HL Deb 26 January 1995 vol 560 cc1184-235

3.37 p.m.

Viscount Ullswater

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Viscount Ullswater.)

On Question, Motion agreed to.

House in Committee accordingly.


Clause 20 [The Scottish Environment Protection Agency]:

[Amendment No. 130 not moved.]

On Question, Whether Clause 20 shall stand part of the Bill?

Lord Carmichael of Kelvingrove

It may appear to the Committee that this is a negative Motion. I raise it largely because I want to emphasise the importance of the arguments put forward on Second Reading and at other times in support of the SEPA, many of which I believe to be false. The establishment of the SEPA will result in the ousting of the control of potentially polluting processes, and a lack of local presence on the enforcing authorities and a lack of points of contact for advice, which currently exist through the local authorities, particularly through locally elected representatives.

I favour a genuine Scottish environmental protection commission operating in partnership with local government and covering a wider range of services They should include coastal protection and flood prevention, which would be most apposite in Scotland after the serious damage caused two or three weeks ago. The proposed timing for the establishment of the agency could not be worse when viewed against the background of the upheaval that will be caused by the implementation of the Local Government etc. (Scotland) Act 1994.

If it is inevitable that a single body is to take over pollution control, the Health and Safety Commission provides the best model for achieving that. The commission, which includes a local elected member, enjoys the benefits of a policy overview, with enforcement being shared between central government and local authorities. The uniformity of enforcement is assured to a great extent by the existence of the Health and Safety Executive and the local authorities association enforcement liaison committee and its various sub-committees.

The use of a commission model would seem to satisfy the objectives of both central and local government and should be further investigated. Such a commission could be engaged in policy formulation and research and development, leading to the development and auditing of minimum environmental standards.

Instead, the Government have proposed a narrowly focused, service-providing regulatory agency, which will have great difficulty in moving beyond its purely pollution control remit to take on the much broader agenda of sustainable development. The allied concepts of integrated pollution control and the polluter-pays principle must be the guiding force behind the work of any agency involved in the field.

The Government's strictures on the need to relieve the burden of costs on industry cuts right across that. I do not want industry to have additional or unreasonable costs, but someone must pay for the costs of pollution. If that is not industry, the local authority and the local people must pay. The Environmental Protection Act 1990 recognised the proper role of local authorities in giving them new powers in relation to the control of certain areas of pollution and the management of solid waste disposal. Despite the commitment of authorities in preparing to undertake their new task, it is proposed that those should be absorbed by the SEPA. That hardly indicates an integrated approach to the legislative process. It is widely believed, in particular by those in Scotland who are knowledgeable about pollution issues, that the system of pollution control provided for in the 1990 Act achieves an optimum level of integration.

Authorities have restructured departments and increased staffing levels to meet the new more specialised responsibilities. Staff in local authorities are not only capable of undertaking the new duties but also possess the expertise to look at issues of public health and environmental protection on a global basis. They are also able to respond positively and comprehensively to all environmental matters, and those such as building control and health and safety functions, giving them the ability to deal effectively with issues closely related to the duties that the SEPA seeks to absorb. The net result is that if the SEPA is established it is likely to be a poorer and less effective service.

It is sad that, after all that work, we shall produce a less effective body and I oppose the Question that Clause 20 shall stand part of the Bill.

Lord Williams of Elvel

Do we not have a ministerial response to this Question?

The Earl of Lindsay

Yes. While I stand at the Dispatch Box I represent the Minister, and therefore I am the Minister.

Clause 20 establishes the Scottish environment protection agency to carry out the functions assigned to it elsewhere in the Bill. SEPA would bring together responsibility for the prevention and control of the key forms of pollution to air, water and land. The functions that will be transferred are set out in Clause 21.

It is widely recognised that an integrated approach to pollution prevention and control is essential. Pollution to one environmental media can affect another. At present, however, our environmental regulators are organised separately. Pollution to air, water and land are dealt with in isolation to each other.

The noble Lord, Lord Carmichael, suggested that the transition to the new arrangements would represent a loosening on the control of pollution. That will not be the case. The constituent parts that will be brought into SEPA have to date performed extremely well in their own rights and they will be absorbed in the functioning systems. The polluter-pays principle will be maintained and enforced where necessary. SEPA will instead offer a one-door approach to pollution prevention and control to the benefit of both the environment and industry.

