needs to be overseen by such a board. That is the first time that the construction industry has come together in one single identity in order to tackle the important tasks that it has and to try to deliver the target.
Lord Ezra: My Lords, reverting to the current trends in the building industry, is the Minister aware of the most recent report of the National Council of Building Material Producers? It reports a recent deterioration in order volumes and business confidence as continuing in the first months of this year, pointing to a sluggish performance. Is that not disturbing? How will it be put right?
Viscount Ullswater: My Lords, there is no doubt that the recovery is patchy in the construction industry. However, output began to increase last year after three-and-a-half years of decline. New orders are increasing and the growth is expected to continue. There is sustained construction growth at home and British
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firms are also doing well abroad. However, it is a large industry with various facets to it. One or two of the areas are perhaps not doing so well as others.
Lord Dormand of Easington: My Lords, is the Minister aware that the information he has given is rather thin? It is to be hoped that the House will have more information before too long. In particular, will he say whether there will be trade union representation on the new body which has been set up? Further, will the Government not lose sight of the great importance of the building industry to employment? It affects employment in a number of ways, as the Minister knows. That is the main reason why, as my noble friend said, there is considerable urgency about action on it.
Viscount Ullswater: Yes, my Lords, but it should not be considered by the House, or the industry, that the target set by the Latham review is easy to achieve. There is no quick fix, and there is a need to change the whole culture of the industry. There may be requirements for legislation, but in order to ensure that the industry fully backs the legislation we need to consider it carefully. Of course, I am extremely worried about the level of unemployment in the construction industry. I am glad to say that over the past 12 months it fell remarkably and was less than in the previous three years.
Lord Dormand of Easington: My Lords, I apologise for rising once more but will the Minister answer my question about trade union representation on the new organisation?
Viscount Ullswater: My Lords, at the moment the representation is from a number of the industry's bodies. I am not aware of the trade union representation on those bodies.

Mexico: IMF and BIS Loans
3.25 p.m.
Lord Monson Lord Monson asked Her Majesty's Government:
To what extent United Kingdom taxpayers will be at risk if the International Monetary Fund and the Bank for International Settlements proceed to grant loans totalling 27.8 billion dollars to Mexico.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Henley): My Lords, the International Monetary Fund loan can be financed within the IMF's existing funds. IMF finances are sound and its resources are subject to rigorous and prudent management. We do not believe, therefore, that the exposure of United Kingdom taxpayers has been increased significantly.
Turning to the proposed loan from the Bank for International Settlements, neither the Treasury nor the Bank of England has yet seen any formal proposals. The Bank of England, as United Kingdom member of the BIS, would need to seek appropriate security before participating to ensure that the risk to the Bank of England and the Exchequer was minimised.
Lord Monson: My Lords, I am grateful to the noble Lord for his partly reassuring reply. However, turning

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to the second part, will he agree that there is no way in which Mexico can realistically provide adequate security for a loan of that magnitude? If Mexico were to default, that could only have an extremely adverse impact upon the British taxpayer, among others.
Lord Henley: My Lords, I would rather not comment on the position of the Mexicans. All I can say at the moment is, as I said in my original Answer, we have not seen any formal proposals and I think that it would, therefore, be wrong to comment in advance of any.
Lord Eatwell: My Lords, will the Minister tell the House whether Her Majesty's Government were consulted prior to President Clinton's announcement of his rescue package for Mexico? That package effectively committed Britain to supporting the rescue, particularly through the Bank for International Settlements. If the Government were consulted, what was the British position conveyed to President Clinton prior to his announcement? If the British Government were not consulted, what representations have the Government made to President Clinton since his announcement?
Lord Henley: My Lords, the important point to stress is that we support the IMF's involvement and its provision of substantial funding for a strong reform programme. We believe that Mexico has the appropriate track record of economic reform in conjunction with the IMF. I can say that we had some technical reservations, following the proposals, about how the IMF proposed to provide support. In particular, we believe that the initial finance should have been tranched so that a larger proportion of the fund's resources would have been disbursed, subject to economic policy remaining on track.
Lord Eatwell: My Lords, will the Minister answer my question? Were the British Government consulted prior to President Clinton's announcement which actually committed British funds?
Lord Henley: My Lords, I was trying to stress that the question of consultation is irrelevant. We are committed and we strongly support the IMF's involvement on this occasion. As the noble Lord will be aware, we normally do not reveal how we voted. However, the noble Lord will be aware that we abstained on this occasion, but that was for the technical reservations which I mentioned earlier.
Lord Stewartby: My Lords, the crisis in Mexico seems to have taken not only the US Administration but also the IMF and the BIS somewhat by surprise. Can my noble friend assure the House that the British Government will do their best to ensure that such situations are more closely monitored so that we are not bounced into making decisions at short notice?
Lord Henley: My Lords, it is always easy to say that we have been caught unawares and, with hindsight, easy to say that things should have been done somewhat differently. However, as my noble friend stressed, I believe that there are lessons to be drawn and we shall certainly consider them with other members of the IMF,
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as well as with the fund itself. I can give the assurance that my right honourable friend the Chancellor also considered them with his colleagues at the regular meeting of the G7 finance ministers last weekend.
Baroness Williams of Crosby: My Lords, while I deplore any possible lack of consultation, when the International Monetary Fund considers the restructuring proposals for Mexico, will Her Majesty's Government bear in mind that one of the reasons for the loss of confidence in the peso was the level of social injustice, which led to great political instability in Mexico, notably in the state of Chiapas?
Lord Henley: My Lords, I would rather not comment on internal matters relating to Mexico, other than to repeat that we strongly support the IMF's involvement in this loan.
Viscount Montgomery of Alamein: My Lords, is my noble friend aware that Britain is the second largest investor in Mexico and, secondly, that it is a very important trading partner for Great Britain? Does he agree that by supporting this endeavour to ensure that Mexico—which is a country of enormous economic resources—will continue to be operational Her Majesty's Government have taken action that is very worth while?
Lord Henley: My Lords, I can agree with most of what my noble friend said. Mexico has made good progress over the past few years on open market policies. I believe that her difficulties are possibly short-term. Very strong policy action is being taken to tackle them. Therefore, I believe that it is right for the United Kingdom to join concerted international support for them.
Lord Kennet: My Lords, was the collapse of the Mexican currency that gave rise to the need for this loan in any way directly or indirectly due to the action of currency speculators of the Soros type? If so, can the noble Lord tell the House in a few words what measures the international community is now taking to prevent that happening to country after country?
Lord Henley: My Lords, all that I can say is that the peso is now floating. The loan is not being used in any way to support the currency.
Lord Annan: My Lords, does the Minister recall that in the late 1970s this country was very grateful to the International Monetary Fund for its support?
Lord Henley: My Lords, the noble Lord is absolutely right. I remind the House that it was not a Conservative government that called in the IMF on that occasion; it was in fact a Labour government.
Lord Dubs: My Lords, is it not the case that, since the debt crisis of the early 1980s, the Mexican Government have pursued policies that were imposed

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upon it by the IMF, and indeed with the support of the British Government? Do we not therefore bear some responsibility for that country's present plight?
Lord Henley: No, my Lords, I do not believe that we do. But we are offering our support for this particular loan.

Family Homes and Domestic Violence Bill [H.L.]
3.32 p.m.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to introduce a Bill to make provision, in relation to cases where a dwelling-house is, has been, or was intended to be, the home of two or more persons as to their respective rights of occupation; to make provision for preventing the molestation of one person by another; to enable a court to include in certain orders under the Children Act 1989 provision relating to the occupation of a dwelling-house; to make provision for the transfer of tenancies between spouses and persons who have lived together as husband and wife; to apply Section 17 of the Married Women's Property Act 1882 to persons who live together as husband and wife; and for connected purposes. I beg to move that the Bill be now read a first time.
Moved, That the Bill be now read a first time.—(The Lord Chancellor.)
On Question, Bill read a first time, and to be printed.

Environment Bill [H.L.]
3.33 p.m.
Viscount Ullswater: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Viscount Ullswater.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMIIIEES in the Chair.]
[Amendment No. 263 had been withdrawn from the Marshalled List.]
Lord Lewis of Newnham Lord Lewis of Newnham moved Amendment No. 264:
Before Clause 75, insert the following new clause:
("Air Quality
Air quality management
—(1) With a view to establishing air quality standards in Great Britain and improving air quality, the Secretaries of State shall as soon as possible—

(a) prepare a statement ("the strategy") containing their objectives for improving air quality in Great Britain; and

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(b) issue guidance to every local air quality management authority on methods which may be used to achieve these objectives.

(2) In this section the term "local air quality management authority" ("the authority") means a district council, a metropolitan district council, a London borough council or a unitary authority; and in Scotland, a Scottish district council or a Scottish islands council.
(3) The Secretaries of State may from time to time modify the strategy.
(4) The Environment Agency or, in Scotland, SEPA, shall—

(a) advise the Secretaries of State on matters relating to subsection (1) above; and

(b) advise the Secretaries of State on criteria for the establishment of air quality management areas, namely those areas where air quality standards are likely to be exceeded.

(5) It shall be the duty of every local air quality management authority, having regard to guidance issued by the Secretaries of State—

(a) to prepare a review of air quality within its boundaries;

(b) to designate air quality management areas within its boundaries;

(c) to prepare a local air quality management plan which shall include a statement of the authority's methods for attaining the objectives specified in subsection (1) (a) above;

(d) to undertake a further review of air quality every two years, and from time to time to modify the local air quality management plan in the light of further review and guidance; and

(e) to consult with every bordering authority in the preparation of its review and plan, and any subsequent modifications.")

The noble Lord said: In submitting this amendment, I am very conscious of the fact that this environmental Bill covers so many aspects of environmental problems. But it is interesting to note that it says very little about air pollution. I find that rather surprising, when one considers the high level of public concern that exists over health problems and air pollution. I refer primarily of course to the many respiratory ailments that are associated with pollution. Also, it is fair to say that the current measurements to protect and improve air quality are fragmentary. For example, industrial pollution is controlled by HMIP and by local authorities. Pollution from transportation comes under four ministries: the Department of Transport; Environment; Trade and Industry; and the Home Office. Agriculture, which is one of the major causes of the pollution problems that we face in this country, is controlled by a code of practice from MAFF. Finally, domestic emissions are under the control of local authorities.
Although many changes have occurred in air pollution control over the past two decades, internationally agreed guidelines are routinely being exceeded. Emissions from road transport have increased. That is reflected in the very detailed survey that was carried out by the Royal Commission on Environmental Pollution and also much of the documentation that has come from the National Society for Clean Air. I note with considerable interest that the noble Lord, Lord Jenkins, is dealing with some of the problems that are associated with traffic pollution. I should like to say how delighted I am to see these particular amendments coming forward. But it is important to emphasise that the amendment with which

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we are now dealing deals with pollution on a national basis, whereas I believe that of the noble Lord is far more concerned with local authorities.
It is important to recognise that over the past four or five years there has built up a consensus view on the conditions for improving air quality, and indeed generally considering air quality management. The Government produced in the past year two very important documents which encapsulate these sentiments. The first was Improving Air Quality, and the most recent, Air Quality: Meeting the Challenge, was published within the past two weeks. It can be seen that the Government are moving forward very much in this particular direction.
However, it is important to recognise that if the aims to be attained are as set out in these particular documents, particularly in relation to the timescales that are projected, then there is an immediate need for legislation. This Bill provides a very good opportunity for such legislation.
I believe that there is now a consensus view on the strategy for air quality management. The first important aspect is to establish air quality standards. That has now been done for quite a large number of potential pollutants, and it is interesting also to note that in Air Quality: Meeting the Challenge the list has been extended. I congratulate the Government on that particular move.
This should then allow for a general air quality review to take place, which should give us a very clear understanding of the distribution of air pollution problems throughout the country.
Three important aspects must be considered. The first is monitoring and sampling. The second is the standardisation of data, particularly any computerisation of data, so that that is compatible across the country as a whole. The third is the interpretation of data.
I recently attended a conference sponsored by the National Society for Clean Air, where there was a grouping of various interested parties in air pollution control and monitoring. This involved industry, government, local authorities and various other interested groupings, including universities. One of the features that came through loud and clear was that, first, a considerable amount of interest and effort is being expended on these particular problems. However, although the data are there, very often they are not compatible. Very often one runs into problems over sampling. I was particularly impressed by the Meteorological Office, which has done very extensive surveys and has shown how critical sampling can be in giving the correct data. I believe that this is merely a matter of addressing the protocol that is involved in approaching this problem. That is not insoluble. But it Is tremendously important to appreciate that if we do not get this right, all that we will end up with is a lot of data which are rather meaningless.
In order to accomplish that, this amendment makes the following general proposals. The Secretary of State would be responsible for setting up the air quality standards. The determination of the strategic approach would then be up to air quality management. It would provide guidance particularly on the techniques to be
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used locally to characterise air quality. We believe that in all these matters the Secretaries of State should have regard to advice from the environmental agencies which are now being set up in the Bill.
It is equally important that local authorities should be responsible for the review of air quality and the establishment of air quality management areas. We believe that it is of major importance that the involvement of local authorities should be statutory to ensure a uniform and co-ordinated coverage of monitoring and data assessment.
An important consequence of this type of approach is that it would allow for what I call an effects-based approach to the setting of air quality standards rather than relying on fixed emission limits and giving a flexibility to take account of the receiving capacity of the local environment, as applies to water. It is an approach that has been applied extremely successfully to the control over water and it avoids the air not being able to deal with what are reasonable approaches to emissions from various local authorities or industry as a whole. I beg to move.
Lord Nathan: In supporting this amendment, I point out that the main theme of the Government, particularly in relation to Part I of the Bill, has been an emphasis on sustainable development. Therefore, in that context it came as a surprise to find no adequate reference in the Bill to problems relating to air pollution. They are there by implication in relation to HMIP, whose responsibilities are confined to exceptionally difficult industrial emissions.
As the noble Lord, Lord Lewis, said, there has been increasing concern among the public generally on health grounds, particularly perhaps in relation to asthma. It is said that one in seven children now suffer from asthma. It is quite generally thought that some air pollution is responsible for that trouble. It seems to me, and others, that provision in the Bill relating to air pollution is of the first importance.
That view is clearly shared by the Government. On the second day of the Committee stage of the Bill the Government issued their paper relating to their policy on air pollution. It was, if I may say so, an excellent paper. I believe that this amendment, though drafted and published before that document was issued, is closely in line with the Government's policy, as disclosed in that paper.
The amendment lays the foundations for effective air pollution control, which would ensure that investment is related to risks to health, amenity and conservation; that air quality is protected and improved at least cost by a balance between national and local measures; that local measures are focused on point, mobile and diffuse sources related to the locality and cost-effectiveness of pollution abatement; and that pollution control is carried out at the level appropriate to the task.
Subsection (5) of the new clause places a statutory duty on local authorities, as local air quality management authorities, to prepare local air quality management plans and to revise them periodically to keep them up to date. Using central guidance, they will identify the most cost-effective and socially acceptable

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package of measures to achieve nationally agreed air quality standards in their locality. It is important that the duty to prepare plans should be statutory, otherwise the current position of air pollution monitoring, to which the noble Lord, Lord Lewis, referred, will recur: patchy coverage with poor co-ordination and often a waste of resources.
I emphasise a number of points. First, with regard to the designation of air quality management areas, it is in these areas that the most active control measures will be taken. Concentrating effort where the air quality standards are, or are likely to be, exceeded saves cost and effort. The long experience of local authorities in air pollution control and the expertise of the environmental health officers give the assurance that they will be able to do the job.
Consultation and co-operation with neighbouring authorities are routine. But the southern England radiation monitoring network, covering West Sussex, Hampshire, Dorset, Somerset, Devon and Cornwall, is worth mentioning as an example of co-ordinated operation involving common standards, co-ordinated at Southampton University, of monitoring by sample—for instance, seaweed and growing crops, shellfish and air quality. The local authority radiation monitoring control committee was established in that context. So there is nothing unusual in foreseeing co-operation between local authorities in the context of air pollution control, as proposed in the amendment.
The Government expressed their intention to achieve air quality targets by the year 2005 in the document to which I referred. That means that the wheels must be put in motion now. I believe that the Government must take this legislative opportunity. They cannot afford to wait for another.
Finally, I must refer to money. However cost-effective and efficient the arrangements, inevitably they will involve expenditure. Local authorities must be funded adequately by express provision for the purpose. I hope that the Government will give an assurance that that will be done.
3.45 p.m.
Baroness Hilton of Eggardon: I support the amendments tabled by the noble Lords, Lord Lewis and Lord Nathan. I also support, in the following group, the amendments tabled by the noble Lord, Lord Jenkin. This is the one legislative opportunity that we have to put into effect the Government's proposals on air quality. It is opportune that their document was produced during the passage of the Bill. It is an occasion for them to seize the opportunity to amend the legislation, if we ourselves do not achieve that today.
The Government are to be commended for proposing the establishment of a framework of national standards which focus on the main pollutants that concern us. They do not go far enough in dealing with the problem of car emissions, which nowadays is the major pollutant. It used to be the burning of coal fires and so on and the clean air Acts dealt with that. We need now to adopt a
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strategic approach to managing air quality based on setting clear national standards, as was said by the mover of the amendment.
Also, it is essential that air quality considerations are integrated with planning, transport and other agencies. One of the omissions in the Government's plans is the provision of a good quality public transport system, so that people are less tempted—as we all are—to use their cars to get to work.
The amendments are supported by the local authority associations. They see very little that is controversial in them and much that is commendable. They also accept that air pollution does not respect local authority boundaries and that each authority should face a duty to act as an air quality management authority. Therefore, it is vital that the new scheme has nationwide coverage and it is not left to local authorities to implement on a piecemeal basis.
As I said, the key weakness of the Government's proposals is in the area of transport. We need to address that issue. Most of the 20 recommendations in the Government's report are of a research, planning or policy nature. Apart from the promise of more testing for London taxi exhausts and the possible addition of a new statutory measure covering exhaust fumes, there are very few new policies or commitments. Therefore, the Government's paper does not go far enough. We need legislation at this stage. We should seize this golden opportunity to legislate today and take action, as in the following group of amendments, against excessive emissions from vehicles. We should also be conscious that motor vehicles contribute to the greenhouse effect. That may be discounted by some experts; nevertheless it is clear that we are pumping carbon dioxide and other greenhouse gases into the upper atmosphere.
We enthusiastically support these amendments and those in the following group.
Lord Renton: Any proposal to reduce air pollution deserves serious consideration. I have lived with this subject for 40 years, since I had the responsibility of helping to pilot the first of the clean air Acts through another place. Pollution arises from three causes—industrial, domestic and vehicles—and I will say a quick word about each of them. In the last century attempts were made to control industrial pollution, but they were very unsuccessful through lack of enforcement. They are still not perfect. As to domestic pollution, the Clean Air Act was very effective in dealing with that. It was a good Right-wing effort. The late Lord Duncan-Sandys piloted the Bill through. He introduced it as Minister of Transport with the help of his Parliamentary Secretary, Mr. Enoch Powell, and the Parliamentary Secretary to the Ministry of Fuel and Power, your humble servant.
Lord Allen of Abbeydale: I should like to make a very small point. I believe it was the Ministry of Housing and Local Government, not the Ministry of Transport.
Lord Renton: Did I say the Ministry of Transport? I am sorry. The noble Lord is quite right, it was the Ministry of Housing and Local Government. It was a slip of the tongue, for which I apologise.

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That Act, I am glad to say, has been pretty effective. The reduction in the use of coal—bituminous coal especially—for domestic heating has been one of the principal causes of the improvement.
The main trouble now is the pollution caused by vehicles—that is, motor vehicles and mechanical vehicles of all kinds. That is why the amendments which are to follow will require even more serious consideration than this one. As to this amendment, what worries me is that it would overlap with existing arrangements for monitoring and enforcement, and the cost would be quite considerable. Therefore, with deep respect to the noble Lords who have moved and supported the amendment, I somewhat doubt whether it is really necessary. I will be interested to hear what my noble friend has to say about it.
Lord Moran: I should like to express my strong support for the amendment. We all know about the serious problems of air pollution in London and other cities, but air pollution affects not only towns but is also a significant problem in the countryside. In 1994 the expert panel on air quality standards, reporting on ozone, pointed out that in 1990 the standard was exceeded on 56 days—a considerable number—and that that applied to many parts of the countryside.
As to monitoring, I strongly support my noble friend Lord Lewis. The quality and extent of monitoring at present are none too good. The United Nations, under its environmental programme, reported recently on air pollution in the mega-cities of the world and expressed concern about the quality of monitoring in London. Monitoring should be standard and comprehensive throughout the United Kingdom and, above all, related to where the problem is most acute. It is no good monitoring the level of air pollution in London from the top of buildings; it should be done at what I would call pushchair height.
Let me make a brief point about public information. Last October the Transport Committee in another place, in its sixth report on transport-related air pollution in London, recommended that where air quality falls to levels which have potential health implications, bulletins should be issued to the public. That is important and I hope that the Government will pay attention to it. It is important that when pollution is bad the public should be informed by means of radio, television and the press.
Finally, I ask the Government what is happening about the admirable recent 18th report of the Royal Commission on Environmental Pollution. There seem to be a lot of plans and strategies but not, so far, very much action. For example, nobody is stopping the cars coming down the Cromwell Road. So far, plans to control traffic in order to reduce air pollution seem to be missing.
Viscount Ullswater: I have listened with great interest to what noble Lords have said on this important topic. The debate is timely. Let me make clear immediately how much the Government welcome the initiative of the noble Lords, Lord Lewis and Lord Nathan. The Government propose to build on it in taking forward their strategy for maintaining and improving air quality.
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The Committee will be aware that, following publication last March of the discussion paper Improving Air Quality, the Government published on 19th January Air Quality: Meeting the Challenge, a framework of strategic policies for maintaining and improving air quality. It represents a major step. Rapid progress has been made and the Government are determined to maintain that progress. We have proposed a new national air quality strategy, based on clear standards and targets, a system of local air quality management to underpin it, and an action programme of some 20 measures for improving transport emissions. I can now confirm that it is the Government's intention that relevant provision be made in the Bill now before us.
The Government will therefore bring forward their own proposals at a later stage. Since it is likely that for reasons of timing and procedure they will come forward in another place, I should like to take the opportunity this afternoon to set out clearly the Government's intentions.
Legislative provision will be made, first, for establishing the national strategic plan for maintaining and improving air quality. The duty to establish the strategy should, as noble Lords propose, reside with the Secretaries of State. Key elements should indeed include setting clear national standards for air quality and reduction targets for important pollutants, with timetables for achieving them. The strategy will not be an end-point. It will be a framework against which the Government test relevant policies for industry, transport and other matters in future. It will also be the framework for the new system of local air quality management proposed by the Government. It will be revised and adapted in the light of new evidence and better techniques.
The new system of local air quality management will be focused particularly on areas at risk. But the Government intend also to see that air quality considerations are better integrated with local planning, transport and other policies throughout the country. The Government have therefore proposed that all local authorities should have a duty to review air quality periodically.
The Government agree that local authorities will need detailed advice in order to carry out their new functions properly. As with the national strategy, advice for local authorities and their own plans must evolve and adapt over time. The Government would expect that most matters could be dealt with by guidance, as proposed by noble Lords in the amendment. But, as we have seen in long experience of the operation of smoke control areas, and of more general controls on black smoke, it may sometimes be necessary to state details in regulations.
The Government will be looking for constructive participation from local government, industry and others in developing both legislation and subsequent guidance. I am sure the noble Lord, Lord Lewis, will be happy to know that we shall be involving the National Society for Clean Air and any other bodies that noble Lords may wish to suggest in that. Issues to be covered include techniques for assessing air quality and its effects,

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criteria for identifying air quality management areas, and methods for managing air quality in these and other localities including, I am sure, sampling and monitoring.
There is also the question of the powers of local authorities. While it is the Government's view that many of the actions to be taken locally are already in the hands of local authorities, their use may need to be made more explicit. Furthermore, the Government do not rule out the possibility that some special powers may need to be available within air quality management areas rather as they already are within smoke control areas. In accordance with the precedent of smoke control areas, the Secretaries of State should be able, following consultation, to bring forward regulations concerning the functions of local authorities within air quality management areas.
It should be clear from what I have said that I am in agreement with the spirit of much of the noble Lord's amendment. As I have explained, the Government intend to bring forward their own provisions which will cover the issues which Amendment No. 264 identifies as important, extended in the ways in which I have indicated. With that assurance to the Committee, I hope that the noble Lord will feel able to withdraw his amendment.
4 p.m.
Lord Nathan: Perhaps I may make two points. First, I wish to emphasise the point which other noble Lords have made regarding the existence of air pollution outside the centres of great cities and in particular the impact of agricultural activity on air pollution. I am thinking of nitrogen, let alone methane. Those are matters of considerable concern. The Ministry of Agriculture, Fisheries and Food is the department concerned in this area. The Minister might care to take that into account.
The other point to which I would refer is the vexed and disagreeable subject of money. It would be helpful if the noble Viscount could say something about his proposals in that regard. He accepts—and I am appreciative of it—the main burden of the points made in the amendment, although his colleagues will bring forward amendments of their own. That is fine. But I think it would be a mistake to think that an effective system of air pollution control and management will arise without the injection of some money from some source.
Viscount Ullswater: Perhaps I may respond briefly to those two points. I indicated that this would be a national strategy with national standards for air quality and reduction targets for the important pollutants. I hope that that will give the noble Lord some assurance on the first point.
On the second point, for the core functions of reviewing air quality and taking into account more fully land use and transport planning, the costs are unlikely to be significant. For the most part, it will be a matter of doing differently things which most relevant local authorities already do. Nevertheless, the Government have indicated that local authorities will be able to bid
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for resources where necessary. We anticipate that that matter will be covered when the proposals come forward in another place and we are in touch with local authorities.
Lord Lewis of Newnham: I thank the Minister for his clear exposition of what is an important case. He has covered all the points that we would wish to make. We will look with great interest at the report when it comes forward. Perhaps I may take this opportunity to thank the noble Lords, Lord Nathan and Lord Beaumont, and the noble Baroness, Lady Hilton, for helping me with. this proposal. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Jenkin of Roding Lord Jenkin of Roding moved Amendment No. 264A:
Before Clause 75, insert the following new clause:
("Emissions
Emissions from stationary vehicles
.—(1) Save as provided in subsection (2) below, the person in charge of a motor vehicle shall, when the vehicle is stationary on a road, stop the action of any machinery attached to or forming part of the vehicle so far as may be necessary for the prevention of the emission of smoke, fumes or vapour.
(2) The provisions of subsection (1) do not apply—

(a) when the vehicle is stationary owing to the necessities of traffic;

(b) so as to prevent the examination or working of the machinery where the examination is necessitated by any failure or derangement of the machinery or where the machinery is required to be worked for a purpose other than driving the vehicle; or

(c) in respect of a vehicle propelled by gas produced in plant carried on the vehicle, to such plant.

(3) If the person in charge of a stationary vehicle on the road does not stop the action of a vehicle in accordance with subsection (1) above, an authorised officer of the local authority in which the road is situated may serve a notice on him requiring him to pay a penalty charge to the local authority.
(4) The person in charge of a vehicle served with a notice under subsection (3) above shall have the right of appeal against the service of the notice to the local authority in the first instance and thereafter, to an adjudicator appointed by the local authority.
(5) The amount of the penalty charge payable under subsection (3) above shall be set at a level which would allow the local authority to recover the reasonable costs of the enforcement of the provisions of this section.")
The noble Lord said: With this amendment we are taking Amendments Nos. 264B and 264C. I gained the impression from the previous debate that there is already a good deal of support in all parts of the Committee for this group of amendments. Perhaps I may say at the outset how very much I welcome the comprehensive statement which my noble friend has just made about the Government's legislative intentions in this regard. The speed with which the Government have moved on the matter—after all, it was only on 19th January that the document was published—is very much to be commended.
With this group of amendments we move from the general to the particular. As everyone has said, it is a very important particular. The amendments aim to give local authorities new powers to deal effectively with certain vehicle and other emissions which contravene the relevant provisions of the construction and use

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regulations. There is a history behind the amendments. It has long been apparent that a significant part of the atmospheric pollution in our country comes from a relatively small minority of badly maintained vehicles, which not only puff black smoke but produce completely burnt hydrocarbons, nitrogen oxide and other pollutants. Those puff into the street, with all the consequences that have been described.
When a vehicle comes up for its annual MOT test these things are tested and if the vehicle is found to be wanting the certificate is withheld until matters are put right. But that means that a car or lorry may go on polluting the streets for many months before the law catches up with it. At present the powers to deal with this menace are non-existent, very defective or incompletely enforced.
So last year the two London local authority groups—the London Boroughs Association and the Association of London Authorities—gave evidence to the Transport Select Committee of another place in which they said that they were proposing legislation in a Private Bill which was intended to deal with the problem. It was put forward by the London Borough of Westminster but it has the support of all the other London boroughs. In its report the Select Committee said:
"We also recommend that the Government should give favourable consideration to a possible proposal from the Association of London Authorities and the London Boroughs Association for private legislation to give local authorities in the capital the power to carry out emissions checks on vehicles and to serve the driver, where necessary, with an enforcement notice requiring remedial action to be taken. Such a system could be financed through a fixed penalty charge".
Since then there has been a great deal of consultation between the local authorities, the Department of Transport, my noble friend's department and the Home Office—the police may well be involved—and last month when the Government's publication on air quality was printed it was seen that the Government committed themselves. The report said:
"the Government welcomes the LBA initiative in bringing forward proposals in the London Local Authorities Bill to extend kerbside emissions testing powers to London local authorities. The proposals may present an opportunity to increase the level of roadside emissions testing in London, supplementing testing already carried out by the Vehicle Inspectorate, and may provide a blueprint for future initiatives elsewhere in the country".
It will be recognised that hitherto this had been seen as being confined to London. It was the Government who recognised that there might well be wider application for the powers.
The Private Bill was presented in this House at the end of last year and it has begun its somewhat slow and uncertain progress through Parliament. One remembers that the 1991 Bill, which was introduced in this House, has still made no progress. Private legislation has its perils. Part II of that Bill contains eight clauses and four schedules setting out the proposed powers. A Petition has been presented against that Private Bill on behalf of a number of motoring and other organisations. Two main points are made in the Petition. The first point is that, if there is going to be legislation, it should be made national. The second point is that a Bill should not
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provide power for a local authority official to stop vehicles and that such power should be confined to the police. I will not elaborate on that.
These three amendments provide national powers of the kind that have already been commended by the Government in the White Paper on air quality. As your Lordships will see, they contain no powers for local authority officials to stop vehicles in the street. So the two main points of the Petition against the Private Bill seem to have been met. There are others—and I have no doubt that they will be argued—but I am hoping that the main opposition to the provision will not extend to the new clauses.
What do the new clauses do? Perhaps I may take them in reverse order as that makes more logical sense. Amendment No. 264C gives the power to test to see whether vehicles are complying with the relevant regulations. If a vehicle is in breach, there is a penalty charge and the driver is given eight weeks to get the defect put right. The clause contains a right of appeal. A very important point is that the penalties which were suggested by the committee in another place are set at a level to cover costs. It is not intended to be a revenue-raising measure, but merely to cover the costs of the new operation. As is appropriate, there is provision for a code of practice.
Amendment No. 264B extends to on-street nuisances powers which are already available off-street. If there is a concrete mixer or an air compressor which is chuntering away on a building site and emitting smoke and other pollutants, the local authority can stop it. The power is not available if the contractor keeps it in the street. That is absurd. This amendment is intended to deal with that.
Amendment No. 264A is an interesting one and I am sure that Members of the Committee will have a good deal of sympathy with it. It is designed to stop people sitting in their vehicles in the street, often for hours at a time, with the engines running. Sometimes large buses and huge lorries have their engines running for no better purpose other than that the driver wants to keep warm in the cab. There must be less polluting ways of keeping drivers warm. One may suggest a woolly hat and an overcoat. One of my honourable friends in another place got into dreadful trouble suggesting that. We have all seen engines running, and that is nonsense. It is quite wrong to have an engine left running for a long period with nothing being done about it.
These are in the nature of probing amendments. I am not so rash as to believe that we have got matters right. My noble friend has already said that the Government will be introducing legislation in another place to implement many of the provisions of the policy document on air quality. I hope that he will be able to give the Committee an assurance this afternoon that they will legislate to confer the necessary powers on local authorities in order to save what at the moment are the perils and vagaries of a piece of local legislation which would apply to London only. The London authorities are to be congratulated on their initiative. It would be very much better if these provisions can be incorporated in the Bill and applied nationally.
I hope that I am pushing at an open door on this issue and that the Government will carry through the words which I quoted a few moments ago from the policy document Air Quality: Meeting the Challenge into effective legislation. I beg to move.
The Earl of Onslow: I was under the impression that it was already an offence to drive a vehicle which had smoke coming from its exhaust. I say that because I have a rather elderly horsebox which was stopped the other day by the police. It was pulled over to the side of the road and the police said that the vehicle was emitting too much smoke. The vehicle was driven straight to a testing station and it was found not to be emitting too much smoke. There is already the power to take that step.
I do not believe that anyone is denying this perfectly reasonable and sensible course. As regards the point made by the noble Lord, Lord Jenkin, that people should not use diesel fuel belonging to somebody else just to keep their feet warm, I believe that everybody has an immense amount of sympathy with that. I believe that it is also an offence to leave a motor vehicle with the engine running without the driver being present. If those two factors are correct, is it really necessary to add yet another offence to the legislation? I ask that in a spirit of friendly inquiry, and that is all.
4.15 p.m.
Lord Finsberg: I support my noble friend and make two additional points. I should like to see the penalties made stronger. I should like to see the power introduced for confiscation for second or third offences. We know that there are fleets of vehicles which are badly maintained and it almost pays the owners to pay the fines and to get away with it. At some stage I should like to see confiscation powers included.
On the question of keeping one's feet warm, one of the two biggest offenders in London are the buses of London Transport. One can go to the bus terminus at the side of John Lewis in Oxford Street and see buses with engines running with the drivers sitting in the cabs. That is done alongside a notice put up by London Transport telling staff to turn off their engines, but no one bothers to do it. The second biggest offenders are the tourist coaches waiting for their hordes of very valuable tourists. The drivers like to keep warm. I believe that an occasional warning from police who happily pass by may be worth trying.
Baroness David: Will the noble Lord's new clause cover cars left with their engines running in your Lordships' car park?
Lord Brabazon of Tara: I rise briefly to support the spirit of the amendments moved by my noble friend Lord Jenkin of Roding. I declare an interest in that I am a member of the Public Policy Committee of the RAC which is one of the organisations to which my noble friend referred. It has petitioned against the London Local Authorities Bill, currently before your Lordships' House, for the reasons which my noble friend expressed.
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I am glad to say that in his amendments my noble friend has managed to get round some of the problems which we see contained in that Bill.
There is no doubt that my noble friend has touched on a couple of important issues. The RAC has always been very much in favour of cutting down on vehicles which make dirty emissions. It is a fact that only 10 per cent. of badly tuned vehicles account for over half the bad emissions. The few vehicles which do that give all motorists a bad name.
The issues are quite complicated. We need national measures to ensure that vehicle emission standards are properly and fairly enforced, in particular in our cities. That is why these amendments are, as I say, preferable to the approach contained in the London Local Authorities Bill. We must be sure of course that new legislation is indeed needed, as my noble friend Lord Onslow has said. The problem is not simply the lack of money to enforce laws which are already in force.
The construction and use regulations already provide the necessary legal framework and sanctions for tackling polluting vehicles. The real problem of course is that resources cannot be made available on a sufficient scale to tackle the problem at street level. Given that that is the case, should we not be trying to find ways to fund enforcement of the existing regulations rather than starting all over again? Moreover, it must surely be right that the penalties in this field should be the same as those which apply under the construction and use regulations which is not the case with these amendments.
There is a fundamental issue to which my noble friend Lord Jenkin has referred; namely, the power to stop vehicles on the public highway in order to test them. At present the power can only be exercised for traffic matters by a police officer in uniform under Section 163 of the Road Traffic Act 1968. That situation must be maintained for obvious reasons relating to personal safety and security. Clearly, there is widespread anxiety among the public about the possibility of any change in the law in that respect. I believe that the existing position needs to be made absolutely clear. I know that my noble friend's amendment does not refer to this matter, but the London Local Authorities Bill does. In replying to the amendment, I hope that my noble friend will say that the situation must be maintained—that is to say, that a police officer is the only person who can stop a vehicle.
The requirement should also be that the training of testers referred to in the amendment must also be as good as that required for the testers of the Department of Transport from the Vehicle Inspectorate. We must not have two standards in this matter.
My noble friend's Amendment No. 264A refers to emissions from stationary vehicles, and my noble friend Lord Finsberg has referred to that. The problem seems to be concerned with stationary coaches and buses. One sees them in this area. I wonder whether the amendment is drawn tightly enough for that. It says in subsection (2) (b),
"or where the machinery is required to be worked for a purpose other than driving the vehicle".

