HL Deb 19 January 1995 vol 560 cc758-809

3.31 p.m.

The Minister of State, Department of the Environment (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.


[Amendments Nos. 33 to 36 not moved.]

Clause 4 [Guidance on sustainable development and other aims and objectives]:

[Amendment No. 37 had been withdrawn from the Marshalled List.]

Lord Williams of Elvelmoved Amendment No. 38:

Page 5, line 40, at end insert: (", and shall follow the principles outlined in Schedule (Sustainable development: aims and objectives) to this Act").

The noble Lord said: I remind the Committee that Clause 4 of the Bill requires Ministers to give guidance to the agency with respect to the aims and objectives which they—that is, the Ministers—consider appropriate for the agency to pursue in the performance of its functions.

As I argued on Second Reading, I do not believe it is good enough to leave it to Ministers to give guidance on how the agency should perform its functions from time to time. Parliament should have a role in deciding what the agency should do; after all, Parliament is being asked to pass a Bill which gives the agency important powers.

In moving Amendment No. 38, for the convenience of the Committee I shall speak also to Amendment No. 147. Indeed, Amendment No. 38 is a paving amendment for Amendment No. 147. Therefore, if the Committee accepts Amendment No. 38, Amendment No. 147 becomes consequential in the strict sense of the term.

The Government have been kind enough to give us the draft guidance that Ministers propose for the agency. Indeed, there was discussion last Tuesday on the press release issued by the Government entitled, Draft Outline of Scope of Guidance to the Environment Agency Under Clause 4 of the Environment Bill. It is all very well for the Government to say that from time to time Ministers will decide what the agency will do. I suppose that if I were in the unhappy position of a Minister I would say that I should like to reserve my position from day to day on what the agency should be doing. But, as I said at Second Reading, I do not believe that that is adequate for Parliament. It is up to Parliament to decide what the agency should be doing. I have therefore taken the liberty of using the draft guidance provided by the Minister as a basis for the schedule contained in Amendment No. 147. It is really to that amendment that I wish to address my rather detailed remarks.

Amendment No. 147 cuts across—in many respects it wisely cuts across—the arguments we have had in the past day or so in relation to the aims and objectives of the agency. These are government aims and objectives and I see no reason therefore why the Government should not accept them being put into the schedule. Amendment No. 147 says,

"The overall aim of the Agency shall be to help to promote sustainable development through high quality, integrated environmental protection, management and enhancement".

I agree absolutely with those words. Paragraph 2 of the proposed schedule goes on to the main objectives, with all of which I agree. I do not want to bore the Committee by going through the list, but it includes,

"operate to high professional standards … provide clear and readily available advice",

and so forth. They are all desirable aims and objectives.

When we come to pollution control I am again in agreement with paragraph 3, apart from one small caveat which occurs in sub-paragraph 3(b), at the end of which the extract reads,

"to follow relevant developments in technology and techniques".

If the Government accept my new schedule, I should prefer to use the word "promote". But that is something we can consider at a later stage of the Bill if the Government accept the new schedule, perhaps as amended by them in certain matters of draftsmanship. Paragraph 4 is, in all respects, sensible, as is paragraph 5 on page 20 of the Marshalled List.

I come to paragraph 7 of the proposed new schedule; namely,

"Contribution to Conservation of Nature and the Heritage".

I believe that that is reasonable. I would like to go a little further along the lines taken by the noble Lord, Lord Marlesford, at Second Reading when he spoke about windfarms. That is a particular concern of mine as I know it is of his, he being the chairman of CPRE and myself being president of CPRW.

Paragraph 8 of the schedule allows Ministers to review existing guidance and to,

"consolidate, revise and update that guidance as they consider necessary".

I am not saying that the proposed schedule should be set in stone. I accept that from time to time Ministers may wish to update their guidance. Nevertheless, I believe that this schedule deserves the attention of the Committee and government support because it is not my wording, but that of the Government. It is a wording which I support bar one or two amendments to which I may wish to return at a later stage of the Bill if the Committee accepts this schedule.

The fundamental principle of Amendments Nos. 38 and 147 is that Parliament, not Ministers from time to time, should set the basic, strategic terms and objectives of this agency. Since I have "stolen" the Government's words in compiling the schedule, I very much hope that the Government and the Committee will accept it. I beg to move.

Lord Renton

I have a great deal of sympathy with the main purpose which the noble Lord, Lord Williams of Elvel, has in mind although I do not agree with the way in which he attempts to achieve it. As I shall show, I believe that it may cause real confusion. Surely, the aims and objectives to be pursued by the agency in performing its functions are fundamental to the whole of the Bill and they should be clearly and emphatically stated by Parliament in a clause of the Bill. These matters should not be left to be decided by any Minister, with various contingent responsibilities as regards the Bill, and conveyed to the agency merely by issuing guidance. We do not even know whether the guidance is to be written or oral.

Such guidance could be rather vague, hedged about with conditions and reservations and varied from time to time and from Minister to Minister. There might even be minor conflicts behind the scenes as to the guidance given by one Minister and another. I have not given notice to my noble friend, but I have to say with great respect and apologies to him that Clause 4 will not do. The Government should replace it with another clause which clearly expresses the intentions of Parliament.

I come to what the noble Lord, Lord Williams of Elvel, proposes. Strangely enough, he intends to keep Clause 4, but to add to it the contents of his long schedule about which I shall speak in a moment.

Lord Williams of Elvel

I am grateful to the noble Lord for conceding an intervention. I am sure that the noble Lord was present at our discussion of proposed Amendment No. 1 on Tuesday when the noble Lord, Lord Marlesford, quite rightly described it as a "strategic amendment". The noble Lord and I have been involved in strategic amendments. In Clause 1 we have the central purpose of what the Bill is about.

I personally could not support the drafting of the amendment moved by the noble Lord, Lord Norrie, to Clause 1. The Committee did not accept it, but nevertheless, as I indicated, I was quite happy to accept the principle of a strategic amendment. We have had no comfort from the Government on that principle. In response to the noble Lord, that is why I seek to introduce the aims and objectives in the way I have because I believe that the Government have turned their face against a strategic amendment which I believe the noble Lord has in mind.

3.45 p.m.

Lord Renton

I am grateful to the noble Lord for his clarification. Perhaps I may say in passing that I regret that I could not be here on the first day of the Committee stage in order to support my noble friend Lord Norrie. I had a transport problem and that is why I could not get here. I was very sorry. I was here later that day.

I shall have to repeat slightly what I was explaining. The method chosen as regards these amendments by the noble Lord, Lord Williams, is not suitable partly because it retains Clause 4 and merely adds to it a reference to his new schedule which contains very important matters. They might very well overlap with the new Clause 1, if we ever have one.

The way in which the matter is expressed in Amendment No. 147 is not something with which I can entirely agree. Although I do not agree with the drafting I agree with the substance of paragraph 1 and paragraph 2(a). Those deal with matters of principle which should somehow go into the Bill.

As regards paragraph 2(b) I am puzzled by the expression, developing single points of contact".

That could mean all kinds of things and we do not know what they are. Sub-paragraphs (c), (d), (e) and (f) are provisions which one would take for granted in administering a Bill of this kind. It would be good governmental practice to do those things and I believe that it is generally accepted at present as such. But those are matters of detail on which I do not wish to spend a great deal of time.

I find matters very difficult when we come to paragraphs 3 and 4 of the schedule because they overlap with what is in Clause 5 of the Bill already. As regards paragraphs 5 and 6, they overlap with what is in Clause 6 of the Bill. Paragraph 7 partly overlaps with Clauses 7 and 8. Therefore, as a matter of drafting and of getting the Bill as a cohesive and sensible document, and although I have much sympathy with the noble Lord's motive, I would not be prepared to agree his method of doing it. If it comes to a vote I could not support the noble Lord in the Division Lobby.

I conclude by saying to my noble friend Lord Ullswater, whose handling of this Bill has been impeccable so far, that I hope that we shall not leave such important matters as the aims and objectives to be pursued by the agency merely to ministerial guidance of some vague kind.

Baroness Hamwee

I very much agree with the point of view that has just been expressed by the noble Lord, Lord Renton. As we discussed on Tuesday, we on these Benches also take the view that Clause 4 simply will not do. To my mind, aims and objectives are rather different from guidelines and guidance. The latter have a place in fleshing out what should be agreed by Parliament as to the primary purpose and objectives of the agency. I find Clause 4 confusing in that the guidance can be changed from time to time. Furthermore, the agency is not required to do any more than "have regard" to the guidance. It is not even required to follow it. My conclusion is a little different from that of the noble Lord, Lord Renton, because, feeling as strongly as I and my colleagues on these Benches feel, if it comes to a vote we shall support the amendment because we believe that it is important to establish the principle.

However, I too have some trouble with the draft schedule. It is not surprising that there is trouble with the draft schedule because it replicates draft guidance on which the Government are currently consulting and which, because it is guidance, is better directed at initial priority-setting rather than at the fundamental aims and objectives. The provisions on pollution control refer to "industrial emissions". We know that the issue of industrial emissions requires major consideration and a great deal of work, but so too does that of traffic pollution. Indeed, I believe that the Government have said the same thing only today. Therefore, it is perhaps striking the wrong balance to include in a schedule to the Bill the provision that the agency shall deal in particular with industrial emissions.

I should add that I find certain provisions a little odd in this place. I refer to those dealing with maintaining and developing salmon, trout, freshwater and eel fisheries. No doubt those are areas to which regard should be had—not that I know a great deal about them—but the economic considerations which that maintenance and improvement must involve will need to be set in the context of the economic considerations which we shall address later in our consideration of the Bill.

A number of semantic points could be made. I do not want to put it any higher than that, but I think that it is inappropriate to use words such as "particularly" and "including" in a Bill because that leaves the reader a little confused about the priorities. To summarise, we feel that Clause 4 is not merely an inadequate clause; it is a dangerous clause and for that reason we support the principle of what is proposed although not the detail.

Lord Marlesford

I, too, feel considerable sympathy with what the noble Lord, Lord Williams of Elvel, has put forward, but I accept the modifications suggested by my noble friend Lord Renton. It is a question of striking a balance between what is included in the Bill in order to make the purpose and scope of primary legislation clear, while leaving sufficient flexibility for sensible application of that legislation in due course. I do not think that the balance is right at the moment and I hope that the Government will look at it again. Some of us will want to change the balance in relation to later provisions in the Bill. Although I do not want to debate this now, perhaps I may give one example. I believe that when we come to consider hedgerows many of us will feel that it would be desirable for the scheme to be spelt out in a good deal more detail than at present. Equally, however, when we reach Clause 37, which relates to costs and benefits, some of us may well feel that it is inappropriate to spell out that aspect in the Bill and that such provisions might be better left to guidance.

I recognise the difficulty on this question of balance. As I have said, I do not think that the Government have got it quite right yet. I am sure that the noble Lord, Lord Williams, is not intending that his present formula should be inserted in the Bill at this stage, but I hope that the Government will be able to return with provisions that strike a better balance.

Lord Elton

Somewhat to my surprise, I am not entirely persuaded by my noble friends Lord Renton and Lord Marlesford and those who have spoken in support of the proposals, if with some modification. The two questions that we must ask about the amendment are: is it necessary and is it apt? On the question of whether it is necessary, it is claimed that it is necessary in order to show what the primary purpose and functions of the agency shall be. It may be convenient to focus those provisions in a separate place, but they already appear in the Bill.

Clause 1(1) states that the body is to have,

the purpose of carrying out the functions transferred or assigned to it by or under this Act". We discover what they are later because Clause 2(1) (a) states that they are the functions of the National Rivers Authority while paragraph (b) refers to the functions of the waste regulation authorities. Those matters are already spelt out in existing statutes. There is no question about the functions or purposes of the agency. The only question is whether they should be spelt out separately and clearly in a different place. That may be attractive, but it does not seem necessary.

Clause 6 states:

It shall be the duty of the Agency … to promote … the conservation and enhancement of the natural beauty", of the waterways. Clause 7 states that Ministers shall have a contributory duty, with paragraph (a) specifying that a Minister shall perform his functions, so to exercise any power conferred on him or it with respect to the proposals as to further the conservation and enhancement of natural beauty and the conservation of flora, fauna and geological or physiographical features of special interest". If your Lordships read the Bill in the way in which it will be necessary for those who will have to operate it to read it, those aims and objectives will become clear.

Therefore, on the first question of whether the provisions are necessary, I for one am not entirely convinced that they are. On the question of whether the provisions are apt, whatever the origins of the passage, the language does not seem to be the appropriate language of statute because it is too general and aspirational to be subject to judicial review. It seems to be too much a question of judgment. I shall not go down the list, but although that language is clearly understood in the boardroom or across the dinner table, it is very difficult to adjudicate on it. Therefore, I do not think that the language is appropriate.

If there is a difficulty to be resolved, I think it is that Clause 4(1) is very sweeping and general although subsection (2) is very necessary. The question that we must ask—it may be the fear that lies behind what noble Lords have been saying—is whether the Minister is being given the power totally to change the direction of the agency and what it is seeking to achieve—to nullify the intentions of Parliament or to subvert them in some way. The answer to that is to make the Minister's proposals subject to some parliamentary process. If the noble Viscount intends to return to this point at a later stage—it may or may not be necessary and I hope that it is not—I hope that among the alternatives that he will consider is a provision to ensure that if a Minister wanted to make some direction to the agency, he should not be able to do so in secret, as it were, but should have to do so under the eye of Parliament.

4 p.m.

Viscount Ullswater

My Lords, I believe that the amendments tabled by the noble Lord, Lord Williams, suffer from the problem we identified on Tuesday when we discussed a group of amendments on sustainable development. Much of that debate served only to reaffirm our belief that it would indeed be dangerous to seek to set out on the face of the Bill detailed guidance on the agency's aims and objectives, and on the way it is to contribute to the achievement of sustainable development. We need a much more flexible means of guiding the agency, over time, as to its aims and objectives and the contribution it is to make towards achieving sustainable development.

I am grateful to my noble friend Lord Elton who described how the Bill sets in place the objectives for the new agency. As many Members of the Committee have confirmed, the concept of sustainable development is complex and one upon which international understanding continues to develop. It requires effective reconciliation of the pursuit of economic development and of environmental protection. It is difficult to express that succinctly in legislation without the risk of giving undue emphasis to some aspects or implying that other aspects are not normally part of sustainable development and so need to be listed separately. While general international acceptance of the Brundtland definition is offered by the noble Lord, Lord Beaumont, and the noble Baroness, Lady Hamwee, in their Amendment No. 351, which we discussed on a previous occasion, as time goes by we and others see more clearly the extent of the implications of trying to meet the needs of the present without compromising the ability of future generations to meet their own needs. Our scientific knowledge increases as we seek to understand the impact of specific pollutants and the way they interrelate and impact on the environment, and how we can mitigate those effects.