The noble Lord suggested that pollution control could be styled on a commission, such as the HSC. The HSC works with three distinct partners; industry, government and the workers. To a large extent, policy is already settled. The problem with using such a model for the environmental protection agency is that much environmental policy is still being settled or must be allowed to evolve. Therefore, policy is best left to an arrangement between government and an agency.

I stress to the noble Lord, Lord Carmichael, that despite the pollution prevention function, which is at the centre of SEPA's existence, the agency is not precluded from seeking to improve the environment. The existing river purification authorities have successfully proved that during the past few years.

SEPA will be a non-departmental public body. We believe that it is within this organisational framework that a body such as SEPA will best operate. It will be one stage removed from the day-to-day work of government, but it will also remain accountable to Parliament through my right honourable friend the Secretary of State.

The noble Lord, Lord Carmichael, raised other issues relating to the relationship between SEPA and local authorities. The first group of amendments on the Marshalled List today deals with that matter in detail and therefore I shall not go into the detail immediately. Clause 20 brings into effect Schedule 6, which sets out the constitution and proceedings of SEPA. I therefore recommend that Clause 20 shall stand part of the Bill.

Lord Williams of Elvel

Is the Minister aware that there is a widespread belief that this new organisation represents no more than the centralisation of current pollution control arrangements? There is no confidence that the agency will be one for the protection of the environment, to which the noble Earl is devoted. On the contrary, the loss of the local nature of waste regulation, air pollution control and river purification is bound to lead to a much greater potential for pollution. How can the noble Earl say that this is an advance in environmental protection when it is a retreat?

Lord Elton

I do not know whether the exchange is intended to be only a duet; but I hope that the noble Lord, Lord Williams, will bear in mind advantages which flow from the arrangements. At present, a host of authorities set standards and people conducting business in Scotland have to apply to each one. Each is able to apply different standards, and each must give permission for activity in its area. There is a general principle, which is satisfied by the Bill, which would not be satisfied without Clause 20; it is that there should be a single agency and a single point of application for permissions and licences.

Lord Williams of Elvel

I recognise that the noble Lord, Lord Elton, always supports the Government on these matters. That is .perfectly reasonable. He sits on the Conservative Benches, and why should he not do so? But the fact is that there are local variations in relation to the protection of waste regulation, air pollution control and river purification. To say that there should be one Scottish body because it is useful for somebody to be able to telephone one telephone number does not seem to me to hold any confidence at all.

Lord Elton

I rise only to thank the noble Lord, Lord Williams of Elvel, for that glowing testimony, which I draw to the attention, through the record, of my party's Chief Whip.

The Earl of Lindsay

The noble Lord made two principal points, both of which I think are inaccurate. The first is that very few people now with an interest in the environmental field do not believe that an integrated approach to environmental management, the prevention and control of pollution and then enhancement of environmental issues is the right method. To deal with different environmental needs in isolation from each other is seen by very few people as correct.

The second point I stress to the noble Lord is that many issues have a certain complexion which must be taken into account when they are managed. SEPA has a duty to appoint regional boards. That is not an option but a duty. Those regional boards will have executive functions delegated to them.

Lord Williams of Elvel

I am sorry to prolong the debate but the noble Earl cannot have it both ways. We cannot have the noble Lord, Lord Elton, saying that a central body is of the greatest advantage to the people of Scotland while at the same time the noble Earl says that there will be regional boards all over the place which will take account of all the different variations. It must be one thing or the other.

The Earl of Lindsay

I cannot agree with the noble Lord. I believe that my view is shared by many Members of the Committee. There is a need for centralised cohesion, co-ordination and integration but very often there needs to be localised input to take account of local factors.

Lord Carmichael of Kelvingrove

I am disappointed by the noble Earl's reply, although I did not expect him to agree with me as that would have been very damaging to the Bill. Existing bodies are looking after pollution control reasonably well but would do so a great deal better were there to be one co-ordinating body bringing them together with their representatives who have direct contact with the people and who know, perhaps better even than the scientists, what are the local pollution problems. I am very disappointed but I shall not oppose the Motion.

On Question, Clause 20 agreed to.

Schedule 6 [The Scottish Environment Protection Agency]:

The Chairman of Committees (Lord Boston of Faversham)

I should point out to the Committee that if Amendment No. 131 is agreed to, I cannot call Amendments Nos. 132 to 135 inclusive.

Lord Carmichael of Kelvingrove moved Amendment No. 131: Page 134, leave out lines 13 to 36 and insert: ("() SEPA shall consist of elected members appointed by such associations of local authorities as exist.").