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I hope that that will not allow drivers to leave vehicle engines running solely for the purpose of using the heater. If so, that would drive a coach and horses through the purpose of the amendment and that I would not want to see. However, it seems that the amendment as drafted would require people to drive straight off after having started the car. That is a very dangerous thing to do on a cold and frosty morning when the windscreen is covered with snow and ice. The car must be allowed to get warm enough in order to heat the heater to get the windscreen clear. I wish to see the amendment put in such a way that that can happen otherwise there would be important safety implications.
However, in conclusion, I reaffirm the view that the aims of the amendment are entirely right. What we now need, as my noble friend has said, is the Government to bring these provisions into effect.
Lord Tope: I support the amendments. As the noble Lord, Lord Jenkin, said, they come from the latest London Local Authorities Bill. I suppose that I should declare my interest as I currently chair the policy and finance committee of the London Boroughs Association which is among those promoting that Bill. The noble Lord explained his amendments well and fully, and I am grateful to him for doing so. I shall not repeat his comments. He referred to the London Local Authorities Bill. The Committee will know better than I what a long and tortuous process that is. I am aware that our No. 2 Bill, which Vas introduced in 1991, received its Third Reading in this place only this week.
The problem in London and other urban and rural areas, as I believe we are all agreed, requires more urgent action than to wait for the long and tortuous process of getting a Private Bill through Parliament. In London, 90 per cent. of the pollution from vehicle emissions comes from only 10 per cent. of vehicles. That would suggest that this is a problem which could be tackled effectively if effective enforcement powers existed. The amendments aim to give local authorities the power to carry out testing. The noble Lord, Lord Brabazon, suggested that such powers exist already; they do, but only the police and the Department of Transport Vehicle Inspectorate can do the testing. That can obviously happen on a limited scale only and, because the offences are criminal, the fines then go to the Treasury. We need a more urgent and effective way of tackling this problem on a wider scale.
The purpose of the amendments is to give local authorities powers to initiate a self-financing scheme by introducing penalty charges—I hesitate to say this—similar to those introduced recently for parking. It would enable such pollution control to be brought forward on a self-financing basis. That is the important difference.
Reference has been made to the proposals in the London Local Authorities Bill to give local authorities the power to stop vehicles. I am aware of the opposition from the RAC, the Freight Transport Association, and so forth. As I believe the phrase goes, these proposals are eminently negotiable. They are deliberately not part of the amendments. We are much more interested in
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seeing an effective scheme in operation in London, and indeed nationwide, than we are in acquiring powers to make ourselves even more unpopular with motorists.
As I say, I support the amendments and thank the noble Lord, Lord Jenkin, for moving them so well today. I look forward, when the Minister replies, to hearing his assurance that we are pushing at an open door, and that, although the amendments may not yet be drafted perfectly and every point may not yet have been covered, they will be by the end of the Bill's passage through this place.
Buses have been mentioned and reference has been made to drivers needing to keep warm. I declare another personal interest: my local bus garage happens to be in the ward that I represent on my local council. This has been a considerable problem for me and, more importantly, for my constituents for many years. If we achieve nothing else today, I shall be grateful to put an end to those complaints.
Lord Boyd-Carpenter: I rise only to ask my noble friend the Minister to confirm what I believe he said on an earlier amendment: that it is the Government's firm intention to introduce into the Bill provisions to have effective control in these matters. However, I understand that they will not in fact be introduced until the Bill goes to another place. If, as I am sure is the feeling of the Committee at the moment, we are not to press these amendments, we want to know that the Government are firmly committed to legislating on this subject in the Bill, even though it be in another place.
Lord Lucas of Chilworth: I have listened with great interest to all that has been said. Like other Members of the Committee, I have sympathy with the purpose of the amendments. Vehicle emissions are a nuisance. The cry that seems to be coming out is the usual one, "and something must be done".
My noble friend Lord Jenkin of Roding tabled the amendments, with which I see a number of problems. I should be most reluctant to provide any legislation which would mean the setting up of yet another army of officials—uniformed, I expect—on our streets. It is already confusing with parking wardens, private security services and so forth. As my noble friend Lord Brabazon of Tara so eloquently said, the responsibility for stopping vehicles has been, and should remain, with the police authorities. Whether a vehicle which is taken off the road by those authorities and taken to a testing station should have the test carried out by a sub-contractor is another matter.
My noble friend Lord Finsberg talked about confiscation. In so far as concerns commercial vehicles, the traffic commissioners have all the authority and power that they need to remove such vehicles from the road, and, as he knows, to close down a business merely by removing the licence. It is a great disappointment to me that greater evidence is not available to us to demonstrate that the traffic commissioners are doing their job in that area. With regard to taxi cabs, there is the hackney carriage licence inspection, when any defects can result in the licence being withheld. That provision already exists.

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Other Members of the Committee have spoken about the MoT on the vehicle's third anniversary. There is the power to keep the vehicle off the road if the emission test which is incorporated in the MoT is not satisfactory. We might bring that test a little earlier, and bring it into the second year and not after the third anniversary. There is ample evidence to show (again, I am sure that my noble friend Lord Brabazon mentioned this) that a significant proportion of the 23 million motor cars on the road are the gross polluters. He said 10 per cent.; I would have said 20 per cent. or 25 per cent., but whether it is 10 per cent. or 20 per cent., it is a significant number.
Rather than have the blanket cover which my noble friend Lord Jenkin proposes in this series of amendments, we should use more effectively the construction and use regulations which are already available; the enforcement should be better targeted; and resources for the enforcement should be made available, because without adequate enforcement the existing law is disregarded. That is not something we should condone.
I hope that when my noble friend answers—I am sure that he will acknowledge the problem—he will undertake to have a much wider review of some of the technical and practical difficulties that arise in overcoming this problem.
4.30 p.m.
Lord Desai: In speaking to the amendment, I must first declare a non-interest in that I do not own or drive a car. If the noble Lord, Lord Lucas of Chilworth, is correct in saying that only a small percentage of cars causes a large percentage of the pollution, we should address that problem. It is clear that the existing regulations do not tackle it. It is not right to say that we should have better enforcement. We must increase the incentives to discourage people from owning cars which emit a great deal of pollution. Unless the incentives are changed, pollution will continue. I do not know how one should increase the cost of owning polluting cars; but perhaps as cars become older, the owners should pay more road tax. That will be much more effective and targeted than a blanket provision which will catch the drivers of all kinds of cars.
Viscount Ullswater: The amendments tabled by my noble friend Lord Jenkin aim to tackle certain aspects of traffic pollution. We are all well aware that traffic is now the major source of pollution in our town centres. I therefore sympathise with those aims. Indeed, the fact that the Government's strategic proposals were developed jointly by my right honourable friends the Secretaries of State for the Environment, Scotland, Wales and Northern Ireland with the Secretary of State for Transport, reflects the importance that the Government as a whole attach to tackling this sector. The proposals include a separate action plan for transport.
My noble friend Lord Boyd-Carpenter asked about the amendments which we intend to bring forward. As I indicated in speaking to the previous amendment, we
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shall bring them forward in another place. Due to the rapidity with which we have moved since the publication of Air Quality: Meeting the Challenge on 19th January, it is difficult to have amendments ready to introduce in this House. I hope that I shall be able to persuade my noble friend that these amendments are not the most suitable to bring forward either in this House or in another place—
Lord Boyd-Carpenter: I was not suggesting that they were suitable. I was asking whether the Government were giving a firm undertaking to introduce legislation on this subject in this Bill in another place.
Viscount Ullswater: As I indicated, the proposals include a separate action plan for transport. As the Government's air quality strategy develops, we shall consider how to develop them further both strategically and at the detailed level of implementation.
Amendment No. 264A sounds very attractive. It purports to deal with motorists who leave their engines running unnecessarily. I very much sympathise with the sentiment expressed by many Members but I am not sure that this amendment is the answer. A similar offence already exists. Regulation 98 of the Road Vehicles (Construction and Use) Regulations 1986 already requires that drivers should take appropriate action to prevent unnecessary noise by switching off their engines when stationary. In practice, the offence is very difficult to prosecute and very difficult to prove.
I have to say that proving unnecessary emissions would be likely to be even more difficult than proving unnecessary noise. Creating a new offence along the lines proposed would seem therefore to serve no effective purpose. It may be far better to concentrate further on making motorists alert to the consequences of leaving engines running unnecessarily.
Amendment No. 264B aims to extend the statutory nuisance controls in Section 79 of the Environmental Protection Act 1990 to include such things as emissions from mobile tarmac plant. The Government believe that there are already sufficient powers available to the police, vehicle inspectors and others to control these emissions. I believe that deals with the problem of my noble friend Lord Onslow's horse box. These include the Road Vehicles (Construction and Use) Regulations 1986 and a variety of provisions under health and safety legislation.
In turning to my noble friend's Amendment No. 264C, we come to an additional opportunity to remove polluting vehicles from the road—a matter to which we attach the greatest importance. A similar proposal has been made in connection with the Sixth London Local Authorities Bill, as amplified by the noble Lord, Lord Tope. My right honourable friends the Secretary of State for the Environment and the Secretary of State for Transport have made clear that the Government are keen to consider the approach of giving powers to local authorities. As the Secretary of State has indicated, the Government recognise that this is the sort of power that might be appropriate for local authorities in exercising their proposed functions under the air quality strategy. However, there are technical problems associated with the proposal. In particular, I must say to my noble

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friends Lord Brabazon and Lord Lucas that the idea that enforcement in this area should be given to bodies other than the police and the vehicle inspectorate is one which, while it merits consideration, also needs close examination.
The Government believe that the proposal should be considered at more length. The Government are ready to do that, in conjunction with the wider proposals on air quality which we shall be bringing forward in another place. But Members of the Committee will understand that in view of the particular difficulties that we see in this case, I can al this stage give no assurances as to the outcome of that consideration. I hope that on the basis of what I have said, my noble friend will agree to withdraw his amendments.
Lord Jenkin of Roding: I am grateful for the considerable volume of support that the amendments have attracted in Committee. As we are trying to work to the new Rippon rules, I shall not attempt to comment on all the points that were made. The Committee will wish to move on to the next amendments.
My noble friend Lord Boyd-Carpenter asked a strictly pertinent question to which I was hoping to hear a more committed reply. I believe that in so far as these matters can be made effective in legislation, the Committee wishes them to be legislated for in this Bill. We do not wish to be fobbed off with the reply, "It will need a great deal more talking and thinking about". Everyone knows that it will be years before another Bill is introduced.
The existing powers are not sufficient. One has only to walk down the road to see that. Perhaps I may say to my noble friend Lord Lucas of Chilworth that it is not merely a matter of resources. I hope that the police will do more to combat real crime rather than stopping vehicles puffing out smoke. Policemen are expensive, rare and valuable commodities. The local authorities should have the power to act because they must respond to public pressures. The noble Lord, Lord Tope, illustrated that by referring to the bus depot in his constituency.
The amendment introduces a new self-financing scheme which will be enforced by local authorities. They have every incentive to do that without being distracted from other more immediate topics, such as fighting crime. The present system does not work. Perhaps I may remind my noble friend Lord Ullswater that his department has given a warm welcome to the London Bill. If it is right in London and the Government are going to support the Bill, why not support these new clauses?
I shall not press the matter to a Division. However, I wish to leave my noble friend in no doubt that the Committee wishes to see this matter legislated for in this Bill. We hope that the Government will bring forward their proposals in another place, together with the rest of the package. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 264B and 264C not moved.]
Clause 75 [National waste strategy]:
Lord Marlesford Lord Marlesford moved Amendment No. 265:
Page 78, line 5, at end insert:
("National resource management strategy: England and Wales.

(1) The Secretary of State shall prepare a statement ("the resource management strategy") containing policies for the conservation of minerals, energy, water, land and soil resources.

(2) The resource management strategy shall include a statement of the Secretary of State's policies for—

(a) reducing the demand for the resources addressed by the strategy;

(b) encouraging the more efficient use of these resources;

(c) substituting renewable resources for non-renewable resources where there is a net environmental benefit by so doing,

(d) enhancing the environmental value of those resources; and

(e) minimising the environmental impact of extracting, exploiting or developing those resources.

(3) In preparing the resource management strategy or any modification of it the Secretary of State shall consult bodies or persons representative of local government, environmental, business and community interests.

(4) The Secretary of State shall establish appropriate bodies within Government, where such bodies do not already exist, including a Soil Conservation Unit and a Minerals Efficiency Office, to assist in the implementation of this strategy.").

The noble Lord said: Previous amendments related to the detail of the Bill; but my amendment is, in a sense, much more strategic. It suggests that this admirable Bill contains an important gap. That is the requirement or need to produce a strategy for national resource management.
Over recent years there have been a number of extremely valuable environmental White Papers and in 1994 we had the Government's sustainable development strategy. We have also a whole range of guidance produced on what should happen in relation to different issues. I believe that there is a gap between those macro White Papers and environmental sustainable development strategies and the need for something much more specific which relates to the conservation and management of key resources of minerals, energy, water, land and so on.
At present I fear that to some extent, at least, the Government's policies and, indeed, policy planning guidance notes and mineral planning guidance notes are based far too much on a philosophy of predicting demand and providing for that demand. Very often it is simply not possible to provide that demand without considerable environmental damage.
This is very much a probing amendment. I do not suggest that the wording of the amendment is right. I merely ask the Government to seek to strengthen and deepen their own Bill by giving the Secretary of State a requirement to produce a strategy. I do not specify how often that should be done. That strategy should include key measures such as, for example, reducing the demand for such land resources by re-using vacant urban land rather than developing greenfield sites. The amount of rural land still being lost is considerable. Members of

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the Committee may not realise that since 1945 an area of land greater than the size of Greater London—Berkshire, Hertfordshire and Oxfordshire—has been "urbanised", which is a suitably horrible word. Currently we are losing rural land to development at the rate of 27,000 acres per year. Therefore, it is a very real problem.
We need a strategy to deal with that, which the Government should provide in the Bill. That would then be the benchmark for the administration of the planning rules, for the consideration of development and for guidelines which the Government issue on detailed matters which arise.
Perhaps I may refer to a few examples. Let us consider minerals and the need for aggregates. It cannot be right to say that, because the need for aggregates is so great, it should be permissible to produce those by quarrying as and where the developers wish to do so. For example, in general I do not believe that it is right to allow quarrying for aggregates in national parks. However, it may be right if the developers are seeking to use a particular stone that is found only in a national park to clothe buildings to be erected in that national park and give a vernacular attraction to those buildings. In that case it may be reasonable to say that the stone must come from the national park. But in general, even though the cost of providing aggregates may be higher in order to meet our environmental objectives, that cost must be met. That often means that the most obvious site for quarrying will not always be appropriate. Unless there is such a strategy, we shall not have the right developments in the right places.
With regard to water, we need effective measures to control leakage and manage demand for water resources. The National Rivers Authority has estimated that the demand for water may increase by some 25 per cent. by the year 2021. That may produce intolerable burdens on existing underground water reserves and already much damage has been done by over-abstraction rather than conservation of water. That is an area in which a specific strategy is needed. Energy is another area in which such a strategy is needed.
I wish to make the general point that there is a gap in the Bill and my amendment seeks to close it by providing, for the first time, a management strategy for those crucial resources which, if they are not properly managed, may result in really serious damage being done to the environment of this country; and that is totally contrary to the purposes of this admirable Bill. I beg to move.
Baroness Hilton of Eggardon: I support the amendment moved so eloquently by the noble Lord, Lord Marlesford. Last week the Government published a discussion draft on waste strategy for England and Wales which quite clearly should be a very small part of a much wider statement on national resource management. To deal merely with waste is not sufficient. We should not be using so much of them in the first place. Therefore, there is a clear need for a much broader approach to the management of our limited natural resources.
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The noble Lord, Lord Marlesford, has covered the major points in relation to the irreparable loss to our national parks and other beautiful places caused by quarrying. We dealt with mineral abstraction a few days ago, without much success in view of the response from the Government. But there is widespread anxiety about the blight which quarries create on landscapes and in relation to the totally irreparable, irreplaceable loss caused by using precious stone for placing underneath motorways. Therefore, I support the amendment.
4.45 p.m.
Lord Howie of Troon: I hope that the Committee will approach the amendment with a certain degree of caution. At first sight it has the look of a motherhood and apple pie amendment in the sense that it aims to do good. Quite clearly, the intention of the noble Lord, Lord Marlesford, is to do good. There is no doubt that the resource management for which he asks is aimed at doing good. But the amendment does not appear to me to meet that aim.
It is obviously good to encourage the more efficient use of those resources. That is clear. It is also clearly good to minimise the environmental impact of extracting such resources. That is clearly good. However, the amendment asks the Secretary of State to reduce the demand for those resources. That is quite a different matter.
The noble Lord, Lord Marlesford, referred to minerals and aggregates. The Committee will know of my affection for concrete. The noble Lord asks that the extraction of aggregate for concrete, whether used for roads or buildings, should be controlled. That is sensible. But controlling extraction is very different from reducing the demand, because the demand for aggregates can be reduced only by reducing the demands on the construction industry. The construction industry has been extremely hard-hit in recent years without having further damage inflicted upon it.
Lord Marlesford: I thank the noble Lord for allowing me to intervene. One way in which to reduce the demand for new aggregates is to reuse those which exist and there is great scope for that to be done. If such a measure were included in the strategy, that would give encouragement for that to be done.
Lord Howie of Troon: That is true up to a point, but only up to a point. Existing aggregates can be obtained only by knocking things down. In this country we need more building rather than the knocking down of buildings.
Another part of the amendment that seems to have gone slightly awry is that which refers to the idea that renewable resources should be substituted for non-renewable resources when there is a net environmental benefit for so doing. That is good up to a point; but, again, only up to a point. There are two benefits to be derived from the use of resources of whatever kind. I recall that that point was made during Second Reading by the noble Lord, Lord Wade of Chorlton, in a splendid speech. The environmental and the cost benefit have to be considered. There is no point

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in saying that it must be a policy of the Secretary of State that the environmental benefit should overrule the additional cost of using one material against another. That is far too detailed. a point to put in such an amendment which is meant to achieve general good.
While I support the noble Lord's underlying intentions, for the reasons that I have expressed, I believe that his amendment is faulty. For example, I do not understand what the noble Lord means when he refers to,
"enhancing the environmental value of those resources".
I cannot support the amendment in its present form.
The Earl of Onslow: I should like to support the amendment moved by my noble friend Lord Marlesford as regards one particular point. I refer to the reuse of aggregate and hard core. I have a hole in the ground which was dug by my forebear a long time ago as a chalk pit. People became most excited about it because it was a disused quarry which they rather liked. In fact, I obtained planning permission to fill it in with grade 1 hard core. Most of the latter comprised lumps of concrete and road scrapings. All of that can be used if it is subjected to a certain industrial process.
However, the industrial process of smashing up concrete is incredibly noisy and rather expensive. Across the road from my hole in the ground is someone else's hole in the ground. Someone applied for planning permission to put a concrete breaking plant into that hole. Everyone in the local community was up in arms objecting to that environmentally sensible process because it would be noisy and smoky. Therefore, as a consequence, the stuff is clumped quietly in another hole in the ground and not used, while another hole, a fifth hole—and I am running out of holes—has to be dug to make up the concrete. I did not intend to intervene until my noble friend made his last comment. I believe that what I have said is apposite and germane to the matter under discussion.
Lord Wade of Chorlton: I should like to express my support for the comments made by the noble Lord, Lord Howie of Troon. Although I understand the reason for my noble friend bringing forward such an amendment, I believe that the matter needs to be treated with considerable caution. Experience has shown us that central planning of the use of resources is about the most inefficient way of dealing with them that can possibly be decided upon. The resources that we have in this country and how we use them will change. My noble friend referred to the fact that land is being destroyed. Land is being used in a different way and in a way that, at present, is of greater benefit to the majority of the people. Surely that is something that ever ebbs and flows.
Therefore, although I understand the point that my noble friend is trying to make, I believe that we have to consider what is right for the nation and not necessarily what might suit our own particular needs. I hope that the Government will treat the amendment with considerable care.
Lord Desai: I rise to support the amendment. However, I believe that something additional is
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required. I like the amendment because it is comprehensive in its coverage of the soil of things that we need to conserve. It is especially important that water conservation should be mentioned. Water will be one of the big problems of the coming century; indeed, that is quite clear from global trends. In fact, water may prove to be much more important than climate quality in the years to come.
Unlike my noble friend Lord Howie—and we seem to be disagreeing more than we normally do—I like the fact that the amendment starts by referring to "reducing the demand". As my noble friend pointed out, there is a clear conflict. Some of those conflicts have so far been implicit. It is rather good that they have now been brought to light.
When we talk about reducing the demand for renewable resources or for other such resources, obviously some people will be affected. Some industries will be affected if the demand is reduced. However, there are two ways of reducing demand: one may reduce it by changing the product mix that one uses or one may change the process by which something is produced. If one changes the process but not the product mix, one might be able to reduce the environmental cost of an activity without actually reducing the economic activity.
While I find the amendment to be very good—unlike the clause which it aims to amend and which runs into two pages—I should have much preferred the noble Lord, Lord Marlesford, to spell out in greater detail the economic background. I have in mind the fact that all this ought to be done in the context of a sustainable development strategy so that we do not lose sight of the economic development angle. Obviously, there are very tough problems that have to be faced. At the same time, I should have liked the noble Lord to have spelt out more fully the kinds of things that he would like the Secretary of State to do. As regards what the noble Lord, Lord Wade, said, it need not involve central planning; indeed, it could involve all sorts of incentives, compatible prices and subsidies. That needs to be spelt out more clearly. Something like the noble Lord's amendment will have to be put into environmental policy either implicitly or explicitly. If it is not there, the policy will not make any sense.
Viscount Ullswater: I have so often listened to noble Lords sitting on the same Benches as the noble Lord, Lord Desai, criticising the Government for not building more and more houses. They want more and more houses and they say that all that the house builders want is more and more land upon which to build them. My noble friend would indicate that there is plenty of land; for example, there is plenty of land in city centres that can be built upon. But that is not actually sufficient for the number of houses which it is projected will be needed in the next 15 years.
My noble friend Lord Wade said that we need to approach the matter with considerable caution. It is a question of putting land to alternative uses. On the other hand, my noble friend Lord Onslow has a hole at one moment and then, at another moment, he wants to fill it up with something else. That is an alternative use of the same piece of land. He may do so with energy-intensive

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concrete breakers, for which he would have to obtain planning permission and which would be unfriendly to many people. I believe that the Government need to steer a clear path through the middle of both those respectable ideas. Sometimes I feel that I am straying into a debate of the Flat Earth Society; but then I pinch myself and realise that I am still here.
We are discussing important issues. However, I would like to stress the fact that the Government have them all in hand in the context of taking forward their sustainable development strategy. Therefore, the amendment is unnecessary.
The amendment would require the Secretary of State to produce something called a "resource management strategy", which would be a statement of policies for the conservation of minerals, energy, water, land and soil resources. The Secretary of State would include in it his policies for reducing the demand for those resources and encouraging more efficient use of them, for substituting renewable resources where that would bring a net environmental benefit and for enhancing their environmental value. The amendment would further require him to consult interested parties and to establish appropriate bodies within government where necessary.
The first point that I should like to make is that the different resources referred to are not all of the same kind. If any resource management strategy is needed, it may rest on different grounds for one of the natural resources than for the others. The list includes minerals, as I have mentioned, and also energy resources—such as gas, oil, coal and, conceivably, biomass. Those resources raise wholly different considerations from those on managing our surface waters, or from those on land, which are looked after in the land use planning system. If resource management strategies are needed, they need to be considered separately in their own terms or in the much wider context of the complete sustainable development strategy.
The Government's approach to those problems has already been set out as part of our sustainable development strategy. It looked at the different environmental media and resources, including minerals, fossil fuels, water, land and soil. That strategy pointed to the problems and opportunities that lie ahead and set the framework within which government policy should develop in the different sectors of the economy, including agriculture, minerals extraction, energy supply and development.
To supplement the strategy, the Government have already set out their policies in detail in many of the areas listed in the amendment. I take as an example minerals. Last April we issued Minerals Planning Guidance Note 6 which aims to ensure that the construction industry receives an adequate and steady supply of material at the best balance of environmental, social and economic cost. The Government have also recently published draft guidance on silica sand and peat extraction. Devising a full resource management strategy requires knowledge of the state of the environment. In 1995 the Government intend to set up a new unit within the Central Statistical Office to develop a set of national satellite environmental
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accounts. These will include estimates of resource depletion, as well as the impacts of pollution and expenditure on environmental protection by sectors of the economy. They will allow impacts of resource depletion to be taken explicitly into account in developing sectoral economic policies.
Your Lordships will realise that all this is a long term goal. The methodology is still being discussed by international experts and no consensus has yet emerged. In the shorter term therefore we are developing indicators of sustainable development to highlight and summarise key trends and the links between economic development and the environment. These will cover resource depletion.
Finally, I must refer to the requirement to set up new bodies within government, though the precise number and functions of such bodies is not specified. I believe that it is wholly inappropriate to seek to specify such arrangements in legislation in this way. Any such bodies would either require their own specific legislation or would fall within Ministers' existing powers to establish new arrangements within government departments. I hope that in the light of what I have said my noble friend will agree to withdraw his amendment.
5 p.m.
Lord Marlesford: I thank my noble friend for assuring me that all of the objectives that I hoped would be encompassed in my amendment would arise anyway. All I can say is that I shall have to see whether or not that is the case. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 265A:
Page 78, line 6, leave out ("as soon as possible") and insert ("within three months of this Act receiving Royal Assent").
The noble Baroness said: I rise to move Amendment No. 265A which to some extent has been overtaken by events in view of the publication by the Government last week of a waste strategy for England and Wales. The amendment sets out a timetable for the production of a national waste strategy. However, the Government's draft document provides an acceptable timetable. We hope that that will appear in the final version of the document when it emerges this summer.
Amendment No. 265B in this group covers the avoidance of waste. To some extent, we have already spoken about this. It is important that both waste avoidance and waste minimisation are covered in the strategy, not just waste recovery and disposal. That point is related very much to the discussion we have just had about the need for resource management.
Amendment No. 266ZA remains an important one, despite the Government's draft document. It places a duty upon the Secretary of State to maintain the currency of the strategy. Clearly, in the light of unfolding environmental pressures or new discoveries it is important that a national waste strategy is not a static document. Public attitudes to waste management, technical knowledge and public acceptability all vary

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with time and should be reflected in the strategy. The amendment places a duty on the Secretary of State to update the strategy on a regular basis.
Amendment No. 266AA deals with what appears to be an ambiguity in the Environmental Protection Act 1990. The new clause as drafted in the Bill can be construed in two different ways: either that the agency will advise the Secretary of State on the production of the strategy or that it will advise him only on policies which are not yet included in the strategy. Both of these are unacceptable as alternatives. Clearly, both should apply in all instances. The amendment attempts to redress that ambiguity.
Amendment No. 289A includes a reference to the need for a national strategy on sustainable development. It draws attention to the need for such a strategy in relation to waste management. I beg to move.
Baroness Nicol: I should like to take advantage of the existence of this group of amendments, which I support, to ask the Minister how the waste strategy that is to be discussed will be helped by the fact that the Central Statistical Office no longer appears to collect statistics on waste arisings from industry. I understand that the statistics for 1992 included a very large figure—which I am afraid I have not bought with me and have forgotten—for industrial waste arisings. That was greatly reduced in 1993, but the figure did not appear for 1994. I have rather sprung this question on the Minister, but it occurred to me when I listened to the debate. It seems rather odd when one is approaching a strategy to remove the statistical basis of it.
Viscount Ullswater: If during the course of my remarks I am able to answer the question posed by the noble Baroness, I will do so. I have been taken a little unawares by it. In dealing with Amendment No. 265A, I shall speak also to Amendments Nos. 265B, 266, 266ZA, 266AA, 289A and 290 to 294.
I deal first with Amendments Nos. 265B, 289A and 290 to 294. All of these will extend the scope of the waste strategy which the Secretary of State is required to draw up under the new Section 44A which Clause 75 inserts into the Environmental Protection Act 1990. I know from the Second Reading debate that there is widespread support for a national waste strategy, and this support is also reflected outside this House in industry, local government and environmental groups.
Amendment No. 265B would specifically require the strategy to cover waste production as well as waste recovery and disposal as presently provided, while Amendments Nos. 289A and 290 to 294 would each extend the objectives defined in the new Schedule 2A of the 1990 Act, which is inserted by Schedule 11 of this Bill. The additional objectives include ensuring that waste is managed in accordance with the national sustainable development strategy; achieving targets and providing incentives for reuse and recycling; identifying and encouraging markets for recycled products; and stabilising or reducing waste production, especially agrochemical wastes, containers and packaging materials which are hazardous. These are all very laudable objectives which I wholeheartedly support. As the noble Baroness, Lady Hilton, has already mentioned,
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last Tuesday we issued a draft waste strategy for England and Wales for public consultation. This sets out a framework of policies to achieve sustainable waste management. We have allowed an extended consultation period until 28th April and hope to stimulate a wide debate about our waste management policies, with the intention of finalising the strategy by the summer.
The draft waste strategy is firmly rooted in the principles of the national sustainable development strategy and builds on that by proposing practical steps for future action. It is concerned with the production as well as the recovery and disposal of waste and will achieve all the objectives proposed in these amendments. In particular, the draft strategy proposes a target of stabilising the production of household waste at its present (1995) level. The Government plan to set targets for industrial and commercial waste in due course when sufficient information on these waste streams is available. At the same time, we intend to keep the target for household waste under review with a view to moving as soon as practicable to a target of progressive reduction.
We have also proposed targets for reducing the proportion of controlled waste going to landfill by 10 per cent. over the next 10 years, with a further 10 per cent. reduction in the following 10 years. We already have a target of recycling 25 per cent. of household waste by the year 2000, and have recently set a new target to increase the use of recycled waste materials as aggregates in England from 30 million tonnes per year at present to 55 million tonnes by 2006.
The draft strategy places emphasis on the use of market instruments to promote waste recycling and recovery. Some of these, such as the recycling credits scheme are already in place. Others are proposed, such as the new landfill tax which my right honourable friend the Chancellor announced in his Budget Statement and the producer responsibility initiative for which provision is made later in the Bill. The draft strategy also recognises the need to encourage the growth of new markets for recycled materials.
The priority which we give to waste reduction in the draft strategy applies just as much to the reduction of agrochemical waste and hazardous containers and packaging which is referred to in Amendment No. 294. MAFF and HSE have also issued extensive guidance on the disposal of waste pesticide concentrates, waste packaging and other contaminated materials through the Government's Code of Practice for the Safe Use of Pesticides on Farms and Holdings.
As your Lordships will appreciate, therefore, we have no difficulty in making provision in a waste strategy for the types of policy set out in these amendments. However, the scope of the strategy, and the objectives set out in the new Schedule 2A to the Environmental Protection Act 1990 are those set by the amended EC Framework Directive on Waste for the waste management plans which that directive requires. The waste disposal plans drawn up by waste regulation authorities under Section 50 of the Environmental Protection Act currently satisfy in part the directive's requirements for plans. In future, that element of the implementation of the directive will