We believe therefore that it would be wrong to try to define inflexibly on the face of the Bill—as the proposed schedule would do—the aims and objectives of the agency and the way it is to seek sustainable development. Clause 4 requires Ministers to give such guidance which allows the flexibility for this to be developed from time to time as our increasing awareness of the impact of our activities on the environment show us better ways of ensuring that development is sustainable.

I accept that Amendment No. 147 reflects the issues and principles that at this stage we have in mind to incorporate in the guidance to be issued to the agency, and which we made widely available on Tuesday by means of a press notice. But that is not the final version; that will be issued only after a process of wide consultation. Indeed, on Tuesday there was discussion as to the meaning of the overall aim of the agency to help to promote sustainable development through high quality, integrated environmental protection, management and enhancement, and whether the overall aim should include management.

We would want to consider this carefully, taking account of a number of views—not least those expressed during this debate—and in further consideration of the issues here and in another place. I believe that we need to take time and to involve a wide group of experts in the development of the guidance. It is vital that we get it right and that we can develop it in the light of new awareness of environmental risks.

The noble Lord, Lord Williams, says that his proposed schedule (Amendment No. 147) would not set the sustainable development guidance in stone. It would, however, set the aims and objectives of the agency in stone. Paragraph (2) of the schedule would also require the guidance—however revised—to accord with the previously published sustainable development strategy, Cm. 2426, identified in the paragraph. There may be need in the future to amend the details of the strategy, a very long document which sets out the best understanding as at January 1994.

I listened carefully to my noble friend Lord Renton. I could not agree with his approach, although he did indicate that the words in the proposed schedule were not entirely those that he would want to see if the schedule were to be put onto the statute book. My noble friend recognises, I believe, some of the difficulties I am trying to explain and also the fact that the guidance is at the moment in draft. I have emphasised that during our debates because it is important that we should be able to revise the guidance and bring it up to date. I am anxious that we should not be tied down to particular words on the printed page at this stage.

I also believe that the agency itself cannot achieve sustainable development or decide what it is. The agency will make a major contribution towards achieving sustainable development in Britain but it cannot control activity in areas such as land use planning, resource use and energy efficiency because those are outside the scope of its functions. As the sustainable development strategy made clear, the achievement of sustainable development must involve the whole country and not just particular sections, however important their contributions will be. It needs to involve local government, business, the voluntary sector, Churches and, not least, the public.

As to the overall co-ordination of the national effort, it is for government itself to take decisions about economic development and environmental protection. It cannot, therefore, be right for the agency to take charge of national policy on sustainable development.

I sum up by saying that defining the contribution that the agency is to make towards sustainable development will be a complex but fundamental task for government. We recognise that. That is why we made available the outline of the scope of the guidance under Clause 4, and we intend to expand the note into a more detailed draft for wide consultation when the Bill is considered in another place. It is right to take time and to involve a wide constituency in the preparation of the guidance. I therefore call on the noble Lord, Lord Williams, to withdraw his amendment.

Lord Renton

Before the noble Lord, Lord Williams, or any other noble Lord replies, perhaps I may put this to the Minister. Of course one must accept that on matters of detail there would have to be flexibility—flexibility based upon experience gained. That is so. But, surely, it must be flexibility within broad principles stated by Parliament. If we are to have a new Clause 1 which sets out those broad principles clearly and adequately, then there would be no need for them to be replaced in Clause 4.

Is not the real trouble that Clause 4 as it stands will not only enable flexibility in the widest sense to take place but that it will be done behind the back of Parliament? Is there not the risk of Ministers themselves varying the guidance and of any one Minister changing his mind sometimes too quickly? The system of guidance, as put forward in the clause, simply will not do.

Viscount Ullswater

Perhaps I may seek to answer that point. It is of course the new proposition that Clause 4 is adding to the Bill that gives the concept of guidance its unusual position, one which has not been applied to other such bodies. I believe that the concept of the guidance being widely debated while the Bill is before Parliament indicates how much we want to hear everyone's views.

Lord Beaumont of Whitley

As my noble friend Lady Hamwee said, we on these Benches would like to see the aims and the objects of the Bill entrenched on the face of the Bill, and to that extent we support the amendment and, if it comes to a vote, we shall vote for it.

I do not accept the arguments of the noble Lord, Lord Elton, ingenious though they are, that because the aims and objects of all the bodies taken over by the new agency are already entrenched in statute, there is no need to write them into the Bill. If we were simply passing a consolidation Bill that would be a valid argument. But we are not passing a consolidation Bill; this is a very important measure in its own right and the aims and objectives should be written on the face of the Bill.

I, along with many Members of the Committee, have considerable doubts about the details of the schedule. It has, after all, as the noble Viscount said, been adapted from a draft. It seems to me the kind of matter which, if the Committee were to accept the amendment, we should want to put right on Report. I believe that we can leave that aside. The principle is tremendously important, and it is the principle that we support.

Lord Elis-Thomas

Before the noble Lord, Lord Williams, responds to the amendment, I should like to indicate my support for it, and to comment further upon what the Minster said just now, thus prolonging the debate that we had the other evening on sustainable development. I was glad that he took the opportunity to develop the Government's thinking on this matter, but I fail to see why the argument that sustainable development means more than the activity of the agency is an argument against specifying more clearly the agency's role in relation to sustainable development. That is the crux of the argument that we are having.

The agency will obviously be an agency of sustainable development within its own remit. It is hoped that it will also be an agency which will influence outwith its own remit other government activities; an agency that will be able to advise other departments and secretaries of state on aspects of policy arising out of its environmental protection role, and its general remit as an environment agency.

I hope that that is an argument for specifying the agency's role much more clearly. I hope that the Government can have another look at this matter, because there is clearly a feeling on all sides of the Committee that Clause 4, and the whole question of how we spell out the relationship between the specific activity of the agency and the overall objective set out in the January 1994 Government paper, should be clarified.

Lord Moran

I shall speak briefly in support of what the noble Lord, Lord Renton, said. I am not at all happy about Clause 4. It provides for the agency's aims and objectives to be informed by guidance from Ministers to which it has to have regard; that is, not just the Secretary of State for the Environment, but the Minister of Agriculture, Fisheries and Food, and no doubt there would be advice from the President of the Board of Trade on not hampering the activities of industry, and from the Chancellor of the Exchequer on not spending any money.

So far as I can see, the guidance is to be totally removed from Parliament, and although we have been assured that it will be public, it will be worked out in Whitehall, and environmental interests will be subject to all the pressures from other departments that do not subscribe to them. For those principal reasons, it is undesirable and should be removed.

If the clause is retained, as a minimum the Government should indicate that they are prepared to amend the clause to ensure that there is proper consultation on any draft guidance. At the moment there is no requirement on the Government even to consult the new environment agency itself, let alone all the other bodies which should properly be asked for their views. There should also be an opportunity for Parliament to consider and comment upon any guidance before it is made.

On the question of sustainable development, we have all said a great deal—probably too much—but I still have a strong feeling that the word "development" should not occur in the Bill. I cannot think that the environment agency should have anything to do with development. There are plenty of organisations concerned with economic development, and rightly so. It is for government to balance the needs of economic development and environmental protection. The agency should be concerned with all aspects of environmental protection and not with development. That is fundamental. I hope therefore that the Government will be prepared to think again about that issue.

4.15 p.m.

Lord Elton

Perhaps I may respond to the noble Lord, Lord Moran, on the issue of sustainable development. It seems to me to be a separate issue within the clause, and might be seen by some Members of the Committee as the baby within the bath water. Surely when there is an agency such as this, which will control the manner in which development is permitted to interact with the environment—that is its function—a balance must be struck between short and long-term gain. It is not at all unlikely that there may be some things which, when considering the immediate benefits to the environment, may be considered to be a loss, and which, if not permitted because of a simple interpretation of the statute, would deny us the benefits of doing something which, in the long term, would be sustainable.

I am finding it difficult, because I am trying to think of an illustration, and that is not easy to do. I hope that I have made the point that my noble friend the Minister has made clear that sustainable development is an issue which touches every department of state and every economic and leisure activity of mankind. That cannot be within the sole right of action of one agency such as this. It must therefore be subject to some direction so that it is kept in step with the remainder of the economy and human activity.

That being so, it may well be that where there is a balance to be struck between the short-term benefits to agriculture, the community, or the purity of the atmosphere and the sustainability of our economic activity altogether, it is necessary for the national body—the Government acting through Parliament—to give a direction to the agency.

Lord Moran

With the leave of the Committee, I understand what the noble Lord, Lord Elton, is saying, but it may be difficult for the environment agency to apply the principle of sustainable development—whatever it may mean—to, say, functions such as fisheries or flood defence. I cannot offhand think how it will do that.

Viscount Ullswater

Before the noble Lord, Lord Williams, gets to his feet, perhaps I may say to the noble Lord, Lord Elis-Thomas, that under Clause 35(2), for instance, the agency has a duty to provide the Secretary of State or the Minister with such advice and assistance as he may request. Then the noble Lord, as I understood him, said that it must be for Ministers to decide on advice. They must be able to decide about sustainable development. That is the premise to which I return: it is for Ministers to decide what guidance they should give to the agency about the contribution that the agency makes towards sustainable development. I agree with the noble Lord, Lord Moran, who said that the agency cannot decide for itself what it should be doing towards sustainable development; it must act on the advice of Ministers who have the responsibility for that decision.

Lord Williams of Elvel

I am most grateful to Members of the Committee who have participated in this important debate. I believe that I am right in saying that most Members of the Committee, bar the noble Lord, Lord Elton, believe that Clause 4 is in some way defective; that we do not like it. I do not need to spend much time on the arguments of the noble Lord, Lord Elton. Do I think the amendment is necessary? I think yes. Is it apt? I think yes. I want to spend a little time on the arguments of the noble Lord, Lord Renton, and the Minister.

If the Committee decides that it wishes to accept the amendment, I would happily accept a negotiation between the Opposition, the Benches to my right, and, indeed, any interested party, as to how this might be translated into what I think the noble Lords, Lord Renton and Lord Marlesford, wish, which is a strategic amendment at the beginning of the Bill saying, "This is what the Bill is about". I should be perfectly happy to accept such a negotiation but this Committee has gone beyond that. I am afraid that the Committee is faced with a choice of either accepting something that is subject to negotiation and will be brought back on Report or of saying with the Minister, "There is no need to change Clause 4 of the Bill". That is the position that I understand the Minister to take.

The Minister said that there should be no detailed guidance on the face of the Bill. I accept that; it would be absurd that there should be guidance on the face of the Bill. Nevertheless, perhaps the Minister will be good enough to look at my proposed schedule. I apologise for its drafting, which has been widely criticised. All I can say is that it is not my drafting—

Viscount Ullswater

I thank the noble Lord for giving way. I believe that the criticism was not of the words in the schedule but of the fact that it should appear in the schedules to the Bill.

Lord Williams of Elvel

I am glad to hear the Minister say that, but I understood that there had been criticism of the drafting of the proposed schedule. Indeed, I understood a number of Members of the Committee to say, "We can't accept this; we can't accept that; we can't accept the other". That does not bother me; it is not the job of the Opposition to draft amendments, even if we accept all the Government's wording, as we have in this case.

In paragraph 8(2) (b), the proposed schedule instructs Ministers to ensure that the revised guidance: lists all extant guidance, indicates how and to what extent it needs to be amended, amplified or consolidated, and sets out a timetable for this process". In my view, that allows Ministers to do exactly what the noble Viscount wanted. I am not entirely clear what the concept of sustainable development means. However, if there is a concept it is obviously not static. It is right that the Minister may say that the guidance needs to be amplified and that the timetable for doing so will cover the next 10, 20, 50 or 100 years. Therefore, flexibility is built into the proposed schedule.

The one point on which the Minister gave the game away was in saying that the guidance has to be reviewed and considered and will be ready for consideration when the Bill goes to another place. From the Opposition Benches I have covered a number of Bills during their passage through this House. I have become somewhat tired of Ministers saying, "It will all be all right when it gets to another place. Your Lordships need not worry about what is happening. We will get it right by the time it goes down to another place". We have to get it right in this House; if not in this Committee, then at least in this House at some future stage of the Bill.

I say to the Committee in all honesty, and I believe that I am speaking the absolute truth, that unless it passes these amendments, however defective they may be—and I accept that they are defective and that there will be negotiation about how the provision may be translated into what the noble Lords, Lord Renton, Lord Marlesford and Lord Moran, want—we can wash our hands of Clause 4 and say, "There will be no improvement on Clause 4 and there will be no improvement on guidance until the Bill is in another place". That is a derogation of the duty of Members of this House. I wish to test the opinion of the Committee.

4.25 p.m.

On Question, Whether the said amendment (No. 38) shall be agreed to?

Their Lordships divided: Contents, 88; Not-Contents, 146.