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need to be met by the waste strategies drawn up by the Secretary of State and SEPA. It is unnecessary, and indeed it would be undesirable, to extend the scope of the strategies and their objectives beyond those required by the directive. Indeed, it can be argued that all the proposed amendments are already covered by the scope and objectives of the strategies in Clause 75 and Schedule 11.
I hope that I have convinced the Committee that the Government are firmly committed to the policy of sustainable waste management by reducing waste production and increasing the levels of reuse and recycling, and that it is unnecessary to extend the scope and objectives of the strategies beyond those which are required by EC law.
Amendment No. 265A would require the Secretary of State to issue a national waste strategy within three months of the Bill receiving Royal Assent. Such a requirement would be neither practical nor sensible. As the Bill makes clear, the preparation of a strategy would require considerable prior work by the environment agency, including the carrying out of a survey of waste. Such a survey alone would take the best part of a year. Time would then have to be allowed for other preparation, including consultation, an aspect in which the Committee has rightly shown considerable interest.
Amendment No. 266 is concerned with the area covered by a strategy in England and Wales. I have to point out that the amendment would have no material effect on the meaning of these provisions. The issues which need to be covered in a waste strategy are generally common to both Wales and England, and our approach to waste management policy in each country is the same. The Government therefore believe that a single waste strategy covering the whole of England and Wales is the most effective means of presenting their policies. However, circumstances may change, and the Bill accordingly makes provision in new Section 44A(2) (b) for the preparation of separate statements for different areas of England and Wales. If it appeared appropriate at the time, one of those could relate to the whole of Wales.
Amendment No. 266ZA would require the Secretary of State to review the strategy annually besides modifying it from time to time. The production of such a strategy is a major undertaking. Annual review would be inappropriate for many of the targets it will contain, which will need an implementation period of longer than one year—in some cases considerably longer. Moreover, annual review would sit uncomfortably with the timescale required for a national waste survey.
Finally, Amendment No. 266AA seeks to ensure that any direction from the Secretary of State to the agency regarding modifications of the strategy should require it to advise him on policies which have already been included in the strategy. There is no need for the amendment. Any direction requiring the agency to advise on the policies to be included in a modified version of the strategy could require it to report on the advisability of retaining the existing policies. Indeed, that would be the natural starting point for any review and development of the strategy.
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We are sympathetic to the motives behind the amendments, but I hope that I have persuaded the Committee that in the circumstances they are unnecessary.
In answer to the noble Baroness, Lady Nicol, the draft waste strategy document accepts the need for more information being made available and collected. Therefore, an information-gathering unit is being set up within the department in order to advise the Secretary of State. I hope, therefore, that the noble Baroness and other Members of the Committee who have put down amendments will feel able to withdraw their amendments.
5.15 p.m.
Baroness David: I am sorry to come in after the Minister has spoken, but I have now found my briefing for Amendments Nos. 290 to 292 and I should like to make a point about saving our peatlands.
Opportunities to develop soil improvers and growing media from organic waste are not being fully exploited. The Wildlife Trusts, together with other leading conservation, archaeological and geological organisations, have been working for over five years to safeguard peatlands. The UK produces sufficient organic waste material to completely replace peat in horticulture, landscaping and gardening. If peat were to be replaced, peat bogs would be saved from further damaging exploitation and could be rehabilitated. Ninety seven per cent. of lowland bogs in England and Wales and 90 per cent. of those in Scotland have been destroyed or damaged.
The opportunity could be taken to export technology into Europe and reduce current peat imports. Forty per cent. of peat used is imported, mostly from Ireland, where 94 per cent. of raised bogs have already been destroyed or damaged.
In August 1994 The Wildlife Trusts published Growing Wiser: Case Studies on the Successful Use of Peat-free Products and held a major conference on that theme. The use of alternatives is becoming more common, but many professional growers are likely to remain reluctant to switch from peat until greater incentives are available. Incentives to discourage disposal of organic waste should stimulate more research into reuse of materials and improve the current cost differential (peat is very cheap to buy, unfortunately).
I conclude by saying that peat bogs have been identified as priority habitats under the EC habitats and species directive. The point of Amendments Nos. 290 to 292 is to encourage the use of waste to replace the use of peat, which we wish to save.
Viscount Ullswater: The noble Baroness raises an important point. It is a matter about which we are very concerned. Perhaps I did not indicate that in the waste strategy we are looking for further use of the composting of waste. That will be developed as the national strategy for waste is considered. This is an area

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where suitable reuse of waste can be introduced, which would slow down the extraction of peat about which the noble Baroness is concerned.
Baroness Hilton of Eggardon: I thank the Minister for an on the whole encouraging reply, which we shall consider carefully before Report stage. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 265B to 266ZA not moved.]
Lord Wade of Chorlton Lord Wade of Chorlton moved Amendment No. 266A:
Page 78, line 34, leave out ("or") and insert ("and").
The noble Lord said: I rise to move Amendment No. 266A and to speak to Amendment No. 266B.
As has already been mentioned, Clause 75 places a duty on the Secretary of State to prepare a national waste strategy. Such a strategy will clearly depend for its success upon the support of the industry. The waste industry is already an extremely important one in this country. We need to be able to develop a strategy which encourages it to move to the areas which the strategy decides. There is no reference in the Bill to the fact that the industry has to be consulted. Amendment No. 266A puts a duty on the Secretary of State to consult the industry as well as local authorities.
Amendment No. 266B puts a duty on the agency, should it be directed by the Secretary of State to make a survey, to consult industry. These are important matters. I am sure the Government agree that such provisions will be essential to make a strategy work effectively. I hope that the Government will feel able to support the amendments. I beg to move.
Baroness Hilton of Eggardon: I speak to Amendment No. 266AB which is grouped with Amendment No. 266A. It encourages consultation with interested people other than the planning authorities. A wide range of people need to be consulted regarding the development of waste strategies. As drafted, the Bill relates only to planning authorities whereas the amendment includes industry, the public sector, individual households and consumers. That is important if we are to develop an effective national strategy.
Lord Jenkin of Roding: I support the amendment standing in the name of my noble friend Lord Wade of Chorlton. My mind goes back to some years ago when in another place we debated the infamous selective employment tax. It became perfectly clear that the view of Whitehall was that people concerned with the handling of waste and the production of recycled materials were to be put into the category relating to the less desirable parts of the economy which had to pay SET. They were not regarded as part of manufacturing industry.
It is to be hoped that that culture in Whitehall has begun to change. People realise that the reclamation industry is not only enormously important in environmental terms but also in economic terms. I have had the privilege on more than one occasion of chairing conferences run by industry, in particular the waste industry. I have never failed to be impressed not only
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by the existing high degree of commitment but also the expertise in what is now a highly technical and sophisticated industry.
I hope that officials in Whitehall will recognise that consultation with those industries is every bit as important as it has been with some of the more traditional manufacturing service industries in the past. I support the amendment.
Lord Lucas of Chilworth: I speak to Amendments Nos. 267 and 268, in my name, which are grouped with the amendment, and I wish to comment on Amendment No. 266B.
I believe that my noble friends and I are absolutely at one. The difficulty is that Amendment No. 266B adds the words "and industry". However, my noble friends referred to "the industry". "The industry" is the waste management industry. However, the words "and industry" are not specific. That is why I have put down the two amendments which draw the matter more narrowly and focus on the issue.
The industry is pleased about the draft strategy. When we have a strategy in place investment planning can go forward with obvious benefit. Since the industry has an important part to play in the making and maintenance of strategy it believes that it should have rights at the consultation table.
I pray in aid, so to speak, some words of the Minister on 31st January, when we discussed the waste management industry and closed landfill sites. At col. 1432 of the Official Report, he stated:
"In singling out closed landfills for a more tailored approach, we are reflecting the special emphasis given to such sites in much of Europe. We are also reflecting the concern expressed by Parliament during the passage of the Environmental Protection Act 1990, which led to provision of a special remediation regime for closed landfill sites, under Section 61. The section has not, in the event, been implemented, and the provisions of Clause 54 will replace it".
The imperative here is that since the Government recognise that closed landfill, therefore the waste management industry, has to be subject to a special regime in Clause 54 it seems only reasonable that it should be represented in its own right in the consultations on the forming and maintenance of the strategy. That is the only purpose of the two amendments to which I speak.
Lord Mottistone: I support Amendments Nos. 266A and 266B which stand also in my name.
The amendments are meant to apply to all of industry. The new Section 44A(5) contained in Clause 75 provides that the Secretary of State must choose whether he consults local government or industry. That seems to narrow the position for the Secretary of State. In most situations to which the provisions refer he will wish to consult both. The provision seems unnecessarily restrictive.
On Amendment No. 266B the problem is whether the provision relates to industry or local planning authorities. Again, industry will have a view about the conduct of a survey or an investigation by the environment agency. The industries concerned must

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have a strong view. Local planning authorities, left on their own to advise on that point, might well be over-theoretical.
It is important that the knowledge and experience of industry should be available in both areas covered by the amendments. The Government have moved towards listening to industry. We shall tackle the subject further in the next group of amendments to which I have put my name. The Government need to make quite certain that industry is always consulted. Industry has the real knowledge of what is involved with waste disposal.
Baroness Nicol: I wish to support the amendment of my noble friend Lady Hilton and that of the noble Lord, Lord Wade of Chorlton.
Unless the Government consult both local authorities and industry their strategy is unlikely to succeed because they need not only the expertise to which the noble Lord, Lord Mottistone, referred, but also the co-operation of industry and local authorities.
I cannot quite agree with the noble Lord, Lord Lucas. I believe that to mention one industry specifically is not a satisfactory solution. Other industries may be concerned in the strategy. I prefer to leave a general description. However, I support the amendments.
5.30 p.m.
Viscount Ullswater: Amendment No. 266A seeks to amend subsection (5) (b) of the new Section 44A of the Environmental Protection Act 1990 which is inserted by Clause 75. The provision requires the Secretary of State to consult representatives of local government and of industry in preparing a waste strategy. The amendment would require the Secretary of State to consult persons or bodies, each of whom was representative of both industry and local government. I suspect that there are few such bodies. It is our policy that when a strategy is being prepared, there should be consultation with representatives of local government and of industry. I am advised that that is what the provision requires. However, we shall look again at the wording of the provision to see whether it might be expressed more clearly. I hope with that assurance my noble friend will feel able to withdraw his amendment because I believe that we are at one on the matter.
The remaining amendments in the group all deal with the requirement for the agency and SEPA to consult local planning authorities before carrying out a waste survey and to make the survey findings available. Amendment No. 266AB would require the agency also to consult other relevant authorities. I understand what the noble Baroness is worried about, but I believe that her anxiety is unnecessary. A local planning authority is defined by subsection (9) of the new Section 44A as having the same meaning as in the Town and Country Planning Act 1990. That includes all principal councils in England and Wales, as well as certain other authorities such as the national park authorities and urban development corporations.
Amendment No. 266B would require the agency to consult industry before carrying out a waste survey. Amendments Nos. 267 and 288 would require both the
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agency and SEPA to consult representatives of the interests of the waste industry in the same circumstances. Amendments Nos. 268 and 289 would require the agencies to make the survey findings available to the waste industry.
We are not referring here to consultation on the strategy itself. The Bill provides for consultation by the Secretary of State or SEPA with industry in preparing their strategies. I am sure that that gives industry—including the waste industry—a sufficient opportunity to make its views known. I believe that my noble friend Lord Lucas of Chilworth was worried about that point. The legislation gives the opportunity to the industry to make its views known on the preparation of the waste strategy.
The reason for providing a statutory duty to consult planning authorities in relation to a survey is their requirement for data on waste to enable them to draw up their development plan policies for waste. It is essential that the survey is carried out in a way which will enable disaggregation of results to a local level. For the same reason, it is essential that planning authorities receive the results of a survey. My noble friend Lord Mottistone indicated that he felt that the industry required the information as well; but I do not believe that industry is in that position. There is therefore no need for a statutory requirement to consult it on the way in which the survey is carried out. I hope with that explanation the noble Lord, Lord Wade, will feel able to withdraw his amendment.
Lord Wade of Chorlton: I am grateful to my noble friend for those comments. I am not quite in agreement with his remarks on what my noble friend Lord Mottistone said. There are plenty of opportunities for the industry to make its contribution. I am grateful to the Minister for saying that he will ensure that the first part of the provision which is referred to in Amendment No. 266A is better explained. I feel that it is necessary to make it clear that the Government intend to consult industry on the matter. Perhaps my noble friend will also reconsider Amendment No. 266B. I take this opportunity to thank my noble friends and the noble Baroness, Lady Nicol, for supporting the amendment and beg leave to withdraw it.
Amendment, by leave, withdrawn.
[Amendments Nos. 266AA to 268 not moved.]
Lord Lucas of Chilworth Lord Lucas of Chilworth moved Amendment No. 269:
Page 80, line 1, leave out ("SEPA") and insert ("The Secretary of State").
The noble Lord said: Perhaps I may speak to Amendment No. 269 and the consequential Amendments Nos. 270, 272, 274 to 278, 280 to 285 and Amendment No. 287. They are all probing amendments. I wish to find out why the arrangements for the preparation of a national waste strategy in Scotland are to be different from those which prevail in England and Wales.
I regret that we are to have two separate agencies, although I appreciate that their remits are slightly different. However, since we are to have two agencies, it is important that they operate within the same policy

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framework and to the same standards so that there is a consistency of approach throughout the United Kingdom. The amendments therefore seek to bring the Scottish provisions into line with those which relate to England and Wales so that the ultimate responsibility for the preparation of the Scottish strategy rests with the Secretary of State rather than SEPA.
The strategy will, after all, set out environmental policies and targets which are necessary to meet the Government's international as well as their domestic obligations. The ultimate responsibility for its content must therefore rest with the Government and Ministers and not with the agency.
At Second Reading the Minister stated (at col. 1462 on 15th December 1994) that central policy decisions are a matter for government, while the agency is essentially a pollution protection and water management body. Perhaps my noble friend who is to respond will explain why the division of responsibility is not to be reflected in the Scottish provisions of Clause 75.
There is some anxiety in the industry that, were the regimes to be greatly different, offering incentives to do business in one part of the United Kingdom rather than another, it could distort the management of waste. It is therefore necessary to have a universal strategy and that is the purpose of the amendments. I beg to move.
Lord Carmichael of Kelvingrove: I wish to speak to some of the other amendments in the group: Amendments Nos. 269A, 271, 273, 279 and 286. I start with Amendment No. 269A which proposes on page 80 at line 1 to insert after the word "prepare" the phrase:
"following consultation with local authorities".
The argument behind that is to ensure that the local authorities, which will largely have the responsibility for collecting the bulk of the waste, should be given the opportunity to make some input of advice on the structure. It is important that those responsible for the waste disposal functions should have an input into the policies in relation to the recovery and disposal of waste in Scotland.
Amendment No. 271 is important because members of the public should know about the national waste strategy and that they are able to inspect, free of charge, the contents of that strategy. Consumers will play a central role in the process of a national waste strategy and, in addition, as local taxpayers they have a stake in the decisions taken which influence the contents of the strategy.
Much of the debate so far has stressed the fact that the public are becoming very aware of waste management. Therefore those members of the public who are sufficiently interested should be able to inspect the strategy that is suggested for the disposal of waste.
Amendment No. 273 would alert members of the public—it will of course be those who are interested—to any major modification that is made to the strategy. As I have said, they should be able to inspect any such modifications free of charge. As was accepted with an
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earlier amendment, they should have the right to see the general strategy at the very beginning. I believe that the noble Lord wishes to intervene.
Lord Lucas of Chilworth: In discussing Amendment No. 273, I wonder whether the noble Lord can help me in understanding who is to pay for this information. The amendment states that it should be made available free of charge. But of course somebody has to pay for it.
Lord Carmichael of Kelvingrove: I did not envisage that glossy booklets should be issued. I envisaged a department in each local authority where the information was available and where the public could go to see it. That is a perfectly reasonable amendment.
Amendment No. 286 seeks to lay down that the strategy, in order to be successful, should encourage appropriate consumer behaviour. This involvement of the consumer may even help to get rid of some of the debris that we see in the streets if people become conscious of the fact that it is part of their city or their town.
However, changing consumer behaviour is a lengthy and complex process. Care should be taken to ensure that proper attention is given to involving the public before the strategy is finalised. I shall move these amendments as we come to them.
5.45 p.m.
The Earl of Balfour: Within this basket of amendments being moved by the noble Lord, Lord Carmichael of Kelvingrove and my noble friend Lord Lucas to the proposed new Section 44B of the Environmental Protection Act 1990, which applies to Scotland only in Clause 75, is my Amendment No. 287A, which aims to leave out "planning" and insect "local".
The reason behind the amendment is to include the whole basket of functions carried out by a local authority and not just a single "department of planning". The noble Earl, Lord Kintore, and I feel that the very important environmental health department should at least be included. Perhaps I may give the Committee one example. In previous legislation, two years ago, it was stated that caravan sites should be a "district planning function". I said at that time that there was also the question of site licences dealing with the provision of clean water, and toilet and sewerage facilities, which were in no way connected with planning. That was an environmental health function. I therefore: wished to replace the word "planning" with the word "council"; i.e., making it a district council function. However, that amendment was defective, just as, I am afraid, this amendment is also defective. I had at that time to move a complete long sentence to cover that matter at the next stage of that Bill.
I ask my noble friend the Minister to bear in mind that the public analyst comes within the environmental health department. That department visits such places as abattoirs, food preparation factories, etc. It also takes samples of water, sewage, etc.
I cannot agree with the amendments that are proposed by my noble friend Lord Lucas. SEPA must be given a chance on its own to get on with its job and not be too

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much under the thumb of the Secretary of State. SEPA will not work well if it is forever looking over its shoulder to see whether or not the Secretary of State approves.
I also point out to my noble friend that the functions of the river purification boards that were established in 1951 are very different in many ways from those of the National Rivers Authority in England. The environmental protection provisions of Scotland were based to a very great extent on the old Burgh Police Act 1897. That has now been repealed but in this respect our civil law is rather different in the two countries.
On the amendment that will be moved by the noble Lord, Lord Carmichael, I have some sympathy. But I hope that what the noble Lord proposes is not too onerous or expensive.
The Earl of Lindsay: The first series of amendments in this group, which are proposed by my noble friend Lord Lucas of Chilworth, would require my right honourable friend the Secretary of State to prepare a strategy containing his policies in relation to the recovery and disposal of waste in Scotland. As drafted, the Bill will place his duty on SEPA.
Unlike the Department of the Environment, the Scottish Office will not have the appropriate staff available to it to prepare a waste strategy for Scotland. SEPA, on the other hand, will be well placed to undertake that task, as it would be staffed in part by those expert staff who previously prepared plans for their local authorities. Placing the duty on SEPA therefore means that the strategy could be prepared both effectively and efficiently.
However, I can assure the Committee that, as my right honourable friend the Secretary of State will have powers to influence the development of a strategy by SEPA, I do not expect its content to be materially different from on which might otherwise have been prepared by him. I can go on to assure my noble friend that the Secretary of State will ultimately remain responsible for waste management policy in Scotland, which is properly a matter for him. I envisage that SEPA will wish to ensure that due regard is paid to the strategy for England and Wales, so that where possible there will be a common framework across Great Britain.
The purpose behind government Amendment No. 286A is to confer on the Secretary of State a slightly wider power of direction over SEPA in recognition of the Scottish agency's different role.
Amendment No. 269A, which was spoken to by the noble Lord, Lord Carmichael, seeks to ensure that local authorities are consulted as part of SEPA's preparation of the waste strategy. I recognise the important role which local authorities will have in relation to the strategy. But the consultation is already provided for in the new Section 44B(4) (b) of the Environmental Protection Act inserted by Clause 75. I do not believe therefore that this amendment is required.
The noble Lord also spoke to Amendments Nos. 271 and 273, which would require SEPA's waste strategy, and any modifications to it, to be publicised and made available, free of charge, for public inspection. Again, I
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have much sympathy with these amendments. SEPA cannot implement its waste strategy on its own. Other bodies, both public and private have crucial parts to play. And as a pre-requisite to their involvement, they will require to have access to the strategy.
The strategy will of course be subject to the Environmental Information Regulations 1992, and access to it is assured. But as I have said, given that such access is required in order to implement the strategy, I envisage that SEPA will want to make sure that it is available to those with an interest in it. As the noble Lord said, public interest in waste matters is increasing fast. Therefore, given that access will be available in any event, I suggest that Amendments Nos. 271 and 273 are unnecessary.
The noble Lord also spoke to Amendment No. 279, which would add a specific reference to representatives of the interests of consumers to the list of persons to be consulted as part of the preparation or modification to the waste strategy. It has not been our intention to include an exhaustive list of persons with an interest in the strategy. That is why, at the end of the list of consultees, there is a reference to "other bodies" that SEPA considers appropriate.
As drafted, the list refers specifically to industry and local authorities. That is not to say that others do not have an interest. I certainly acknowledge that consumer behaviour is an important factor in the successful implementation of a waste strategy. I do not believe that the role of consumers is diminished by accepting that their interest is not as great as industry's and local authorities'. The interests of consumers will, where appropriate, be picked up by reference to "other bodies".
Amendment No. 286 was also spoken to by the noble Lord, Lord Carmichael. It would restrict the extent of matters in respect of which the Secretary of State may direct SEPA to carry out surveys and investigations for the purpose of preparing its waste strategy. It would mean that he may only direct on the steps which will be required in terms of information, publicity and education to encourage responsible consumer behaviour compatible with any aims set out in the strategy.
I appreciate that publicity, education and promoting awareness of the waste issues covered by the strategy would be desirable; but the range of matters on which the noble Lord's amendment would allow the Secretary of State to direct SEPA is too restrictive. I believe that it would be more appropriate to give the Secretary of State general powers to direct SEPA to carry out surveys or investigations. Those powers could be used to direct SEPA in the manner sought by the noble Lord, Lord Carmichael, though I must say that I am not convinced that SEPA would be the most appropriate body to undertake such work, given its primary role as a regulator.
My noble friend Lord Balfour spoke to Amendment No. 287A. This amendment would mean that, where SEPA had been given a direction by the Secretary of State to carry out a survey or investigation, it would first have to consult bodies or persons representative of "local" (rather than "planning") authorities before undertaking that work.

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As the Committee will be aware, after local government reorganisation in Scotland, all local authorities in Scotland will become planning authorities. The use of either term will therefore be construed in practice to mean the Convention of Scottish Local Authorities (CoSLA). I can confirm to the noble Lord that, although CoSLA would be consulted in its capacity as a representative of planning authorities, there is nothing to stop it responding for its wider interests, covering, for example, its responsibilities for environmental health, which my noble friend mentioned specifically, or its responsibilities for waste disposal. However, I feel that there is value in relying on the term "planning" authority as an indicator of the primary purpose of CoSLA's involvement.
I hope that what I have said will reassure noble Lords. I invite them to withdraw the amendments.
Lord Lucas of Chilworth: I am most grateful to my noble friend Lord Lindsay for his full response to that series of amendments in my name. I am sorry that the Scottish Office do not have the necessary expertise and would have to rely on SEPA. Since my noble friend assures me, first, that the strategy will not be materially different from that which will obtain in the rest of the UK, and, secondly, that the ultimate responsibility will lie with the Secretary of State whose responsibility is to Parliament, I am happy to withdraw my amendments in this case.
Amendment, by leave, withdrawn.
[Amendments Nos. 269A to 286 not moved.]
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 286A:
Page 80, line 37, leave out ("upon which the Secretary of State wishes to be informed") and insert ("which the Secretary of State considers appropriate").
On Question, amendment agreed to.
[Amendments Nos. 287 to 289 not moved.]
Clause 75, as amended, agreed to.
Schedule 11 [Schedule 2A to the Environmental Protection Act 1990]:
[Amendments Nos. 289A to 294 not moved.]
Schedule 11 agreed to.
Clause 76 [Producer responsibility: general]:
Lord Carmichael of Kelvingrove Lord Carmichael of Kelvingrove moved Amendment No. 295:
Page 81, line 30, after ("of") insert ("achieving waste minimisation at source, and of").
The noble Lord said: This group of amendments, includes Amendments Nos. 295, 296, 296A, 299, 299A, 302 and 304, some of which are in my name and others in the name of other noble Lords. The amendments all deal in one way or another with the goal that we all wish to reach; namely, the achievement of waste minimisation at source. That is a great modern problem which involves the packaging industry. I do not wish to seem to be against the packaging industry. It does a good job and sometimes the packaging may entice people to buy what they de not want. But sometimes it is overdone and there is too much packaging. We all have experience of that.
The recovery and recycling of waste are important functions in a sustainable approach to waste management. The first step is to reduce the amount of waste that can enter the waste stream in the first place. As I said, that means the reduction of excess packaging.
More than any other component it is an aspect of the producer's responsibility and is within the producer's control. Consumers can choose to reuse or recycle material, but they have very little choice in rejecting excess packaging. They just have to get rid of it somehow. Frequently there is no way to recycle it. Producers can promote recycling but consumers may continue to dispose of mixed waste to landfill. Therefore, waste minimisation should b a included in this part of the Bill.
We hope that, as we become more sophisticated about the whole question of waste, the packaging industry will co-operate much more than it perhaps does now with the manufacturers of the goods to be packaged. These amendments, in whatever form the Minister would ultimately wish to put them, would be of great help in that way. I beg to move.
Baroness Hamwee: I briefly support the comments of the noble Lord, Lord Carmichael. The choice of words in my amendment is slightly different; it speaks in terms of:
"securing a decrease in the use of products or materials".
That may be slightly different from "achieving waste minimisation at source", but it all goes to the same end.
Perhaps I may add the frustration of consumers, who sometimes cannot access products for consumption without fighting their way through layers and layers of what I regard as quite unnecessary packaging. I once took up that matter with a manufacturer of soft fruit sweets. They were in a package which was quite difficult to get into in the first place; but then every sweet inside the packet was wrapped in its own individual package. Apart from anything else, that made it almost impossible to drive along the motorway while trying to keep one's throat clear. The response that I received, perhaps understandably, was that that was what the consumer required.
Lord Jenkin of Roding: I should like to take issue with the noble Baroness. I totally support the concept of waste minimisation. Indeed, in the hierarchy of waste management, it quite rightly comes first.
Her amendment requires not only waste minimisation but seeks to secure a decrease in the use of waste. I am not sure that the noble Baroness could have thought the matter through.
Furthermore, she is being somewhat unfair to industry about this matter. There has been in existence for a number of years a very valuable body which goes under the name of INCPEN (The Industry Council for Packaging and the Environment). It contains many of the leading industrial companies in the country, whose objectives are to lead a rational debate on packaging and environmental issues and to encourage environmentally responsible industrial practices. We have all suffered from the fate described by the noble Baroness of having to fight one's way through packaging, but I believe that

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that is becoming less common. Indeed, industries are discovering that they can package their goods more economically with fewer layers, perhaps using different materials, and so reduce the amount. To put into this clause the obligation to secure a decrease could lead to some very undesirable results. The overall use of materials is inevitably determined by the overall level of economic activity—and that determines the use of the materials, including the packaging, which has to go into the goods.
The advice that the industry council gives is that if Amendment No. 296 were included in the Bill:
"The effect would be anti-growth, anti-competitive and anti-employment and would take no account of the level of demand".
I hope I am not taking a point that is out of order, but the president of this valuable body, INCPEN, is my good friend Sir Peter Parker—a notable member of the party of the noble Baroness, Lady Hamwee. I do not say that he necessarily supports every single word of the briefings it gives to Members of the Committee, but we might be wise not to accept that amendment. I hope that my noble friend will resist the noble Baroness's blandishments and not support the amendment.
Baroness Hamwee: At the risk of extending the debate for 30 seconds, may I say that I am not against growth; that is not what the amendment is aimed at. It is aimed at securing a decrease in the packaging per unit, not in the number of units produced.
6 p.m.
Viscount Ullswater: Clauses 76 to 78 concern the policy area of producer responsibility for waste. It might assist your Lordships if, before we begin to consider the more detailed amendments, I say a few words about this relatively new initiative.
Producer responsibility is an instrument which seeks to encourage those who are responsible for placing goods on the market to assume an increased share of the responsibility for dealing with the waste which arises from these products. In other words, it seeks to increase the environmental awareness of producers by placing some of the costs of waste disposal onto those who produce products. It gives as much scope as possible for a market-based response.
The initiative has generally operated by means of a challenge from government to key industries. Our general approach has been to seek to offer the maximum scope to industry to organise itself to respond to the challenge. In this way, our objectives will be achieved in the most cost-effective manner.
There are seven separate waste streams involved in the first tranche of the initiative and the most prominent of these is the packaging chain—namely, those companies involved in manufacturing and using packaging. The general response from industry has been very encouraging. In the background to our discussions on packaging waste has been the EC Directive on Packaging and Packaging Waste, which was adopted, with UK support, in December.
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In November, the former Producer Responsibility Group finalised its report on increasing the level of recovery and recycling of packaging waste. Key among its recommendations was that government should introduce legislation to eliminate the potential problem of "free-riders", namely those companies which might seek to gain a competitive advantage by refusing to accept their share of the responsibility to act.
In bringing forward these clauses, we are responding to that request, and propose to put in place a mechanism which will allow us to legislate in respect of any waste stream, where this proves necessary and appropriate. In-this way, we can assure that the policy area is capable of further development and that we can incorporate additional waste streams, if appropriate. With this in mind, our aim is to introduce the minimum legislative structure which is consistent with effective enforcement, in support of the objective of more sustainable waste management practices.
The general purpose of these amendments is to extend the proposed powers to promote or secure an increase in reuse, recovery or recycling, which already feature in Clauses 76 and 77, by adding a power to regulate to achieve waste minimisation at source. I have a good deal of sympathy with the intentions of the noble Lords in putting forward these amendments. As my noble friend Lord Jenkin of Roding has indicated, waste minimisation comes at the top of the so-called "waste hierarchy" which we have articulated in our draft waste strategy for England and Wales published on 31st January. We are consulting in this draft on ways in which waste minimisation can be promoted and encouraged, and will wish to consider further in government what we should do to aid that process.
The clauses before us today, however, are concerned with the activities of reuse, recovery and recycling, where there is more experience to draw on and for which hard targets can more easily be set. It is intended that the regulations which will stem from these clauses will set and enforce these specific targets. We can envisage how industry might respond in a cost-effective way to meet these targets.
It is more difficult to set such targets for waste minimisation and therefore more difficult to see what form the regulations might take. Essentially, in setting targets here, we risk involving ourselves in a misplaced comparison between what would have happened in the absence of legislation aimed at producing waste minimisation, and what did in fact occur. It would not be cost-effective to impose, by statutory means, a blanket target for waste reduction on all companies in a particular sector. These clauses were drafted to impose the lightest regulatory burden possible on industry and my concern is not to increase this necessary burden. For all the sympathy that I have with the principle of waste minimisation, I need to reflect hard on the extent to which this mechanism is appropriate. Having said that, I would ask the noble Lord to withdraw his amendment.
Lord Carmichael of Kelvingrove: I have great sympathy for the problems that the Minister has outlined. Perhaps the real solution will be customer resistance; customers will gradually begin to feel that it

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is important that goods should be packaged attractively but not excessively. That is the attitude that we are beginning to reach.
I thank the Minister for the effort he has taken and the explanation he has given. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 296 and 296A not moved.]
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 296B:
Page 81, line 31, leave out ("recovery or recycling of") and insert ("recycling or recovery of energy from").
The noble Lord said: I beg to move Amendment No. 296B, standing in the name of my noble friend Lady Hilton, to insert the words as on the Marshalled List. It may be for the convenience of the Committee if I speak to Amendments Nos. 299B and 309.
These amendments are probing in nature. As drafted, the Bill makes no specific reference to energy recovery from waste as one of the reclamation options. We are not clear about the Government's stance on whether energy from waste is to be treated in the same way as other recycling options, and we would welcome the Government's view on this.
The report produced by the Producer Responsibility Group on Packaging Waste indicated that energy from waste could play a significant part in meeting the overall recovery targets. But the report also implied that achieving the necessary infrastructure—namely the building of incinerators—would be not only costly but fraught with planning problems and likely to attract local hostility.
As I say, these amendments are probing. Even in the draft waste strategy as we have it, the question of energy recovery from waste seems to us to be somewhat fudged where it is grouped together with the recovery of materials and compost. I hope the Minister will tell us whether the Government wish to make any sort of separation. I beg to move.
Lord Jenkin of Roding: One of the problems is that the Government are moving very fast on these subjects. We have already referred to the air quality paper published in January, and we now have the waste strategy paper published only a few days ago. Those of us sitting on the Committee on Sustainable Development find that we receive a great deal of evidence and before we have reported or begun to consider the details of our report events have moved forward.
We have had some interesting evidence pointing both ways on where energy recovery from waste should come in the hierarchy. There are those who put the argument to us that it is extremely inefficient and should come near the bottom of the hierarchy. Others have pointed to examples such as the Edmonton power plant and have said that energy recovery from waste has been well established for a long time and should be encouraged. This is an interesting subject and it may be that the Government may wish to wait for the Special Select Committee before deciding how to respond lo the probing amendment moved by the noble Lord, Lord Williams.
Lord Wade of Chorlton: I support the point made by the noble Lord, Lord Williams. The energy recovery from waste industry is extremely efficient and the opportunities for enlarging it are enormous. It seems to me that the Government have been influenced by some groups who are, probably for the wrong reasons, against it. That has an influence on certain planning applications and can cause considerable difficulties. There is an enormous opportunity to develop the whole technology. However, one cannot develop it unless one has something to develop. In other words, someone has to start building these facilities and using them.
Dioxins have been referred to by some groups. Evidence has shown that the amount of dioxins in the air after the use of the waste to energy establishments is not as as great as in the air that we breath. Some of us have visited plants where the air coming out is a good deal cleaner than the air in the street. The development of this technology is moving at an enormous pace. It is right for the Government to review it and to place it in a more important position in the hierarchy.
Viscount Ullswater: Amendments Nos. 296B and 299B seek to define the term "recovery" as representing energy recovery. I should, however, make clear that by "recovery" we do not solely mean energy recovery but may intend processes such as composting, to which the noble Lord, Lord Williams referred. We shall come later to Amendment No. 300, in the name of my noble friend Lord Wade. I should not like to consider that amendment in advance. Having said that I shall take that approach, I hope that the noble Lord, Lord Williams, will feel able to withdraw the amendment.
The purpose of Amendment No. 309, in the name of the noble Lord, Lord Carmichael of Kelvingrove, is that the public should have the right to inspect registers of exemption schemes free of charge. It is indeed our intention that that should be so. The agencies will be required to maintain a number of public registers under existing legislation and in each case the statute in question requires the register to be available for inspection free of charge. I would not wish to detain the Committee by listing all of these but I give as an example the IPC register, kept under Part I of the Environmental Protection Act 1990, and the pollution registers kept under the Water Resources Act 1991.
Clause 77(1) sets out examples of the matters with respect to which provision may be made by regulations. Paragraph (s) refers to the imposition of a duty to maintain a register in respect of exemption schemes and make that register available for inspection by the public. I can confirm that it is our intention that, in accordance with the precedents to which I have referred, the regulations under this clause will require inspection to be available free of charge. With that reassurance I hope that the noble Lord will see fit to withdraw the amendment.
6.15 p.m.
Lord Williams of Elvel: I am grateful to the noble Viscount. We have had a certain amount of trouble with the groupings. I was expecting my amendment to be grouped with Amendment No. 300, in the name of the

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noble Lord, Lord Wade of Chorlton. Given that the noble Viscount will respond truly to my amendment when he comes to the amendment of the noble Lord, Lord Wade, I am happy to ask leave to withdraw Amendment No. 296B.
Amendment, by leave, withdrawn.
[Amendments Nos. 297 to 298ZA not moved.]
Viscount Ullswater Viscount Ullswater moved Amendment 298A:
Page 81, line 46, at end insert:
("(3A) The powers conferred by subsection (1) above shall also be exercisable, in a case falling within paragraph (a) or (b) of subsection (3) above, for the purpose of sustaining at least a minimum level of (rather than promoting or securing an increase in) re-use, recovery or recycling of products or materials.").
The noble Viscount said: In moving this Amendment I should like to speak also to Amendments Nos. 298B, 306ZA, 307A to 307D, 309ZA, 309ZB and 309ZC.
I shall deal with each of the amendments in turn. Amendments Nos. 298A and 298B will allow regulations to set more flexible targets for reuse, recovery or recycling, which in turn will allow us to meet in full potential European and international commitments. Amendment No. 306ZA will allow more than one target to be set for reuse, recovery and recycling for a given waste stream. Amendment No. 307A will provide for the withdrawal of approval for an exemption scheme. Amendments Nos. 307B and 307D will allow exemption schemes to be registered subject to conditions and make provision for appeals against such conditions.
Amendment No. 307C will allow us to disapply or modify the provisions of the Restrictive Trade Practices Act 1976. Schemes may well contain provisions which would make them registrable under the Act. It would not be desirable for schemes which are considered necessary to achieve the environmental or economic benefits we want to see to be taken before the restrictive practices court. Instead, the effects of schemes on competition will be assessed by the Secretary of State for Trade and Industry before they are approved and on a continuing basis to prevent approved schemes from behaving in an unnecessarily anti-competitive manner.
Amendment No. 309ZA will allow a designated person to require information in respect of schemes in order that the effect of schemes on competition can be properly assessed. Amendment No. 309ZB will broaden the definition of "operator" in relation to exemption schemes. Amendment No. 309ZC clarifies the enforcement powers in relation to the Secretary of State's right to give directions. I beg to move.
Lord Jenkin of Roding: I have one question arising out of what my noble friend has just said. With regard to Amendment No. 307C, which concerns the Restrictive Trade Practices Act exemptions, he said that it will be the Secretary of State who will carry out the continuing monitoring to see that the agreement is not being run in an anti-competitive way. Why is it suggested that that
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should be a function of the Secretary of State and not of the Office of Fair Trading, which is the body one would normally expect to carry out such a function?
Viscount Ullswater: Indeed, I did say that it would be the Secretary of State for Trade and Industry. I shall have to make inquiries about that. Perhaps I may write to my noble friend and place a copy of the letter in the Library.
On Question, amendment agreed to.
Viscount Ullswater Viscount Ullswater moved Amendment No. 298B:
Page 82, line 3, at end insert ("; and in its application in relation to the power conferred by virtue of subsection (3A) above, subsection (5) below shall have effect as if—

(a) any reference to an increase in the re-use, recovery or recycling of products or materials were a reference to the sustaining of at least a minimum level of re-use, recovery or recycling of the products or materials in question, and

(b) any reference to the production of environmental or economic benefits included a reference to the sustaining of at least a minimum level of any such existing benefits,

and any reference in this section or section 77 below to securing or achieving any such benefits shall accordingly include a reference to sustaining at least a minimum level of any such existing benefits.").
On Question, amendment agreed to.
[Amendments Nos. 299 to 299B not moved.]
Lord Wade of Chorlton Lord Wade of Chorlton moved Amendment No. 300:
Page 82, line 6, after ("recovery") insert ("(including energy recovery)").
The noble Lord said: In moving this amendment, I shall speak at the same time to Amendments Nos. 301 and 306. After that I should like to speak to Amendments Nos. 303A, 303C and 303D, which are grouped with this amendment but actually concern a different matter.
The purpose of these amendments is to draw attention again to the importance of waste in relation to energy. When we were debating the amendment of the noble Lord, Lord Williams of Elvel, it was said that this is now becoming a very important aspect of waste disposal. It has the added advantage of utilising the energy which is produced from getting rid of waste. It does not make sense to suggest that recycling is one thing and energy recovery another. The operating plants very often do both; they both recycle and produce energy from the recovered waste.
The amendments seek to put on the face of the Bill the importance of energy recovery as a specific use of waste disposal. They would also ensure that that particular activity is taken into account in all energy matters. I am aware that the Government have taken very great steps to encourage the industry. In the past they put it at the top of the list, or at least alongside everything else. However, just recently they seem to have lost the initiative on the subject. It is right and proper that they should give the industry full significance because it is undoubtedly a technology which will grow and improve. It can play an extremely important part in the handling of waste in this country. I hope that my noble friend will be able to support these amendments.
Amendments Nos. 303A, 303C and 303D relate to a different matter. They deal with the question of how the Government will handle packaging waste and give responsibility to the various sectors of the industry. When this matter was first raised the Government asked the industries producing packaging waste to consider ways in which the waste might be dealt with. If the Government agreed with the suggestions, they would then introduce legislation to enforce them.
As a result, the industries considered the matter with some very senior members of various companies. They produced a plan which established an organisation which, in the interim stage, is called V-RAG. This interim body accepts central responsibility. In the event that legislation is agreed, it would establish a body called Valpac which would then bring together all the sectors of the industry. It would be a multi-point system which would deal fairly with the costs of handling packaging waste.
The Government suggest in this Bill that they would prefer to place full responsibility for packaging waste on one part of the packaging chain—that is to say, the packer-filler part. The industry's view was that that would be most impractical. It could be extremely unfair to small and new companies and it could cause difficulties in obtaining a coherent view on how to deal with it. That goes completely against the advice which the industry gave the Government and on which it spent a great deal of time.
The purpose of this amendment is to take out that part of the Bill which states that the Government will review and make their decision in the light of the opportunity to place full responsibility solely on one part of the industry. By taking that part out of the Bill it would leave the matter open for the industry to come forward with its own solution.
Amendments Nos. 303C and 303D seek to define "re-use", "recovery" and "recycling". At the moment those words are referred to but they are not defined, whereas other parts of the packaging chain are. These amendments seek to define them in accordance with the definitions recently adopted by the European Union packaging and packaging waste directives. I hope that the Government can give me some encouraging words on these amendments. I beg to move.
The Earl of Onslow: I intervene very briefly in this debate. Where I live there was recently an application to build a plant which would generate electricity from burning tyres. That is something that should be encouraged. As is often the case where the incineration of waste is concerned, there was very considerable local objection. Planning consent was not given. I am not sure whether NIMBY is the correct word, but we have to get over the objection of some people who would theoretically like to see energy recovered from waste but who would object to the process. That is a problem which has to be addressed. I raise this matter because it seems germane to the discussion which my noble friend Lord Wade has introduced.
Baroness Nicol: I wish to speak particularly to Amendment No. 303A. must first repeat the declaration of interest which I made at Second Reading.
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I was involved with the packaging industry last year in a small investigation, but it is not briefing me on this subject. My main interest tonight is as vice-chairman of the all-party retail group. Small retailers are very concerned about the inclusion of the three lines which we seek to delete.
I am very grateful to the Minister for his comprehensive Written Answer to the question I raised at Second Reading; namely, as to where in the packaging chain responsibility shall be placed. I understand his argument that a single-point scheme would be easier to administer and monitor, but he must also have regard to the importance of a scheme which is seen to be even-handed. It is important that each link in the chain should take some responsibility for the end result. If any progress is to be made with new technology or techniques to minimise packaging and to improve recycling percentages—which is the Government's aim—we need the involvement of all concerned from the producer to the end disposer. I hope that administrative convenience, which seems to be the Government's main argument, will not be allowed to override other considerations. I am very pleased to support this amendment.
Lord Mottistone: I speak very briefly to both parts of this matter. As regards producing energy from the recovery of waste, we have a plant on the Isle of Wight which experienced similar difficulties to those to which my noble friend Lord Onslow referred. The plant is now in operation and producing electricity. It also produces heating for schools and other county council-owned property. But the plant does not work as efficiently as it should because we went into the system too quickly and copied what I believe they have in East Sussex. It would have been better if we had waited until the plant had been better proved. It does not cause trouble. It is alongside a factory which produces your Lordships' Christmas cards. From time to time the people working there grumble about the smell from the waste disposal plant.
Lord Graham of Edmonton: Merry Christmas!
Lord Mottistone: It is very important for our island to have the facility because relatively we have less space in which to dispose of our waste than the mainland. That is why we must have this plant, but we went too fast in introducing it. I support my noble friend's Amendment No. 300 and the principle behind .his earlier amendments.
I now turn to Amendment No. 303A. I cannot add to what has been said by previous speakers. My noble friend the Minister, when introducing Clause 76, told us in general terms what he was doing and he answered a question on 2nd February which was going in a certain direction. However, it is fair to say that the industry is not happy that the Government intend to accept the recommendations of their own producer group which advised on this subject.
It would be reassuring if my noble friend the Minister would give us an undertaking that he will not produce a system or regulations which penalise a particular part of the industry concerned with packaging and do not

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spread the load, as has been said by other speakers. I hope that he will be able to reassure us on those points, because his lengthy Written Answer did not; it frightened us more. Therefore, we rather like Amendment No. 303A.
6.30 p.m.
Lord Jenkin of Roding: I have added my name to some of the amendments. Perhaps I may say with regard to the amendment relating to energy that the problem with some of the plant that generates energy from waste is that it tends to have the effect of creating more waste in order to have enough fuel for the plant. That is the argument put by some of the environmental interests which say that it is a way of disposing of the waste but that it also has the effect of promoting the generation of more waste to ensure that the process can continue.
Lord Mottistone: Perhaps my noble friend will allow me to intervene. Our plant does not do what he says these people say that it does.
Lord Jenkin of Roding: I did not say that my noble friend's plant did. I was merely reporting what is said by some of the people who question this process. I strongly support the amendment moved by my noble friend Lord Wade of Chorlton, because the subject requires a great deal of study.
I am grateful to the noble Baroness, Lady Nicol, because she-passed me a copy of my noble friend's long letter about why the Government are looking for single-point enforcement, rather than what I believe is called multi-point enforcement, of the packaging process. I have every sympathy—if I may put it crudely—with civil servants wanting to have one bottom to bite. It is much easier to enforce. If one is a watchdog it is much easier if one has only one person to go for. I understand that. But the fallacy that underlies the Government's approach is that in the commercial chain, which can sometimes be many parties long, the packer/filler, or whoever it is, can impose sufficient conditions down the line to ensure that the objectives of the scheme as a whole are attained. Life is a great deal more complicated than that.
There are few more competitive worlds than, for instance, the food processing, packaging and distribution industry. It is an immensely competitive industry. The Government are expecting too much of one party to that chain to make it effective. A multi-point system may appear on paper to be more difficult to enforce, but, as the noble Baroness said, it at least ensures that pressure is brought upon each stage in the chain. If it is not, there will be no incentive to introduce the new techniques and technologies, to find the new materials that reduce the amount of packaging produced, or the recycling that can be done. I hope that at this early stage of the Bill—we seem to have been going on for a long time and yet it is still only the Committee stage in the first Chamber—my noble friend will have another careful look at this issue.
I know of no industry affected by the PPG proposal that is in favour of a single-point scheme. The Government have the unique distinction of being on
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their own on that. If that is the only argument and if I were the Minister I should want to look carefully at it. It is dangerous to say that everyone else is out of step.
Lord Moran: I should like to say a brief word in support of Amendment No. 303A. I have discussed this subject with the Food and Drink Federation, and I know that it feels strongly that responsibility for recovery and recycling should be shared, as the noble Lord, Lord Jenkin of Roding, has argued, among all those in the packaging chain.
I have received a brief from the British Retail Consortium, which I found impressive. It says that the system of applying the control at a single point has been tried in Germany where it led to a 2 per cent. to 3 per cent. increase in retail prices, and that one leading British chainstore operator has estimated that the same system imposed in the UK would increase its operating costs by £40 million. It also describes the French scheme (the eco-emballages scheme) and points out that if one exports a jar of fruit to France four calculations are required: the amount of glass in the jar; paper in the label; metal in the lid; and plastic in the tamper-proof seal. It says that that system is breaking down.
The organisation has also addressed the Government's argument, which is the nub of the matter, that it would be difficult to enforce an arrangement where everyone in the chain was involved. It believes a multi-point obligation can be made enforceable by incorporating any organisation set up by the individual companies to meet the targets. The prosecution can then be brought against that company. That is useful. It is the view of the consortium representing 90 per cent. of retailers in this country. I hope that the Government will take it seriously.
The Earl of Balfour: Within this basket of amendments is the amendment standing in my name and that of the noble Earl, Lord Kintore. Amendment No. 309A is designed to alter the last two words of Clause 78 in that there are references to either Clause 76 or 77. We wish to substitute "those sections" for "that section". I have sympathy with Amendment No. 300 which wishes to have "including energy recovery" inserted, because many years ago the town gas in Hawick was supplemented by the methane gas produced by that town's sewage works.
Lord Bridges: I shall speak to Amendment No. 303A. I too have received some briefing from the Food and Drink Federation. My reason for speaking after so many Members of the Committee have spoken on the same matter is that this is a subject of considerable national importance. We are talking about the most efficient way of recycling packaging waste, obtaining as much as we can from it, and turning it into fresh raw material at a reasonable cost.
There has been one horrible example in Europe, which has gone wrong, to which my noble friend Lord Moran has already referred; namely, the German example, over which, as those Members of the Committee who have read the Select Committee's report on the subject, will see, a serious mistake was made. I

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add my voice to those who have urged the Government to think again about their scheme, because I do not feel that we have quite got to the bottom of the matter.
The noble Lord, Lord Wade, spoke with considerable moderation about what the Government have done. It does not seem to have been a sensible procedure to have invited an important businessman to work out a scheme in September 1993, and then, when it had been worked on for a year, for the Government to say was that it was not what they preferred. The whole progress of the discussion on the European directive should have given the Government sufficient time to come to an a priori judgment if they wished to do so. That has resulted in an unfortunate state of affairs which was not necessary.
I should like to make one or two other points. First, there is the argument that it would be administratively easier to have a single-point scheme rather than a multi-point scheme. I do not believe that that is the real test. The goal is to collect as much packaging waste as possible and to recycle it properly and efficiently. Industry has suggested how that should be done. The argument of administrative convenience for the department is a secondary consideration.
I have also heard it suggested that some people in Whitehall worry that a multi-point scheme is likely to be non-competitive. I find that argument difficult to understand because I believe that the single-point scheme is more likely to run into difficulty. The argument appears to have been turned on its head.
Every part of the complicated chain between manufacture, wholesaling. distribution and the point of sale needs to be brought into the Act. If the industry has devoted a great deal of time to the matter, has come up with a carefully worked out scheme and has an agency ready to move, I hope that that can be considered seriously.
Viscount Ullswater: Amendment No. 300 would clarify that the term ''recovery" includes energy recovery. The term "recovery" is used to encompass any process of value recovery from waste; for example, by incinerating waste to produce electricity. But I have sympathy for the noble Lord's intention to clarify that this does indeed encompass energy recovery.
The Government have indicated that, broadly in line with the views of the Royal Commission on Environmental Pollution, they would like to see a bigger role for waste to energy in future waste management practice. In our consultation paper, A Waste Strategy for England and Wales which was published recently, we made clear that waste to energy remains a key element of our overall strategy. Planning Policy Guidance Note 23 sets out the Government's general policy towards waste management in the field of planning. It highlights the obligations placed on waste management authorities in drawing up waste management plans to have regard to objectives which include encouraging energy recovery.
In the waste strategy, we have identified a number of impediments to the growth in waste to energy and we look forward to receiving views as part of the consultation process on how these might be overcome.
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Specifically on the noble Lord's amendment, we are at one on the objective and I shall consider carefully whether an amendment is needed.
I am concerned about the effect of Amendments Nos. 301 and 306. It is important that for each waste stream, industry is able to arrange the recovery of value from its waste products or materials in the most efficient way. For some this will mean increased recycling, for others energy recovery. To replace "or" with "and" would remove this option and put re-use, recover and recycling on an equal footing for all waste streams. In the light of the need to be flexible and to achieve the most environmentally beneficial solution for each waste stream, I hope that the noble Lord will not move these amendments.
Amendment No. 303A would delete the short paragraph which clarifies that the obligation to achieve a level of re-use, recycling or recovery can he placed at a single point in the production chain.
I understand the concern of Members of the Committee that the obligation imposed should be a fair one, but I am anxious that we do not close off any of our options at this stage. In considering these clauses, we must be clear that they are not solely to implement the European Community Directive on Packaging and Packaging Waste, to which most Members paid a great deal of attention. There are a number of other waste streams which these enabling powers may eventually need to cover and we are in discussion not just with the packaging industry but with these other industries. Therefore, I am keen that while ensuring that we are fair we do not limit our options at this very early stage.
As regards packaging waste, on Thursday 2nd February I replied to a Written Question tabled by my noble friend Lord Gainford. I set out a list of the considerations that we propose to bear in mind in assessing the various options for putting in place a legislative framework. It is our clear responsibility to satisfy ourselves that the proposed course of action meets the objectives and does so in a way that is consistent with broader policy aims and legal constraints. We are continuing our discussions with businesses and other organisations representing all parts of the packaging chain. These discussions are proving to be productive, and certainly all parties acknowledge the complexity and significance of the issues at stake.
At this stage, we have not yet taken a view on how we wish to proceed. However, we shall bring forward a consultation paper as soon as we are able. In the meantime, we ought to preserve our options both in terms of the position for waste streams other than packaging and also for packaging waste. 'This is novel and uncharted territory and it would be wrong to constrain ourselves to a single solution. The choice is not simply between a single point obligation or a multi-point obligation but there are variant; of each and shades in between.
I say to my noble friend Lord Jenkin of Roding, it is not that we want to be out of step but that we want to make certain that all the steps remain available. I hope that on that basis my noble friend will be able to withdraw his amendment.

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Amendments Nos. 303C and 303D would add to the Bill the definitions of "recovery", "recycling" and "re-use" contained in the packaging directive. Although these definitions are appropriate for the packaging waste stream they may not be appropriate for other waste streams. Again, I am concerned that at this stage we do not allow these general enabling powers to be coloured solely by our experience on packaging. In view of that, I hope the noble Lord will not move these amendments.
Amendment No. 309A would replace "that section" with "those sections". I have had to look at this a number of times but I have eventually concluded that because of the specific way in which the phrase is drafted the correct term is the original, "that section". Although I have great sympathy with my noble friend in wrestling with these grammatical intricacies, I hope that he will not move his amendment.
Baroness Nicol: Being flexible is all very well but surely, even at this stage, it is possible to identify one step that should not be taken in any circumstances because it is so unfair and unlikely to succeed. I do not find the keeping-the-options-open argument very persuasive.
Viscount Ullswater: I understand what the noble Baroness is saying but she is identifying perhaps only one single waste stream about which she has some knowledge. "I have indicated that there are seven such streams and it is important to make certain that a single point may not be suitable for one of those streams. Perhaps at present we do not have the scheme that would need a single-point entry. However, in the formulation of primary legislation it would be wrong to cut out that option already.
6.45 p.m.
Lord Wade of Chorlton: I am grateful to the Minister for suggesting that the Government agree with the principle behind Amendment No. 300. I look forward to seeing his proposal on how we can confirm that. I am disappointed that he was not more positive about the waste packaging proposals. Clearly, the support around the Committee was positive as regards a multi-point system as laid down by the packaging industry. However, I accept the point that the option is still open and might be accepted by the Government.
I hope that in view of the support that the proposals have received, the Government will consider it seriously. Perhaps my noble friend will give me the opportunity of discussing the matter with him before the Report stage. I see that he is nodding in agreement, and I shall be pleased to take up the offer. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 301 to 303AA not moved.]
Baroness Hamwee moved Baroness Hamwee moved Amendment No. 303B:
Page 82, line 31, at end insert:
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("( ) The Secretary of State shall have a duty to exercise the power to make regulations in the manner which he considers best calculated to prevent the making of false or unsupported environmental claims in relation to any prescribed products, materials or activities.").
The noble Baroness said: This amendment and Amendment No. 306A, which is grouped with it, deal with environmental claims in relation to the labelling of goods. I raised that matter on Second Reading. The amendments are quite modest and merely provide for regulations to be laid. They do not seek to set out on the face of the Bill the detail of the regulations which may be made but which I believe would deal with. important matters.
On Second Reading I mentioned the description of a pair of socks as being "ozone friendly". That was one of a number of examples of slightly odd claims made on packaging and labelling. I should enjoy reading to the Committee the whole of a report published by the London Borough of Sutton which is led by my noble friend Lord Tope. I shall not do so but I shall give the Committee a few examples to add a little colour to my anxiety about how misleading some of the packaging and labelling can be.
The report gives as an example of a misleading claim the following:
"This box is 100 per cent. recyclable and biodegradable, having been made from renewable, sustainable pulp resources. Pizza Hut is working to help the environment. You can too by disposing of this box carefully".
No doubt that is so, although one wonders about recycling a box with traces of tomato and cheese attached to the lid. But the claim which is made is misleading and confusing. Four key environmental words are used in the claim—recyclable, biodegradable, renewable and sustainable. They give the impression that the box has no adverse effects whatever on the environment. It suggests that the box is recyclable or biodegradable because the pulp used is sustainable. Of course, that is misleading because a sustainable wood source does not help recyclability or the rate of biodegradation of a product.
The report quotes the labelling for Lenor, a fabric conditioner, as an example of an ambiguous claim:
"Lenor has been formulated and made with care for the environment. This care is shown in the careful selection of ingredients and packaging and through the control of manufacturing processes. This bottle is made of polyethylene and the cap is made of polypropylene. These can be disposed of safely in normal waste treatment. Alternatively, the Lenor bottle may be re-used by refilling it with the Lenor refill".
That is quite confusing. It means in fact that the bottle can be thrown into the dustbin and eventually it will be buried or incinerated. That is not quite the same as the materials being recyclable.
The report gives an example of a "trivial claim". Although that is the heading in the report, I believe that it is quite serious. The example given is:
"This swing tag contains 80 per cent. recycled material".
That was a swing tag which merely gave the details of the umbrella to which it was attached but the unsuspecting purchaser could well have confused the reference on the tag to the umbrella itself. I believe that the environmental benefits of the umbrella were somewhat distorted by that labelling.
The examples which I have given may be amusing. My greatest anxiety in relation to raising the issue is that I recall the debates which we had on the Trade Marks Bill when we were all tempted to give examples of coffee jars, and so on, which had confused us. Those examples probably served only to confirm in the minds of the public how remote from everyday life most of your Lordships, including myself, seem to be.
The dangerous point is that purchasers, seeing such claims and many more claims, believe that, by buying a product which describes itself extravagantly or quite meaninglessly, they are doing their bit to save the planet when they may be doing very little at all towards that. I beg to move.
Lord Williams of Elvel: I support the amendment moved by the noble Baroness, Lady Hamwee. This has been a major problem in the United States. I am sure that the noble Viscount is aware that the claims that are made for products which argue that they are environmentally friendly and yet are not have given rise to any number of civil cases in the United States where people have in fact been damaged by products with green labels. They call them green labels in the United States.
I hope very much that the problem will not arise in this country. But I hope also that the Government recognise a problem which may arise. That is why I believe that the amendment moved by the noble Baroness raises an extremely important point to which I hope the Government will feel able to respond if not in this way, at least in some way which will give us confidence.
Lord Tope: My noble friend Lady Hamwee referred to the excellent report produced by Sutton Trading Standards, so I shall resist the temptation to quote a few examples from it to the Committee. If your Lordships' appetites are whetted for more information, the full report is available from the trading standards department of the London Borough of Sutton for a very small charge.
More seriously, I wish to support the amendment. It seems to me that one of the most effective influences which ordinary people—if one can call them that—have on their environment is in their purchasing and consumption power. Producers and manufacturers have long since recognised that, and as the environmental consciousness of the public has grown so have the environmental claims made by manufacturers and producers to sell their products.
One danger is that the public are starting to become cynical about such claims and rather than using their purchasing power to effect a change in the environment, they are going cold on it. Therefore, it is time to act and restore the public's faith, so that they know that when environmental claims are made in relation to products they mean what they say and are not, at best, meaningless or, at worst, misleading.
I hope the Minister will be able to indicate that he supports the amendments or that the Government will consider sympathetically the points that we are trying to make.
Viscount Ullswater: I hope that I shall be able to reassure the Committee and that the noble Baroness will
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not press the amendment. The amendment seeks to include in the Bill a requirement to make regulations to prevent false or unsupported environmental claims being made, together with provisions to propose by regulation requirements as to the making of such claims.
Making false environmental claims is already illegal. Those matters fall within the scope of the Trade Descriptions Act 1968. The question of whether further protection is needed in that area is being reviewed by the National Consumer Council. Therefore, those matters are already covered under other legislation.
In addition, there is the European Community eco-labelling system which seeks to identify products which are less harmful to the environment than equivalent brands across the whole of their life cycle.
Lord Williams of Elvel: Before the noble Viscount moves on to eco-labelling, will he enlighten us as to what the NCC is studying? He says that the re is no need for legislation but if the National Consumer Council recommends that there is need for legislation, will the Government accept that?
Viscount Ullswater: I indicated that false environmental claims are already illegal but the question of the need for further protection is being reviewed by the National Consumer Council. I am sure that we shall bring forward further provisions as necessary to make certain that that point is taken on board.
Eco-labelling will provide the consumer with a valid means of identifying products which have been validated against a set of environmental criteria. Therefore, I hope that the noble Baroness will feel able to withdraw the amendment.
7 p.m.
Baroness Hamwee: I am not entirely sure about eco-labelling. It does not guarantee that a consumer will be purchasing the most environmentally friendly product because not every product available in the range will be submitted to the scheme. Nor, indeed—and this may be the trading standards point—does it prevent producers from continuing to make their own "green" claims even if their products have been submitted for testing and have failed.
I am interested in the fact that the National Consumer Council is considering the matter. I do not expect the Minister to respond this evening, but if there is a need to pursue in legislation matters which the NCC identifies perhaps he would consider a rather different amendment, a permissive amendment, which would at least give the legislative framework for steps to be taken at ministerial level. I accept that I do not often argue in that way; indeed, I tend to argue for primary legislation. However, having established the framework, that would allow Ministers to pursue by regulation any matters that the NCC identifies as requiring such regulation. I do not expect the Minister to reply now if he does not wish to do so.
Viscount Ullswater: I believe that I indicated to the noble Lord, Lord Williams, that the Trades Descriptions Act 1968 is the legislation which covers that sort of possibility. Therefore, if false claims are being made

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which need further specification, it is under the Trades Descriptions Act rather than the legislation now before us that any action considered necessary should be taken.
Baroness Hamwee: I understand that fact. However, in a tight parliamentary timetable, I was merely seeking to make a helpful suggestion. I am grateful to the Minister for his response. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 303C, 303D and 304 not moved.]
Clause 76, as amended, agreed to.
Clause 77 [Producer responsibility: supplementary provisions]:
[Amendments Nos. 305 and 306 not moved.]
Viscount Ullswater Viscount Ullswater moved Amendment No. 306ZA:
Page 83, line 24, at end insert (", whether generally or in any prescribed way").
The noble Viscount said: I spoke to the above amendment when moving Amendment No. 298A. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 306A and 307 not moved.]
Viscount Ullswater Viscount Ullswater moved Amendments Nos. 307A, 307B, 307C and 307D:
Page 83, line 26, leave out ("of exemption schemes") and insert (", or withdrawal of approval, of exemption schemes by the Secretary of State;").
Page 83, line 32, after ("schemes,") insert ("the imposition of conditions in connection with such registration, the variation of such conditions,").
Page 83, line 42, at end insert:
("( ) the exclusion or modification of any provision of the Restrictive Trade Practices Acts 1976 and 1977 in relation to exemption schemes or in relation to agreements where at least one of the parties is an operator of an exemption scheme;").
Page 84, line 7, after ("registration,") insert ("the imposition of conditions in connection with registration,").
The noble Viscount said: I spoke to the above amendments when dealing with Amendment No. 298A. I beg to move.
On Question, amendments agreed to.
[Amendments Nos. 308 and 309 not moved.]
Viscount Ullswater moved Viscount Ullswater moved Amendments Nos. 309ZA, 309ZB and 309ZC:
Page 84, line 24, at end insert:
("( ) the conferring on prescribed persons of power to require, for the purposes of or otherwise in connection with competition scrutiny, the provision by any person of any information which he has, or which he may at any future time acquire, relating to any exemption scheme or to any acts or omissions of an operator of such a scheme or of any person dealing with such an operator;").
Page 85, line 33, leave out ("a registered") and insert ("an").
Page 86, line 6, leave out ("mandamus or, in Scotland,") and insert ("injunction or, in Scotland, by interdict or").
On Question, amendments agreed to.
Clause 77, as amended, agreed to.
Clause 78 [Producer responsibility: offences]:
[Amendment No. 309A not moved.]
[Amendment No. 309B had been withdrawn from the Marshalled List.]
Clause 78 agreed to.
The Earl of Lindsay: I beg to move that the House be now resumed. In moving the Motion, perhaps I may suggest that the Committee stage begin again at, or as soon as possible after, five minutes past eight o'clock.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Social Security (Incapacity for Work)(General) Regulations 1995
7.5 p.m.
Lord Swinfen Lord Swinfen rose to move to resolve, That this House calls on Her Majesty's Government to withdraw the draft Social Security (Incapacity for Work) (General) Regulations 1995 laid before the House on Monday 30th January and amend Regulation 6(1) (b) so as to replace the words "in the form of a questionnaire relating to a person's ability to perform the activities referred to in the Schedule" with the words "relevant to the person's capacity to perform work of which he would otherwise have been capable".
The noble Lord said: My Lords, the Motion calls upon the Government to redraft the regulations in order to define the all work test by reference to work for which someone would otherwise be capable.
The Motion is important for three reasons. First, until today, the House has been unable to have an informed debate on the nature of the new test of incapacity. Despite the new test being described by the Minister in another place last week (at col. 1234 of Hansard on 2nd February) as,
"the key to our reforms",
there was no opportunity to debate the matter fully during the passage of the parent Act as the matter was left to regulations.
Secondly, the functional test is an inappropriate measure of incapacity for work, and has been criticised as fundamentally flawed by medical experts and disability organisations. In fact, it is a measure of disability, not incapacity for work. Thirdly, the regulations themselves are inadequate because even now they do not provide any definitions which will enable disabled people to understand the system or the Benefits Agency to administer it.
During the passage of the Social Security (Incapacity for Work) legislation, debates were limited because the precise nature of the new test was the subject of some deliberation by a "panel of experts" and the