Division No. 1
Acton, L. Jeger, B.
Addington, L. Jenkins of Hillhead, L.
Annan, L. Jenkins of Putney, L.
Ashley of Stoke, L. Judd, L.
Avebury, L. Kennet, L.
Beaumont of Whitley, L. Kilbracken, L.
Birk, B. Mallalieu, B.
Broadbridge, L. Mayhew, L.
Bruce of Donington, L. McIntosh of Haringey, L.
Callaghan of Cardiff, L. McNair, L.
Carmichael of Kelvingrove, L. Meston, L.
Carter, L. Monkswell, L.
Chorley, L. Morris of castle Morris, L.
Cledwyn of Penrhos, L. [Teller.]
Clinton-Davis, L. Mulley, L.
Cocks of Hartcliffe, L. Nathan, L.
David, B. Nicol, B.
Desai, L. Palmer, L.
Donaldson of Kingsbridge, L. Phillips of Ellesmere, L.
Donoughue, L. Rea, L.
Dormand of Easington, L. Redesdale, L.
Dubs, L. Richard, L.
Eatwell, L. Rodgers of Quarry Bank, L.
Elis-Thomas, L. Sainsbury, L.
Ezra, L. Seear, B.
Falkland, V. Sempill, Ly.
Fisher of Rednal, B. Serota, B.
Foot, L. Shannon, E.
Gallacher, L. Shaughnessy, L.
Geraint, L. Stalland, L.
Gladwin of Clee, L. Stedman, B.
Gladwyn, L. Stoddart of Swindon, L.
Gould of Potternewton, B. Strabolgi, L.
Graham of Edmonton, L. Taylor of Blackburn, L.
[Teller.] Thomas of Walliswood, B.
Halsbury, E. Thomson of Monifieth, L.
Hamwee, B. Tope, L.
Harris of Greenwich, L. Tordoff, L.
Haskel, L. Turner of Camden, B.
Hilton of Eggardon, B. Wallace of Coslany, L.
Hollis of Heigham, B. White, B.
Howell, L. Williams of Crosby, B.
Howie of Troon, L. Williams of Elvel, L.
Hughes, L. Williams of Mostyn, L.
Jay of Paddington, B. Winchilsea and Nottingham, E.
Aberdare, L. Cadman, L.
Addison, V. Campbell of Alloway, L.
Allenby of Megiddo, V. Campbell of Croy, L.
Arran, E. Carnegy of Lour, B.
Astor of Hever, L. Carnock, L.
Astor, V. Carr of Hadley, L.
Balfour, E. Charteris of Amisfield, L.
Barber of Tewkesbury, L. Chesham, L.
Barber, L. Clanwilliam, E.
Belhaven and Stenton, L. Clinton, L.
Birdwood, L. Coleraine, L.
Blaker, L. Colnbrook, L.
Blyth, L. Craigavon, V.
Boardman, L. Cranborne, V. [L. Privy Seal]
Boyd-Carpenter, L. Crickhowell, L.
Brabazon of Tara, L. Cullen of Ashbourne, L.
Bridgman, V. Cumberlege, B.
Brigstocke, B. Davidson, V.
Brougham and Vaux, L. Dean of Harptree, L.
Buckinghamshire, E. Denham, L.
Burnham, L. Derwent, L.
Butterworth, L. Digby, L.
Dixon-Smith, L. Milverton, L.
Downshire, M. Monckton of Brenchley, V.
Effingham, E. Moran, L.
Elibank, L. Mottistone, L.
Ellenborough, L. Mowbray and Stourton, L.
Elles, B. Munster, E.
Elliott of Morpeth, L. Murton of Lindisfarne, L.
Elton, L. Newall, L.
Faithfull, B. Norrie, L.
Fraser of Kilmorack, L. Northesk, E.
Gainford, L. Orkney, E.
Gardner of Parkes, B. Orr-Ewing, L.
Geddes, L. Oxfuird, V.
Gilmour of Craigmillar, L. Park of Monmouth, B.
Goschen, V. Pender, L.
Gray of Contin, L. Platt of Writtle, B.
Greenway, L. Plummer of St. Marylebone, L.
Hailsham of Saint Marylebone, L. Polwarth, L.
Harlech, L. Rankeillour, L.
Harrowby, E. Rawlings, B.
Hayhoe, L. Rennell, L.
Henley, L. Renton, L.
Hooper, B. Renwick, L.
Howe, E. Rodger of Earlsferry, L.
Hylton-Foster, B. Rodney, L.
Inglewood, L. [Teller] Saint Oswald, L.
Jellicoe, E. Salisbury, M.
Jenkin of Roding, L. Savile, L.
Kenyon, L. Seccombe, B.
Kingsland, L. Shaw of Northstead, L.
Kinnoull, E. Shrewsbury, E.
Knollys, V. Simon of Glaisdale, L.
Laing of Dunphail, L. Skelmersdale, L.
Leigh, L. Skidelsky, L.
Lindsay, E. Soulsby of Swaffham Prior, L.
Lindsey and Abingdon, E. Stanley of Alderley, L.
Liverpool, E. Strange, B.
Long, V. Strathcarron, L.
Lucas, L. Strathclyde, L. [Teller]
Lyell, L. Strathcona and Mount Royal, L.
Lytton, E. Swansea, L.
Mackay of Ardbrecknish, L. Terrington, L.
Mackay of Clashfern, L. Teviot, L.
[L. Chancellor] Thomas of Gwydir, L.
Manchester, D. Thurlow, L.
Mancroft, L. Trefgame, L.
Marlesford, L. Trumpington, B.
McAlpine of West Green, L. Ullswater, V.
Merrivale, L. Vaux of Harrowden, L.
Mersey, V. Vivian, L.
Miller of Hendon, B. Young, B.
Mills, V.

Resolved in the negative, and amendment disagreed to accordingly.

4.34 p.m.

Lord Lucas of Chilworth

moved Amendment No. 39: Page 5, line 40, at end insert:

("() The guidance under subsection (1) above must include guidance on the extent to which, when considering whether or not to, or the manner in which it will, exercise any power, it is unreasonable for the Agency to take into account costs and benefits under section 37(1) below.").

The noble Lord said: This amendment still leaves us in the realms of the disputed Clause 4 and the guidance on Sustainable development: aims and objectives. Clause 29 falls into the category of other aims and objectives. It really has its meaning in Clause 37 which requires the new agency to take into account the costs which may be incurred and the benefits likely to accrue in consequence of the exercise of its powers.

Before any Member of the Committee suggests it, I concede that this may not be the right place for the amendment. However, as I went through the Bill, it seemed to me that there was no other suitable place for it. It would be too late to try to amend Clause 35 because we are talking about the aims and objectives.

The duty to take into account the costs and benefits likely to accrue from the exercise of the agency's powers is not totally overriding; for example, it does not apply where the new agency has specific duties or a statutory obligation to discharge or where it would be unreasonable in the circumstances so to do.

Statutory responsibilities and duties and requirements imposed by directions are easily identifiable. But in many circumstances, determining whether or not it is unreasonable to consider costs and benefits may prove difficult and may very well lead to controversy. There is already sufficient controversy surrounding Clause 37 and this amendment is, in very large measure, an attempt to remove such controversy.

Of course it is right that cost considerations do not take precedence over primary environmental duties. But to allow the agency complete discretion in deciding when circumstances make it unreasonable for it to take into account costs and benefits is, I suggest to the Committee, an invitation to trouble.

The trouble that I foresee is that it may lead to the possibility of challenges against the agency's decisions; that is, appeals or perhaps applications for judicial review. Whether or not the challenge, in whatever form it is made, is upheld, it would certainly be damaging, costly, time-consuming and counter-productive. Therefore, it seems to me that clear guidance is needed which will prevent the agency from being diverted from its real job. I believe that that is the effect which my Amendment No. 39 will bring about.

I am somewhat heartened by the fact that I notice in the general briefing which the NFU has issued, and which a number of Members of the Committee may have received, that the NFU supports the amendment, which I now beg to move.

Lord Williams of Elvel

The Committee will be grateful to the noble Lord, Lord Lucas, for introducing this amendment. It is particularly appropriate since the Committee has just decided to allow ministerial guidance to be apparently free from any control by Parliament.

I should have to say that we should like to go rather further than the amendment tabled by the noble Lord, Lord Lucas, as I am sure he will understand. Later in the Bill, we shall oppose the Motion that Clause 37 stand part in its entirety. In so far as the noble Lord's amendment is in mitigation of what we regard as being the unpleasant effects of Clause 37, we support it. However, if Members of the Committee decide to include Clause 37 in the Bill as it stands, I would very much prefer the noble Lord to move his amendment on Report rather than in Committee. If the Committee decides that Clause 37 should stand part of the Bill—which we will oppose—we shall do what we can to mitigate the effects on Report. I believe that the noble Lord's amendment is designed to mitigate such effects. Therefore, to that extent, I support it. However, there is a major issue which rides above the amendment.

Lord Renton

I regret to say that I cannot support my noble friend's amendment, not only because it contains a rather long split infinitive, with the insertion of no fewer than seven words, but also because it assumes that Clause 4 as it stands will remain part of the Bill. As I have already mentioned, I hope that Clause 4 will not do so.

Lord Howie of Troon

I doubt that the split infinitive will kill the issue because I imagine that the split infinitive can be unsplit either on Report or later. I hesitate to dissent from my noble friend on the Front Bench who I promised on Second Reading to support as much as I could, but surely if we pass the amendment now it would be every bit as good as passing it on Report. However, I may be mistaken in that respect. I shall leave the issue on one side.

It strikes me that Clause 37 is a very curious provision. It is one which, I must confess, I find a little difficult to understand—whether or not its infinitives are split or unsplit. I believe that the amendment moved by the noble Lord, Lord Lucas, is an improvement on a very difficult clause. However, I am willing to be advised further by my noble friend on the Front Bench.

Baroness Hamwee

I, too, find this to be a most difficult amendment. Like other noble Lords, I have a distaste for Clause 37. However, if Parliament decides that Clause 37 should remain in the Bill, then, for precisely the reasons that we discussed earlier, it seems to me that it should not be for Ministers to give guidance saying that it should be disregarded.

Viscount Ullswater

The amendment of my noble friend Lord Lucas would require the guidance issued under Clause 4 to the agency to include advice on when it would be unreasonable to take account of costs and benefits, as required by Clause 37.

I am happy to be able to give my noble friend the assurance he is seeking that the agency will be given guidance on that subject. As I hope he has by now had the opportunity to see, the draft scoping guidance document that we discussed on Tuesday shows that it is indeed our intention to offer such guidance. I see that the noble Lord wishes to intervene. I give way.

Lord Williams of Elvel

I am much obliged. I am sorry to interrupt the Minister so early in his response, but can he tell the Committee whether the guidance will be permanent? In other words, the noble Viscount said that there would be guidance, but, as I understand Clause 4, Ministers may change their mind from time to time; for example, every 30 seconds. Is the Minister now saying that the guidance he mentioned to the noble Lord, Lord Lucas, will be permanent?

Viscount Ullswater

I am saying that it will be continuous. That may not be quite what the noble Lord is saying, but that is the word that I believe I should use.

As I was about to say as regards the guidance, paragraphs 1.7 and the second indent of paragraph 1.8 note that the detailed guidance document will include advice on how the agency is to have regard to likely costs and benefits, including social and environmental ones as well economic ones.

However, as I made clear on the first day of Committee, the Government believe that it would be dangerous to seek to overspecify on the face of the Bill the full contents of the guidance. I believe that my noble friend will agree that this may not, perhaps, be the right place for such a provision. Nevertheless, I am not criticising my noble friend for tabling the amendment on that account. I said that I believe a long list might appear to be exhaustive but not cover all the issues on which in future years we might need to give the agency guidance. In any case, it is unnecessary in practice to require Ministers to give guidance on costs and benefits. Section 1.8 of the draft document that I issued, showing the scope of the guidance, shows that the Government already intend to include advice on costs and benefits and the relationship to Clause 37. With that assurance, I hope that my noble friend will feel able to withdraw the amendment.

Lord Lucas of Chilworth

I am most grateful to my noble friend the Minister for his explanation and, indeed, for the assurance that he has given. However, when my noble friend says that the scope of the guidance will be "continuous", that rather suggests to me something of a moving feast, parts of which are to be enjoyed and other parts of which are not to be so enjoyed. It is somewhat difficult to see quite how that will pan out.

I feel that my noble friend Lord Renton was a little unkind to me. Guilty I have been of many errors in this Chamber and in our Committees over some years, but that has never stopped noble Lords from understanding the purport of my remarks. I do not believe that my noble friend Lord Renton, misunderstood that—

Lord Renton

No I did not.

Lord Lucas of Chilworth

I can only deal with matters as they appear at this moment. On giving some consideration to the Marshalled List, I noticed that several noble Lords had given notice of their intention to oppose Clause 37. However, we are a long way from that stage. I have to deal with matters as they stand at present.

However, I do not wish to delay Members of the Committee any further because, judging by the last Division, there is little likelihood of my being able to carry a Division on the amendment at this time. I should like to see how the Bill unfolds during the next five days or so. I may then wish to seek further clarification and, perhaps, put something along those lines on the face of the Bill. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 39A to 41 not moved.]

4.45 p.m.

On Question, Whether Clause 4 shall stand part of the Bill?

Lord Renton

I certainly do not wish to oppose the proposition that Clause 4 should stand part of the Bill. However, all I rise to do is to invite my noble friend the Minister to consider the discussions that have taken place so far this afternoon and to bear in mind the doubts expressed on all sides of the Committee about Clause 4 as it stands. It seems to me to be contrary to the good principles of legislation under which Parliament should express its intention clearly and Ministers should be guided by that intention.

To have a very wide power of giving guidance by letter or by some other means behind the back of Parliament and without Parliament being given the opportunity to say whether or not it is acceptable, seems to me to be going too far. For that reason, I implore my noble friend the Minister to say that, between now and Report stage, he will give further thought to Clause 4.

Lord Williams of Elvel

I support the sentiments expressed by the noble Lord, Lord Renton. It is perfectly true that serious reservations have been expressed about Clause 4 on all sides of the Committee. I tried to explain to the Committee that I thought the only way to get the Government to change their mind on Clause 4 was—if I may put it like this—by the power of the gun. But the power of the gun, I am afraid, went against me. There were various noble Lords who, I thought, might support an amendment which would in a sense compel the Government to reconsider Clause 4. However, that amendment was defeated. But, if the imploring of the noble Lord, Lord Renton, can change the Government's mind then I, for one, would be very happy. I hope that he will pay attention at least to his noble friend, if not to the Opposition.

Lord Crickhowell

I have just two points to make on the clause. They are points I have made both on Second Reading and, I think, in earlier Committee stage debates. At Second Reading I said that we were creating a partnership, a marriage, between the department and the agency and that I feared the department was insisting on the introduction of the word "obey". I suppose in a way this is the first of the marriage clauses. As I quite welcome the marriage, all I want to ensure is that the terms of the contract are correct.

It seems to me that there are two requirements for a sensible contract. One is that the guidance should always be published; the second is that before it is given the department should always consult with the agency. I was wrong, I think on two occasions, when I said that nowhere in the Bill is there any provision that the Government should consult the agency. That is not right. Under Clause 38, the clause concerning ministerial directions to the new agency, there is indeed a requirement that before giving a direction the Minister consults. There is also a requirement that the direction is published. All I am asking is that similar provisions should be written into this clause, so ensuring that the guidance is always published and that before it is finalised there is consultation, including consultation with the agency, and indeed with both agencies because we are dealing as well with the Scottish agency.

Lord Beaumont of Whitley

My noble friend Lady Hamwee and myself would not like it to be understood that just because we have not given vent to the notice which is on the Marshalled List of our intention to oppose the Question that Clause 4 shall stand part of the Bill, we therefore consider Clause 4 a good thing. We believe, however, that this is probably not the moment to challenge it and that the Government should be given time to think in the light of all the various criticisms that have been made in different parts of the Chamber.

Viscount Ullswater

I say initially to my noble friend Lord Renton that I guarantee that I shall consider very carefully all the representations made to the Government during the course of this Bill whether at this stage or any future stage. I have listened carefully to the arguments. I have indicated to my noble friend that I think Clause 4 goes beyond the normal arrangements for non-departmental public bodies in which the aims and objectives are usually set as part of the management's statement because it places a duty on Ministers to provide the guidance.

On the first day the noble Lord, Lord Williams, challenged me as to whether the Government would consider a strategic amendment when we were considering the first amendment. He challenged me as to whether my mind was closed against what he referred to as a strategic amendment. I believe he was quoting from my noble friend Lord Marlesford. At that stage I said that my mind was not closed but I was not prepared to give him any commitment that I would return at Report stage with an amendment. I said that I would certainly want to consider everything I had heard. I would say to the noble Lord, Lord Crickhowell, that the guidance will of course be published. I believe it would probably even be available under the environmental information regulations. I note also that he agrees that the agency will be involved in those consultations. I believe that Clause 4 has a part to play in this legislation.

Lord Williams of Elvel

Before we leave Clause 4, the noble Viscount delivered himself of some rather delphic words about a strategic amendment. He said his mind was perhaps not altogether closed. Then he moved on to another subject. Can he clarify for the Committee exactly what he intends before we come to Report stage? Is his mind still open? Can we produce or negotiate something which is acceptable to all sides of the Chamber, or is he simply saying that all is said and done on the matter?

Viscount Ullswater

I indicated on Tuesday that I heard what the Chamber had to say. The noble Lord challenged me to say whether I was against having any form of strategic amendment. I said at that stage that my mind was not closed and that I would consider whether some form of strategic amendment would be possible between now and the next stage. But I did not commit myself to bringing forward such an amendment.

Lord Moran

I did not quite understand what the Minister said in reply to the noble Lord, Lord Crickhowell, about consultation. He talked about the environment agency being involved in the consultations. What I mentioned when I spoke earlier was that there should at any rate be full consultation with the environment agency and with all other appropriate bodies before the guidance is issued and that there should then be an opportunity for Parliament to consider it. Will the Minister be able to look at those two points before the next stage of the Bill?

Viscount Ullswater

At the moment the agency is not in existence. I think what I said on a previous occasion was that it would consult with the advisory committee which is in existence. As I have indicated, the guidance is draft guidance and those consultations would take place with a much wider selection of interested people. We would especially listen to the views of your Lordships and Members of another place.

Lord Crickhowell

I am sorry to pursue the matter but I think all that the noble Lord, Lord Moran, and I are asking for is something quite simple. I do not see the difficulty here. I am grateful for the undertaking that the agency, or the advisory committee rather, would be included in the consultation process before the initial guidance was issued. I think I interpreted the somewhat delphic words of my noble friend in response to a question from the Front Bench opposite that from time to time it might be possible for the guidance to be altered in the future. All I would like to see is what appears in Clause 38, which is concerned with directions; namely, a statement in the Bill that the agencies will be consulted and that the guidance will be published. If it is to happen anyway and if it can be included under Clause 38, I cannot think why it cannot be included under a redrafted Clause 4. It would make the matter unquestionably clearer and would perhaps avoid misunderstanding and difficulty on a later occasion.

Viscount Ullswater

I shall certainly look carefully at the words of my noble friend and see what can be done.

Clause 4 agreed to.

5 p.m.

[Amendment No. 42 not moved.]

Clause 5 [General functions with respect to pollution control]:

Baroness Hamweemoved Amendment No. 43:

Page 5, line 43, leave out ("exercisable") and insert ("exercised").

The noble Baroness said: When I first read the Bill my eyes passed, without lingering long, to the first line of Clause 5 and the word "exercisable". The phrase reads:

"The Agency's pollution control powers shall be exercisable".

Then the purposes are set out. Having found a different term in Clause 6, I returned to that term and wondered what the nuances of "exercisable" might be and why the Government had chosen—if they did so consciously—not to use the term "exercised". In other words, is the agency not to have a duty to prevent, minimise, remedy or mitigate,

"the effects of, pollution of the environment".

I am confirmed in my concern because it has been drawn to my attention that in the rubric to Clause 5(1) a previous draft referred to "duties", but it now refers to "general functions" with respect to pollution control. I therefore put down the amendment with a view to seeking the Government's explanation as to the level of energy to be put into the function by the agency and whether it is to have a duty or merely a discretion. I beg to move.

Lord Williams of Elvel

The noble Baroness introduced her amendment in a rather modest manner because it goes to the heart of what some of us were discussing on Second Reading. It concerns whether the agency has a duty in pollution control rather than a power in pollution control. If the words, "shall be exercised" are substituted for the words "shall be exercisable", it seems to me that there shall be a clear duty on the agency to use what powers it has, for the purpose of preventing or minimising, or remedying or mitigating the effects of, pollution of the environment". That is the duty for which we have been asking and for which we will continue to ask. I very much hope that, in responding to the amendment, the noble Viscount will explain in as full language as he feels appropriate why there should be no duty on the agency to prevent, minimise, remedy or mitigate the effects of pollution, when there are duties imposed on the agency in other matters.

I hate to go over old ground, but I wish again to quote the terms of Amendment No. 147 which I regret that the Committee failed to favour. It states—and this is government guidance— The overall aim of the Agency shall be to help to promote sustainable development through high quality, integrated environmental protection, management and enhancement". The amendment continues: The main objectives of the Agency shall be", to reduce pollution. Either the agency has a duty which is enforceable in law, or it has a power which is exercisable at the discretion of the agency. The two matters are wholly separate and wholly different in their effect.

As I said on Second Reading, I strongly support any amendment which imposes a duty on the agency as opposed to simply giving it a power to do something and it can use its power if and when it wishes. I strongly support the amendment rather modestly moved by the noble Baroness.

Lord Howie of Troon

I support the amendment on the following grounds. The first line of Clause 5(1) mentions the agency's pollution control powers. They are to be either exercisable or, if the amendment is successful, exercised. We then turn to subsection (2) in which, as I understand it, the agency is supposed to carry out its pollution control functions.

I am in some difficulty over understanding how the agency can carry out its pollution control functions under subsection (2) without exercising its pollution control powers under the first line of Clause 5. I support the amendment.

Viscount Ullswater

Perhaps I may first deal with the point put to me by the noble Lord, Lord Williams. I am advised that the word "functions"—the word in the margin—covers both "powers" as well as "duties". Therefore the two are subsumed into the word "functions".

Lord Williams of Elvel

I am sorry, but I must intervene at this point. The rubric is not part of the Bill and will not be part of the Act.

Viscount Ullswater

I thought that what the noble Lord was concerned about was the change of the word from "duties" to "functions", a change from the previous draft. If I heard him right, I thought he said that a previous draft had used the word "duties".

Lord Williams of Elvel

I must have spent a lot of time explaining myself extremely badly. To repeat what I said at Second Reading, I thought and we think that the agency should have a duty to exercise its powers, for the purpose of preventing or minimising … the effects of, pollution of the environment". The Bill as drafted states that, The Agency's pollution control powers shall be exercisable". In other words, it is a possibility that it may exercise those powers. The noble Baroness's amendment substitutes the word "exercised" for "exercisable" and clearly makes it a duty on the agency rather than simply an option. I am sorry if I was inexplicit or unclear in what I said previously, but that is what I was trying to say.

Viscount Ullswater

Clause 5 sets out the purposes for which the agency may exercise its pollution control powers. Amendment No. 43 moved by the noble Baroness, Lady Hamwee, seeks to change that so that the agency's powers shall be exercised for the purposes of dealing with pollution control. This would suggest that all its powers must be exercised in every case; but some of the pollution control powers are, of course, discretionary, and necessarily so, such as the power to prosecute. The amendment would mean, for example, that the agency would have to use its power to prosecute at every opportunity, which would be both unworkable and counter-productive. The wording as it stands is designed to ensure that the purposes attach when and where the powers are exercised.

If the intention behind the amendment is to ensure that the agency uses its pollution control powers, it is misguided and unnecessary. Pollution control is one of the agency's core functions and it will, of course, act to control pollution wherever appropriate.

I shall have to study carefully what the noble Lord, Lord Howie, put before the Committee. I did not find any difficulty with Clause 5(2) in its relation to Clause 5(1). However, if I find something, I shall certainly write to him. I ask the noble Baroness to withdraw the amendment.

Baroness Hamwee

Perhaps I should explain to the Committee why the manner in which I moved the amendment was, as the noble Lord put it, modest. The reason was that after putting the amendment down, I realised that there might be a place for the term "exercisable", although I still felt that this was not the place for it. It would be a great deal more helpful and would express the aims and objectives of Members of the Committee if the Bill were to spell out more clearly than it does that the agency shall have a duty to do the things which are referred to in Clause 5(1). Although it has pollution control duties—and we shall return to this matter later, particularly in the context of air pollution —as I read the clause, it does not have an overall duty to prevent, minimise, remedy or mitigate the effects of pollution. It would be a great deal clearer—we shall perhaps have to return to the matter on Report—if Clause 5(1) stated that duty, and the next clause said that its powers shall be exercisable for those purposes which have already been given the status of a duty. The debate has been useful and, having made those remarks, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Hilton of Eggardon moved Amendment No. 44:

Page 5, line 43, after ("exercisable") insert (", without prejudice to section 4 above").

The noble Baroness said: This amendment falls into a discussion that we had on Tuesday and should have been addressed at that stage. I shall also speak to Amendments Nos. 45, 60 and 67—again they relate to a semantic discussion about this particular clause and address the meaning of "mitigating". This is by way of a probing amendment: I hope that the Minister will explain to the Committee the exact meaning of the term "mitigating". As I understand it, the term can be used in many different ways, and very often involves some form of financial compensation. I wondered whether it was the intention here that if pollution has occurred somebody will be compensated for it. Or does "mitigating" merely mean the same as "minimising", which also appears in the clause? If compensation is available, on what basis would it be paid?

I also support Amendment No. 60 tabled by the noble Lord, Lord Marlesford. As I understand it, it seeks to make clear that the pollution would not just be serious pollution but would also include what might be defined as "light" pollution and it would therefore be the duty of the environment agency to deal also with that. The main thrust of this group of amendments is to ask the Minister to elucidate the meaning of "mitigating", to explain how it varies from "minimising", and whether it implies some kind of financial compensation. I beg to move.

5.15 p.m.

Lord Marlesford

The grouping at this point is slightly awkward. My Amendment No. 46, which relates to light pollution, is not directly connected with the amendment of the noble Baroness, Lady Hilton. However, as it is grouped here, perhaps I might be allowed to make now the points that I wanted to make. My amendment suggests that the words "including light pollution" should be added to Clause 5(1) of the Bill.

The concept of light pollution may not be wholly familiar to all Members of the Committee. But many forms of pollution are relatively new. Not so long ago we did not know about ozone pollution. There are many countries where pollution itself is only beginning to be recognised—for example, in the former Soviet Union, which is only now coming to recognise terrible forms of pollution. I do not believe that Members of the Committee will have any difficulty at all in recognising inappropriate light as a very real source of pollution.

Among the beauties of the world are dark skies and moon-lit and star-lit skies at night. Those of us who live deep in the countryside find the intrusion of light to be very polluting indeed to the areas in which we live. In a sense, it almost reduces areas of countryside to a form of suburbanisation, which is much to be regretted. I believe that, to some extent at least, it can be avoided.

Recently, the Council for the Protection of Rural England, of which, as noble Lords may know, I am the chairman, and the British Astronomical Society joined together to draw attention to and warn about the huge increase in lighting that has taken place in this country. If Members of the Committee will look, as I have done, at a satellite map of Britain at night on a particular night, and at a map for the same night 20 years earlier, the result is striking and distressing.

Lighting is used without due care and thought. I hope that the new agency will be able to give considerable attention to this matter. There are several examples that could be given, one of which is humble street lighting, which is often unnecessarily intense, particularly in villages. For example, in the small Suffolk village of Stratford St Mary the local authority proposed to put up 40 extremely bright street lights. The village is in Dedham Vale, an area of outstanding natural beauty. As a result of the intervention of the Dedham Vale Society, it was negotiated that it could have a perfectly adequate supply of light from 20 lights which were themselves of more pleasing design.

Secondly, although one fully recognises the need for security lighting, often it is unnecessarily bright and unnecessarily intense. Indeed, it can be counter-productive, by causing shadows which can in themselves be a threat.

Perhaps one of the most obvious areas where lighting is excessive and undesirable is on roads. One of course needs lighting on some roads; but equally, the lighting is often quite unnecessary, particularly in the countryside.

There was a time when road engineers felt that it was the spice of life to build roads where people did not want them. It was almost more fun to be doing so. In recent years public opinion has shifted so much that now great care is taken by the Department of Transport in the environmental design of roads. (That is not to say that all the roads are necessary.) I am afraid that that stage has not yet been reached as regards lighting. Authorities will gaily say that they must have very bright lights and often do not even consult. If Ministers are presumptuous enough to question their decisions, perhaps as a result of constituency pressures, they will often tell those Ministers that they will be risking the most terrible accidents and will have human death on their hands. Quite often that is simply not true. The effect of lights can be mitigated by their being downward rather than upward reflecting. Indeed there can be dangers from moving from a very brightly lit area to a dark area. Again, I believe that there is much scope for better lighting.

My noble friend Lord Cranbrook, who has unfortunately had to leave, had hoped to make the point that in many cases bright light, by attracting insects, can cause the death of protected species such as bats and nightjars, which are then struck by traffic as they pursue them. That is another disadvantage. All I am saying is that the impact of unnecessary lighting in this country has now become a real problem. It is one to which we need to turn our attention.

I do not know whether my noble friend would wish to include the words in the Bill, or whether he would be able to assure me that appropriate guidance would be given to the new agency to take account of the need for lighting; I look forward to hearing what he has to say.

Lord Northbourne

I should like, very briefly, to support the noble Lord, Lord Marlesford, in drawing attention to the importance of this new environmental damage that is being caused by light at night. Perhaps the noble Baroness, Lady Hilton, got it wrong in referring to light pollution: what we are discussing is pollution by light at night. The orange glow over my part of the countryside at night certainly detracts materially from the beauty of the countryside at night. If we are concerned about maintaining the rural countryside in this country, we must be concerned about retaining it by night as well as by day.