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development work of the Department of Social Security. The Minister, the noble Baroness, Lady Cumberlege, stated:
"The Bill has been prepared on the basis that the all work test, and hence the definition of incapacity, will be defined in regulations".
The Minister went on to advise against further amendments to the Bill and added:
"To attempt to introduce at this stage a specific definition of incapacity on the face of the Bill could change the nature of the test adversely".—[Official Report, 19/5/94; col. 390.]
The Minister has also said:
"While the consultation and development period is still going on, it is not possible to put down details of the test in the Bill".—[Official Report, 21/4/94; col. 325.]
Even amendments which would have inserted a definition of "work" or "incapacity" along the lines that the panel of experts was considering were not accepted.
The regulations go to the heart of the new incapacity benefit in laying out the test of incapacity for work. Yet the basis of the test is fatally flawed. Incapacity for work is about more than the ability to pick up a bag of potatoes. There has to be reference to other factors personal to the claimant which have a bearing on work which he can reasonably be expected to do. Ever since the present invalidity benefit was introduced by a Conservative Government in 1971, matters such as age, previous work experience, education and training, have been considered as directly relevant to work capacity.
Even the private insurance industry adopts a definition which assesses work,
"for which someone is suited by education, training and experience".
Page 23 of the report of the insurance ombudsman for 1993 stated:
"There is no point in expecting a man who has been a labourer all his life to be able to do clerical work … it must be taken as implicit that there is a reasonable chance of the policyholder being acceptable to an employer in that field".
Clearly, age is related to incapacity for work. That has been recognised by the department's own research into invalidity benefit claimants which suggests that the age of 50 is a turning point for those with ill-health and disability. Age has also been recognised by the Government in giving transitional protection to people who are currently on invalidity benefit and who will be over 58 at the time of change. But the new test neglects the impact of age. What about people who just miss the threshold score by one or two points? For instance, what happens to someone who has arthritis of the spine, knees and wrists, has been a carpenter all his life and is now 62 and unable to work? If he scores 14, he will not be entitled to benefit. His age and particular lifetime work experience will be regarded as irrelevant to his capacity for work.
The final version of the test was supposed to take into account the results of the consultation process. My noble friend Viscount Astor stated at Third Reading that regulations would be drafted, account having been taken of comments received during final consultation. He stated:
"It is important that the new test is seen to be comprehensive and to have acceptance by many of the interested bodies involved."—[Official Report, 19/5/94; col. 394.]
Yet where is the evidence of such acceptance? It certainly does not lie in the responses to the consultation. The document on the new assessment issued at the end of September tells us on page 39 that a majority of respondents to an exercise in the previous February expressed concern about the policy of basing the test on medical factors alone to the exclusion of factors such as age and skills. One is tempted to ask: what is the point of consultation when a majority of responses are hostile to the proposal and the Government press ahead regardless? It is like going through a red light.
Even members of the expert panel do not agree with the concept of the test. Some could not or did not even complete the exercises that were set. Writing to the Minister on the 6th May, 10 of them stared that even those who had completed the exercises
"found that [they] have reinforced the potential difficulties we perceive as inevitable in a measurement of incapacity such as this. In particular we are concerned about the arbitrariness of scoring according to mechanical functions without reference to other factors such as age or employment history. The concentration on functions to the exclusion of all else is contrary to the whole person approach which so many of us advocate."
Another panel member representing the BMA walked out of the panel exercise, according to Pulse magazine on 9th July last. According to that magazine, Dr. Ian Bogle said:
"I have a lot of trouble with a checklist that leads me to give a score to a patient…"
I understand that the representative of the Royal College of General Practitioners, Dr. Douglas Garvie, expressed reservations about the lack of GP input into the new process.
That even members of the expert panel did not believe in the policy means that these regulations can have no acceptance beyond the narrow confines of the Department of Social Security. Not only the panel but other experts, including all five professors of rehabilitation—none of whom was represented on the panel—stated that the test was fundamentally mistaken in principle, it having no scientific or logical credibility.
The regulations include a seed of doubt about the basis of the functional test. The exceptional circumstances listed in Regulation 27 allow for some people who fall within the scope of that regulation to be treated as incapable of work, even if they do not satisfy the functional test. The very existence of these exceptional cases drives a coach and horses through the ludicrous idea that capacity for work can be assessed by functional impairment alone.
I believe that the regulations are inadequate. The new test will be far from the simpler, fairer and more objective assessment of incapacity described by the Minister in the other place on 2nd February last (at col. 1233 of Commons Hansard). It was pointed out by Mr. Alan Howarth, MP:
"the proposition that there can be an objective medical test of capacity for work—for all work—is fundamentally misconceived."—[Official Report, Commons; 2/2/95; col. 1248]
The test is not simpler. It will be a messy combination of diagnosis, treatment, prognosis, severity of condition and a limited number of functions. After the first 28 weeks, somehow it will have to be established whether

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someone falls within the exempt category in Regulation 10. This will depend on receipt of the highest rate of DLA care component and whether the person suffers from one of a list of conditions. This is part diagnosis and part receipt of benefit. In order for people to have severe conditions, the crossover point from a moderate to a severe condition has to be decided.
It is to be welcomed that the belated amendments to the regulations now include severe mental ill-health in the list of exempt groups. Many organisations feared that people with severe mental illness would not be covered by transitional protection. It is to be regretted that that omission has caused so much concern and was rectified only on 31st January. However, there is likely to be considerable confusion as to who and at what point someone can fall within an exempt category. The failure in Regulation 10 fully to define the groups of people who will be treated as incapable of work is destined to cause considerable confusion. For example, at what point does a neurological disease become severe and progressive, or a mental health problem severe?
Next, having failed to fall within Regulation 10, a claimant has to undergo a functional test and score at least 15 to qualify for benefit. A score of 14 or below will give no entitlement. Are the Government really saying that incapacity for all work equates with the inability to walk more than 50 metres? Conversely, does an ability to walk more than 400 metres mean that someone is capable of all work? The descriptors in the schedule do not address the work capacity of someone who may be able to perform the functions but cannot automatically be regarded as capable of work. What of someone who is convalescing for a considerable period of time following an operation or illness, such as glandular fever?
If the claimant fails at this point—I understand that the Government expect some 220,000 current claimants and another 55,000 new claimants to do so—there are four exceptional circumstances to be addressed. The person will be assessed by the Benefits Agency doctor, but the adjudication officer will make the decision. How will the doctors decide at what point someone's condition is severe? How will claimants know whether they are exempt? How can they appeal if they believe the Benefits Agency doctors to be wrong?
Finally, the regulations miss out some key factors. At Committee stage in this House on 21st April 1994 my noble friend Lady Cumberlege stated (at col. 300):
"the 'all work' assessment will include all the medical factors raised by these amendments, such as pain, stress and general health".
She also stated (at col. 301):
"the new test will assess physical and mental disabilities which affect a person's capacity for work in a range of physical functions. Mental health will also be assessed and the effects of pain, stress and fatigue."
Yet, if we look at the regulations, where is pain, stress or fatigue?"
I have read the Minister's assertion in the House of Commons last week that those factors will be taken into account and will appear on the questionnaire, those concerns do not appear in the regulations. The abilities listed in the schedule do not mention pain, stress, fatigue
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and variability, so it is unclear how they can be taken into account. Results of the first evaluation exercise detailed in the document entitled The Medical Assessment for Incapacity Benefit found that medical factors not reflected in the functional assessment being tested were taken as contributing to work incapacity. Those included situations where:
"full account had not been taken in clinical opinion of the effects of pain or variability and fluctuation in functional limitations".
That appeared on page 60. Other matters listed in that section appear in revised form in Regulation 27. Why. have factors such as pain, stress and fatigue been left out when the Government have stated that clinical examination has revealed that those factors are relevant?
The Minister stated in the other place last week that there were more amendments to the regulations in the pipeline, which would be made before the implementation of the test and subject to the affirmative procedures. Can my noble friend explain in detail what those amendments will be and when they will be laid before the House?
I must apologise for taking so long, but this is an important matter. It is possible for the House to vote on the Motion. I understand that the House has voted on similar Motions some 26 times since 1979.
This Motion to resolve is far more constructive in seeking for the regulations to be re-drafted and does not prevent them being brought back before the House later in this Session. The regulations, properly amended, would make the all work test more realistic rather than a mechanistic test. I beg to move.
Moved to resolve, That this House calls on Her Majesty's Government to withdraw the draft Social Security (Incapacity for Work) (General) Regulations 1995 laid before the House on Monday 30th January and amend Regulation 6(1) (b) so as to replace the words "in the form of a questionnaire relating to a person's ability to perform the activities referred to in the Schedule" with the words "relevant to the person's capacity to perform work of which he would otherwise have been capable".—(Lord Swinfen.)
7.21 p.m.
The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish): My Lords, I beg to move that the draft Social Security (Incapacity for Work) (General) Regulations 1995 and the draft Social Security (Incapacity Benefit) (Transitional) Regulations 1995 laid before the House on 30th January 1995 be approved.
The regulations before the House today provide for the introduction of the new incapacity benefit.
Lord Carter: My Lords, I am extremely grateful to the Minister for giving way. We are discussing the Motion that has been moved by the noble Lord, Lord Swinfen. We anticipated that the Motion would be dealt with and the Minister would then move the regulations.

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I see nods in a certain direction. Perhaps we should stick to the Motion in the name of the noble Lord, Lord Swinfen.
Lord Mackay of Ardbrecknish: I was advised that I should start in that way. After we have dealt with my noble friend's Motion I shall then move the two Motions which stand in my name.
I do not intend to make a lengthy speech because I recognise that a number of your Lordships are eager to contribute to the debate. In any event, the detail of the provisions of the regulations has already been explained in the guide Notes on Regulations published last November.
I should like to recall the important context in which the changes are being introduced. Invalidity benefit is the fastest growing contributory benefit. Expenditure has more than doubled in real terms over the past 10 years from £3.1 billion to £7 billion in 1993–94. That dramatic growth has come at a time when the nation as a whole has been getting healthier. No responsible government could let that continue. If we did, spending could increase to up to £10 billion by the end of the century. I notice that my noble friend did not choose to address that particular aspect, but perhaps he does not consider that raising the money and the taxpayers' interest in all of this is of any relevance.
Anyone committed to controlling that growth would need to consider the system of medical control. As my noble friend pointed out, the present system includes non-medical factors such as education, skills and experience. Those may indeed affect the ability to get a job, dare I say at any age, but they are not a cause of medical incapacity. The inclusion of those in the current assessment of incapacity is the reason invalidity benefit is going to some people for whom it was not intended, such as people who have taken early retirement or who are unemployed. That is why the new all work test specifically excludes the factors that my noble friend Lord Swinfen has asked us to include. Indeed, he said that it was wrong to ignore factors such as age, education and skills. I point out to him that incapacity benefits are intended for people who cannot work because of their medical condition. I believe that it is right to distinguish between long-term incapacity and long-term unemployment, for which other benefits are available.
Therefore, we have to be certain that the new all work test accurately measures medical incapacity for work. That is why development work has taken a period of nearly two years. During that time we conducted in-house studies, consulted widely and involved outside experts. We also carried out two major evaluation studies, using real cases to confirm that the new test would be an effective assessment of incapacity. I take this opportunity to offer my thanks for the invaluable help we received.
In devising our final proposals we addressed three particular concerns. First, we have protected the position of the most seriously ill and disabled by making them exempt from the test. Secondly, we have recognised the particular problems caused by mental illness by designing special procedures for claimants with a mental
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health problem. Indeed, my noble friend recognised that we have added mental health to the list. Thirdly, we have made provision for the small number of conditions where incapacity cannot be measured functionally. In addition, we are carrying out a major training exercise to ensure that Benefits Agency Medical Services doctors are able to apply the test effectively.
I should like to turn to the role of the GP. Although my noble friend did not mention the fact, somebody has to make these difficult decisions. He implied that they were so difficult to make that I was not sure who would ever be able to make them if he had his way and was able to devise the system that he would like. Until now the GP has been, so to speak, the gatekeeper. Of course general practitioners are well placed to give advice on a person's medical condition. However, that is not a good reason to make them gatekeepers to the benefit system. They are not trained to assess capability for work or to administer social security law. Placing such a burden on them can compromise their relationship with their patients. Accordingly, our reforms re-emphasise their role in providing information on the condition of the claimant but remove the requirement to play such an active part in the social security system. I imagine that many doctors will be happy to have the role of gatekeeper removed from them.
The new test will be applied to existing cases over the next two or three years. It will identify in a fair way the minority of people who should not he receiving incapacity benefit. Some people have been receiving invalidity benefit for many years and may be anxious. I remind them and the House—because some amazing figures have been bandied about—that the majority of people who take the new test will satisfy it. In addition, the regulations before the House provide for nearly 50 per cent. of existing claimants to be exempt from the new test.
My noble friend made much of the age cut-off of 58. When we decided on that age we wanted to be able to provide as many existing claimants as possible with a guarantee about their future entitlement. We also had to take into account the fact that a number of people aged 50 and over have been receiving benefit as a form of early retirement benefit. Between 1978 and 1993 the number of men under pension age receiving IVB rose from 430,000 to 845,000. Of those something like 230,000 were between 55 and 64, and 65,000 were between 50 and 54. While research indicates that attachment to the job market declines after the age of 50, that does not mean that the people involved suffer from some form of incapacity. Detachment from the job market may be for quite different reasons. We believe that to exclude all those people, say from 50 and over, from the all work test would effectively be to exclude the majority of existing cases and those who, as I said before, are using the system as a means of receiving benefit on early retirement.
I believe that our reforms will ensure that we have a sensible system and, importantly, an affordable system which will be sustainable for the rest of the decade and into the next century. I commend the regulations to the House.
Lord Carter: My Lords, before the Minister sits down, will he make the position absolutely clear? He

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referred to the regulations which are before the House. The regulations are not before the House. The Motion in the name of the noble Lord, Lord Swinfen is before the House. Could the position be absolutely clear? I have checked the matter. There has been some misunderstanding. We should understand that the House has to deal with the noble Lord's Motion first, and the Minister will then decide what to do with the regulations.
Lord Mackay of Ardbrecknish: My Lords, I do not propose to split hairs when there is a time problem with regard to a debate. In fact we are discussing the regulations. One cannot discuss my noble friend's Motion without discussing the regulations. I should have thought that that was self-evident.
Lord Carter: My Lords, the Minister is becoming irritable. I have taken advice. A brief made today's procedure clear. We are discussing the Motion in the name of the noble Lord, Lord Swinfen. The regulations are not before the House.
Earl Russell: My Lords, before the Minister sits down, perhaps I may ask this question. Has it not been the practice of this House for centuries that only one Question can be before the House at one time?
Lord Mackay of Ardbrecknish: My Lords, yes, indeed, only one Question can be before the House. I am sorry if I may have mixed up the procedure. However, my speech would have been the same because, frankly, one cannot address oneself to my noble friend's Motion unless one considers the instruments as a whole. I believe that I dealt with both the instruments and the reasons why I hope that the House will reject my noble friend's Motion.
7.32 p.m.
Lord Ashley of Stoke: My Lords, it is a bit rich for the Minister to complain about splitting hairs when he has brought before the House a few tiny, trivial, mere details of changes instead of substantially addressing himself to the Motion of the noble Lord, Lord Swinfen.
I thank the noble Lord for bringing the issue before the House. As there is so little time left, I propose to make a brief speech. I have to say to the Minister that the speech he made was absolutely and totally inadequate to justify regulations which will severely hit sick and disabled people.
The principle of a purely medical approach to the incapacity benefit has been disputed and derided in this place and in another place. Yet the Minister now stands up and resists all attempts to inject reasonableness into the system. It is a system which is questionable in principle and will be harsh in practice.
Someone too frightened to go out alone scores one point. I wonder which genius in the Government worked that one out? A person who sits alone for hours doing nothing scores two points—another oddball idea. The most bizarre, and even brutal, concept is that no less than 15 points—I emphasise, 15 points—are required for acceptance as "incapable of work". That is what the
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regulations state; there is no point in the Minister shaking his head. Those requirements are bereft of all humanity, devoid of understanding and incapable of dealing with the shifts and shades of mankind's condition.
Thousands of individuals and their families will suffer anxiety, wondering whether they will gain sufficient marks. A family's income can depend on the result of just one test. Most of those on invalidity benefit are known to be low wage earners; we all know that. Many have had little education. These are the people now facing the prospect of losing an income only slightly above the breadline level—but at least it was at a level which gave them minimum security. Denied that, they may even have to rely on obtaining another new, unwelcome benefit—the jobseeker's allowance.
This is a classical exercise in political cynicism. The Government are devastating thousands of ill and disabled people, cloaking their attack in the guise of improved targeting, and taking cash from disabled people for electoral bribes. That is the truth of what the Government are now doing. I believe that it is a cruel and calculated manoeuvre which reflects badly on the Government. If they push it through, I hope that their tactic backfires and blows up in their face.
7.35 p.m.
Lord Addington: My Lords, I shall speak as briefly as possible on the Motion. The noble Lord, Lord Swinfen, dealt with the matter in considerable detail and proved to my mind at least that there is a real problem.
The Motion before us replaces the words in the schedule with the following words:
"relevant to the person's capacity to perform work of which he would otherwise have been capable".
Such a system would involve a degree of flexibility because one will have a different set of criteria for each person. Every time this House has discussed one individual's needs, in particular with regard to disabilities, we have had explained to us time and again that one must take account of that individual as a single unit. People do not fit well into schemes. The system of acquiring points will be ridiculous in effect if one takes one person's level of disability at a given time.
The noble Lord gave an example of a person in manual work who suffers an injury or some damage which means that he may then be capable of sitting behind a desk. If a skilled carpenter has bad literacy skills he cannot be expected to acquire a reasonable desk job because he would be unable to undertake such work. If he suffers an injury, he cannot work with his hands for long periods of time, no matter how good his score is in any test.
Having listened to the arguments on the Motion, I recommend that there is only one way to vote: in favour of the noble Lord's Motion.
7.37 p.m.
Baroness Darcy (de Knayth): My Lords, I, too, am grateful to the noble Lord for putting down the Motion. I congratulate him on his clear explanation of the issue and his tenacity in pursuing it. It is not just the disability

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organisations which are concerned. As the noble Lord said, the medical profession, including all the professors of rehabilitation, is extremely concerned. The noble Lord said that there were five professors of rehabilitation. I go further. There are six and they are all against it. I spoke to one of them last night. He said that, if it is to be effective, the test must address the relationship between a disabled person and the employer.
I wish to concentrate on one area which is causing much concern: that is, the people who may find themselves in the no-man's land between incapacity benefit and benefits for the unemployed. When the regulations were debated in another place on 2nd February, the Minister for Disabled People gave some reassurances at col. 1239 of the Official Report. The Minister stated:
"If a person is judged capable by the new test and then chooses to register as unemployed, the adjudication officer in the Employment Service cannot then decide that that person is not capable of work. A claimant must, of course, be available for and actively seeking work to qualify for unemployment benefits".
The Minister went on to explain that claimants do not have to be able to do every possible type of job.
While I appreciate that assurance, I am not totally convinced, because the problem exists under the present system even though, in theory, it should not. Disability Alliance and RADAR indicate that in a joint survey. NACAB can give examples of people who are regarded as too fit for invalidity benefit being turned away from the unemployment benefit office even if they wished to sign on to preserve their right to national insurance credits.
I should like to ask the Minister some questions. I have given him notice of them as I feel that this is an area which needs more explanation. If he does not have time to answer them all during the dinner hour debate, perhaps he will write to me. I hope that he is able to answer some.
First, does the Minister agree that this no-man's land exists at present with invalidity benefit? Does he accept that under the new functional test for incapacity benefit many more people could end up in this grey area?
Perhaps I may ask some questions of detail about people who decide to appeal against a decision to withdraw their incapacity benefit. Pending their appeal, will they have to sign on or send in a medical certificate, or both? How will they be able to ensure that their national insurance record is maintained through credits? Which benefit will they be entitled to during that time? Finally—a very important point—if someone is regarded by the employment service as not being fit enough to sign on, will that person be referred back to the Benefits Agency Medical Services with a view to obtaining a second opinion to enable him or her to claim or reclaim incapacity benefit?
I look forward to the Minister's reply and I hope that he can give some encouraging answers. The big question of the appropriateness of the functional test remains and I should be even more encouraged if he would accept the Motion of the noble Lord, Lord Swinfen. In view of what the Minister has said so far,
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even the optimist in me is not hopeful, so that, if the noble Lord, Lord Swinfen, feels that he has to go to a Division, I shall support him wholeheartedly.
7.40 p.m.
Lord Mottistone: My Lords, I shall concentrate briefly on the problem of the mentally ill. I am advised by the National Schizophrenia Fellowship. Both the fellowship and I welcome the fact that at the last minute the Government have exempted those with severe mental illness from the new test of incapacity.
However, the problem is: how does one define severe mental illness? I understand that draft Benefits Agency advice suggests that the definitions should include: a need for continued psychiatric care, including sheltered residential facilities where the person receives regular medical or nursing supervision; and day care at least one day a week in a centre where qualified nursing care is available.
The problem is that many suffering severe mental illness are not in sheltered residential facilities and cannot get day care one day a week because the services do not exist in their area. Others who could have the services are not prepared to use them because of the nature of their illness. The difficulty with the mentally ill is that even severely mentally ill people are perfectly all right some of the time and some of the time they are not. However, we cannot have a stop-go process with the kind of assistance we are talking about.
In addition to all that, it is unrealistic, not to mention inhumane, to force mentally ill people, particularly severely mentally ill people, to be subjected to tests if by some process the definitions do not fit their case. They are people who cannot stand pressure, especially the kind of pressure that the tests might create; that approach would probably make them more mentally ill. So it is a difficult problem.
The National Schizophrenia Fellowship has been trying for some time to visit the Minister's department to discuss such matters but it has not been allowed to, and that distresses me. The fellowship has submitted written proposals which, happily, have resulted in the Government's amendment, including the exemption for severely mentally ill people. Perhaps the period is so short that the department has not had time to react to the proposals, but I implore my noble friend to give me an undertaking—and I hope that he will be able to do this in his reply—that as soon as practicable his department will get in touch with the National Schizophrenia Fellowship and invite it to give the practical advice from which, if possible, the definition can be devised.
7.43 p.m.
Lord Rea: My Lords, I well understand the Government's anxiety about the increase in the numbers claiming invalidity benefit over the past decade. However, their response to the problem of having a more tightly drawn or stricter test of incapacity for work is not the solution. The Government have not accepted or have turned a blind eye to the underlying cause of the increase. As a consequence of the regulations, a

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number of those at present on invalidity benefit will suffer both financially and psychologically, as my noble friend pointed out. I predict that the legislation will boomerang and do the Government no good electorally.
By moving the Motion amending the Government's legislation, the noble Lord, Lord Swinfen, is doing his party a good turn. There are votes in this. During the 1980s and early 1990s many people who were long-term unemployed were encouraged by DSS officers to obtain medical certificates from their GP if they had any form of disability, even if it was relatively mild. If work had been available, most of those people would gladly have continued to work. That is my experience and that of colleagues over a number of years, especially in the inner cities. Transferring those unemployed people to invalidity benefit made political sense to the Government at the time. The numbers of long-term unemployed went down or at least did not rise so fast. Now, however, the large bill for those on invalidity benefit has become an embarrassment.
Those facts are corroborated by some of the findings which are emerging from a research project in primary care which I am now carrying out in association with the Department of Public Health Medicine at UCL. We are looking at a random sample of the population registered with an inner city group practice. We have found that there is a steady increase in the proportion of men of working age who receive invalidity benefit as one goes down the social scale. Long-term invalidity benefit is claimed only by 2 per cent. of men in the professional classes, as classified by their present or last occupation. But there is a steady gradient in the intermediate socio-economic levels, with the rate going up until one reaches the unskilled workers at the bottom of the pile, 50 per cent. of whom receive invalidity benefit at the moment. As their work is more strenuous, it might be expected that more manual workers would claim invalidity benefit, but in fact 70 per cent. of the men in our study who were receiving invalidity benefit had non-physical complaints as their true reason for being off sick—abuse and mental ill-health being the most common.
Those men, and also some women, under 58 will become subject to the new tests. Many will probably be found theoretically to be capable of work, unless they are psychotic, or mentally retarded. But most, even of those who do not pass the test, are not capable of any work that is not manual, and there is still a great shortage of manual work. In the inner cities that is largely due to the contraction of the construction industry. So unless those people can obtain retraining—which is difficult if you are over 40 and it is difficult to change your ways if you are past 50—and unless they can be found new jobs, 'they will go back into the long-term unemployed pool from which many originally came. But they will receive a lower level of benefit.
The regulations amount to a pointless exercise in the present economic climate and will result in increased poverty and unhappiness. The Motion of the noble Lord, Lord Swinfen, which seeks to change the wording is a
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small step in the right direction, but even if it were accepted it would make little impact on a bad piece of legislation.
7.48 p.m.
Viscount Simon: My Lords, I have had to score out much of what I wished to say due to the time factor. I am uncertain whether or not I should mention that I have a financial interest in the following case which concerns my daughter, as money has been known to pass from me to her.
Some 13 months ago, my daughter received a head injury at her place of work; she had an arterial bleed to her brain-stem which caused problems to the nerves controlling one side of her face. Apart from some psychological aspects, the main problems which she experiences are memory loss, concentration lapses, intermittent facial spasms and the inability at times to make her speech understood. I suggested to her that she should complete the regulations and schedules, marking herself harshly. The result has illustrated some practical anomalies. She is incapable of work according to Part II of the schedule. Fine, let us ignore that. If she were to be assessed purely on Part I, it seems that some areas are open to misinterpretation and others seem to be badly worded. Whether that is intentional or not, I do not know. When severe, her facial spasms make it impossible to understand what she is trying to say. But the wording of Part I, paragraph 10, does not accommodate an intermittent speech problem. It should. After all, the ability to communicate verbally at all times must be a basic requirement of any employment.
I like to think that those of us who are here tonight would experience no emotional difficulty in speaking with somebody who is severely disfigured. We would all admit that the vast majority of people regard disfigurement with shock, horror and disdain. Why is that? It is simply because somebody's physical characteristics differ from the norm. That is what happens. Let us consider such a person seeking employment. The difficulties of overcoming prejudice must be immense, if not impossible. The test does not even mention disfigurement. Yet here is somebody whose physical disability may well make it impossible to find work.
The new regulations are based solely on a person's medically diagnosed condition. Other functional factors which are highly relevant, such as age, education, training and ability, are excluded. Our personalities comprise many factors which distinguish one person from another. To exclude one or more of those would lead to our personality being masked or changed. That is perhaps what is happening here. Not allowing part of a disabled person's ability to be assessed means that the whole picture is being blurred. That is what will happen with these regulations as they are currently presented. There appears to me to be a hint of unfairness here; therefore, the regulations should be withdrawn.
7.51 p.m.
Lord Milverton: My Lords, I enter this debate on the Motion of my noble friend Lord Swinfen in order to join

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in the concern that is expressed by him and others as well as by certain organisations and groups. I look forward to hearing my noble friend the Minister, Lord Mackay of Ardbrecknish, give us—as I hope he will—the assurance that we need. I put this question to him: will there not be the supposed unnecessary casualties when incapacity benefit takes over from sickness benefit and invalidity benefit? These measures are strong and harsh, with the jobseeker's allowance due to come into effect in April 1996. To quote a certain organisation,
"The proposed introduction of the jobseeker's allowance … with a tougher regime governing eligibility for benefit is also likely to have an adverse impact on sick and disabled people, many of whom may have been out of the labour market for some years".
I agree that there is perhaps a need for the Government to have taken some action. But is the test too confined? It is purely functional, relating to impairments alone and excluding other personal factors such as the person being able to do reasonable work.
Again, I quote:
"The new system will be a stark functional assessment with no account of the types of work someone could undertake given their disability and other personal factors".
There is one group that could be heavily hit amongst the many groups with disability; namely, those who suffer from active and progressive forms of inflammatory polyarthritis. Again I quote:
"People with 'active and progressive forms of inflammatory polyarthritis' are included. Polyarthritis means 'inflamation of several joints at the same time', as in rheumatoid arthritis. But how is 'active' to, be defined in this context? Will people with a confirmed diagnosis of rheumatoid arthritis, who at the time of renewing or applying for Incapacity Benefit for the first time, are in 'remission'? Will they be exempt from the functional test?".
What does the term "in remission" usually mean? Remission is usually associated with the successful drug regime for the individuals concerned. It does not mean that the person is not in pain, or that the effects of pain, stress, fatigue and fluctuations are not present on a daily basis. There is concern for people whose diagnosis is of a more generalised nature, As we know, arthritis is the biggest single cause of disability in the United Kingdom.
I do not suggest, as some may, that Her Majesty's Government introduce these regulations in any devious way to get votes. I honour and respect the fact that they are trying to do what is right for the help of all. I do not know how I will vote. I do not feel that I would wish to vote against the Government. If this matter comes to a vote, I shall most probably abstain, as I feel that, in spite of any weaknesses, the Government are doing their best. I hope that the Minister, when he replies, will be able to give that assurance. But I am aware, as I believe the Government are, of the need somehow to get all these matters as right as we possibly can.
7.56 p.m.
Earl Russell: My Lords, this is not a test of incapacity to work. It is at best a test of incapacity to work in certain pre-defined ways which the Department of Social Security happens to have foreseen. If somebody passes this test, I shall not therefore believe that they are capable of work. If they fail this test, I shall not therefore believe that they are incapable of
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work. Having listened to the noble Lord, Lord Swinfen, I have learnt that I am in expert company in so believing.
It was a little ungenerous of the Minister to suggest that the noble Lord, Lord Swinfen, has no concern with the interest of the taxpayer. I am a taxpayer. I have the same concern as anybody else does. But the interest of the taxpayer, like other concerns, is best pursued in a realistic way in the light of accurate information. That is what this test fails to do. To borrow the traditional miners' phrase, I do not want blood on the tax cut.
The Minister said: "We are looking to give benefit to people who are unfit to work because of their medical condition". We are with him in that. He will not achieve that with this test. The Minister also said that people over 50, whose attachment to the labour market is, as we have heard, weaker than that of others, are not unfit for medical reasons. I ask the Minister: when did he last stand at a bus-stop and watch people getting on and off a bus? If he does that, he will see that there is an interaction between age and disability. If two people have an equal disability and one is the older, the one who is older will be the more handicapped by it. Age does have an effect.
Also, as we have heard, it is much harder to learn a new skill—or even, as the noble Lord, Lord Rea, pointed out, to be taught a new skill. We know the difficulty of teaching an old dog new tricks. And we all know that an old dog who suffers an injury may suffer more severely than a young dog who suffers the same injury.
This test tries to test incapacity for work by asking people to fill in a form. Our illnesses are individual. Our incapacities are individual. No test can possibly foresee them all. A test of inability to work must begin bottom upwards, from the individual. One must study the facts of the case, and only then begin to decide whether the person is fit to work.
To take an individual example—it is an actual example—a First World War veteran, shot in the brain, survived, suffering no damage except the total loss of his sense of smell. Under these regulations and the jobseeker's proposals, if that person were to refuse to take work as a wine taster, he would be found not to be actively seeking work—if the Minister shakes his head, I should be very relieved to hear why he does so. This is supposed to be a test of all work.
Let us take another case, again of someone with a brain injury—I heard with great sympathy what the noble Viscount, Lord Simon, had to say—who has lost control of the end joints of his fingers. I am relieved to see that there is a test of manual dexterity. It tests the ability to use a pen or pencil. There is nothing in it about how well one can use a pen or pencil. That is not the way that employers consider the matter and their point of view deserves to be considered.
There can be no acceptable test of incapacity to work until the Government abandon their so-called objective test, which in fact is no such thing, and go back to the beginning with the medical condition of the individual concerned. An objective test is not a test on the right subject. Nor is it true that there is such a thing as a

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single activity known as work. There are a great many different kinds of work and they make different demands on one's medical condition.
Under this scoring system, you have to score 15 unless you are to be found fit for all work. A person who cannot lift a 5 lb bag of potatoes scores eight. Is that person fit for work in a supermarket? Someone who cannot hear well enough to cope with a normal voice in a quiet room scores 10. Is that person fit to be a telephone operator? I could go on but I shall not do so. It is all like that.
I hope that this set of regulations will be withdrawn. It is the worst mistake that the Government have made since the Child Support Act and it will do just as much damage.
8.1 p.m.
Lord Houghton of Sowerby: My Lords, before my noble friend speaks, I should like to say a few words. I do not talk about animals all the time. I have listened carefully to the debate from the beginning. The question of fitness for work is a very old subject within different contexts in the national insurance scheme. It is bound to be a very difficult problem. But it seems that the expenditure on this benefit has risen so quickly and to such a level that the Government have become a little worried about the system.
A definition by which all future cases should be judged and existing cases reviewed was found too difficult to include in the Act. It was found too difficult to legislate on it in the Act. Now it appears that it has been left by the Act to regulations. Those regulations have been published and the noble Lord, Lord Swinfen, has tabled a Motion on them.
On an issue of this kind, where it seems as though the Government are looking to save money, where people may be deprived of benefit probably for the first time for years and where a new concept of disablement and fitness for work is brought into the picture, I must ask whether we are following a satisfactory procedure for deciding the issue tonight. I cannot believe that we are doing so. If we are to alter definitions by regulation and not by Act, we must be perfectly certain that the regulations will stand the full test of justice, common sense, technical sensitivity and sound judgment in human affairs.
What machinery do we have for doing that? Should this matter go to a Select Committee? How do we settle the issue, except by vote tonight? I cannot believe that to decide this matter by vote tonight will be a satisfactory solution for anybody. What then should we do? It seems to me that the Government should withdraw the regulations until we are satisfied that the draft regulations have been fully examined by representative bodies qualified to look at them from the point of view of the public interest, of the disabled persons concerned and of what is sound medical judgment and social justice for the basis of awarding benefit under this scheme. I believe that we should then have to accept the judgment that would come to us from such consideration.
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This is a difficult matter. We know that somebody has to decide the question. The Minister reminded us of that a moment or two ago. But, quite frankly, I do not believe that we are qualified to settle this matter tonight in the name of the House of Lords. The other place must do what it thinks it should do with regulations that come before it. But the question of procedure and fairness in reaching a judgment tonight bears heavily upon us.
In a sense, we have not had a full opportunity to regard this matter as a major policy and political issue. For my own part I plead that it should not be decided this evening. It should come again before the House if necessary. In the meantime, the Government should consider how best to have this problem determined in an acceptable way. Otherwise, I am afraid that many people will be discontented and many people will be deprived of benefits which it will be difficult for them to replace.
Talking about fitness for work in pleasant circumstances is bound to have difficulties. There is not work for everybody, not for those who are fit for work and make no claim upon social benefit. But what about those who are handicapped in looking for work and those who are asked to find work that they have never done before? I know of a case in point which is very close to my own observation. It seems to me that, although you have never done any manual work in your life, you are fit for work as a clerk. That was referred to in the course of the Minister's observations. Obviously, that requires a social as well as a medical and personal judgment.
I cannot say any more. I had no intention today of staying in the Chamber until this hour of night. However, I cannot go away feeling that the House has done a good job of work if the matter is left formally to be decided in a few minutes' time without something sounder and more acceptable to take its place.
8.8 p.m.
Lord Carter: My Lords, I am sure that the Minister will have listened with great interest to that vastly experienced intervention from my noble friend. I am sure that when the Minister comes to speak he will wish to withdraw the regulations.
Perhaps I may begin by pointing out, as the more alert of your Lordships may have noticed, that I am not the noble Baroness, Lady Hollis of Heigham. My name, not hers, should have been on the list of speakers. I apologise for the error.
This has been a most interesting if rather brief debate. We are grateful to the noble Lord, Lord Swinfen, for tabling this Motion and giving us a chance to debate this very important matter, affecting as it does the 1.6 million people on invalidity benefit. Much of the argument has already been most eloquently expressed. I can be very brief therefore. The problems of age, transition, work experience and so on have all been well covered.
Those of us who laboured for many hours on the Social Security (Incapacity for Work) Act will have a strong sense of déjàa vu and a clear understanding that our worst fears have been realised. When we debated

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that Bill, the regulations were not available, as the process of consultation and testing had still to be carried out. Now that we have the regulations, it is clear that the guidance notes for the Benefits Agency will be vitally important. It would be helpful if the Minister could tell the House whether the guidance notes that he mentioned, which he said were available last November, are the final edition or whether they are to be further amended.
Previous speakers have dealt with the various problems of definition, procedure and outcome. The best evidence for the ultimate fallacy of relying on a purely medical and functional test lies in the regulations. As to Regulation 27(b) and (c), what sort of test is it that allows somebody to pass the all work test who:
"(b) suffers from some specific disease or bodily or mental disablement… or (c) … suffers from a severe uncontrolled or uncontrollable disease"?
Is it the case that Regulation 27 had to be included because the pilot studies found that some people passed the test but were clearly incapable of work? As I say, what sort of functional test is that?
Some of the definitions seem to be positively misleading. For example, Regulation 10 uses the word "severe" no less than five times. Sometimes "severe" is qualified, sometimes it is not—so what is "severe"? At what stage does someone with a progressive disease move from "not severe" to "severe"? Will this be explained in the guidance notes?
The Oxford Dictionary defines severe as "austere", "strict", "harsh", "rigorous", and "unsparing". I have the feeling that those who drafted the regulations for the test had the Oxford Dictionary open and permanently beside them as they worked.
Severe mental illness under Regulation 10(2) (e) (viii), as pointed out by the noble Lord, Lord Mottistone, was added as a manuscript amendment when the regulations were debated in another place. It is an entirely welcome amendment, but its late inclusion—added to the points that I have already made in relation to Regulation 27—illustrate the fundamental weakness of relying entirely on a medical and functional test.
The question of appeals is central. The Government are expecting 140,000 appeals in 1995–96. We are told that the Government are putting more money and resources into the Medical Advisory Service. How much money? How many extra people, and what are their qualifications?
I should ask the Minister an important question in regard to the basis for reviewing new claims after April 1995. Will age be a factor, having now set a control date? What will be the basis for reviewing the cases of the estimated 220,000 people who will come off incapacity benefit "within two years"? Will this be done on their normal review date? If so, it appears that many will come off incapacity benefit within six to nine months and not two years. What will be the basis for reviewing other current claims which come under the transitional regulations—for example, from people aged over 58 or people in the groups exempt from the new functional test?
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I said I would be brief, so I will not repeat questions that have already been asked or give multiple examples. When these regulations were debated in another place on 2nd February there were many excellent speeches on these matters, not least that of Mr. Donald Dewar, the Opposition spokesman on social security. But perhaps the most effective speech was made by Mr. Alan Howarth, the Member for Stratford-on-Avon. Its effectiveness arose from the fact that Mr Howarth is a Conservative with great experience of disability matters. I appreciate that under the rules of your Lordships' House I must not quote Mr Howarth verbatim, but I certainly agree with his belief that the all work test is a contrivance and that the whole idea and objective of a medical test of capacity for work is fundamentally misconceived.
We all know that this is a Treasury-driven exercise. I would remind your Lordships that, as pointed out by the noble Earl, Lord Russell, we have recently had an example of a Treasury-driven foray into social security; I refer, of course, to the nightmare of the Child Support Agency. I was one of the Members of your Lordships' House who were concerned about the Bill that set up the Child Support Agency. We tried endlessly to warn the Government about the likely outcome; the Government would not listen, and our worst fears have been confirmed. We have had also the shambles surrounding the introduction of the Disability Living Allowance. I am sure that these regulations are set fair to become the third member of this sorry troika and, if the noble Lord, Lord Swinfen, decides to ask for the opinion of the House on his Motion, I shall certainly be voting with him.
Lord Mackay of Ardbrecknish: My Lords, in the limited time available I shall try to answer as many questions as I can. If I do not refer to the noble Lords who have asked questions, I hope they will understand that other noble Lords have asked the same or similar questions and that mentioning everybody by name would take some time.
One of the themes common to many of the interventions in this debate was the question of defining some of the descriptors in the schedule—for example, time, pain, stress and fatigue—and how those factors would interact with the descriptors. Perhaps I may try to explain. In assessing someone for the all work test, the BAMS doctor will take full account of the history and evolution of the medical condition. Your Lordships will remember that I mentioned that, in addition to the filling in of the form, the GP will be asked to report on his or her patient to the BAMS doctor on the actual effect that the medical condition has on the patient's daily life and normal tasks over a period of time, and the limitations which are imposed.
In choosing one of the descriptors in each of the areas of activity in the test, the doctor must also describe and justify his choice in terms of the pattern of any variability or fluctuation, and the effects of pain and fatigue. This point has been particularly emphasised in the training which the BAMS doctors are receiving. In other words, it is not a snapshot; it is actually looking at the condition and looking at the effects over time. I hope that that answers at least some of the points made

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about specific problems which may not be very severe if looked at for one second but over time can in fact be severe, or can be intermittent.
Mental health problems do fluctuate. One point that was put to me was whether these fluctuations will be taken into account. As I have said, the test is not a snapshot, and of course the medical evidence from the claimant's GP will be carefully considered by the BAMS doctor. The assessment of the mental health problems will consider the mental history and the day-to-day functional effects of the condition.
Play was made with the definition of the word "severe"; when does a problem become severe? Severity of a condition will be considered on the basis of the clinical information available from the claimant's own doctor. A BAMS doctor will assess the information against the criteria covering the diagnosis and affecting the condition, and the effect that the condition has on everyday activities and care needs. And, of course, treatment is another point that has to be borne in mind.
I have been asked on a number of occasions about the threshold of the benefits, the threshold that one must reach in order to obtain the benefit, and there have been some rather over-exaggerated definitions of what happens when someone gets to that threshold. The threshold is set at a level where it would be unreasonable for a person to be expected to work rather than where work becomes impossible. A person who does not satisfy the test is not necessarily capable of all work but is certainly medically capable of some work—very probably a considerable range of work.
The role of the test is not to place people in jobs; the role of the test is to decide whether people can undertake jobs and are medically capable of doing so. The employment service will then come into play to help the person search for work, taking into account his or her skills, experience, availability for work, education and other physical constraints.
The noble Earl, Lord Russell, asked the question about the person with no sense of smell: if he refused a job as a wine taster would he be refused benefit under the jobseeker's allowance? I am not sure whether the noble Lord was trying to be facetious, but the fact of the matter is that people—and this includes people who would never consider that they were in any way eligible for this particular benefit—who have some form of disability or some form of restriction of what they can do, will be asked to say what that is and that will be agreed. The medical conditions are one, so that anybody with no sense of smell, for example, who was offered a job as a wine taster—which I doubt would happen—and refused it would not promptly be struck off the JSA register and left without benefit. I want to be quite clear about that. Just because people pass this test, and indeed just because people are unemployed, does not necessarily mean to say that they can take any job that is available—from a professorship of modern history down, or up, depending on where one starts looking at it. I hope that that will be of some comfort to noble Lords who were particularly concerned about that point.
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I was asked about rheumatoid arthritis and whether sufferers will be exempt. Exemption is not based on the diagnosis. It is based more on the severity of the medical condition. Full account will be taken of all the medical factors. Those with severe manifestations of rheumatoid arthritis are likely to be exempt. Anyone who looks at the various descriptors and knows someone who has rheumatism of a severe nature can easily see how he or she would quite quickly get to 15 points. If one looks at the scores and the descriptors, it will not be all that difficult to get to 15 points.
My noble friend asked me about the amending regulations which are to come. I do not want to list all the various matters that are to come but perhaps I may give an example. We want to uprate the therapeutic earnings limit to £44 and we wish to clarify the wording of the immune deficiency exempt category following some comments we have had from the Terrence Higgins Trust. We want to enable people acting as unpaid advisers to organisations representing disabled people to sit as medical assessors on appeal tribunals, following comments we have had from the independent tribunals service. There are a number of other issues of that nature. None of them will affect the principles behind the proposal but they will be detailed matters which we think ought to be put right.
The noble Baroness, Lady Darcy, asked me a number of questions. I probably nearly answered one of her questions in my comment to the noble Earl, Lord Russell. If someone is judged to be capable of work and he then goes to either unemployment benefit or, in the future, JSA, there will not be a different decision made. In fact, he will be taken on to the JSA register if he has been found to be capable of work under the test we are considering. He will get advice and help to search for the kind of job that will suit his capabilities and his physical and mental abilities, as every person seeking work does. People who appeal against a decision that they are capable of work may register as available for work and qualify for unemployment benefit or income support pending the outcome. Doing so will not prejudice their appeal. If some people feel that they are unable to declare themselves available for work because they think it might prejudice their appeal, we are looking at ways to allow income support payments pending the outcome of any appeal. National Insurance credits are automatically awarded to people receiving benefits for incapacity and those registering as available for work. If someone is found capable of work, credits will normally cease until he registers as unemployed with the service. That he can do even if he is appealing against the decision that he is capable of work.
The noble Earl, Lord Russell, and a number of noble Lords asked how age fits into this. The test is a measure of the effect of the medical condition. The noble Earl pointed out to me that the effect of the same medical condition can be worse when one is older. That is exactly the point. The test measures the effect. So, while a young person with a disability may certainly be able to walk, say, 400 metres without stopping and an older

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person can walk only 200 metres, that is allowed for and different points will be scored. The effect of ageing on conditions is taken into account.
Earl Russell: My Lords, can the Minister say whether the test allows for how many times in the day one could repeat that performance?
Lord Mackay of Ardbrecknish: My Lords, I mentioned earlier on that the medical people will take into account not just the snapshot but the effect of the disability over time.
I was interested in the speech of the noble Lord, Lord Rea, because in many ways I thought that he came to my defence and gave evidence on my behalf in this regard. He clearly showed that many GPs were issuing medical certificates to people who were not sick, or at least were certainly not too sick for work, and that they were in fact people who were moving off the unemployment register. There is no evidence that anyone encouraged that to happen. That was one of the effects of the way the benefits system was, with the GPs being left with the difficult decision of acting as gatekeeper. I can understand that, if they were confronted by someone who had been their patient for a long time, we were asking them to do an extremely difficult job in acting as the gatekeeper.
Anyone who studies the descriptors, the physical disabilities and the list and sees how the system is being devised will quite readily see that someone who has a severe disability—a disability that would prevent him working—will quite readily attain the 15 points needed. As I said at the beginning of my speech, not only do we think that this will be a fair and proper test to conduct but it will also be one that will concentrate the benefit on the people for whom it is intended: those whose incapacity for work is due to a medical condition and not due to some of the other conditions which my noble friend has stipulated in his Motion. Having listened to me, I hope that my noble friend will appreciate the good sense of what is being proposed in the regulations and will withdraw his Motion.
8.28 p.m.
Lord Swinfen: My Lords, I am grateful to those who have taken part in the debate on my Motion and I thank them for their attention. The noble Lord, Lord Rea, said that he thought that if the House were to agree this Motion it would be of terrific benefit to the Conservative Party. That would be a mere by-product. It was not my intention at all. It is a matter of principle and that is not something that I had thought of. It possibly shows that I am a bear of little brain.
The Minister suggested that people taking early retirement were using invalidity benefit to boost their pensions. That matter could be quite easily dealt with either by primary or secondary legislation. I understand that there is no evidence that people in the older age groups are using the benefit as a form of additional pension. The Department of Social Security's own statistics show that the proportion of male claimants aged between 50 and 65 has decreased from 67 per cent. of all male claimants in 1977–78 to 56 per cent. in 1992–93. Contrary also to what my noble friend said,
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the Department of Social Security's research and the research of the Policy Studies Institute show that the growth in claims has more to do with people staying longer on benefit than with an increase in the number of new claims.
I do not want to delay the House because Members will wish to get back to the Environment Bill. However, my noble friend also said that amazing figures were being bandied about. He himself, I thought, was doing that this evening, claiming that my amendment would cost some £10 billion by the year 2000. My noble friend shakes his head. That was the impression I got. If he is relying on the Treasury for his figures, I am not at all surprised that they are wildly inaccurate.
This is a matter of principle and therefore I feel that I have no alternative but to move my Motion.
8.30 p.m.
On Question, Whether the said Motion shall be agreed to?
Their Lordships divided: Contents, 49; Not-Contents, 71.

Division No. 1

CONTENTS

Acton, L.

Meston, L.

Addington, L.

Nathan, L.

Airedale, L.

Nicol, B.

Annaly, L.

Pearson of Rannoch, L.

Ashley of Stoke, L.

Rea, L.

Bancroft, L.

Redesdale, L.

Bath, M.

Rodgers of Quarry Bank, L.

Beaumont of Whitley, L.

Russell of Liverpool, L.

Bridges, L.

Russell, E.

Carter, L. [Teller.]

Seear, B.

Darcy (de Knayth), B.

Simon, V.

David, B.

Somerset, D.

Falkland, V.

St. Albans, Bp.

Graham of Edmonton, L.

Swinfen, L. [Teller.]

Hamwee, B.

Thomas of Walliswood, B.

Thurso, V.

Harris of Greenwich, L.

Tope, L.

Harrowby, E.

Walpole, L.

Hilton of Eggardon, B.

White, B.

Houghton of Sowerby, L.

Wigoder, L.

Jay of Paddington, B.

Williams of Crosby, B.

Judd, L.

Williams of Elvel, L.

Lawrence, L.

Willoughby de Broke, L.

Lytton, E.

Winchilsea and Nottingham, E.

McNair, L.

Wise, L.

NOT-CONTENTS

Aldington, L.

Elton, L.

Allenby of Megiddo, V.

Ferrers, E.

Astor, V.

Gage, V.

Balfour, E.

Glenarthur, L.

Belstead, L.

Hardwicke, E

Blaker, L.

Harlech, L.

Blatch, B.

Harmsworth, L.

Brougham and Vaux, L.

Henley, L.

Burnham, L.

Howe, E.

Butterworth, L.

Inglewood, L. [Teller.]

Cadman, L.

Jenkin of Roding, L.

Carnock, L.

Keyes, L.

Chesham, L.

Leigh, L.

Cranborne, V. [Lord Privy Seal.]

Lindsay, E.

Crickhowell, L.

Lindsey and Abingdon, E

Cumberlege, B.

Long, V.

Denton of Wakefield, B.

Lucas of Chilworth, L.

Dixon-Smith, L.

Lucas, L.

Downshire, M.

Lyell, L.

391

Mackay of Ardbrecknish, L.

Renton, L.

Macleod of Borve, B.

Rodger of Earlsferry, L.

Marlesford, L.

Rodney, L.

Miller of Hendon, B.

Seccombe, B.

Mills, V.

Shaw of Northstead, L.

Milverton, L.

Shuttleworth, L.

Monk Bretton, L.

Skidelsky, L.

Morris, L.

Stanley of Alderley, L.

Moyne, L.

Stewartby, L.

Norrie, L.

Stockton, E

Northbrook, L.

Strathclyde, L. [Teller.]

Northesk, E.

Sudeley, L.

Tollemache, L.

Onslow, E

Torrington, V.

Peel, E

Ullswater, V.

Rawlings, B.

Wade of Chorlton, L.

Rennell, L.

Wynford, L.

Resolved in the negative, and Motion disagreed to accordingly.

Social Security (Incapacity for Work)(General) Regulations 1995
8.38 p.m.
Lord Mackay of Ardbrecknish: My Lords, I beg to move that the first Motion standing in my name on the Order Paper be approved.
Moved, That the draft regulations laid before the House on 30th January be approved [7th Report from the Joint Committee].—(Lord Mackay of Ardbrecknish.)
On Question, Motion agreed to.

Social Security (Incapacity Benefit)(Transitional) Regulations 1995
Lord Mackay of Ardbrecknish: My Lords, I beg to move that the second Motion standing in my name on the Order Paper be approved.
Moved, That the draft regulations laid before the House on 30th January be approved [7th Report from the Joint Committee].—(Lord Mackay of Ardbrecknish.)
On Question, Motion agreed to.

Environment Bill [H.L.]
8.39 p.m.
House again in Committee.
Clause 79 [Hedgerows]:
Lord Wade of Chorlton Lord Wade of Chorlton moved Amendment No. 309C:
Page 86, line 33, at beginning insert ("Subject to subsections (1A) and (1B) below").
The noble Lord said: In moving this amendment I shall speak at the same time to Amendment No. 311B. We now reach that stage of the Bill where we begin to speak about hedgerows. This Bill lays down that,
"The appropriate Ministers may by regulations make provision for, or in connection with, the protection of important hedgerows in England or Wales".
I am sure that all Members of the Committee will agree with me that most of the hedgerows which we see are part of someone's farming business and, as such, they
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can be an important management tool in the effective running of the farm. I accept that there are now many people who are concerned over the loss of certain hedgerows. In certain parts of Britain there has been a great loss of hedgerows. In the north-west, which is my part of the country, there has been very little change in the hedgerows for hundreds of years in certain livestock farming areas. I have to declare an interest in farming although I have never made any pecuniary gain from it.
I am worried that the legislation will impose unnecessary regulations upon people who are trying to run a legitimate business and give regulatory bodies the right to look over farms and take action against farmers who are trying to run a legitimate business.
What is a hedgerow? What is "important"? And important to whom? There will clearly be enormous differences of opinion about what is important or who sees it as important. Our amendments propose that before Ministers make regulations in accordance with the clause they should,
"consult with such organisations as appear to them to be representative of interests substantially affected by their proposals; and consult such other persons as they consider appropriate",
and:
"If it appears to the Ministers, as a result of the consultation required by subsection (1A) above, that it is appropriate to vary the whole or any part of their proposals, they shall undertake such further consultation with respect to the variations as appears to them to be approriate".
By the amendments we are trying to insert on the face of the Bill a requirement that the Minister consult all those involved—representatives of the industry and the farmers involved—and appreciate that their views need to be taken into consideration. Whatever business we may be in, we are all aware of the problems caused by over-zealous regulatory bodies.
What worries me about the proposals in the Bill is that they may do exactly that: create another over-zealous organisation made up of local people whose idea of what might be important may be entirely different and impact seriously upon a farmer's business. Fanning is still the greatest and most important industry in this country. We need to consider the impact the Bill will have on that industry.
I hope that the Government will respond positively to the amendments. I want the Government to appreciate how important these issues are to those who live and work in the countryside. I hope they will take into account what I and others say on this matter and will include a sensible consultation procedure which will avoid unnecessarily over-zealous regulation. I beg to move.
Baroness Hilton of Eggardon: I shall speak to Amendments Nos. 309D, 311C, and 323A. Although I agree with the noble Lord, Lord Wade, about the importance of consultation, I disagree about the people who should be consulted about hedgerows. This is clearly an enabling clause and therefore extremely weak. We have had enabling clauses in previous Bills, which have never come into effect. The amendments try to put rather more solid flesh upon the bones of this clause.
Amendment No. 309D sets a deadline for the Minister to make regulations for the protection of hedgerows. Although I agree with the noble Lord that there should be consultation, Amendment No. 311C suggests that the definition of "important hedgerows" should be set out in regulations by the Minister after he has consulted the local authorities which represent local people who may have ideas about which hedgerows in their locality are the important ones. Amendment No. 323A is consequential upon that consultation with local authorities.
In the next group of amendments we shall discuss in greater detail why hedgerows should be considered important, but in this group of amendments the intention is to shore up the clause by setting a deadline for the Minister and setting down that there should be consultation with local authorities before the important hedgerows are defined.
Lord Jenkin of Roding: I added my name to Amendment No. 309C, because the whole clause seemed to me to be reminiscent of that lovely clerihew that was reported by the learned Sir Robert Megarry in his wonderful book Miscellany-at-Law. He wrote:
"If anything shall seem, then the Minister may deem:
A certificate of demption provides completion exemption".
The clause can mean anything or nothing. Before it means anything, and before anyone will do anything, it is incumbent upon the authorities to consult the people who will be affected. If the noble Baroness, Lady Hilton, had- really wanted to alarm the agricultural industry, she could hardly have done it more effectively. She thinks that the most important people to be concerned about this are the local authorities. Anyone who has suffered at the hands of local authority planning departments, and the somewhat junior and often completely unskilled clerks who determine what the size of a window shall be, how high a roof shall be, or what sort of material the building should be constructed of, realise that people will have no confidence in them whatsoever.
If the clause is not implemented carefully it will drive an awful web of discord among the agricultural industry, nature lovers, local authorities and all the parties who have an interest in the well being and conservation of the countryside. When my noble friend said that the most important thing needed is a process of consultation, I cheerfully added my name to his amendments. I hope that my noble friend the Minister will be able to give us some comfort.
Lord Willoughby de Broke: I support Amendment No. 309C. I share the concern of my noble friend Lord Jenkin of Roding at the prospect of the local authority being the most important body to be involved. I think it is probably the least important. After all, the regulations will be detailed. They impose onerous requirements upon the agricultural industry. Before they are expressed, there should be close consultation with those who will be most affected—the farmers and the landowners. I hope that that idea will be taken on board. I support the amendment wholeheartedly.
Lord Renton: The consultation must be conducted thoroughly and adequately. However, I believe that a
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better way of doing it would be to amplify Clause 81. The noble Baroness, Lady Hilton of Eggardon, suggested that one step towards doing that would be to add Clause 79 to Clause 81(3) (b). That would be essential, but other parts of Clause 81 need to be amplified. I do not see why we should not include a reference there to representatives of farmers, landowners, conservationists, and whoever else we care to name. In my opinion, it is not enough just to say that the quangos mentioned in Clause 81(2:1 should be consulted.
Perhaps I may refer to some other matters that arise on this issue. I hope not to detain the Committee much longer. In Huntingdonshire we have lost about 2,000 miles of hedgerows since the war. That is due largely to the fact that since we entered the CAP there has been a radical change in fanning practice. Instead of having good mixed farms with plenty of stock we now have huge areas growing wheat and root crops.
I understand the farmers' point of view. Some of my neighbours felt strongly that they had to get rid of the hedgerows that were expensive to maintain and no longer needed for stock. They pulled them down, and I hope that they will be encouraged to use the existing powers to replace them.
The provision is to be confined to "important hedgerows" and I agree with the noble Baroness, Lady Hilton of Eggardon, that that will be difficult to define. What is an important hedgerow? Hedgerows which have not been properly maintained and which have gaps that can be filled—and there are many such hedgerows—are worthy of consideration and should be referred to in any regulations that are to be made. If the word "important" is to be stressed, such diminished hedgerows may not be included, which would be a great opportunity missed.
The phrase "countryside features", which the noble Baroness wishes to have inserted in the Bill, is much too vague—
Lord Williams of Elvel: I apologise for interrupting the noble Lord. I understand that we are speaking to the group of amendments headed by Amendment No. 309C, tabled by the noble Lord, Lord Wade of Chorlton. The phrases "important" and "countryside features" appear in the next group of amendments.
Lord Renton: The noble Lord is right, but I was hoping to save time by dealing with the matter in a general way. I shall not continue with that theme and I have said all that needs to be said about consultation.
The Earl of Onslow: My idea of heaven is green fields, cut and laid hedges and falling off the other side. The English hedgerows are a great tradition. One does not see them in the rest of Europe—only in a small part of the world. Many hedgerows were planted as a result of the Enclosure Acts. If one looked at the Enclosure Act which entitled the land to be enclosed, one would find that it was illegal to take out some of the hedges that were removed. Furthermore, until recently a grant was given for the removal of hedges; but now a grant is given to put them back again. Certainly, grant is paid to cut and lay them. I hope that I shall be lucky and receive

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a grant for a hedge I planted 15 years ago and which is due to be cut and laid on Friday. I am looking forward to that.
It is odd that the Minister should be the person to decide what is an important hedge somewhere in the back end of Cumberland or Devon. There is also force in what was said by my noble friend Lord Jenkin of Roding. Sometimes local authorities will act as a result of the pressure put on them, which is not fair to the person concerned because those applying the pressure have no financial interests and wish merely to see the result as they drive by in their car. All those interests must be balanced.
There is force in what was said by the noble Baroness, Lady Hilton, that the decision should be taken at local level. It is not sensible for it to be taken by the Minister. However, there is equal and valid force in what was said by my noble friend Lord Wade, that the people on the ground who have a debt should, by statute, he consulted. That is self-evident.
The Committee may be interested to know that in June I was in Normandy. It is the one place in France where there are hedges and it is called the bocage country. The French pay grants to bulldoze out the bocage and now, just like us, they are paying grants to have them put back again. Obviously, hedges can be in or out of fashion. They can be re-created relatively easily and quickly and easily made stock-proof. They should be looked after and encouraged. However, I am not sure that the clause is the right way to do that.
Lord Monk Bretton: I support the amendment tabled by my noble friend Lord Wade. I am heavily involved in the subject and must declare an interest. During the past 20 years I have removed three out of 12 miles of hedge. I probably have not taken out enough and I am interested in the need to take out more. Consultation with those who manage agricultural land is vital. I agree with the noble Baroness, Lady Hilton, that certain people will need to be consulted. Consultation must be widened and it must be right, which is why I support the amendment.
I wish to refer to the Written Question tabled last July by my noble friend Lord Lye11. It was answered by my noble friend the Minister. The Written Answer indicated that in recent times more hedges had been planted out than had been removed. However, a more serious problem is the growth in the number of what are referred to as relict hedges. They are those which are no longer in reasonable order, are gappy and so forth. It is now more important to consider the way in which hedgerows are to be maintained and how many hedgerows can be maintained with the limited number of farm staff that now exist. We must do that before concentrating on a possibly costly and elaborate bureaucratic control exercise on hedge removals.
I am not sure whether we are going down the right road and I believe that consultation with the industry will help. The industry will be able to make a considerable contribution to the deliberations.
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On the financial front, the present agricultural scene is buoyed up by CAP subsidies, probably accounting for some 60 per cent. of profitability. The policy appears to be to reduce those subsidies and to get nearer to world prices. World prices may rise but possibly only a little.
The ability to continue to maintain hedges is likely to be reduced. That is a strong argument for the need for a carrot rather than a stick. I do not believe that it would be ill regarded if a reward were provided for those who try to keep hedges. But in the end, one wonders how it is to be paid for by the industry without help.
9 p.m.
Viscount Ullswater: Amendments Nos. 309C and 311B moved by my noble friend Lord Wade seek to impose a requirement on Ministers, before making regulations for the protection of important hedgerows, to consult organisations whose interests are likely to be "substantially affected". Amendment No. 311B includes a further requirement on Ministers, if as a result of consultation they consider it appropriate to vary their proposals, to undertake further consultation on those variations.
Amendment No. 311C, tabled by the noble Baroness, Lady Hilton, also seeks to impose a requirement on Ministers to consult before making hedgerow regulations: in this case, to consult the same bodies that my right honourable friend the Minister of Agriculture, Fisheries and Food must consult under Clause 81. Those are the Countryside Commission, English Nature and English Heritage.
It is an established practice of government to consult organisations whose interests are affected by subordinate legislation, and the comments submitted by those organisations are given careful consideration.
There will be no exception to that practice in respect of regulations made under this clause. Indeed, I envisage a wide-ranging consultation; but not as wide-ranging as that provided for in Amendment No. 311 B which, I am advised, places on us a virtually impossible task. I am nevertheless happy to give my assurance to my noble friends, Lord Wade and Lord Jenkin, and to the noble Baroness, Lady Hilton, that we will of course consult the statutory agencies, the National Farmers Union and the Country Landowners' Association as well as other representative organisations. I hope that will reassure my noble friend that the interests of farming and the agriculture industry will he consulted properly.
I listened carefully to my noble friend Lord Monk Bretton. He is quite right; I said on Second Reading that more hedges were being planted than those being taken out. But that was in numerical terms and I made the point that they were not being replaced in terms of quality. That is why we have introduced this clause.
I have listened carefully to the views expressed today on such consultation being enshrined in legislation. I note and shall reflect on the apparent strength of feeling on this issue. We must, however, reserve our position in respect of further rounds of consultation should Ministers decide to vary their proposals.

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Amendment No. 323A places a similar requirement to consult the statutory agencies in Clause 81 itself. There are, however, significant differences between the purposes of Clauses 79 and 81 and between the hedgerows regulations under Clause 79 and the subordinate legislation mentioned in Clause 81.
Members of the Committee will note that the requirement under Clause 81 relates to subordinate legislation made solely by my right honourable friend the Minister of Agriculture, Fisheries and Food. Clause 79, on the other hand, in so far as it relates to England, provides for the hedgerow regulations to be made jointly by my right honourable friend the Secretary of State and my right honourable friend the Minister of Agriculture, Fisheries and Food. Clause 79(3) makes that clear. In addition, Clause 81 is intended specifically to extend the type of consultation arrangements which already operate successfully in setting up environmentally sensitive areas to other voluntary incentive schemes designed to promote countryside conservation. However, regulations under Clause 79 are concerned with the protection of important hedgerows and not the payment of grants or other incentives. I do not therefore consider it right to apply formal consultation arrangements under Clause 81 to the hedgerow provisions.
Amendment No. 309D imposes a duty on Ministers to bring forward hedgerows regulations by 1st January 1996. I hope I can reassure the noble Baroness, Lady Hilton, that the Government are committed to introducing hedgerow regulations, and shall waste no time in doing so following the enactment of this Bill.
I do not believe that the making of these regulations will be a long drawn out process; but the process must follow a logical course if we are to get them right. Interested parties and organisations must then be given a reasonable time to consider them and submit their comments. After that, Ministers also will need sufficient time to prepare the final regulations in the light of responses to consultation; and the regulations themselves must be laid before Parliament in the usual way before they come into effect. This process could be jeopardised if Ministers were bound to work within the constraints of a predetermined timescale. On that basis, I do not consider it desirable to set a statutory deadline for bringing the regulations into effect.
On Second Reading I indicated the scope of the scheme which I expected to bring forward in due course. It would be right to say that we need time to develop that; but in the light of what I have said, I hope that my noble friend will withdraw the amendment.
Lord Stanley of Alderley: The Minister has accepted that there is a need to consult. Why does he not then accept the amendment? We really cannot go on dithering like that from one thing to another and putting the matter off until the next stage. Why cannot my noble friend accept the amendment? That can be amended again later on, but it is crazy not to accept the amendment. Although I understand fully that what my noble friend says on the Floor of the House and indeed what government say in guidelines carries some weight,
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it does not carry the weight of law. I beg my noble friend to accept the amendment moved by my noble friend Lord Wade.
The Earl of Lytton: Before the noble Lord, Lord Wade, replies, perhaps I may ask the Minister one question. I understand from my investigations that there are proposals, which I believe are well advanced, to investigate what should properly be regarded as "important" hedgerows by establishing a method of assessing their quality. It seems to me—arid in part this is in answer to the noble Baroness, Lady Hilton—that it would probably be wrong to pre-empt the outcome of those critically important research activities by setting too narrow a timetable.
I am strongly of the view that in relation to the protection and conservation of features of all kinds, whether they happen to be listed buildings, conservation areas or ancient monuments, there needs to be some common ownership and sense of identity by those who have the first line of duty to protect and nurture those features. It cannot be otherwise.
It is vitally important that local interests play a part in that. Where I farm on Exmoor the hedges are quite different—and the noble Earl, Lord Onslow, made that point very convincingly—from those in Sussex in relation to species, structure and the socio-economic background which gave birth to them in the first place. All those matters should be taken into account.
Earl Peel: Before my noble friend responds, perhaps I may make a general point to the Minister. I am very much in favour of the principle of conserving important hedgerows although, as my noble friend Lord Renton said, the definition of "important" needs to be qualified.
However, as a general point, does my noble friend on the Front Bench agree that protecting hedgerows per se will really not achieve the purpose of what we want? An unprotected, unmanaged hedgerow is a sterile object. Unless that is accompanied by positive management incentives I do not believe that we will achieve anything worth while in conservation terms. Does my noble friend further agree that, if we are to have hedgerow protection, it should be accompanied by positive management assistance to those who actually have to look after hedgerows?
Lord Elton: Will my noble friend make clear for what reason hedgerows are to be conserved? That is something that has not yet been mentioned. Is it a question of preserving the countryside in aspic? If that is the case, I should remind Members of the Committee that this country was forested for the first 1,000 years and it has changed constantly as a result o f agriculture. Indeed, agriculture has been the determining factor in the appearance of our landscape and the only one until very recently. It is a new concept that the countryside should be preserved for purposes other than agriculture.
The countryside has changed as a result of the enclosure Act. Before that hedgerows were a rarity. There were boundaries between parishes and more often between counties. A hedgerow was a novelty at that time. I hope that my noble friend has his hedgerows staked and bound rather than cut and laid because it is

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much neater and more stock proof. Drainage also changed the face of the country, as did the Corn Laws, but the agricultural recession put it back under grass. However, the ploughing up grants in 1939 turned it back into arable land. Indeed, I could go on. It is a process that cannot be stopped. If it a question of preserving hedgerows for the sake of the flora and fauna, they too have been changing. If we are to put into the legislation a power to preserve hedgerows, we ought to state somewhere why we are doing so. That would give us some idea as to who ought to be consulted.
The Earl of Onslow: I know that I am just about in order to intervene twice in a debate. However, taking up the remarks made by my noble friend, Lord Elton, until between the wars the only power in the countryside was the horse. Hedges were cut, laid or staked and bound by people with sickles, walking around during the winter. The ditches were dug by hand. It goes without saying that what has changed everything miles more quickly is the fact that you can stick a six-furrow reversible plough with one man on it behind a big caterpillar tractor which can plough up anything. It needs a large acreage of space.
I believe that we have now changed. The countryside is not just man made; indeed, it is machine made. New interests have arisen other than farming. Of course, farming is vital. It is the only way that you can look after the countryside. However, I suggest that we need to add something slightly more. There are now other interests to be considered. We farmers who have our grants paid for by taxpayers' money should take into account the other things that taxpayers may wish us to do.
Lord Dixon-Smith: I should begin by declaring an interest as someone who has four-and-a-half miles of hedge. Therefore, I have a commercial interest in the subject. I believe that we need to treat the whole area with considerable caution. The reason why hedges were removed at a rapid rate—and I accept the capacity of machinery—was because men directed the machines. However, men did so because, for a long period of time, it was deliberate government policy, for vital national needs, to encourage the removal of hedges. That is why very specific grants at high rates as regards proportion of costs were paid.
The tide has turned and now we see the reverse of the situation. Grants are being paid for the restoration of hedges. I have a feeling about the proposed legislation. In a sense, I believe that it is shutting the stable door after the horse has bolted or, shall we say, after the essential necessary action has been taken which will reverse a situation that was clearly becoming politically untenable.
On the question as to whether or not a hedge is important, I should like to refer to two of my own hedges. The species within those hedges are virtually identical. One hedge borders a ditch which leads away from the farmhouse and farmstead where I live. The farmhouse dates from the 14th century. Because the site is moated, almost certainly it goes back to Saxon times, or perhaps even beyond that. That farm must have been
400
drained for it to have been lived in. The ditch besides which the hedge runs is probably of Saxon origin, if not more ancient. It is an originally Roman-settled area.
The other hedge, which is identical from the point of view of species, borders what used to be—and is on the maps as—a Roman road, but it is a very good reproduction. Of course, from the point of view of those who drive along the road it is significant, but historically and archaeologically it is a forgery. Who is to say which of those two hedges should be preserved? Unless the landowner has a valid economic reason—or he is a fool like me who happens to like hedges—there will be no future for either hedge. But for as long as it is in the interests of the landowner, or because he loves them, those hedges will remain. The legislation will have nothing to do with it. My experience of the law is that if there is a need to find a way round it, somebody will.
9.15 p.m.
Viscount Ullswater: My noble friend Lord Stanley of Alderley asked why we could not simply accept the amendment standing in the name of my noble friend Lord Wade. I indicated when I made my first reply that I believed the amendment was defective. I also said that I would consider the strength of feeling expressed by the House this evening and see whether or not such consultation should be placed on the face of the Bill. I do not believe that I can go any further than that.
The noble Earl, Lord Lytton, asked whether there was a need for some research into what was an important hedge. Research is in hand to test workable criteria. We proposed a scheme based on a system of notification. I believe that the detailed arrangements must be settled in the light of the results of that research. My noble friend Lord Elton asks what is an important hedge. In part, that is what the research will discover. Obviously, we are looking at the biodiversity of various hedges. At Second Reading I mentioned parish boundary hedges as an example of those that might be considered to be important.
I believe that we are in the area of protection rather than preservation, and that the scheme I identified at Second Reading, which the regulations in Clause 79 will bring forward, is one that should be supported by all noble Lords.
Lord Wade of Chorlton: I thank my noble friend for his reply. Like my noble friend Lord Stanley, I am disappointed that this has not been accepted. I think the Minister will agree, judging from the feelings expressed around the House, that this is a matter of extreme importance, that clearly the Government have not got it right in this Bill and some change needs to be made. I was gratified to hear that the Minister would consider it. Clearly, we would very much like to be involved in discussions. It is a matter that I wish to bring forward again unless we can arrange a convenient—
Lord Williams of Elvel: I am grateful to the noble Lord for giving way. I should like to address a question to the Minister rather than the noble Lord, Lord Wade.