It is all very well to have motorway lighting. At the moment I am in correspondence about the new lighting that is being installed on the M.2. I am told that it is justified if a 30 per cent. reduction in night accident rates is achieved. I hope to find out, first, whether or not there is any research justification for the figure of 30 per cent. and, secondly, whether or not there are alternative solutions. For example, in France there are central barriers so that the lights of oncoming vehicles do not dazzle drivers. That may be a better and very much cheaper solution. I suggest that whatever is put into the Bill, there ought to be an environmental assessment every time a new major street lighting scheme on a motorway is proposed and that all the relevant amenity bodies, including the CPRE, are consulted.

Lord Moran

I, too, support very strongly Amendment No. 46 so capably moved by the noble Lord, Lord Marlesford. At the moment, in this country lighting is largely a matter for local authorities. Many of them have enlightened policies. The authorities in the two areas where I live, Powys and Kensington, have admirable lighting engineers and do a very good job. I believe it would be helpful if the environmental agency was able to use its influence to cut down pollution by light and to encourage such things as downward-directed lights, less wasteful light and to cut out unnecessary lighting.

For the past five years the British Astronomical Association has conducted an admirable campaign called the Campaign for Dark Skies. It is important that in country areas one should still be able to see the stars and not have them blotted out by the terrible orange glow that covers so much of the country. It is possible to improve matters. The Department of Transport has done a good job in removing quite a number of low-pressure sodium lights, which distort colours and make everything appear orange, and replacing them—as in the case of the M.4 going west—with high-pressure sodium lights which are still an orangey-yellow colour but do not distort colours. I believe they are greatly preferable. White lights are even better. I am happy to say that in my part of Wales the county council has agreed to replace the orange sodium lights in the village with white lights. The improvement is immense. However, here in London it seems that only round Buckingham Palace, Albert Bridge, and select places of that kind, is one allowed to have white lights.

Perhaps one good idea for the millennium project is to sweep away all the sodium lights in this country and replace them with white lights. This amendment is a good one, and I hope that the Government will be prepared to meet the arguments that have been put forward by the noble Lord, Lord Marlesford.

Lord Barber of Tewkesbury

I should like to add the briefest of comment in support of the noble Lord, Lord Marlesford. I should like to make three points, one of them a rather discrete one. I have no doubt that this is a neglected area that deserves a great deal more sympathy and attention than it has had up to now. Moreover, I believe that public opinion is moving well ahead of the authorities over the whole field of pollution by light.

In my part of the Cotswolds, all of the villages are rapidly filling up with commuters. I believe that almost all of them are townspeople who have come to live in the villages. I am fascinated by the ferocity with which year by year people who come to live in the villages oppose street lighting—and jolly good luck to them! The fact of the matter is that they have opted to live and think like country people. I am all in favour of giving them the maximum amount of encouragement. However, with equal ferocity, the local authorities wish to impose street lighting without any proper review of the situation.

I am jolly glad that there are many villages in the Cotswolds without any lighting. One particular village of 800 people was the subject of a poll on the subject. Ninety three per cent. refused to have anything to do with street lighting, if it could be avoided. It is nothing to do with safety. The rigidity of the local authorities is absolutely frightening. I believe that the adoption of this amendment will help and—if I may coin the phrase—lighten the darkness of these authorities who cannot see what it is all about.

Baroness David

I also support this amendment. I hope that the Minister will accept the spirit of it, even if the wording "light pollution" may not be perfect. The noble Lord, Lord Marlesford, has mentioned the danger of driving from very bright lights into darkness, which is what happens on motorways. I believe that the very bright lights are extended for too great a distance. If they can be toned down it will at any rate save some energy and also make driving very much safer.

Lord Beaumont of Whitley

I also support the amendment. As the noble Baroness has just said, the wording of the amendment probably needs to be revised. Although it is not the purpose of the environment agency, this will have the effect, if it happens, of reducing the amount of energy that is expended. If we are moving towards sustainable development, that is something of which we must all be in favour.

Lord Howie of Troon

I do not wish to oppose the amendment totally because I believe that there is a good deal of sense in it. However, the noble Lord, Lord Marlesford, has perhaps a fixation about light. Just the other day he was trying to change our time in the expectation of greater light. What I see here is a good deal of sense that has been carried just a little too far, which is often the case in environmental matters. If people dislike something of this nature they call it pollution. The kind of thing that we have been talking about is no more than nuisance. It may amount to pollution here and there in odd corners, but it is really nuisance and therefore is much less reprehensible.

When I stumble into the countryside (which does not happen very often) I prefer to see where I am going. If one is looking at stars, and so on, the light is a nuisance. However, for the most part I like the help of lights, perhaps because I do not see very well any way. I can see better in the light than in the dark. I would not describe light as pollution. It may be a nuisance and may interfere with certain activities. I support certain parts of the speeches that have been made, but, to be frank, the pudding has been over-egged.

Lord Chorley

I started off with the difficulty of wondering what light pollution meant. I thought that it was the opposite of heavy pollution; but we were enlightened on that. I have a great deal of sympathy for the amendment of the noble Lord, Lord Marlesford. My only worry is whether the environment agency is the right body to do it. However, I cannot think who else it may be and in that sense I support the noble Lord. If we make some progress on this matter perhaps the noble Lord, Lord Marlesford, might wish to come back at Report stage so that we can discuss the other appalling form of transport pollution—namely, noise—which I believe is as bad as if not worse than pollution by light.

Viscount Ullswater

I hope that the noble Baroness, Lady Hilton, will forgive me if I address myself to the particular amendment that seems to have monopolised the attention of the Committee in the past few minutes before I address myself to her point on "mitigating". Amendment No. 46 specifies that light pollution should be included within environmental pollution. I recognise not only the quite legitimate anxieties behind this proposal, which have been echoed from a number of corners in this House, but that Clause 5 is a general provision setting out the purposes for which all the agency pollution control functions are exercisable, and it would not be appropriate to specify the kind of pollution here.

I am well aware of people's worries about this matter. The noble Lord, Lord Moran, identified his dislike for low pressure sodium lights. But motorway and street lighting is needed both for safety and amenity purposes. My noble friend indicated how it was possible to have well designed installations which should provide illumination only when and where it was required and to an appropriate level of intensity. I agree that that is the right course. However, the noble Lords, Lord Beaumont and Lord Chorley, identified some of the problems attaching this amendment to the Bill. It is important to recognise that the environment agency's responsibilities do not extend to statutory nuisance or transport matters. So its role in this instance would be very limited.

Although I listened very carefully to noble Lords and have a good deal of sympathy with what has been said, I hope that my noble friend will not seek to press his amendment on this occasion.

5.30 p.m.

Lord Marlesford

I thank my noble friend for his reply. As I understood him, in so far as it would be under the terms of the clause as drafted, it would be up to the environment agency to take account of pollution by light along with other forms of pollution. If that is what my noble friend said, and I understood him to say that, that is quite satisfactory.

I quite understand that there is no reason to single out with a specific reference in the clause a specific form of pollution. But I was rather concerned when he said that it would not be able to take any account of noise or other forms of pollution. I should have thought that all forms of pollution should be taken into account because they are part of what stands in the way of sustainable development, if I may use the current phrase.

Given that Hansard can now be used to understand legislation, and on the understanding that light pollution is indeed comprehended in the terms of Clause 4, I shall be happy to withdraw my amendment.

Viscount Ullswater

Perhaps I should say that Clause 5 is concerned with the agency's pollution control functions. I sought to indicate to my noble friend that the agency's responsibilities do not extend to those forms of statutory nuisance.

I turn to Amendment No. 45. I understand that the noble Baroness, Lady Hilton, considers that Amendment No. 44 has been dealt with on a previous occasion. The purposes set out in Clause 5 for which the agency may exercise its pollution control functions are for preventing, minimising, remedying or mitigating the effects of pollution of the environment. Amendment No. 45 proposes that "mitigating" should be omitted from that list. It is clear that the best way of dealing with pollution is to prevent or minimise it and render it harmless, wherever cost-effective options exist for that purpose. Where pollution has already occurred, it may be necessary to try to remedy it. However, it will not be possible or reasonable to effect a full clean-up of the effects of some past environmental contamination or of a particularly serious environmental incident in every case. In those cases it is necessary to do the best that one can in the circumstances. Therefore, I feel that the list of purposes must include "mitigating".

That is particularly the case when considering the matter of contaminated land. The proposed regime for dealing with past contamination focuses clearly on what truly matters: dealing with the harm that may be arising or the further pollution to controlled waters. A requirement to do more than that would produce both excessive and perhaps unnecessary financial burdens and in many cases be technically impossible.

If "mitigating" is retained—as I believe it must be—in the list of agency purposes for which pollution control functions are exercisable, it follows that it should also be retained in the other places in Clause 5 in which it occurs, contrary to Amendments Nos. 60 and 67.

The noble Baroness said that her amendment was in the form of a probing amendment. With that explanation, I hope that she will be able to withdraw it.

Baroness Hilton of Eggardon

I must first apologise to the noble Lord, Lord Marlesford, for having misunderstood his amendment. I would have enthusiastically supported it, of course, if I had understood it in the first place. I am reassured by what the Minister said, but there will necessarily be costs to local authorities in changing the lights, and the support of the environment agency in pursuing that policy would have been extremely useful. I regret that I did not understand the amendment in the first place.

I am grateful to the Minister for his elucidation of what "mitigation" might mean. I shall read carefully in Hansard his rather technical explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 45 to 47 not moved.]

Baroness Hilton of Eggardonmoved Amendment No. 48:

Page 6, line 5, after ("compile") insert ("and publish").

The noble Baroness said: I am afraid that we must now consider another group of amendments which deal with more than one subject. In the limited time available earlier, we tried to sort out this group. We removed several of the amendments, which we shall deal with separately.

My understanding of this group of amendments is that it deals with two main issues in relation to this clause. Amendments Nos. 48, 55, 59, 62 and 64 concern the wider publishing of reports and giving information to the public about the pollution of the environment. Those who heard the broadcast this morning about the difficulty of extracting information from government departments—particularly, as agencies are set up, it is possible to use the excuse of commercial disadvantage if one publishes information—will share with me the desire that as much information as possible should be published and automatically made available to the public, particularly in such an important area as pollution with the possible risks to health, and so on. In my view there should be complete freedom of information in this field and the Government have paid lip service to that view. The public should be entitled to know the dangers with which they are faced.

The amendments seek to place a mandatory requirement on the agency to let the public know where pollution has occurred. The published reports will not only describe the pollution that has occurred but also the agency's proposals for dealing with that pollution.

The other half of the amendments in this group, Amendments Nos. 49, 50, 51, 52, 53, 54, 56 and 57, represents an attempt to give additional discretionary powers to the agency rather than to Ministers and to provide it with some autonomy and greater independence. Amendment No. 49, and Amendment No. 50 which is consequential upon it, lays a duty on the agency to assess pollution, not merely at the whim of Ministers but through its own discretion. Similarly, Amendment No. 51 gives it discretion to decide when to carry out assessments of the extent of the pollution. Amendment No. 53 requires the agency not only to examine the effects and consequences of pollution but also to examine the causes.

Finally, Amendment No. 56, and Amendment No. 57 which is consequential upon it, requires the agency to submit reports, not in all instances but only if requested. It provides the agency with greater discretion as to whether reports are necessary. The agency is not required to submit reports in all instances. I beg to move.

Lord Crickhowell

One amendment in this group is curiously out of place. It is an amendment in my name and, though it is a technical amendment, it is important. I wish to speak first about the amendments to which the noble Baroness spoke. As I said at Second Reading, I was puzzled as to why the agency should carry out assessments only if required to do so and I expressed the hope that the information would and should be published.

I suppose the answer that the Minister will give me is that the agency can carry out such works without any request from the Minister and, no doubt, will do so, but if, that for some reason, the Minister wanted it, he must have the power to request it. The situation one envisages then is that the department will ring up the agency and say, "We would like you to do this assessment". A chairman even more difficult and bloody-minded than the present chairman of the NRA—if any such thing can be conceived—may turn round and say, "We have no intention of doing anything of the kind". I suppose therefore that one can envisage a situation where the wording may be required.

However, I find it odd and implausible, to say the least, that the agency will not do that kind of assessment as part of its work on its own initiative. Having done it, I am sure that it should be published. To prepare and send such a report to Ministers without publishing it would be extremely peculiar. It would immediately appear in that excellent journal ENDS, which takes every document which circulates around the DoE and informs the rest of the department and anyone else who cares to read it what is going on. So it would be better if there was a requirement to publish at the word go and then we would not need to rely so much on that excellent journal. I hope therefore that there will be a requirement to publish and thus avoid that nonsense.

Amendment No. 68 raises an important technical point. Clause 5 of the Bill sets out the agency's general functions with respect to pollution control and requires the pollution control powers of the agency to be exercised for the purpose of, preventing or minimising, or remedying or mitigating the effects of, pollution of the environment".

Pollution control powers and functions are conferred upon the agency by virtue of this Bill—for example, in connection with contaminated land—and the definitions of pollution control powers and functions omit a reference to the environment Act itself. They refer to previous legislation. Clearly that matter ought to be dealt with. It is a technical error. I hope that we find an appropriate way of dealing with it. A similar point occurs later under Clause 90 which confers harmonised powers of entry on the agency's pollution control functions. However, we can look at that when we come to it. I hope that the Minister will be able to accept amendments which merely ensure that the agency can do its job that arises from the new powers conferred on it by the Bill.

Lord Moran

A number of amendments stand in my name; namely, Amendments Nos. 49, 52, 54, 55, 57 and 62. I wish therefore to say a brief word about their purpose.

The amendments reflect my belief in open government. Their purpose is twofold: first, it is to ensure that as many as possible of the agency's reports and assessments of the state of pollution in the environment are made public; secondly, to ensure that a proper assessment of the state of pollution of the environment becomes a duty on the agency and not simply a matter of ministerial choice.

In relation to the first point, we all know of cases where unpopular or embarrassing research reports have never seen the light of day. It is surely far better for the Government to publish all the agency's assessments of pollution so that the public can participate in the business of setting priorities. The agency ought to be—I hope it will be—one of the best informed environmental bodies in the country. It would be quite wrong, therefore, for any of its reports to remain under wraps.

In relation to the second point, surely an objective means of assessing environmental protection would be a great advantage in informing debate and be a basis for subsequent government action. I hope we shall not be told that the agency cannot decide for itself what is reasonably necessary or that Ministers alone can dictate what it tells us.