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Is the undertaking that consultation should be considered by the Minister to be extended to local authorities as well?
Viscount Ullswater: I indicated that the consultation that we planned would be wide-ranging and would take in other representative organisations. I do not see that representative organisations can exclude a local authority.
Lord Wade of Chorlton: The wording used in the amendment is that used in the deregulation Act of 1994. Quite clearly, the Government must feel that such a system is workable; otherwise it would not have been used there. That drew attention to the fact that, particularly where people's businesses could be placed in a very serious situation, proper consultative procedures should be laid down. What we tried to achieve in the deregulation Act, as my noble friend will be aware, was a fairer balance between the regulated and the regulator. That is the purpose of my amendment.
I am sure that my noble friend has listened carefully to what all noble Lords have said. Clearly, this matter is of great importance to many people. I hope that he will be able to come forward with a satisfactory solution at the next stage. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 309D not moved.]
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 309E:
Page 86, line 34, leave out (Important").
The noble Baroness said: We seem to have strayed into discussion of this group of amendments during the discussion of the previous group. The noble Lord, Lord Elton, asked why hedgerows were important. That is the issue we address in this group of amendments. I shall address Amendments Nos. 309E, 310, 311, 312 and 313, and also I support Amendments Nos. 311A and 313A which will be spoken to by my noble friend Lady Nicol.
Amendment No. 309E seeks to delete the word "important". We have already heard that it is difficult to define which hedgerows are important. There is a sense in which all hedgerows are important. They are important not only for the reasons which the noble Lord, Lord Dixon-Smith, mentioned; namely, that he loves them and some of them are historic. They also contribute to the visual landscape. They are extremely important from the point of view of biodiversity.
The loss of hedgerows has been a serious depletion of our wildlife habitats in this country over the past 30 years. They provide vital corridors along which many species, some of which are rare, are able to extend their range. The destruction of hedgerows has led to the restriction and isolation of many such species. Sometimes that produces interesting effects. I gather that there is an isolated group of melanistic squirrels. They are black squirrels. They continue to be black because they cannot mix with red squirrels. That is one of the curious consequences of species developing in isolation.
Therefore, hedgerows are important not only because within them breed many varieties of birds, butterflies and insects, but because they also provide important corridors between woodlands and means of escaping predators and getting round fields between other areas which are important to wildlife.
There has been an astonishing depletion of butterfly species over the past 20 years. For example, there has been a catastrophic decline among some fritillaries. The high brown fritillary has declined by 94 per cent. and other fritillaries have declined by more than 40 per cent. in the past 30 to 40 years.
Similarly, many birds have vanished. That is partly due to intensive farming methods. For example, grey partridges, which I remember as a common bird of the countryside in my childhood, have declined by 75 per cent. since 1970. That is in part due to the extensive use of pesticides on our agricultural land, but hedgerows and other areas such as set-aside and isolated promontories within farming areas would provide places where they could continue to breed and develop. In that way they would still be around for noble Lords' children, grandchildren and generations to come.
In those respects hedges are extremely important. They are also important for a variety of economic reasons. East Anglia is in danger of becoming a dust bowl like some parts of central America through the loss of topsoil, which is blown away because there are no hedges to act as wind traps. If one has seen soil erosion in some parts of the world, particularly the Far East, often due to water rather than wind erosion, one knows how astonishingly rapidly agricultural land can vanish. Therefore there is a certain element of enlightened self-interest for farmers in preserving hedgerows. There are therefore important reasons for retaining hedges. It is not only a matter of aesthetics.
I turn now to Amendment No. 310, which may appear on the face of it not to be specific in that it allows the Minister to make regulations relating to landscape features in general. Here we enter the area of such items as stone barns and other aspects of our landscape such as archaeological sites, barrows and so on, which may also be in need of preservation.
Particularly close to my heart are the amendments which relate to ponds, where again grants for drainage have meant that large numbers of ponds have vanished from the countryside over the past 20 or 30 years. Species such as great crested newts, glutinous snails and starfruit are now increasingly scarce.
Lord Stanley of Alderley: Has the noble Baroness considered the figures on ponds? I believe that she will find that ponds have been made in vast numbers. Perhaps I could ask her to make one small alteration to her speech. She referred to hedgerows. Can she possibly say, "Some hedgerows are of no value and some are"?
Baroness Hilton of Eggardon: That point would obviously be defined as a result of the consultation to which we referred in the previous group of amendments regarding which hedgerows were valuable. However, in my view almost all hedgerows are valuable. I disagree with those who say that hedgerows can be easily

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reinstated. The tendency is to reinstate with hawthorn alone rather than with the variety of species which produces the biodiversity about which I speak.
The Earl of Onslow: It is simply not true to say that it is difficult to reinstate hedges. There was a famous case recently of someone who went to a farm and said, "This is the most marvellous hedgerow. It dates back to Anglo-Saxon times becomes of all the different plants in it". The reply was, "No, it does not. I planted it 15 years ago". If you know what you are doing, it is perfectly possible to plant a hedge. One can put all kinds of plants in it. As my noble friend Lord Dixon-Smith said, it is extremely easy to produce a Roman hedge with the right plants. After about 15 years it will look like a Roman hedge.
Baroness Hilton of Eggardon: I am sure that it is possible; I did not say that it was not. However, it is clearly more expensive to plant such a hedge than a straightforward hawthorn hedge. Often the reinstated hedges are far too narrow to be nesting sites for birds and to provide habitat for the biodiversity that we wish to see in our countryside. Hedgerows are important, as are ponds and other aspects of our countryside.
Lord Crickhowell: The more I listen to the debate, the more unhappy I am that we should be passing legislation of this kind. I have every possible sympathy with the objective. I should like to see hedges preserved. But we have a series of amendments which ask us what a hedge is. Is it a Pembrokeshire hedgebank built of earth and stone with thorn and suchlike on top? Is it the kind of hedgebank about which we have heard in the West Country? Is it the kind of hedge that some of my neighbours have in Wales? Such hedges are a curious mixture today of binder twine, old sticks, corrugated iron and uncut original hedge.
What do we mean by "protect"? My noble friend gave a distinction between "protect" and "preserve". I entirely understand the point. Indeed, from the point of view of the NRA, I am anxious to see wind erosion eliminated. I should like to see many hedges protected. But what happens if it is said, "We have a regulation: we shall make it difficult for you to plough up the hedge", but one does not cut the hedge, lay it, and do all the other things that have to be done?
The regulations may tell us all those things. Perhaps they will give a clear definition of how to preserve a hedge, what one has to do with it, how often one has to cut it and what one does when one's Pembrokeshire hedgebank is walked over by tourists travelling the coast path. Perhaps we shall have all the answers. But we are being asked to pass a blank cheque regarding some future regulations which we shall never have an opportunity properly to debate in this Chamber. That is the truth of the matter. I believe that it is a great mistake.
9.30 p.m.
Baroness Nicol: We seem to be abandoning common sense in this debate. If anyone, wherever he or she comes from, sets out to discuss whether or not a hedge is important and worth protection, there is no mystery
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about it; he or she can quickly tell whether it is worth protection. The hotchpotch hedges to which the noble Lord, Lord Crickhowell, referred, obviously do not come into that category unless, as has happened with many so-called hedges that I have seen, they happen to have Victorian brass bedsteads in them—in which case, of course, they have a considerable value!
There is no doubt that many hedgerows are important. Perhaps I may remind the Committee that, in addition to the need to protect biodiversity—to which the Government are committed, and I see no sign that they are withdrawing from that commitment—there is also the question of our responsibilities under the habitats and species directive. Hedgerows are an important element in the responsibilities of the Government and we must try to treat the matter seriously. I sympathise with those farmers who feel that we are treading on their toes, but I hope that when the regulations and the consultation process are in place many of the difficulties will be easy to overcome.
The Countryside Commission provides us with figures. The noble Lord, Lord Stanley of Alderley, seemed to question whether ponds were disappearing. The commission tells us that between 1984 and 1990 England lost 10,000 ponds. That is a serious loss in terms of wildlife protection and, I should have thought, in other terms as well.
I wish to speak to my amendments which propose the inclusion of dry stone walls in the countryside features which need to be protected. The Countryside Commission estimates that during that same period, 1984 to 1990, England lost 4,000 kilometres of dry stone walls. Many of the remaining walls are in poor condition. We have an estimated 112,500 kilometres left, only 4,500 kilometres of which are in anything like reasonable condition. The remainder are in various stages of deterioration and no doubt some are beyond hope.
Surely no Members of the Committee would dispute that dry stone walling is very important in some parts of the country. I do not suggest that we introduce dry stone walls in Kent, Norfolk or even Cambridgeshire, much as I would like to see them there. But they are extremely important in some areas of the country where they are traditional. The landscape would be greatly destroyed if dry stone walls disappeared. The Dry Stone Walling Association of Great Britain has written to me in moving terms. It is struggling to remedy the situation. It says that it is not anxious to encumber the farming communities with excessive legislation but it supports the amendments. I am authorised to say that, had he been able to remain this evening, the chairman of the National Trust would have supported them. Hedgerow protection is also supported by the British Horse Society. If we reach the stage of having a list of consultees, I hope that that society will be considered as being worthy of consultation because, in its sphere of operations, the hedgerows are important. The British Horse Society would like to see the word "important" in regard to hedgerows removed from the Bill. I am sorry that we have had to blur the discussion between the two groups of amendments, but that is how it has happened. The society is concerned—as were earlier

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speakers—that when consultations take place they should be as wide as possible. I do not wish to prolong the debate; I hope that we shall not be carried away with too much detail but retain our common sense.
Earl Peel: We are moving into the world of preserving the countryside in aspic. I fully understand the reasons behind the noble Baroness's amendments. However, speaking personally, I have just sold a large estate in the north of England where stone walls were and still are a major feature of the landscape. I can assure her that the maintenance of those stone walls is an extremely expensive operation. Frankly, if the noble Baroness honestly believes that the best way to preserve the stone walls is to impose a protection order, she has the wrong end of the stick.
Baroness Nicol: If the noble Earl will give way, I assume, and I hope we shall make clear, that all the operations will attract financial support. I would not have it otherwise.
Earl Peel: I am interested to hear the noble Baroness say that, because it does not appear in any of the amendments that are under her name, as I understand it. But certainly, she is absolutely right. I entirely endorse what she says. If we are to go forward with the conservation and management of the countryside, it perhaps has to be encompassed with incentives for people to do the work.
The noble Baroness, Lady Hilton, mentioned partridges. As the recently elected chairman of the Game Conservancy, I endorse much of what she said. She mentioned Norfolk specifically. It is perhaps worth noting that there are still areas in Norfolk where there are great numbers of partridges. The partridges have acted as an incentive to the maintenance of the hedgerows that are still there. It is not simply that the hedgerows encourage the partridges; it is a result of the management of those hedgerows, plus of course the conservation headlands which the Game Conservancy initiated and in which it plays such an important part. Another essential element in the success of the partridge has been proper predator control. I want to move away from that subject, but it is an important point to make.
What concerns me about these amendments is that we are asking farmers to try to preserve and conserve things which perhaps no longer have any value so far as agriculture is concerned. If that is the case, I am sorry to have to say that the public purse must play a major part. You really cannot expect farmers to be involved in maintaining aspects and features of the countryside which are no longer part and parcel of their well-being.
It always amuses me that a great feature in the North of England is the Settle to Carlisle railway and all the marvellous viaducts and bridges that were constructed. But can one imagine what would happen nowadays if somebody sought planning permission for a project like that? They would be laughed out of court. Yet here we are, trying to protect something which we know was accepted in those days but for which nowadays we would never get planning permission. We really must try to take a much more realistic approach to all this. By all means let us protect, and let us conserve. But we
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must accept that if these features are no longer a viable aspect of farming they must be supported from the public purse.
Lord Moran: We must bear in mind that the whole of this discussion is going on against a background of a great deal of public interest and concern in relation to the enormous loss of hedgerows that has occurred in recent years. The Government's own countryside survey in 1990 pointed out that between 1984 and 1990 the loss every year—the complete removal—of hedges was 5,900 miles. Although that rate has gone down more recently, the hedgerows survey that was commissioned by the Department of the Environment from the Institute of Terrestrial Ecology showed that the complete removal of hedgerows between 1990 and 1993 still amounted to 2,200 miles a year. That is the basis of public concern.
I fully agree with the remarks of the noble Earl, Lord Peel, about the need for money to be made available from the public purse if protection for hedgerows is to be written into this Bill. We are to talk about grants a little later. We must bear in mind that only 1 per cent. of the UK budget for the common agricultural policy is allocated to environmental schemes for farmers and land managers. That is where the money needs to be increased.
I should like to say a brief word about Wales in relation to these particular amendments. The Countryside Council for Wales welcomes them because they seek to broaden the scope of the clauses to a wider range of countryside features. We must bear in mind that all that Clause 79 does is to allow the two Secretaries of State—for the environment and for Wales—to make provision for the protection of important hedgerows. I believe that the Countryside Council for Wales is right in talking not about hedgerows but about traditional field boundaries. It points out that in Wales there are hedges; dry-stone walls; earth banks, which are sometimes stone faced; slate fences; ditches; and that many of these traditional boundaries have a wider historical significance as parish boundaries or represent ancient systems of agriculture. The pattern of traditional field boundaries can tell us much about historic land use changes. They mention such features as Offa's Dike. I must declare a non-financial interest as the president of the Offa's Dike Association. They also mention prehistoric field patterns and mediaeval strip fields in other parts of Wales and the mediaeval open field system. It is very important that they should be preserved, and clearly they will be important under the definition of this Bill.
The protection of traditional field boundaries has been one of the objectives of the environmentally sensitive areas programme in Wales and of the Countryside Council for Wales Tir Cymen experimental agri-environmental scheme. In 1992 the CCW introduced the hedgerow renovation scheme for the purpose of protecting, enhancing and securing the effective management of dilapidated hedgerows. It has concluded 227 agreements with farmers and landowners. I am sure that that is the way forward. I have confidence in the department's capacity to work out arrangements under this Bill.

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Obviously it is very difficult to prescribe all the details in a Bill of this kind. But the lines on which I think it is working seem to me to be sensible and I personally welcome it.
Lord Renton: Perhaps I may refer to an amendment which seems to me to create great confusion: namely, Amendment No. 310, which is supported by noble Lords from all parties, including a noble friend on this side of the Committee. To leave out "hedgerows" and insert "countryside features" would cause great confusion. This clause naturally focuses attention on hedgerows, which constitute the main problem that we have to consider. Quite frankly, "countryside features" is incapable of any useful definition.
Let me say a few brief words about the next amendment, which relates to ponds. Many ponds, especially in East Anglia, have disappeared from farms for good reason. One reason that there has been a great improvement is field drainage, especially tile drainage. If tile drainage is carried out properly, a number of old ponds are bound to disappear and have indeed done so. They are not so much needed now that there is very little stock on the farms. I do not feel that we can expect to have those ponds protected or preserved any longer.
The big, worthwhile ponds—those that carry fish and do not dry up in a dry season—are still there. We should not confuse the issue by giving serious attention to the suggestion that "ponds" should be added to "hedgerows".
Lord Stanley of Alderley: I wonder whether the noble Lord, Lord Moran, might like to look at the Answer regarding hedgerows given by my noble friend Lord Ullswater on 22nd July. The noble Lord told the Committee how many hedgerows were taken out, but he did not say how many were put back. He should read that Answer. I think he will find that more were put back than were taken out.
There is another point over which I feel that the noble Lord, Lord Moran, made a mistake. He said that the public were prepared to pay. The public will not be prepared to pay when they are asked to pay for this. In the sheltered life of this Chamber, one may think otherwise. But when you ask the public to pay, they will not do so. It is just like asking them to pay the difference in price between free-range eggs and battery laid eggs. They will go for the battery eggs because they are cheaper.
Finally, I understand what the noble Baroness says. But I hope that the Committee will bear in mind all the time that it is absolutely pointless to try to preserve something that is not of some use. I can tell her, with great feeling—I have seen this over 40 years—that if you try to do that, you will find that the farmer or owner does not have enough time to look after it. He is asked to do so much all the time on the farm. He will just forget to put up the gutter or forget to do the stone walling. We must not preserve something which does not have some use, because it will just fall into decay.
The Duke of Somerset: To emphasise one or two of those points, while I am in general agreement with those
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noble Lords who wish to see hedgerows, ponds and walls preserved—and indeed other countryside features--these amendments are not the best way of going about that.
It is no good just preserving them in the proverbial aspic. If they have lost their economic agricultural function, the regulatory route will not be effective in their preservation. They need to be managed by encouraging their original worthwhile use. This sort of less modern management costs money. A number of management schemes and incentives already exist, such. as the countryside stewardship scheme, the ESAs, and others, which contribute towards this sort of costly management, and those are the sort of schemes that should be extended. That, surely, is the way forward, not the fossilisation of these items. The countryside is primarily a workplace; a place where livings are earned. As we have just heard, the repair of stone walls has a very high labour cost; it is very expensive. Although they are very desirable, that factor has to be recognised, and, most importantly, paid towards by those who wish to enjoy other people's property.
The Earl of Onslow: We must also bear in mind that the whole of the countryside is, at the moment, supported by public money in one way or another. It is the common agricultural policy which has formed the shape of the countryside recently; and it is the common agricultural policy which has destroyed the mixed farm. It is the common agricultural policy which is responsible for the fact that we now have the ridiculous situation where there is too little milk in this country for what we want and yet we are not allowed to produce any more because of the quota system. It is the common agricultural policy which is responsible for the ridiculous system whereby I am paid £129 an acre by you generous taxpayers to do nothing with land.
It is much more sensible that this money should not go on the ridiculous distortions of the common agricultural policy but should be used to encourage people, for want of a better word, to garden and gamekeep. Gardening and gamekeeping in the countryside means what the public want to look at. It does not mean a barbed wire fence, but that somebody should be given encouragement to build a proper, nice, stockproof stake-and-bound hedge. It does mean that dry stone walling should be encouraged and looked after.
In Wales there is a place called the Crimea Pass. It is called the Crimea Pass because all the stone walls were built by Russian prisoners-of-war captured at Inkerman and Balaclava. That source of labour for repair is no longer available. We must have a policy which looks at the countryside as a whole, looks at it properly, and looks at it as other than just a farming industry based on subsidy.
We have already taken the view that we will give grants for the native species of English woodlands rather than conifers—consider the terrible damage the conifer grants have done to vast areas of Scotland and Wales. I beg the Committee to look at it in that way.

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As to the clause, I am in agreement with my noble friend Lord Crickhowell. I am not happy about it. I think we know, more or less what we want to do, but I do not think that this is the right way of going about it.
Lord Monk Bretton: I wonder how necessary these amendments really are. Supporters of these amendments would gain some hope if they were to realise that help is already available. Farmers can be assisted over management of stone walls and ponds under existing land management schemes. The most important ponds are also covered by the SSSI system. I hope it will be found that perhaps these amendments are not as vitally necessary as might appear.
Baroness David: I was under the impression that these are probing amendments which would show that the clause is totally unsatisfactory. That has been quite clear from the long time we have been talking about it. We do not have the regulations so we do not know what the Government are going to put into them. But there is a great deal of dissatisfaction with what is there and it seems to me that the amendments are trying to find out and show where the worries are.
Why do we have all these conservation bodies? We give a lot of money to English Nature. We give money to the Countryside Commission, to the Countryside Commission for Wales, to Scottish Heritage, and so on. More than just agriculture is involved, although I totally sympathise with much of what has been said. I was very much in agreement with what the noble Earl, Lord Onslow, said a minute or two ago.
My name is attached to one of the amendments and I meant to put it to another. I am particularly interested in dry stone walls. I spend a good deal of time in the Yorkshire Dales where they are a very important feature. They are very expensive to keep up and a lot of them are being broken down. But a certain amount of public money is going into them from the Yorkshire Dales National Park. I do not know whether the noble Earl, Lord Peel, is still on the council of that national park, but he must know all about that. I understand that, although a good deal of public money in the shape of grants has gone into trying to restore some of these walls, only 30.5 kilometres of wall were rebuilt last year. The scale of the problem is illustrated by the fact that this amounts to just 0.4 per cent. of the total length of walling. There is a great deal to be done.
I wanted to say a good deal more about the Yorkshire Dales and dry stone walling but I do not think it would be very popular at this time of night. I hope that enough has been said for the Government to think again about this clause. Perhaps we can come back with amendments that are more acceptable or the Government will come back, having listened to all that has been said tonight, with the clause redrawn.
Earl Peel: The noble Baroness raised the question of finance, which is what it is all about. English Nature has a budget of just under £40 million. The Countryside Commission has a budget of just over £40 million. The Yorkshire Dales National Park has a budget of around
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£3.2 million. However, they are simply not able to deal with this problem because they are committed to a whole range and multitude of other things.
The noble Baroness has perhaps inadvertently illustrated exactly the point we are talking about. If we want to preserve these features in the way Members of the Committee seem to want, the amount of money involved will be huge. I go back to the point made by the noble Lord, Lord Moran, who was absolutely right. If we are to deal with this problem in a meaningful and significant way, we have to change the emphasis of how the CAP is orchestrated at the moment and we have to move away from agricultural output and start moving towards the environment. That is the only way that this problem will be sorted out.
Lord Williams of Elvel: I hesitated to intervene in this debate until now because I have a pecuniary interest, as it seems many noble Lords opposite have. I own a hedge which has a bedstead in. I own 33 acres of grassland in mid-Wales and I own some stone walls. Like the noble Earl, Lord Onslow, I receive grant for what in mid-Wales we call pleaching hedges.
The noble Earl, Lord Peel, put his finger on the fact that in the end it comes down to money. However, one must sympathise with farmers who are trying to make a living in very difficult conditions—that is particularly so in my part of the world in Wales—and who are being asked, or being told, to do something that is wholly uneconomic and wholly contrary to what they are used to doing. Again, I join with the noble Earl, Lord Peel, in saying that if we can reform the CAP legislation, let us do it for goodness sake. But as the noble Lord, Lord Moran, said, we must look at the concept of an environmentally sensitive area. We are in one in Radnor and I have signed a contract under an ESA agreement to get money to maintain the countryside features which are identified by the Welsh Office.
That is the way in which we have to move. When one considers the amendments which my noble friend has moved and spoken to and also by my noble friend Lady Nicol, and Clause 80 which gives grants, when taken as an ensemble one gets very close to the ESA type of scheme. As the noble Earl, Lord Peel, has quite rightly said, unfortunately the money is simply not there to make the whole of England and Wales an ESA. That is something which the Government will have to address before we get much further in the Bill. There is an illogicality here which many Members of the Committee have pointed out.
Viscount Ullswater: The words of the noble Lord, Lord Williams, are very good ones on which to start my reply. If the illogicality exists, then it is effectively demonstrated by these amendments. With this clause we are trying to identify important hedgerows. The amendments spread the matter very widely without really a thought as to how the provision is going to be funded. I shall come to funding later.
The noble Baroness, Lady David, said that there was something wrong with the clause. My own view is that it is all right; it is just the amendments which are being added that is making a very difficult position. As drafted, Clause 79 confers power to make regulations

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for the protection of important hedgerows. Amendment No. 309E moved by the noble Baroness, Lady Hilton, seeks to leave out the word "important" and the effect would be to substitute the more general power.
The noble Lord, Lord Moran, quoted from the research that the DoE published in July last year, but he quoted to suit his own argument. As my noble friend Lord Stanley of Alderley pointed out to the Committee, he quoted only the fact that 2,200 miles of hedgerows—I am not sure that that is the correct figure, but I take it from the noble Lord—had been lost. The research indicated that more hedgerows were planted in England and Wales than were removed during the period 1990 to 1993. Therefore to quote only one side of the argument is to mislead the Committee in some way.
The trend is welcome, reflecting further links between conservation and land management. However, we recognise that new planting cannot substitute for the loss of some hedgerows—I made that point when speaking to a previous amendment—such as the ancient parish or community boundary hedge. It is the protection of important hedgerows that this clause sets out to achieve, and I consider it reasonable to focus the clause in that way.
The purpose of the rest of the amendments in this group is to extend the scope of Clause 79 which makes specific provision for the protection of important hedgerows to encompass countryside features, drystone walls and ponds.
Amendments Nos. 310 and 312 would enable Ministers to bring forward regulations to protect important countryside features. That is a term which is not defined by the amendments but it is presumably intended to include hedgerows and other field boundaries such as walls, banks, dykes and, quite possibly, other features as well.
Amendments Nos. 311, 311A, 313 and 313A would similarly enable Ministers to make regulations to protect important ponds and drystone walls respectively. Clause 79 is intended to focus on the specific problem of hedgerow removal. It honours a longstanding government commitment to bring forward statutory controls. Hedgerows can make a unique contribution to the landscape. My noble friend Lord Crickhowell described one which is perhaps not unique because I believe it was recognised by many Members of the Committee as being quite a feature of the landscape.
They can also support an extremely rich range of flora and fauna and make a significant contribution to biodiversity. They may in addition mark the boundaries of early settlements and have other particular historical significance. Our commitment to protect important hedgerows has been made in the light of their unique qualities and vulnerability as indicated by the results of detailed research documenting the rates of hedgerow losses between 1984 and 1993.
As regards other countryside features, including dry-stone walls, the 1990 Countryside Survey provided some evidence that their numbers had declined during the period 1984 to 1990. But that research is now somewhat out of date. Developments during the 1990s generally suggest downward trends in removal of
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countryside features. In particular, changes in agricultural policies have placed greater emphasis on conservation. Conservation advice to land managers is increasingly accessible. I must tell my noble friend Lord Peel that more management grants are now available to help land managers restore neglected countryside features: Countryside Stewardship in England and the equivalent scheme in Wales, for example, launched in the 1990s, offer assistance for the restoration of boundary features such as stone walls, earth banks and stone-faced hedge banks as well as hedgerows. These are just two of a range of initiatives—environmentally sensitive areas and the farm and conservation grant scheme are others—which encourage the creation of new countryside features and the management of existing ones.
Lord Willoughby de Broke: Is it right that the farm conservation scheme has recently been reduced from 40 per cent. to 25 per cent.?
Viscount Ullswater: I am advised that pollution grants have been reduced but not countryside feature grants. My noble friend Lord Peel said that nothing would happen unless it was supported by some financial incentive. We promote the planting and management of hedgerows through a range of incentives, including Countryside Stewardship, which incorporates the hedgerow incentive scheme, and MAFF's farm and conservation grant scheme in environmentally sensitive areas. Those schemes are unaffected by the hedgerow protection scheme and there is no direct linkage between them.
Turning to the question of ponds, we have in fact looked again at the figures from the 1990 Countryside Survey, which indicated a maximum reduction of 11.5 per cent. in the number of ponds between 1984 and 1990 in Great Britain. We wanted to analyse this data further because 1990 was a year of drought conditions in the south and to the east of Great Britain. It was unclear how many of the ponds "lost" in that year had in fact only dried out temporarily. The results of our modest re-survey, which were published by my honourable friend the Minister for the Environment and Countryside in December 1994, confirmed that a number of the small ponds which were dry in 1990 had been reinstated by 1993. The best estimate of the rate of pond loss between 1984 and 1990 was revised to within the range of 4 per cent. to 9 per cent. The re-survey also provided some limited evidence that new ponds created for farming and wildlife reasons are beginning to offset earlier losses. Detailed research is needed to verify more recent trends, and the Government intend to carry out a further national survey of ponds in 1996.
Leaving aside the question of research, the Committee will not need reminding that the most important countryside features and ponds will continue to enjoy protection through our system of designated sites of special scientific interest (SSSIs), which ensures that the nature conservation interest is taken fully into account before development and changes in management practice that would cause damage are permitted. Promoting nature conservation is not an objective which applies only in SSSIs, and the

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Government look to local authorities to include in their development plans policies for the protection of habitats, including non-statutory sites of local importance.
In view of the protection that already exists, the range of incentives already available to maintain our range of countryside features, and the lack of current research that presents a compelling case for new controls in 1995, I do not believe that the special measures as proposed here are currently necessary to protect features other than hedgerows, and we must not impose the burden of new regulations unless we are satisfied that there are sound reasons for doing so.
My noble friend Lord Renton said that we should allow the clause to concentrate on important hedgerows and I believe that to be correct. Having said that, I hope that the noble Baroness will withdraw the amendment.
Lord Moran: I fully accept the Minister's rebuke about my failure to mention the hedges replanted between 1990 and 1993. I agree that there were slightly more than the total number taken out and I have no wish to mislead the Committee. Does the Minister agree that the ITE report to which we referred quoted an overall loss of 45,000 kilometres because of lines of bushes that had fallen out of the classification of hedgerow as a result of the lack of management?
Viscount Ullswater: We shall be consulting on what we consider to be important hedges. Our research will indicate the suitable criteria for the notification scheme. I do not believe that I need comment further.
Baroness Hilton of Eggardon: I am somewhat comforted by the enthusiasm with which the Minister speaks of hedges. It encourages me to believe that the regulations, when they appear, may go some way towards protecting them. I am less reassured as regards ponds but, clearly, the department has at least considered them and perhaps we are seeing a reversal of the trend towards their disappearance.
The amendment was intended as a probing amendment partly because we had no indication of when the regulations would appear and partly because we considered that the clause was too narrowly drawn and that landscape features other than hedgerows might be considered. We will consider the matter further, together with the Minister's reply, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 310 to 313A not moved.]
The Earl of Lytton The Earl of Lytton moved Amendment No. 313AZA:
Page 87, line 2 leave out from ("shall") to end of line 4 and insert ("not be made unless a draft of the statutory instrument has been laid before and approved by a resolution of each House of Parliament.").
The noble Earl said: Having regard to the hour, I shall be as brief as possible. I hope that my amendment represents a partial answer to some of the anxieties expressed by Members of the Committee. It suggests that the regulations under Clause 79 shall be made by affirmative instrument and therefore come before both
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Houses of Parliament for further consideration. That will tie in the result of the Government's investigations, research and consultation.
Clause 79 provides that such regulations shall be made subject to negative procedure only and I believe that to be inadequate. I believe that we have heard enough in Committee tonight to justify that conclusion. There are issues that must be discussed by Parliament before any regulations come into force.
I believe that, if we are not careful, land managers will consider the system proposed in certain quarters of the Committee to be unfairly loaded against them. They may come to the conclusion that the local authorities are under no duty to take into account their interests as farmers and land managers. Therefore, any system of protection must be based on a certain degree of mutual trust and goodwill. I alluded to that earlier when referring to the common ownership and identity with policies. I cannot stress that point too strongly.
A negative regulatory approach under which those interests are ignored would be disastrous. If land managers must constantly appeal against decisions to protect hedgerows, in particular if the appeals system is long-winded, that will be highly damaging to the long-term prospects for hedges. I submit that the sustainable development principle requires an element of equal weighting to be given to environmental protection on the one hand and legitimate socio-economic development considerations on the other. Any regulations need to flag that issue with local authorities.
Therefore, I hope that the Minister will confirm that in due course, when the notification scheme comes into being, it will require local authorities, in deciding what action to take with regard to protecting hedgerows, to have due regard to the socio-economic business and operational reasons of land managers and that it must balance those fairly with other considerations.
Reference has been made to the Institute of Terrestrial Ecology and the noble Lord, Lord Moran, has just commented on loss through lack of management. That underscores more compellingly than anything that the real problems arise in relation to non-management. That is the biggest loss and is far and away in excess of damage caused. There is also a great loss as regards biodiversity. I can say with some feeling from my experiences in Exmoor that, while I have some hedges which are well managed, others have long since become mere vestiges of a bank with a few trees left to mark where the hedge once was. Therefore, it is vital that we have active management and I should like to flag that in particular.
On Second Reading the Minister commented on the hedgerows of particular historic interest or those which make an especially valuable contribution to the wildlife or landscape of an area. It must be remembered that every time, in the course of normal management, a hedge is cut and laid by whatever particular technique one wishes to use, its visual appearance is altered immediately and for some time. Nevertheless, it is an essential part of management; it cannot be otherwise. Therefore, there must be a proper balance between landscape, management and ecology.
I believe that the solution is to provide some sort of management agreement. There must be an incentive to encourage land managers to maintain those important structures in the countryside. There must be a direct link between the protection of hedgerows and the offer of some sort of management agreement to help with that process; in other words, no designation without contribution.
My experience from Exmoor is that there is no money for extra conservation work. Whether it relates to SSSIs or Section 3 of the Wildlife and Countryside (Amendment) Act, it seems that all the agencies are saying to me, "I am sorry. We have no money. Our budget is fully spoken for. There is nothing for this purpose". That must change because, as the noble Earl, Lord Peel, said earlier, it boils down to money. It cannot be done without paying real people to wield real tools in order to lay hedges and maintain them.
I hope that the Minister will confirm that it is the intention of the Government that local authorities will be required to offer agreements to land managers as part and parcel of that protection process. I beg to move.
10.15 p.m.
The Duke of Somerset: I should like to express my support for the amendment moved by my noble friend Lord Lytton. As a landowner, I am very keen to see important hedgerows preserved. However, that must be done through full consultation and scrutiny both inside and outside Parliament—and, thus, by affirmative resolution. The general provisions are too vague. We have not yet even considered the economic effect on rural businesses. If people in the upland hills were to get into financial difficulties, we would quickly see the degradation of the countryside along with the hedgerows. Therefore, the regulations must be debated in both Houses; this matter must not be left to unscrutinised regulation. As I said, I support the amendment.
The Earl of Onslow: It is absolutely vital that such regulations should be debated before they become law. I know that we have a great problem in that respect. Regulations, whether they be subject to the negative or affirmative procedure, are always unamendable. I suggest that it would be much better if the Government tabled the regulations for discussion. The regulations could be imposed following a debate. Once they have been debated and the Government have listened to what people say, I do not believe it matters whether the regulations are subject to the negative or the affirmative resolution procedure. It is vitally important that they should be debated and that we do not have to accept them lock, stock and barrel. That is the difficulty. Judging by the vagueness of Clause 79, it seems to me that the regulations will run into very many pages. That must be an unsatisfactory method of proceeding.
Earl Peel: If my noble friend is saying that there needs to be full debate in both Houses of Parliament as well as consultation, I entirely agree with him.
Viscount Ullswater: The amendment moved by the noble Earl, Lord Lytton, seeks to provide that the hedgerow regulations made under the clause are laid before both Houses of Parliament, subject to the affirmative resolution procedure. I can assure Members of the Committee that we intend to bring forward regulations under the clause which will reflect the views of Parliament and the outcome of separate consultation. As drafted, Clause 79(4) provides that the regulations will be subject to the negative procedure.
However, notwithstanding the absence of any adverse comment in the report of the Delegated Powers Scrutiny Committee, I have listened carefully to what has been said not only on this amendment but also on the previous amendment (Amendment No. 309C) moved by my noble friend Lord Wade of Chorlton. At that time I indicated that I would consider carefully whether some form of statutory consultation process should take place. We now have before us another suggested method which I should like to consider alongside the one previously discussed. Having said that, I hope that the noble Earl will feel able to withdraw his amendment.
Lord Crickhowell: I wanted to hear my noble friend's response before speaking to the amendment. I should like to reinforce the point that I made earlier. I may have given the impression—I hope I did not—that I am not anxious to protect hedgerows. I am. I live near Offa's Dyke. I am surrounded by quite important old hedgerows, some of which are in bad condition. Moreover, I should like to preserve many dry stone walls that are falling down. I believe that the clause is most unsatisfactory. The very length of our debate and what has been said indicates that Parliament must have an opportunity thoroughly to examine the matter.
There are two alternatives before us. There is the approach that is about to be discussed in connection with the following group of amendments in which we have an immensely long schedule that Parliament can approve as part of the Bill; or we have a system whereby we have regulations which Parliament would have the opportunity to influence and alter. It would be intolerable if such regulations which could have an enormous impact on people who live in the countryside were passed without proper debate in Parliament.
The Earl of Lytton: I was greatly heartened by the Minister's response. Like the noble Lord, Lord Crickhowell, I am a great believer in hedges; indeed, on top of Exmoor one has to be a believer in hedges because otherwise one's livestock would get blown away. As someone who planted about 500 yards of hedges last winter, I am very much committed to them. However, I believe that I have to give the Government the benefit of the doubt.
I am grateful for the careful way in which the Minister addressed the problem. I look forward to seeing what the noble Viscount brings forward at a later stage. While reserving my position, and subject to what the Minster may bring forward, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Marlesford Lord Marlesford moved Amendment No. 313AA:
Leave out Clause 79 and insert the following new clause:
("Hedgerows
.Schedule (Hedgerows) to this Act, which makes provision for the protection of hedgerows, shall have effect.").
The noble Lord said: I, too, have a variety of interests to declare. I also am a farmer. Unlike my noble friend Lord Wade, I make a profit on my farm. I am sorry that he has gone, as this is probably the only time that I shall be able to claim to be a better businessman than he is. Even so, I am rather doubtful about making such a claim. I have also removed hedges when I should not have done, have perhaps reasonably removed others and have planted some too. I am a member of the CLA and also chairman of the Council for the Protection of Rural England.
A procedural problem has arisen this evening. This was almost hinted at by my noble friend Lord Crickhowell. It might have been helpful if this particular amendment had been dealt with at an earlier stage in the debate. I say that, not because there is anything special about what I have to say, but because your Lordships' House has turned its attention to the subject. The Government, which I am proud to support, has had a commitment to hedgerow legislation since the 1990 White Paper on the environment five years ago. Two years ago, in May 1993, my honourable friend Mr. Peter Ainsworth in another place introduced legislation that went through Committee stage but, being a Private Member's Bill, fell at Report because of lack of time. In order to help both the Committee and the Government, I tabled as an amendment the Ainsworth Bill as far as it got, as amended in line with helpful suggestions made by the Government at various stages since that time. For example, my noble friend will recognise that the amendment now excludes young hedges, unless they have been paid for by public money. I hope that noble Lords will feel it worth looking at it. One knows how tiresome it is to look at long schedules. However, this schedule is in a sense a Bill that seeks to replace Clause 79. I do not for a moment say that this is the end of the discussion. However, having listened to the debate, it appears that your Lordships are united on two matters. I believe that all noble Lords are fairly pro hedges to a greater or lesser extent. Equally, almost everyone feels that the clause as now drafted is, to put it politely, somewhat imperfect. That does not mean that the Government's heart is not absolutely in the right place. The question is where the balance should lie between what is in the Bill and what is done by regulation. No one pretends that the whole thing should be done in either way.
Perhaps I may quickly run through the main features of the amendment. Paragraph 1 creates the offence of uprooting a hedge. Paragraph 2 sets out the notification procedure to be followed before someone may carry out work that causes the destruction or impairment of a protected hedge. Paragraph 3 is supplementary and provides for notice of any proposals from tenant or owner. Paragraph 4 describes the appeal procedure. It states that the Secretary of State may in certain cases—
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this meets the most important point raised by several of your Lordships—where the economic operation of a farm is seriously impaired, allow the hedge to be removed.
Paragraph 5 lists certain categories of work which are permitted under the Bill and not subject to the notification requirements. Paragraph 6 deals with the duty to reinstate in certain circumstances. Paragraph 7 deals with the enforcement of the duty to reinstate. Paragraph 8 provides an appeal mechanism against hedgerow enforcement and sets out grounds for appeals to the Secretary of State against an enforcement notice served by a local planning authority. Paragraph 9 provides for the offence of failing to comply with an enforcement notice. Paragraph 10 deals with the execution of work by a local planning authority and gives the authority power to do the necessary reinstatement where the work specified in an enforcement notice has not been done. Paragraph 11 deals with certain records.
With that description, I have galloped through a Bill which was the subject of many hours of discussion in another place.
At this stage I hope that the Government will recognise that the clause as drafted is not adequate. I do not ask my noble friend to say that the Government will accept the Ainsworth Bill, but I hope that at least in bringing forward as a result of this evening's debate amendments which may already have been suggested as possible, the Government will take it into account.
We should accept that hedges have been quite well looked after in certain cases and that in other cases they have not. In general, private landowners and farmers have looked after hedges well. I am not sure whether my noble friend Lord Monk Bretton comes into that category. Certainly my noble friend Lord Dixon-Smith does. My noble friend Lord Tollemache, who was here a few moments ago, has hedges which are well worth a visit. They are worth at least two stars in the Michelin guide, or perhaps three stars—vaut le voyage.
The greatest damage to hedges probably occurred in the 1980s, when it became fashionable for fund managers to seek to include agricultural land in their portfolios. It was a small amount of land in terms of investment, but a large amount of land in terms of area. Much of it was in East Anglia. They paid much too much for the land. I am glad to say that in real terms they still show a substantial loss on their investments. They put in managers with instructions to get a return. That resulted in the massacring of many features of the landscape, particularly hedges. That was a period of serious loss. The noble Lord, Lord Moran. referred to the ITE survey, which showed that in the period 1990–93 each year 14,000 miles of hedges had to be classified as no longer being worthy of being called hedges. By any standards that is a significant loss of hedges.
One must recognise that some of the assumptions about hedges are myths. My noble friend Lord Elton said that many hedges are not particularly old. The authority before whom I would bow is Mr. Oliver Rackham, who, in his seminal history of the English countryside, says that about half of Britain's hedges

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today originate from prehistoric, Roman, Anglo-Saxon, mediaeval and 16th and 17th century times. The other half were planted between 1750 and 1850 as a result of the great enclosures. Until about 1945 there was very little loss of hedges. Mr. Rackham writes:
"The loss of hedges began after World War H and is now the most familiar aspect of the destruction of the English countryside. It has affected mainly the eastern counties, where some areas richly hedged … are now as featureless as any desert; but the west and even Cornwall, has not entirely escaped".
I believe that the Committee generally believes that legislation along these lines is necessary. There are, of course, reservations on four or five points, which I shall deal with briefly. First, there is the need not to have more regulation. No one wants regulations if they can be avoided. The second relates to the question of definition. One cannot have a universal definition of hedges. It clearly has to be done by region; and that has to be by regulation and not by provisions in the Bill.
The cost of maintenance has been referred to a number of times. My noble friend Lord Stanley of Alderley said that the public will not pay—almost as though the public would be asked to "ante-up" 50p. The public will not pay for the Armed Forces if they are asked to ante-up 50p. But the simple fact is that the public want and need the defence of the realm and they want a beautiful, enjoyable and accessible countryside. They will therefore pay; and I believe that they would far prefer that money which is currently used to produce surplus food which is then stored or dumped should be used for the conservation of such things as hedges. That point has been made by a number of noble Lords on all sides of the Chamber.
No one should neglect the importance of farming. I am a medium-sized farmer by Suffolk standards. It is possible to farm profitably and yet with the conservation and maintenance of hedges in mind. Finally, I do not believe that any of us wishes to fossilise the countryside. It would not be possible even if we wished to do so.
I apologise because I have rather galloped through what I wished to say because of the lateness of the hour. At least what I have said is rather shorter than my amendment. I shall be interested to hear my noble friend's reply to the debate. I hope that we shall be able to move forward from Clause 79 as it now stands. I beg to move.
Lord Stanley of Alderley: Perhaps I may—
10.30 p.m.
Lord Beaumont of Whitley: I have put my name to the amendment, if the noble Lord will allow me to speak.
For better or worse, we are moving towards the end of the topic for tonight, and possibly for another fortnight or three weeks. I have refrained from intervening in the earlier debate on the subject, largely because I agreed with the noble Lord, Lord Marlesford, that it was a pity that the amendment could not be taken earlier. We need an overall approach to the issue. It is not that I did not have views about which I might have intervened. In the debate between stake and bound, and
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cut and laid, I must confess that I am on the side of the noble Earl, Lord Onslow. I believe that cut and laid is considerably more elegant. If one grows hedgerows and does not look after them in those areas of England where growth is considerable, one ends up with a bullfinch. That is an even greater challenge to someone like the noble Earl, Lord Onslow, who likes jumping over or through them.
We do not know how the agricultural scene and the countryside will develop over the next few years. If we had made a forecast five, 10, 15 or 20 years ago, we would probably have got it wrong. In the new world of sustainable development, living in an over-populated country, we do not know what the pattern of agriculture will be. I suspect that most of the forecasts made this evening will be proved wrong.
My party has produced a paper on agriculture which has come to a conclusion rather along the lines referred to by the noble Lord, Lord Moran: that probably in the future there will be individual contracts with individual farmers. In that way one can avoid the suspicion of the general public that some farmers are making an enormous amount of money while others are almost starving. One is able to tailor the provisions to the individual farm. It will be immensely complicated, but it may be the way in which what is happening at the moment will develop. If that is so, surely with hedges we do not want suddenly to pursue one course or the other. We have had enough of that and it has been too drastic over the past 25 or 30 years. We want to see a way of stabilising and making certain that change—which must of course happen; we do not want the countryside kept in aspic, as speakers have said—is managed over time. In order to do that, we need an overall approach. The new Bill with this amendment incorporated has been discussed over a long time and it stands a better chance of being successful than the present clause. That is why I hope that the Government will seriously consider taking that road.
Lord Bridges: I support the amendment suggested by the noble Lord, Lord Marlesford. I am attracted by it for three reasons. First, it seems to me to be an excellent idea to build upon the work already done in another place. It offers a practical and sensible way forward, illustrating co-operation between the two Houses which we are not often able to achieve.
A second advantage which seems to me significant is that the noble Lord's solution avoids the necessity to attempt to define an important hedgerow. Listening to the discussion earlier this evening, I had nightmares of meetings of Whitehall committees between distracted officials and Ministers trying to find a proper definition. I believe that that is not the line we should pursue.
Thirdly, I happen to come from the same draughty corner of East Anglia as the noble Lord, Lord Marlesford. We need hedges there, the loss of them over the past 20 years has been severe. It is true that recently some have been put back in considerable numbers, but we have lost much soil. This is the time of year when a dry spring and a newly sown crop can be blown away

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and I am sure that the loss. of our hedges has caused the loss of a great deal of soil. I therefore hope that the amendment will find favour with the Committee.
Lord Stanley of Alderley: At some stage I must break cover and make my views clear about the amendment and the clause. I dislike the amendment intensely and I dislike Clause 75 intensely. Both tell or order farmers to preserve something—in this case hedgerows. If there is one way not to preserve something, it is to tell or order farmers to do something when, in practice, no money or influence will make them do it. We will not be able to stop them destroying the hedgerows if they so wish. From these comfortable Benches, Members of the Committee may think they can, but they cannot. If we really want hedgerows to be preserved—and I happen to believe that some should be—the correct way is with the carrot, as many speakers have said. Sadly, however, as the noble Lord, Lord Williams, clearly pointed out, there is not enough money to pay for the carrot. That is the great trouble.
Lastly, the amendment of my noble friend Lord Marlesford does not address the vital point of management. We shall have to address that if we want to keep the hedgerows, but to make laws about preserving them is a total and utter waste of time.
Earl Peel: My noble friend Lord Marlesford said that we needed to seek a balance. I had the feeling that we had already sought it through what the Government propose in the clause and the vague acceptance of my noble friend on the Front Bench of the two amendments of my noble friend Lord Wade and the amendment of my noble friend Lord Lytton. I am convinced that if the Government were persuaded to accept the principle of those two, this balance has been achieved.
The noble Lord has overstretched the "aspic" argument on this matter. We are looking at a grand preservation scheme. It is a "Fortnum & Mason" amendment. There is no consultation procedure. We have not addressed the problem of what is an important hedge. Will local authorities—if indeed they are to be the authorities involved—operate consistently throughout the country? These issues have to be addressed, and they can only be addressed through the process of the regulations, as suggested by my noble friend Lord Wade.
Finally, my noble friend said that his clause was very similar (more or less identical) to that which was introduced in another place by Mr. Ainsworth. But he also went on to say that that particular Bill did not succeed through lack of time. With the best will in the world, I think that is a euphemism for the fact that the other place did not accept it. I see no reason why, if it was not accepted then, it should be accepted by another place now. That alone is, quite honestly, as good a reason as any to reject my-noble friend's amendment.
Viscount Ullswater: Amendment No. 313AA, tabled by my noble friend Lord Marlesford and the noble Lord, Lord Beaumont, and Amendment No. 335ZBC, spoken to by my noble friend Lord Marlesford, place detailed provisions for the protection of hedgerows on the face of the Bill.
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Amendment No. 313AA replaces the present Clause 79 with a brief clause giving effect to a new schedule. The new schedule, which is set out in Amendment No. 335ZBC, broadly corresponds with the provisions of the Private Member's Bill brought before another place by my honourable friend Peter Ainsworth in 1992–93. I have noted that my noble friend has made a number of revisions to reflect comments that I made during the Second Reading debate, which he acknowledged.
Two years ago, the Government supported the Private Member's Bill to which I have referred and which these amendments seek to carry forward. I made clear during the Second Reading of this Bill that we envisage bringing forward in regulations a notification scheme similar to the one proposed in these amendments, but that such a proposal should first be the subject of prior consultation both in and outside Parliament.
Members of the Committee will also note, if they glance through Amendment No. 335ZBC, that these provisions attempt to settle not only the general principles of a notification scheme but more or less all of its detailed arrangements. We believe that all these matters, the general principles and the detailed arrangements, should be the subject of wider consultation.
I should like to outline two reasons for this approach. First, the Private Member's Bill was promoted in the light of the 1990 countryside survey; and we know, following our further hedgerow survey published in July last year, that the average annual removal between 1990 and 1993 fell significantly to some 3,600 kilometres.
Although we remain committed to introducing measures for the protection of important hedgerows, and consider that this is best achieved by a notification scheme, we must ensure that the final scheme reflects the scale of the problem as we perceive it in 1995. It does not necessarily follow that all the provisions of a Private Member's Bill introduced two years ago and based on research carried out five years ago are suitable for inclusion in legislation today.
Secondly, I should point out to the Committee that the Private Member's Bill was itself subject to wide-ranging debate before its fall in another place. Almost every aspect of the Bill attracted amendments, as I think my noble friend Lord Peel indicated. The debates reflected the real difficulties that must be addressed if a proper balance is to be struck between the concerns of the public at large who wish to see important hedgerows protected effectively, and the interests of the individual who wishes to ensure that any controls which are placed on his or her daily life or business are limited to those that are necessary and fair.
For these reasons, we believe that all details of the hedgerow protection scheme should be brought forward only after we have listened to views expressed not only in this Chamber and in another place as the Bill makes its way towards the statute book, but also following wider consultation.
The effect of these amendments would be to pre-empt such consultation, although that seemed to be quite all right in the view of the noble Lord, Lord Bridges. But

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my noble friend Lord Peel quite rightly stressed that this would be without any consultation. Therefore, I invite the noble Lord to withdraw his amendment.
10.45 p.m.
Lord Norrie: Before the noble Viscount sits down, does he agree that secondary legislation introduces too great an element of uncertainty? Amendment No. 313A would avoid any uncertainty by incorporating the hedgerow notification directly into the Bill.
Viscount Ullswater: I indicated at a much earlier stage that this would be subject to a great deal of consultation. I indicated to the noble Lord, Lord Wade, that we would be considering whether we should put that consultation in a statutory way on the face of the Bill. I also said that we may even consider whether it should be subject to affirmative resolution. I believe that that dispenses with the fact that it is a known scheme. There is no uncertainty.
Lord Marlesford: I believe that the sense of the Committee overall this evening has been that significant modifications to Clause 79 in the Bill as it stands are needed. There have been certain indications of where those modifications may be made. Obviously, this evening I shall not press the amendment, which puts forward some rather detailed modifications. We shall be able to return to this subject on Report with whatever further amendments seem appropriate. In the meantime, I ask the leave of the Committee to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 79 agreed to.
Clause 80 [Grants for purposes conducive to conservation]:
Baroness Nicol Baroness Nicol moved Amendment No. 313B:
Page 87, line 5, leave out from ("Treasury") to ("conducive") in line 8 and insert ("shall by regulation ensure that all agriculture and forestry payments are").
The noble Baroness said: At this late hour I do not propose to employ any arguments or illustrations in support of these amendments. I shall simply call them so that the Minister can give us the answer, which we are all very anxious to hear.
I simply wish to say that all these amendments provide in Clauses 80 and 81 an opportunity to improve the level of care for environmental considerations in farming and forestry practices. Too many of the present policies are not designed to include those issues.
Amendment No. 313B would put a duty on MAFF to consider such issues when designing or modifying farming and forestry schemes. Amendments Nos. 314A and 314C highlight the importance of cultural and historical landscape features and buildings in all such schemes. For the benefit of the noble Earl, Lord Peel, and the noble Lord, Lord Stanley of Alderley, I consider grants to farmers to conserve such important buildings are essential. The changes proposed in those three amendments are echoed in Amendments Nos. 324B, 324C and 324D.
Amendment No. 314B would ensure that all schemes designed for the public enjoyment of the countryside are consistent with conservation needs.
Amendment No. 314D puts responsibility on the Minister to give due regard to locally important landscapes. I underline the word "locally" in that context. I am sure that the Minister will respond to it.
Amendment No. 315B would require all payments made under this clause to be the subject of environmental assessment.
Finally, Amendment No. 315A addresses the specific problem in national parks and seeks to make the park authorities responsible for the administration of grants for purposes conducive to conservation. I beg to move Amendment No. 313B.
Lord Walpole: Perhaps I may say very briefly, in view of the time, that I obviously support everything that the noble Baroness, Lady Nicol, has just said. It widens out the measure to the more cultural, archaeological aspects and so on. I am afraid that that is what the Committee would expect me to say at this hour of the night. I strongly support the amendments.
Earl Peel: Unless I am very much mistaken, Amendment No. 313B, taken in isolation, would remove the ability of the Minister to make any provision for grants under this clause at all. So from that point of view alone, with the greatest respect to the noble Baroness, I feel that the amendment is rather strangely worded.
Equally, as I see it, Amendment No. 315A, as worded, would give the national parks a monopoly of providing grants throughout the countryside. I am sure that even my noble friend Lord Norrie would not want to see that happen.
As to Amendment No 315A, it would be a mistake if we were to pass over to the national park authorities the grant-making ability from the Government organisations and departments that have the expertise and the specialist knowledge to award them. I hope that the Committee will reject at least those two amendments
Lord Beaumont of Whitley: I want to speak briefly to Amendment No. 314, which has been grouped with these amendments but has not yet been mentioned. I shall not go any further with it tonight because to a certain extent it is about organic farming. The noble Lord who is the expert on organic farming on the opposite Benches is not with us this evening, so I shall wait until the next stage to discuss it.
There is a need for a wide ability to give grants, which help move agriculture in the right direction at the same time as preserving the countryside, and which produce the necessary amounts of carrots and sticks. That is the purpose of that amendment, and no doubt we shall come back to it on Report.
Lord Wise: My noble friend Viscount Addison was going to move Amendment No. 315A and he asked me if I would support it, so I shall speak, very briefly, to that Amendment.
I cannot entirely agree with my noble friend Earl Peel regarding this. Grant making to farmers and landowners for conservational and recreational purposes underlies

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the management strategies across the national parks. It also provides positive incentives for land management to achieve the national park purposes of conservation and promotion of enjoyment. There is no distinction to be drawn between the objectives of the schemes described in this clause and much of the work already carried out by the national park authorities.
In some cases this work is carried out through agency agreements relating to national schemes. The noble Lord, Lord Moran, has already referred to the Countryside Council for Wales, Tir Cymen, and its agency agreement with the Snowdonian National Park Authority is highly successful. Agreements are negotiated by the park staff, who provide a valuable local liaison service for the farming community. This amendment will enable that relationship to continue if Tir Cymen is handed over to the Welsh Office in the same way that Countryside Stewardship is to be transferred to the Ministry of Agriculture, Fisheries and Food in England.
The amendment would also enable Ministers in England and Wales to adopt national park schemes where appropriate. All the national parks have farm and countryside services, and some operate innovative farm schemes as part of those services. The successful North Yorkshire moors farm scheme, for instance, provides support for environmentally friendly farming practices in an area which does not benefit from having Environmentally Sensitive Area status.
Enabling national funds to be channelled into such schemes, with the park authority acting as agents for the Ministry of Agriculture, Fisheries and Food, would only be beneficial.
The Parliamentary Secretary, Ministry of Agriculture, Fisheries and Food (Earl Howe): These amendments all relate to the powers in Clause 80 under which my right honourable friends the Minister of Agriculture, Fisheries and Food and the Secretaries of State for Wales and Scotland would be empowered to make grants for purposes conducive to conservation. I should declare an interest as the current recipient of a grant under the hedgerow incentive scheme.
Amendment No. 313B, in the name of the noble Baroness, Lady Nicol, and the noble Lord, Lord Walpole, would require these Ministers to regulate to ensure that all payments which they make are conducive to conservation of the countryside. The Government fully recognise the need for conservation implications to be taken into account in all payment schemes, not only those whose principal purpose is environmental. However, we do not consider that this amendment is necessary given the duty which already applies to the relevant Ministers under Section 17 of the Agriculture Act 1986 to achieve a reasonable balance between conservation, public enjoyment of the countryside and other interests in exercising any functions connected with agriculture. We believe that this duty is sufficient to ensure that Ministers must take conservation interests into account in all policy areas, and indeed the wording of Clause 80(1) of the Bill was drawn directly from Section 17 of the 1986 Act.
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My noble friend Lord Peel pointed out something very important about the amendment, which is that it is undesirable. It would leave out the wording in Clause 80 which enables the relevant Ministers to introduce new conservation grant schemes. I am sure that that was not the noble Baroness's intention. Specifically, the clause empowers the Minister of Agriculture, in particular, to operate countryside stewardship. The amendment would thereby undermine the original intention of the clause.
Amendment No. 314, in the name of the noble Lord, Lord Beaumont, will ensure that the conservation grant-making powers provided for in Clause 80 may be used to promote environmentally friendly farming methods. The Government fully support that intention. The countryside has been shaped by agriculture and its future conservation is dependent on farming methods taking full account of the needs of the environment. To this end, we have introduced a range of conservation schemes for farmers and indeed the central purpose of the clause is to enable the Minister of Agriculture to offer incentives to encourage environmentally sensitive farming on key landscape types in England as part of the countryside stewardship scheme.
However, while we endorse the intention of the amendment, we consider that the existing wording of Clause 80 is fully adequate. This enables the relevant Ministers to make grants for anything conducive to,
"the conservation or enhancement of the natural beauty… of the countryside (including its flora and fauna and geological and physiographical features) or of any features of archaeological interest".
We are satisfied that this will enable Ministers to make a wide range of payments, as they consider appropriate, to promote environmentally sensitive farming.
Amendments Nos. 314A, 314C, 314D, 324B and 324D, in the names of the noble Baroness, Lady Nicol, and the noble Lord, Lord Walpole, seek to extend the scope of Clauses 80 and 81 to include grants concerned with conservation of cultural or historic features and, specifically, the protection of buildings of cultural or historic interest.
First, with regard to buildings, we do not consider that it is appropriate or necessary to extend the grant-making powers of the relevant Ministers. To do so would extend unnecessarily the overlap with the extensive grant-making powers which English Heritage, Historic Scotland and Cadw/Welsh Historic Monuments already have in relation to historic buildings and monuments.
Lord Walpole: That refers to listed buildings only. We were trying to take it slightly further than that and to take a lot of buildings around the countryside which are unlisted but which are desperately important in the countryside scene.
Earl Howe: Some elements of schemes which are or will in future be operated by agriculture departments involve the conservation of historic landscapes such as parkland—for example, the historic landscape option of Countryside Stewardship—or the preservation of archaeological and historic features such as earthworks and stone walls under the environmentally sensitive areas scheme. The Bill was drafted with that in mind and Clause 80 allows the relevant Ministers to make

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grants for anything which is conducive to the conservation or enhancement of the natural beauty or amenity of the countryside. We believe that this is fully sufficient to allow payments to be made for the conservation of historic landscapes and the preservation of historic and archaeological features. We do not believe that it is appropriate to go further than that in the context of this Bill.
My noble friend Lord Wise referred to farm conservation schemes run by national parks. I note the suggestion that the Government might want to adopt the conservation schemes run by national park authorities. I should be grateful if my noble friend will send me details of the schemes to which he referred.
Amendment No. 315A, spoken to by my noble friend, seeks to provide powers for the making of regulations to allow national park authorities to administer conservation grant schemes, such as Countryside Stewardship, on behalf of the Minister of Agriculture and the Secretary of State for Wales. The Government do not consider that this is necessary since, in practice, such powers already exist.
If a scheme introduced under Clause 80 were specific to a national park and it was agreed that the national park authority should act as the Minister or Secretary of State's agent in administering the scheme, there would be no difficulty in providing for this under current legislation. Similarly, there would be no difficulty in the Minister or Secretary of State designating another body as his agent if he deemed it appropriate.
I have gone slightly out of order for which I apologise.
Amendments Nos. 314B and 324C in the name of the noble Baroness, Lady Nicol, and the noble Lord, Lord Walpole, are intended to ensure that payments to promote public enjoyment of the countryside may only be made by the relevant Ministers where such enjoyment is consistent with the interests of conservation. The Government believe that properly managed public access can in many instances be fully compatible with conservation of the rural environment and that access should only be promoted where this is the case. However, we consider that it is unnecessary to include this principle as a requirement in the Bill because of the duty of balance under the Agriculture Act 1986 to which I have already referred. We believe that this duty is sufficient to ensure that Ministers will in practice take conservation into account in promoting public access.
This group of amendments also includes that tabled by my noble friend Lord Peel, but I do not believe that he spoke to it. If he agrees, I shall not reply to it at this stage in view of the lateness of the hour.
Earl Peel: I am very grateful to my noble friend.
Earl Howe: Amendment No. 315B in the name of the noble Baroness, Lady Nicol, seeks to make all conservation payments under the schemes covered by Clause 80 subject to a strategic assessment of their likely environmental effects. The Government do not consider that this is necessary since the primary purpose
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of all of these schemes is to address specific environmental needs and priorities, or to promote public enjoyment of the countryside in a way which is compatible with environmental protection. We already monitor carefully the environmental effects of each of them and monitoring reports are published as appropriate. A requirement to carry out strategic assessments on all conservation grants would, we believe, lead to unnecessary bureaucracy and delays in getting desirable conservation work under way.
I recognise that all of these amendments in their several ways are intended to be helpful. The fact that-many seek to widen the scope of the clause is, I believe, a sign of the very high regard in which incentive schemes such as Countryside Stewardship are held. The clause has deliberately been drafted to allow Ministers to make a wide range of payments related to different aspects of environmental land management. I am confident that it provides a sound basis for the future promotion of environmentally friendly farming in Great Britain.
With those rather lengthy words of explanation, I hope that the noble Baroness will withdraw her amendment.
I am very grateful to the Minister for his careful answer. The amendments have been brought forward because of the concern expressed by CPRE about some areas which have continued to deteriorate despite the 1986 Act. There is very much to consider in what the Minister said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 314 to 314D not moved.]
Earl Peel Earl Peel moved Amendment No. 315:
Page 87, line 32, at end insert:
("( ) make provision for grants to be paid, where appropriate, to both the owner of any land and the occupier of that land where the owner is not also the occupier.").
The noble Earl said: I deliberately did not speak to this amendment in the previous grouping because it covers a different subject. The objective behind the amendment is to try to clarify that both landlords and tenants can be joint participants in environmental land management schemes introduced under this clause, where it is appropriate. As currently drafted, it is not clear that payments could be made to both the owner and the tenant under such schemes.
Clearly there are cases where the needs of environmental land management will require both the landowner and the tenant to be participants in the scheme for it to be really effective. For example, landowners could be responsible, as in the Yorkshire Dales ESA, for the upkeep of barns, which is not a tenant's responsibility, and yet the tenant is responsible for the conservation and management of the surrounding hay meadows.
We are talking about integrated management, which incorporates both landlord and tenant. I can think of woodlands being another example. I could go on, but because of the lateness of the hour I shall not. I am merely trying to establish from my noble friend the Minister whether this scheme will be payable to both landlords and tenants.
There is one specific point that I should like to make here, because it has occurred quite often in the past. Will a landlord who does not have a holding number qualify for grant under this scheme? I can think of a number of occasions in the past with different grants where it has been difficult for the landlord to obtain the grant even though he is the person who will put up the money. It is a complex business, as I am sure the Committee will appreciate, but I should be grateful if my noble friend could give me an answer to that question and ensure that both landlords and tenants will qualify for payments under this clause. I beg to move.
Earl Howe: My noble friend has explained that the amendment is designed to enable the appropriate Ministers to make conservation grants to both the landlord and the tenant in cases where they might participate jointly in environmental schemes. That might arise where, for example, the tenant has day-to-day control over normal farm management, but the landlord is responsible for features such as field boundaries. The Government entirely agree that in such circumstances the Minister should be able to make payments to both the landlord and the tenant, and indeed the central purpose of Clause 80 is to enable the Minister of Agriculture to operate countryside stewardship which already includes such joint agreements. For that reason Clause 80 was drafted carefully to allow the Minister to
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make grants to any persons who do, or who undertake to do, anything conducive to conservation or public enjoyment of the countryside.
We believe that this wording is fully sufficient to allow the relevant Ministers to make payments to both a landowner and a tenant as part of the same agreement where appropriate.
My noble friend asked me whether the recipient of the grant needed to have an agricultural holding number. Perhaps I may write to him about that as I would not wish to mislead the Committee on that point of detail. I hope that with that general explanation my noble friend will be somewhat reassured and feel that the amendment is unnecessary.
Earl Peel: I am extremely grateful to my noble friend, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 315A and 315B not moved.]
Clause 80 agreed to.
The Earl of Lindsay: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at ten minutes past eleven o'clock.