Lord Beaumont of Whitley

I rise, first, to give general support, as would be expected from these Benches, to a series of amendments asking for greater transparency and greater publication. Secondly, I want to comment briefly on the three amendments standing in my name and that of my noble friend Lady Hamwee. Amendment No. 53, which concerns reporting on the causes of pollution—not just on pollution, but imposing a duty to identify the causes—speaks for itself. The other two amendments are Amendments Nos. 63 and 64. Amendment No. 63 asks for consultation in the course of that process. We certainly support all the amendments.

5.45 p.m.

Lord Nathan

I restrict myself to Amendments Nos. 49, 51 and 58. I regarded them as drafting amendments rather than anything else, but in the light of the discussion they have perhaps more importance than I originally thought.

The effect of Amendments Nos. 49 and 51 taken together is merely to enable the agency, on the face of the Bill, to produce its own report at its discretion; it can decide that it will do so. That brings it completely into line with the terms of reference of the Royal Commission on environmental pollution whereby the commission can, and usually does, select the subject upon which it will report. However, it must carry out a report if so required by the Minister. That seems to me to be entirely sensible.

I am reinforced in the view that it is important to put it on the face of the Bill that the agency has the right to issue its report and I thoroughly support the proposition that those reports should be published. I believe it should have the power to do so for two reasons. The first is the emphasis which arose in discussion on the power of guidance of government in relation to what the agency is to do, contained in Clause 4 which we have already discussed. The second point arises under Clause 35 where, under the subsection, there is a provision under which the agency shall produce a report if so required by the Minister. I do not object to that, but the implication of those things taken together could be that the agency shall not have the right to make a survey and to publish a report. That would be unacceptable.

My point in relation to Amendment No. 58 concerns the drafting. If my amendment to the clause is adopted, I think the word "appropriate" would be more suitable than the word "that". However, that is a consequential drafting amendment.

The Earl of Onslow

I rise to support anything which goes to the idea of publishing information. The more that is published the better it is for open government. In that I agree completely with the noble Lord, Lord Beaumont of Whitley.

However, I have a slight difficulty over Amendment No. 53. With luck it may be assuaged. My difficulty is this. If some criminal negligence has been involved in the cause of pollution or environmental damage, one must be careful when publishing reports and so forth to ensure that an individual's rights—when he is accused of anything against the law—are protected. That is my only worry and I am sure that somebody will set my mind at rest on that point.

Baroness Hamwee

I wonder whether I can do so. I believe that there is a distinction between the cause of a problem and the instigator of it. It will be perfectly possible to deal publicly with a sequence of events without necessarily running directly into difficulties as regards criminal law. I take the point which the noble Earl has made, but I am sure, as he said, that a way round can be found.

Viscount Ullswater

Clause 5 contains important provisions about the agency's duty to compile information about environmental pollution. The agency is also to carry out environmental assessments, if so requested by Ministers, and report on its findings, or to report on options for dealing with environmental pollution. The group of amendments seeks to make a number of changes to these provisions.

Amendment No. 53 in the name of the noble Lord, Lord Beaumont, and the noble Baroness, Lady Hamwee, suggests that in compiling information about pollution, the agency should collect information about the causes of the pollution. The agency is required to compile information relating to pollution which will help it to carry out its pollution control functions and which will enable it to form an opinion on the general state of the pollution of the environment. In doing so, the causes of pollution may often be a relevant consideration, and the agency will then no doubt collect this information. However, there may be situations where this information is of historical interest only and we would not wish to fetter the agency's discretion by placing it under a duty always to have to research exhaustively the causes of pollution where this would not be particularly helpful. I believe the wording as it stands gives the agency all the powers it needs for carrying out this duty effectively.

Amendment No. 61 in the name of the noble Baroness, Lady Hilton, proposes that the legislation should make clear that in identifying the costs and benefits of the options available for dealing with pollution, the agency should identify environmental, economic and social costs and benefits. I agree that where appropriate these should be taken into account.

Baroness Hilton of Eggardon

We have not reached that amendment yet. Amendment No. 61 was originally grouped with these amendments, but it is no longer.

Viscount Ullswater

I apologise. I now turn to Amendments Nos. 49 to 52, 54 and 56 to 58 spoken to by the noble Lords, Lord Moran, Lord Nathan and the noble Baroness, Lady Hilton. These amendments all seek to require the agency or to give it the discretion to carry out and report on environmental assessments without being required to do so by Ministers. I understand, I think, and sympathise with the purpose behind these proposals.

But, as I have already explained, the agency is already under a duty to compile certain environmental information. And under its incidental general functions in Clause 35, it has the power to do anything which in its opinion is calculated to facilitate, or is conducive or incidental to the carrying out of its functions. I believe that the noble Lord, Lord Nathan, drew our attention to Clause 35. In subsection (1) of that clause he will see the agency's wide powers which I have just mentioned.

If the agency feels it would be useful to carry out an environmental assessment, to undertake research or otherwise to obtain relevant information, it is thus able to do so without the provision of any additional powers in Clause 5. The NRA has produced a whole series of reports on water quality; for example, on water pollution incidents, discharge consents and compliance (the NRA's approach to control of discharges to water), contaminated land and the water environment, the quality of rivers and canals, and its water quality strategy. The agency, like the NRA, is of course also free to send any report to an appropriate Minister if it wishes to draw information to Ministers' attention.

The purpose of Clause 5(3) is to place the agency under a duty to provide to Ministers information about environmental pollution which they specifically request from it. That is a separate question, and is necessary because of the relationship between the agency and the department. I can understand why my noble friend Lord Crickhowell questioned whether it is necessary to put that on the face of the Bill.

Amendments Nos. 48, 55, 59, 62 and 64—I hope that I have got those right—propose that any reports produced by the agency under this clause should be made public. Again, I sympathise with this proposal, but the agency will already be free to do this and, like the NRA, will no doubt do so. The reports I mentioned earlier, for example, have all been published, as have many others. In addition, the agency will be subject to the Environmental Information Regulations 1992, which give members of the public rights to a great deal of environmental information held by a variety of bodies. I Say to the noble Lord, Lord Beaumont, that in no way are we trying to affect transparency. It is there and through those regulations the information is available.

Amendment No. 63 suggests that the agency should be under a duty to consult industry and others before providing a report to Ministers. Once again I believe that there are many circumstances in which the agency will need to consult others in drawing up its report and in such cases I am confident that it will do so. But I do not believe that it is necessary or desirable to anticipate in the legislation who might need to be consulted in any particular case.

The main thrust of these amendments has been to ensure that the agency has the duty or discretion to produce reports without being required to do so by Ministers and that interested parties should have access to these reports. I hope that I have reassured the noble Lords that I sympathise with their concerns, but see no need to make the amendments that they propose to deal with them.

Finally, I cannot recommend the Committee to accept Amendment No. 68 moved by my noble friend Lord Crickhowell, since it would have the effect of making all powers and functions of the agency under or by virtue of the Bill pollution control powers and functions. That is, of course, not what the noble Lord intended. I can, however, assure him that Clause 5 is not restricted to the agency's powers and functions under the legislation listed in subsection (5). It also applies to powers and functions under the Bill which the agency has "by virtue of" the listed legislation. For example, the agency's research duty under Clause 35(5) of the Bill is caught by Clause 5 to the extent that it is carried out in relation to the agency's pollution control functions. I hope that I have made myself abundantly clear and that the noble Baroness will feel able to withdraw the amendment.

Lord Crickhowell

I am grateful to my noble friend for that assurance. When confronted with contradictory advice by lawyers I always withdraw hastily and ask them to look at the matter again. I shall certainly ask my lawyers to look at it again. As long as they are satisfied with the answer given I shall not need to return to the matter again. However, if I am not satisfied that the point is fully met I shall want to return to it.

The Earl of Onslow

My Lords, as regards the publication point, it seems that what my noble friend is saying is this: "Yes, everything should be published, but we are not going to make it compulsory". Therefore, under what circumstances can he foresee that something would not be published and why would somebody not want to publish? If they do not want to publish, then it almost seems that, in those circumstances, it should be published.

Viscount Ullswater

I am sure that the new agency, in operating all kinds of functions which it may undertake, needs to compile various reports which it will need to circulate within the organisation. Those reports may be commercially confidential. Therefore, I believe that the duty to publish everything that it commits to paper would be entirely wrong.

Baroness Hilton of Eggardon

I am partially comforted by the Minister's response in that he says that the practice has been to publish reports extensively. It is the growing excuse of commercial sensitivity which worries me. It seems to be used increasingly by agencies, quangos and so on, as a reason for not publishing reports. I share the feeling of the noble Earl, Lord Onslow, that it is particularly those things that are not published that are the most sensitive and disturbing and about which we should know. However, in the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 49 to 60 not moved.]

6 p.m.

Baroness Hilton of Eggardonmoved Amendment No. 61:

Page 6, line 19, after ("the") insert ("environmental, economic and social").

The noble Baroness said: We come for the first time to the problem of cost-benefit analysis. On Second Reading, I expressed some of my reservations about that because my limited experience is that while it sounds very analytical, objective, scientific and as though it deals with hard facts, it usually depends on a whole series of subjective judgments about what One puts into the formula and how one weights the various benefits and costs. Since making my Second Reading speech, I have been inundated with lobbying from the world of business, industry and those who are concerned with financial costs who insist that the provisions relating to cost-benefit analysis should remain in the Bill. There is clearly a contrary point of view from environmentalists who share my concerns that those provisions will be weighted heavily in favour of industry and against cleaning up our polluted environment.

The current application of the "polluter pays" principle means that when industry causes pollution, it should pick up the cost. That clearly disturbs industry which wants to be sure that its costs are balanced against the benefits which are sometimes much harder to assess. One of the great difficulties is that the benefits of environmental clean-ups are often very long term, sometimes stretching as far ahead as the next century, while the pollution affects us now and the costs are always immediate and within the current year's balance sheet. That is clearly one of the reasons why industry is keen that cost-benefit analysis should remain a major plank of the provisions relating to the consequences of pollution.

The application of cost-benefit analysis is sometimes a prolonged and clumsy procedure. It is bound to constrain the work of the agency and to inhibit the exercise of its attempts to clean up pollution and to act as a regulator. Legal challenges by firms on the grounds that the agency has not properly taken the costs and benefits into account may tie it up in the courts for many years.

However, the cost-benefit approach offers an opportunity. It implies that the benefits will at least be considered and that they will not be dismissed out of hand because of the possible costs. It means that there will be some attempt to weigh the one against the other. The amendment suggests that the "environmental, economic and social" benefits should be considered as well as the financial costs. That would ensure that the balance was tilted slightly in the direction of the benefits when the agency exercised its powers as a controller of pollution. I beg to move.

Lord Crickhowell

I do not believe that there is any real need for the amendment. The fact of the matter is that any agency that considers the costs and benefits is bound, if it is an environmental agency, to seek to evaluate just those aspects that are described in the amendment. In fact, a great deal of work to evaluate environmental benefits has been, and is being, done in, for example, the NRA under the wise leadership of Professor Kerry Turner, who is one of the country's leading authorities on the subject. Such work has been carried out widely for a considerable time in relation to the cost-benefit analysis of flood defence schemes. The practice is being developed all the time. Those involved are already doing the work that is suggested. My concern is not that they will not have the power to do it or that they will not do it, but that the Bill does not necessarily provide the mechanisms and instruments that would allow them to get at the necessary information. I referred earlier to having statutory quality objectives which provide a route by which one can discover the costs and discuss them with those affected. Therefore, I would argue that the existing wording is perfectly satisfactory. I believe that everything that the noble Baroness wants is already being widely done and I cannot believe that the agency will have any difficulty in doing what she wants.

Lord Elton

In order that the rest of us can follow the argument a little more closely, I wonder whether my noble friend can advise us, or get advice for us, on the precise meaning of the words "costs" and "benefits" in law as they now appear in line 19. Does "costs" mean only money or does it mean the other costs that are specified in the amendment? Does allying that word with "benefits" change its meaning? Although the Bill may already say what the noble Baroness would like it to say, that may not be apparent to us because we do not know the effects of those words in law.

Viscount Ullswater

I am grateful to my noble friend Lord Crickhowell for giving us the benefit of his opinion and of his experience over a number of years as chairman of an organisation which has to weigh up such costs and benefits.

In Clause 5(3) (b) we are talking about the agency preparing a report on options for, preventing or minimising, or remedying or mitigating the effects of, pollution of the environment",

and specifying that that should include, the costs and benefits of such options".

Amendment No.61 proposes that the costs and benefits to be covered should be the "environmental, economic and social" costs and benefits. I agree that, where appropriate, they should be included, but I believe that the Bill is drafted widely so as to include them. I shall, however, take advice on whether the legal interpretation of the words "costs" and "benefits" includes the environmental, economic and social costs and benefits. I believe that it does.

Using the phrase "environmental, economic and social costs and benefits" will not mean that we include all costs and benefits. Therefore, to a certain extent the amendment would be restrictive. I do not believe that that is what the noble Baroness intends. Perhaps she will be prepared to withdraw the amendment when I say that when drawing up such reports, we certainly want the agency to include all costs and benefits.

Baroness Hilton of Eggardon

I am partly comforted by what the noble Lord, Lord Crickhowell, said. I agree that the point raised by the noble Lord, Lord Elton, has not been sufficiently elucidated. It is not clear whether "costs" includes environmental costs and whether such costs can be placed on that side of the balance or whether "costs" merely means financial costs. That is a very important point because we should be thinking about the costs to the environment as well as the benefits of cleaning up the environment when considering possible future courses of action.

We are all in favour of efficiency and of doing things as cheaply as possible, but that does not mean that something should not be done simply because it is very expensive. I hope that at a later stage, when we shall return to the subject of cost-benefit analysis, the Minister will be able to give us a clearer indication of how "costs" and "benefits" may be defined. However, at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 62, 63 and 64 not moved.]

Baroness Hilton of Eggardon moved Amendment No. 65: Page 6, line 21, leave out subsection (4) and insert: ("() The Agency shall promote the development and use of technology and techniques for preventing or minimising, or remedying the effects of, pollution of the environment.").

The noble Baroness said: I propose to talk to Amendments No. 65 and 66, but largely as a conceptual matter rather than as a precise drafting matter.

The amendments seek to encourage the agency not just to be fully up-to-date with what is intended and what is happening in the technical world, but to promote the development of new methods of technology for cleaning up pollution, and for preventing, minimising or remedying the effects of pollution.

Amendment No. 65 would ensure that the agency was able to encourage research and development. There are, for example, some interesting new ways of cleaning up polluted soil by the use of fungi, and so on. There are interesting developments. It is not just a question of using more solar energy or windpower to reduce energy use; there are other ways in which pollution can be cleaned up. The amendment is intended to be helpful and positive and to give the agency an encouraging and developmental role.

Amendment No. 66 is intended to strengthen the agency to some extent by encouraging it not just passively to have regard to developments in the field but actively to follow them. Both amendments are intended to encourage the agency to take a practical and active interest in new technological developments for dealing with pollution. I beg to move.

Baroness Hamwee

The noble Baroness is right to draw our attention to what I think is a rather curious clause. It must be absolutely right that the agency should be at the forefront of the development of new techniques. After all, the relationship between new technology and care for the environment is a very important one, and I would hope that the agency would not merely follow but show the way.

I confess, now I come to look at it again, that I am not really sure what is meant by "follow" in this context. It is capable I think of meaning either "shall be aware that these developments are going on", "shall come along afterwards acting on them", or almost "shall listen to them as one would to a radio which was on in the background". It is a very strange statement.

Having said that I believe the impact that new technology can have on the environment is a very important one; nevertheless, if we are to have guidelines this topic is one which perhaps is appropriate. I also find its place in the Bill a little curious.

6.15 p.m.

Viscount Ullswater

Amendments Nos. 65 and 66, tabled by the noble Baroness—perhaps in the alternative—propose that the agency's duty to follow developments in technology and techniques should be amended so that it becomes a duty to promote such developments and their use, or at least to have regard to them.

Clause 5(4) provides an expression of the agency's duty to keep up-to-date with the technology and the techniques in order to be able to discharge its functions effectively. It cannot be seen merely as an academic exercise.

I say to the noble Baroness, Lady Hamwee, that those with a knowledge of the work of Her Majesty's Inspectorate of Pollution will be familiar with its current duty to follow developments in technology and techniques for preventing or reducing pollution of the environment due to releases of substances form prescribed processes (Section 4(9) of the Environmental Protection Act 1990), and this underpins its role in ensuring the use of BATNEEC (the best available techniques not entailing excessive costs).

So far as promoting developments themselves, elsewhere in the Bill (Clause 35), the agency is placed under a duty to make arrangements for the carrying out of research and related activities by itself and others in respect of its functions, and that duty could cover the development of new technologies and techniques where appropriate. The NRA, for example, has used its research and development programmes to follow developments in discharge and environmental monitoring and to develop and promote new technologies for those purposes. The legislation as drafted gives the agency all the powers it needs in that respect to carry out its functions effectively, and that to require it to promote developments in technology and techniques would go too far in imposing on it a poorly defined role in promoting technological developments which is more properly the concern of others, and I therefore invite the noble Baroness to withdraw the amendment.

Baroness Hilton of Eggardon

It is disappointing that the agency cannot be given a more positive role in promoting technological developments. The agency will be in the forefront of knowledge of systems dealing with pollution and will, I imagine, have at its fingertips the results of research and development throughout the world. I should have thought that it would play a useful role in helping to develop technologies in that field.

I continue to think that the word "follow" sounds incredibly passive. In many places elsewhere in the Bill the agency is required to "have regard to", and it would be an acceptable amendment to change "follow" to "have regard to", which sounds slightly more positive and requires the agency to involve itself more directly in up-to-date research rather than merely to be aware of it, as the noble Baroness Hamwee has suggested, as a sort of background radio noise that it does not have to listen to if it does not want to. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 66, 67 and 68 not moved.]

Clause 5 agreed to.

Baroness Hamwee

moved Amendment No. 69: After Clause 5, insert the following new clause: ("Availability of information to non-governmental agencies . It shall be the duty of the Agency to make available and accessible to any non-governmental agency the data and information necessary for that agency's effective contribution to research and to the design, implementation and evaluation of programmes conducted by the Agency.").

The noble Baroness said: My noble friends and I have been wondering whether the amendment should have been grouped with the earlier group of amendments relating to open government. It is, after all, allied to subjects that we have already discussed. But the delay has enabled me to make one additional point which has occurred to me.

We talked in the earlier debate about publication, and I think there we meant "publish" in its normal sense, its commonly used sense, of something quite active. The amendment deals with "publication" in the more passive sense of "making available". It is intended to enable the Government to comply with its commitment under Agenda 21. I am advised that it is Chapter 27, paragraph 27.10(f). I am aware of the environmental information regulations, and by putting down the amendment we are seeking to encourage the Government to be as open as possible in this important area. I beg to move.

Baroness Hilton of Eggardon

We support the amendment. There are interested groups which would make good use of information supplied by the agency.

Viscount Ullswater

Amendment No. 69, moved by the noble Baroness, Lady Hamwee, seeks to insert a new clause placing a duty on the agency to make certain information available to non-government agencies.

It is of course right that the general public and organisations outside government should have access to information about the environment agency: As we have discussed, the Bill already contains important specific provisions concerning the information which the agency may, or must, provide. In addition, each agency will be required, under Clause 49, to produce an annual report which must be published. That will provide people with a broad description of the work undertaken by the agency during the year. Clause 35 specifically confers power on the agencies to make available the results of any research which they carry out, either free of charge or on payment of a fee. Further, the agencies will be required to keep public registers of information in relation to their pollution control functions and to ensure that those are available for inspection free of charge and that, on payment of a reasonable fee, copies of entries in those registers may be obtained.

The agency will also, as we have discussed, be subject to the Environmental Information Regulations 1992 which the noble Baroness mentioned. I believe that the provisions of these regulations, in addition to the powers and duties in the Bill, will be sufficient to enable non-government agencies to have access to all the information they need from the agency to enable them to make an effective contribution to research or to evaluate the agency's role.

I therefore think that Amendment No. 69, which seeks to introduce a new clause to that effect, is unnecessary, and I ask the noble Baronesses to withdraw the amendment.

Baroness Hamwee

As the Minister said, Clause 35 provides that the agencies may make the results of their research available in return for payment of a fee. If the Minister would prefer us to debate the matter under Clause 35, we can do so. As we are on the subject, he might like to explain—I should be interested in his comments—whether this should not be a higher obligation—a mandatory matter rather than discretion, as it appears at present in the clause—on the agencies, unless he plans to tell me that the agency must make its results available, and may charge a fee for doing so. I do not believe that that is what the clause says at the moment.

Viscount Ullswater

I sought to indicate the number and variety of reports and publications which the agency will make available. I was not drawing specific attention to Clause 35. I mentioned it in passing as one of the areas where the material would be available. I also mentioned the annual report and the entitlement to other material through the environmental information regulations to which the agency will be subject.

Baroness Hamwee

I am grateful to the Minster for that explanation. It is a matter to which we must return, because I am becoming a little more alarmed and not less. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 69A not moved.]

Clause 6 [General provisions with respect to water]:

Baroness Hilton of Eggardonmoved Amendment No. 70:

Page 6, line 41, leave out from ("Agency") to the end of line 42 and insert ("to further").

The noble Baroness said: This is another of the great omnibus group of amendments. They have a unifying theme in that they seek to increase protection for various aspects of the environment and to strengthen the agency's role in that respect. Thus Amendment No. 70 will ensure that the agency's general duties with respect to water are clarified and strengthened.

The present wording of Clause 6 requires the agency, only to the extent to which it considers desirable, to promote the conservation of natural beauty and amenity of inland coastal waters. The amendment seeks to reinforce that protection.

Amendment No. 82 seeks to strengthen protection for historic buildings and archaeological sites. Amendment No. 87 is a slightly different style of amendment in that it seeks to preserve current freedom of access to woodlands and other places of natural beauty. Similarly, Amendment No. 88 seeks to maintain current freedom of access to historic buildings, architectural and archaeological sites.

A number of amendments have been tabled by other noble Lords. Having fallen into the trap of rather explicitly making it clear that I did not understand the previous amendment tabled by the noble Lord, Lord Marlesford, I shall not at this stage attempt to interpret them, but say merely that my impression is that I thoroughly support them. They are attempts to extend the agency's roles and responsibilities. For example, the amendment tabled by the noble Lord, Lord Moran, extends them to include estuaries and sea areas, to ensure that the agency's role is made explicit.

There are also some amendments which ensure that local authorities notify the agency of areas within their ambit which are particularly sensitive or which may be affected by works or activities carried out on that land by the agency. In that sense, these are all attempts to increase the agency's protective duties, to increase its general environmental and recreational duties, and to provide protection, conservation and access to buildings, sites, objects, and areas of natural beauty, such as woodlands, mountains, moors and heaths. I beg to move.

Lord Marlesford

The noble Baroness was kind enough to refer to the grouping. Amendment No. 74, which she and I have signed, relates to water. Is it appropriate to take it with this group of amendments? It seems to fit in rather well with the earlier amendments.

Baroness Hilton of Eggardon

I am willing to include it. I have not been trying to increase the group; in my efforts earlier I tried to diminish it. I am happy that water resources be included in the group.

Lord Derwent

I speak to three rather special amendments (Nos. 95A, 97A and 97B) in my name and that of my noble friend Lord Addison. They also figure in this grouping. I am authorised to say that the Association of National Parks which is the body representing the chairmen and chief officers of the national parks and the Broads Authority strongly support the amendments.

The problems arise in Clause 8(2) which requires a national park authority to notify the agency of land which is of particular importance from an environmental point of view that might be affected by the agency's future activities. Only when the agency has received such a notification is it, in turn, obliged to notify the park authority before undertaking works of various kinds.

That gives the national park authority the almost impossible tasks of trying to determine, first, what land is of particular conservation importance within a park; and, secondly, whether such land may be affected adversely by the possible wide range of agency activities. Not only does that threaten to create a two-tier quality of landscape in a national park, but it is unclear how it would be possible to differentiate between different areas of a park when we are talking, for example, of pollution risks such as toxic emissions or acid rain. The effect of Amendment No. 95A would be to make consultation by the agency mandatory when the agency intended to carry out work which affected any part of a national park, the point being that land has been included in the national park because it has already been determined that it is of particular importance, otherwise it would not be in the national park.

Amendment No. 97A is tabled in order to ensure that there is no distinction between the need to consult on works which affect land within a park and works which affect water. Therefore, it is purely technical.

Amendment No. 97B seeks to ensure that the park authorities will be notified about the plans of the environment agency before the works become imminent. They will therefore be able to make their views known well before the works are undertaken. I have in mind, for example, the situation in which the agency is working on a river catchment plan within a national park. It is sensible for the park authority to be notified before the plans are finalised, otherwise there may be a huge waste of time and effort. The planning stage will end and the park authority will then be notified that the work is about to start. That explains why there may be objections.

The Association of National Parks strongly believes that it should not be asked to go through the bureaucratic problems and the local political problems involved in differentiating between sections of the parks. I hope that the Minister will be able to accept all my amendments.

6.30 p.m.

Lord Norrie

I wish to speak to Amendments Nos. 79, 81 and 90 which stand in my name. We have had a good discussion about the role to be played by the new environment agency, which I welcome. However, it is important that the agency is set up with the strongest possible legal framework in order to allow it to perform its vital environmental duties. Therefore, it is of great concern to me that the Bill in its present form may weaken the environmental duty to further conservation under which the National Rivers Authority currently operates.

I am pleased to see my noble friend Lord Renton in the Chamber. During the passage of the Water Act in 1989 he and I persuaded the Government to strengthen the NRA's environmental duties. I am disappointed that only a few years later that important duty is under review, in particular as it has proved so helpful to the NRA.

The Committee will be aware of the attention that Clause 7 attracted before the Bill received its First Reading. I was delighted by the Government's moves to strengthen the clause before the Bill was published. However, they do not go far enough. The duty to further conservation does not apply to pollution control functions. That point concerns the National Federation of Anglers, which believes strongly that the duty to further conservation should apply to all the functions of the new agency and that pollution control should not be excluded.

The clause as it now stands appears to be most unjust and there can be no valid reason for the exclusion of that duty, other than the fact that pollution control costs money. On Second Reading my noble friend Lord Crickhowell eloquently explained the importance of the duty to the NRA and I hope that he will do so again today. It would be a great pity to lose this clear statutory direction when there is obvious evidence of the important role to be played by such a duty when protecting sites of special scientific interest or conserving water quality. There is even an example where prompt action to prevent pollution of Bassenthwaite Lake in the Lake District National Park resulted in it being declared a national nature reserve.

On Second Reading my noble friend the Minister assured the House that it was not his intention to weaken the agency's commitment to conservation. In the light of the evidence presented by the NRA and other bodies, will he assure me that the current duty to further conservation is not weakened by the Bill in such circumstances?

Lord Moran

I wish to comment on the amendments in the group which stand in my name. Amendment No. 71 proposes to leave out the words: This subsection is without prejudice to the duties of the Agency under section 7 below". I believe that those words give precedence to Clause 7. Clause 7(1) (a) (ii) and (iii) subject the agency's duty to further conservation to guidance from Ministers on sustainable development. The way in which Clauses 6 and 7 are read together appears to subordinate almost all the agency's conservation duties to ministerial guidance and to a contribution towards development, albeit sustainable development. I do not believe that that is right. Unless the Minister can reassure me about the matter, I hope that the Government will consider removing the qualification in Clause 6.

I have also tabled Amendments Nos. 93, 94, 95, 97 and 98. They seek to widen the categories of concern which can be brought to the agency by English Nature or the Countryside Council for Wales to include estuaries and areas of the sea, such as potential marine nature reserves, which may be affected by its operations. As such, I hope that the Government will regard the purpose behind the amendments as consistent with the habitats regulations that were introduced and discussed in this House earlier this year.

Clause 8 achieves a sensible and practical machinery for the conservation bodies to raise their concerns with the agency. It would be a pity if estuaries and vulnerable areas, especially of territorial sea, were left unprotected. No doubt a similar provision would be required in the equivalent clause relating to Scotland. I hope that the Minister will accept the principle behind the amendments. If so, I hope that the Government will be able to make the necessary change to the Bill before the next stage.

Lord Crickhowell

As I said previously, I am not a lawyer and I always hesitate when confronted with contradictory legal advice. At the beginning of the proceedings on the Bill, and in the light of representations made on the drafts that had been previously published so admirably by the Government so that we could have prior consultation, they made their substantial revision to the clauses relating to conservation. We were told that all the anxieties of the NRA and other organisations had been dealt with. Since then I have repeatedly been told that we should not be in the least worried about the weakening, as we see it, of the pollution control functions.

My noble friend Lord Cranbrook is unable to be here tonight but he has written to my noble friend the Minister expressing the view of English Nature, the organisation which he chairs, that it is a matter of anxiety. I too have written supporting that view. I hope that in the face of the advice given by two statutory bodies set up to be expert in their own field, the Government will not take lightly the advice that the present wording appears to represent a weakening.

In recent years we have been able to protect SSSIs from damage due to drainage, flood defence and fisheries management because of our ability to do things. We believe that our ability will be weakened if the wording remains in its present form. Often one has to take certain actions by using the other powers in a sympathetic manner. When one is carrying out flood defence work one extends the nature of the work that one would do and perhaps adds to the costs to have it approved. As a result of the wording of the appropriate provisions, it is thought that one has the right and the power so to do without challenge. It remains my belief that if we do not have amendments of the kind suggested there will come a moment when the agency will not be able to do what it wishes to do or, if it tries to do it, it will be challenged either by one of the funding bodies or some other organisation.

As I say, I am not a legal expert and I hesitate to be absolutely categoric about the matter. But when I find that there is a great weight of opinion in all quarters concerned with the environment, and particularly in the statutory organisations, which consider that a strengthening of the existing wording of the Bill is required, then I take it seriously. Nothing has been said to me in recent weeks which has convinced me that the department is right and that its critics are wrong.

My noble friend is extremely persuasive. I have no doubt that he will have a well-argued brief and that he will do his best to persuade me. If he does that, no one will be more pleased than I. I shall wait to hear his argument with interest. However, at present I am not convinced. If the noble Baroness, in the circumstances which prevail on her Benches this evening, does not wish to press the matter on this occasion, we may well wish to return to it later. However, I shall listen to my noble friend's arguments with great care.

Viscount Mills

I spoke in the debate on the Address last November on the very subject dealt with in Amendments Nos. 79 and 81. I support fully those amendments, along with my noble friends Lord Crickhowell and Lord Norrie. At that time, I highlighted the need to ensure that the duty to further conservation would apply to pollution control activities in the new agencies and especially pollution control activities in the water environment.

Conservation objectives are already at the heart of the regulatory system; for example, in EC directives where there are already numerous binding agreements to meet water quality standards for the protection of aquatic flora and fauna.

Equally, the NRA's duty to further conservation in relation to pollution control has led to very real environmental improvements. I give an example which I hope will appeal to the Minister and which certainly appeals to me as someone involved with fisheries. Populations of nationally rare fish such as the vendace and the Arctic char: are increasing in the Lake District following action taken by the NRA to prevent sewage treatment works discharging phosphates. That work would not have taken place without the duty to further conservation in relation to pollution control.

Therefore, I have no hesitation in supporting the amendment, as without it I believe that the agency would lack clear direction on the matter and the basis for future pollution control regulation would be weakened.

Lord Renton

I shall be very brief because my noble friends, the noble Lord, Lord Moran, and the noble Baroness have already expressed their anxieties about the effect of Clause 7. The real problem is that this Bill is over-zealous with regard to detail. I should have thought that essentially it is a matter which we could paint with a broad brush and summarise the various functions and make them apply collectively overall.

It may be that my noble friend Lord Ullswater will say that as paragraph (a) relates to functions other than pollution control, paragraph (b) relates to pollution control functions and paragraph (c) relates to any functions, that should set our minds at rest. But we are then presented with a tremendous mumbo-jumbo of this kind followed, as it is, by the provisions of subsection (2) which say "Subject to subsection (1)" and then only some but not all of the well-known functions are selected, which do not include pollution control. It then goes on to say that subsections (1) and (2) shall apply to duties other than pollution control functions, and so on. It is extraordinary to express overall duties of great importance and a well-understood principle by tying them up with too much detail and unnecessary distinctions. I hope that my noble friend will invite the draftsmen to look again at this matter.

6.45 p.m.

Viscount Ullswater

We are dealing here with a number of amendments affecting the conservation duties of Ministers and the agency and the protection of sites of special interest.

The Government have considered carefully the conservation role of the agency. We are sure that it is right that the agency should have proper regard to the needs of conservation in discharging all its functions and the Bill seeks to ensure that. But it is essential to recognise that at the end of the day its core purposes are environmental protection and water management. I believe that the amendments proposed to Clauses 6 and 7 by the noble Baroness, Lady Hilton, and my noble friend Lord Norrie would weaken its ability properly to discharge those functions by making the furtherance of conservation of nature, protection of sites and objects of archaeological, architectural or historic interest and availability of access to sites to the public matters which must be achieved at the cost of other factors. Taken together, they go well beyond the equivalent duties on the National Rivers Authority and would change the nature of the proposed environment agency.

For example, Amendment No. 70 to Clause 6 would replace the existing requirement on the NRA by elevating the conservation and enhancement of the natural beauty and amenity of inland and coastal waters and land associated with such waters, the conservation of flora and fauna which are dependent on an aquatic environment and the use of waters and land for recreational purposes from matters which the agency is to promote to the extent that it considers desirable to matters which it must further irrespective of the impact on its other functions or cost. Not only is that unreasonable in itself; I have to say that I believe it is unworkable. What, for example, is the agency to do where there is a clear conflict between furthering the conservation of flora and fauna and furthering the use of waters for recreational purposes?

Amendments Nos. 79 and 81, moved by my noble friend Lord Norrie, extend the duty on Ministers and the agency to further conservation to the agency's pollution control functions, and Amendments Nos. 90 and 92 are consequential upon those.

The duty in Clause 7 already incorporates an extension to the requirement to take account of conservation to encompass integrated pollution control functions and waste functions. Therefore, it would be a complete misrepresentation to suggest that the Bill is simply a weakening of the existing arrangements for taking account of the needs of conservation.

As I said in the debate on Second Reading, the existing NRA duty is not unqualified and must be adapted to the broader functions of the agency. I must tell my noble friend Lord Mills that to further conservation in every case would be inconsistent with the effective discharge of the agency's role in issuing environmental licences. For example, in issuing authorisations under integrated pollution control, Her Majesty's Inspectorate of Pollution does so on the basis of the best practicable environmental option utilising best available techniques not entailing excessive costs. In doing so, it is right that it should have regard to the needs of conservation. But it would be a radical step which I do not believe would be in the interests of environmental protection if its ability to issue such authorisations was constrained by a need to further conservation in each case.

Nor do I believe that the changes to the duty in relation to water discharge consents will in practice damage the interests of conservation. The needs of nature conservation will continue to play an important role in determining acceptable discharges to water, as at present. That is a normal part of the arrangements for delivering acceptable discharges under the relevant European and domestic legislation and is not, in practice, driven by the duty under Section 16 of the Water Resources Act.

Similarly, while I fully accept, and the Bill recognises, the desirability of preserving sites of archaeological, architectural and historic interest, and public access to those and to natural areas, they cannot be made overriding duties. They can conflict with other equally desirable requirements and each other, requiring a balanced judgment. As I said on Second Reading and subsequently, I believe that we have the balance right. However, I shall consider most carefully what my noble friend Lord Crickhowell said about the concerns that the statutory agencies have put forward and consider whether the wording is correct.

In Amendment No. 71 the noble Lord, Lord Moran, seeks to remove the reference to the duties under Clause 6 without prejudice to those under Clause 7. Clause 6 places a general duty on the agency to promote conservation and recreation in relation to inland and coastal water and land associated with those waters. The duty applies, to such extent as the Agency considers appropriate". Clause 7 requires the agency to further conservation (or to have regard to it) generally, not just in relation to inland and coastal waters and land associated with those waters. That duty applies whenever the agency is formulating or considering proposals relating to its functions. Clause 6 gives the agency an independent role in relation to conservation and recreation in relation to the "watery" environment. Clause 7 ensures that the agency does what it can in relation to conservation in performing its other functions. The Clause 6 duty is expressed to be "without prejudice" to the duties of the agency under Clause 7. That makes it clear that the Clause 6 duty does not detract from the duty imposed by Clause 7; in other words, the duties are independent of each other and are accumulative. The noble Lord seeks to remove the "without prejudice" provision. As I understand it, that would leave the relationship between the two clauses unclear. For that reason, the amendment should not be accepted by the Committee.

I have a deal of sympathy with the aim of the noble Lord, Lord Moran, in introducing Amendments Nos. 93, 94, 95, and 97. They reflect the noble Lord's desire to ensure that the agency is made fully aware of all areas of special interest as regards their flora, fauna, physiographical and geological features when carrying out its statutory obligations. The amendments seek to extend the definition of sites of special scientific interest and to widen the powers of the Nature Conservancy Council for England and the Countryside Council for Wales to notify the environment agency of areas of nature conservation interests over estuaries and the sea.

My difficulty with the amendments arises from the fact that the primary function of the SSSI system is to ensure that the nature conservation value of terrestrial sites—and, for the most part, that includes estuaries—is taken fully into account when development proposals and changes in management practice that would cause damage are considered. I fear that the amendments are inconsistent with the existing provisions in both nature conservation and water industry legislation, both of which apply to land only. However, I can assure the noble Lord that the Government are concerned to ensure adequate protection for the coastal areas and the sea. Members of the Committee will be aware that, in July last year, my honourable friend the Minister of State for the Environment and Countryside announced four new major coastal policy initiatives. They include proposed new policy guidelines for the coast, a best practice guide to coastal management plans, a review of by-law making powers relating to coastal management and the establishment of a coastal forum. I believe that those measures offer the best way forward to protect the marine environment. They will ensure that all those with an interest in the sea are aware, when appropriate, of areas of special interest.

English Nature and the Countryside Council for Wales will continue to involve the environment agency in the making and the day-to-day management of marine nature reserves. In addition, the Conservation (Natural Habitats etc.) Regulations 1994 provide mechanisms for the conservation of European marine sites designated under the habitats and birds directives. Regulation 13 requires nature conservation bodies to inform, among others, such other persons or bodies as the Secretary of State may direct. That will include the environment agency.

While on the subject of protection of the sea, I should also mention Clauses 84 and 85 of the Bill which will provide that the agency's sea fisheries committees and Ministers may exercise their powers to regulate fisheries for environmental purposes. I believe that those arrangements should fully meet the aims of the amendments.

Amendments Nos. 85A and 97A proposed by my noble friend Lord Derwent would have the effect of requiring the national park authorities and the Broads Authority to notify the agency of all land and water in their areas. The powers given to the national park and Broads authorities under Clause 8(2) do not weaken the water, environmental and recreational duties placed on the agency by Clauses 6(1) and 7. As an additional safeguard, however, we believe that the national park and Broads authorities should demonstrate that importance of their areas, and they should give reasons why the agency should operate in a certain manner when considering activity in those areas.

The meaning of Amendment No. 97B is unclear, but could require the agency to consult a notifying body before its own project planning purposes were complete. I do not consider that to be an efficient way of working. An agency must be allowed to complete its own planning procedures before being required to consult others. I believe that that is only businesslike.

Clause 8 establishes machinery whereby heritage and conservation bodies can raise specific conservation-heritage matters with the agency where its operations would cause particular problems for land and, of particular importance, by reason of the conservation-heritage purposes in Clauses 6(1) and 7.

Amendments Nos. 96, 99, 100 and 101 proposed by the noble Baroness, Lady Hilton, would change the nature of Clause 8 by widening its application to encompass any land in a local authority area (apart from land in national parks). The local authority would be able to make a similar reference to the agency of conservation-heritage concerns about any land. Given that the powers described are already given to the four bodies covered by the clause, there seems no reason to give formal duplicated powers of the same description to local authorities. I very much hope that effective consultation between the agency and local authorities would, in any event, render any such amendment unnecessary.

In summary, the Government are not seeking to weaken the agency's commitment to conservation. But that commitment must be integrated into the proper delivery of the agency's functions and recognise the need for judgments that balance potentially conflicting requirements. I do not believe that the amendments would in practice strengthen the agency. I hope, therefore, that noble Lords will feel able to withdraw them.

Lord Crickhowell

I believe that almost all the arguments advanced by my noble friend were persuasive. Indeed, I have no difficulty with most of them. I am also conscious of one of the penalties of hurrying into the Chamber after a debate has begun and then picking up one's papers. In those circumstances, one does not produce a very well-argued case. Certainly, my noble friend Lord Mills gave the Committee a much better example than I did. I believe that my contribution was well adrift of the point.

It seems to me that my noble friend produced quite a good argument for the pollution control duties currently exercised by HMIP under BATNEEC, and so on. Indeed, he produced a strong case. However, my noble friend did not extend that argument to apply to the pollution control functions that are at present operated by the NRA. I do not believe that the authority has ever had any difficulty; in fact, it has found it a great advantage to have such a duty. I do not believe that it would have been possible to carry out the functions described by my noble friend Lord Mills if the authority only had to have regard to the desirability of conserving. Because it was a duty, the authority was able to go further than would otherwise have been the case.

As there is a problem with the HMIP type of duty, it is said that we must weaken the duty which applies to the existing NRA functions. It does not seem to me that that is a logical or necessary conclusion because one could approach the matter by qualifying that duty so that the HMIP functions could take account of BATNEEC and all those other matters, but still make it possible to do the kind of thing that my noble friend Lord Mills described.

Listening to the argument produced by the Minister I confess that I am still not happy. Indeed he began to persuade me just by that one phrase that there was a gap here and that there really was a weakening of the existing NRA functions. But he was so persuasive in everything else he said on all the other amendments that I may have merely got him wrong on that point. I shall want to study extremely carefully what he said and to take advice on it and to see whether it is necessary at some later stage to look at the matter again.

7 p.m.

Baroness Hilton of Eggardon

I think the generality of the Minister's arguments were very persuasive, but I am disappointed that he is not willing to look at some of the detailed wording here and there which I think might be improved. As regards Amendment No. 70, Clause 6(1) states: It shall be the duty of the Agency, to such extent as it considers desirable". It seems to me that that is contradictory. If one has a duty one cannot then decide whether or not it is desirable. I believe that the wording in Amendment No. 70 which proposes that it would be the duty of the agency to further conservation etcetera is more logical. I urge the Minister to have a further look at the wording because if one can decide that something is not desirable, how can it be a duty upon one? It seems to me that that is inherently contradictory. I would ask the Minister to reconsider that wording. Otherwise I withdraw the amendments with the reservation that we may come back to some of them at the Report stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 70A and 71 not moved.]

The Earl of Lindsay

I beg to move that the House be resumed. In moving this Motion may I suggest that the Committee stage begins again at five minutes past eight o'clock.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.