The noble Lord said: In moving this amendment, I shall speak also to Amendments Nos. 140, 143, 144, 145, 146 and 181C. The amendments seek to ensure that members of SEPA are elected members of the new councils when they are formed. During our discussions on the Bill, I have emphasised the need for SEPA to have as its members people who are known locally and who have to be elected periodically. It is important that the control of the SEPA remains in the hands of local people who are democratically accountable. The only feasible way in which to achieve such an end is to require that membership of the agency is drawn from local authority members. It is not sufficient that the members of the agency should, as suggested in the schedule, have knowledge or experience in some matter relevant to the functions". That is far too wide a definition. The vital point is that decisions should be taken by elected members who are democratically accountable and who appear regularly before their electors.

Amendment No. 140 seeks to ensure that democratic accountability of the membership on the boards is retained. As I said, it is vital that decisions are taken by democratically elected members.

Amendment No. 143 seeks to retain the function of waste regulation within local authority control. The schedule is not strengthening the organisation of environmental protection in Scotland; the proposals merely seek to supplant the operational aspects of pollution control work which, in the view of most of us in Scotland, are matters for locally based personnel who are locally accountable. It is important that that matter should remain close to the industries and communities with which and within which it operates.

District and highland councils in Scotland have, since 1975, been responsible for waste regulation, first in terms of control of pollution under the 1974 Act and since May 1994 under the waste management licensing regulations which brought into force the licensing provisions of Part II of the Environmental Protection Act 1990. Even now consultations are taking place to amend the regulations and to revise the associated waste management functions. No justification has been offered for the removal of that function from local government.

I commend also Amendment No. 144 which seeks to ensure that the regulatory functions of waste disposal authorities are retained within local control. The other amendments are on the same theme. I cannot stress strongly enough how important it is for local government to be represented in matters which affect everyone in the locality. Local government members are the best people to be contacted when things go wrong. I beg to move.

Lord Beaumont of Whitley

I support the amendment. I should have thought that the more democratic control we have, the better it will be. It is not to be expected that the Government will be very enthusiastic about that, particularly in Scotland where they have even less representation in local government than they do in England. Nevertheless, whatever the political control, it is right that the people, the voters, should have a say as to who runs that very important agency.

Lord Monkswell

I support the amendment. We must be very clear about the responsibilities of SEPA. I understand that it is to ensure the protection and enhancement of the environment in Scotland. That is for the benefit, I assume, of people living in Scotland.

The difficulty with which we are faced is that the agency will be answerable to the Secretary of State. I am sure that the noble Earl will say that it will be the Secretary of State for Scotland. But he is a national Minister. He is a Minister of a national government and therefore has to take cognisance of what is best for the UK as a whole and not just what is best for Scotland.

If the Government were to change the way in which the Secretary of State for Scotland is chosen so that Scottish Members of Parliament elect who is to be the Secretary of State for Scotland, I am sure that we should all welcome the proposals in the Bill. But I suspect that the Government will not do that. Therefore, the problem is that the people who are to be responsible for environment and pollution control in Scotland will not be answerable to the Scottish people; they will be answerable to a national government. There is a contradiction which I believe needs to be addressed. Obviously, the best way that we have to address it at present is to support the amendment moved by my noble friend.

4 p.m.

Baroness Carnegy of Lour

I think it is time that a Scottish-based Peer entered into this short debate. I must tell the noble Lord who has just spoken that what he said constitutes a most interesting and different form of Scottish nationalism which, perhaps, he would like to discuss some time during debate. It is quite strange, and if the noble Lord came a little more often to Scotland I believe that he would realise just how strange it is.

However, having said that, I know that the noble Lord is trying to be constructive and is representing the interests of local government in the matter of which he has knowledge and in which he is very interested. I, too, am most interested in it. In his response, I wonder whether my noble friend the Minister can outline a little to the Committee how the local government interest in such matters will link with the interests of SEPA. That is a critical question. In other words, we need to know how the powers, which to an extent overlap, will operate and how people who go to their local government councillors about a problem will be dealt with. I believe that that is what the noble Lord, Lord Carmichael, has in mind.

I do not believe that the magic solution of political control of SEPA is the probable answer. But it is extremely important that local government people should know how they are to relate to the agency. I have not given my noble friend notice of that question, but I should be most grateful if he could assist us in that respect.

The Earl of Balfour

I should like to intervene for a moment, drawing from my practical experience of having, off and on, close contact with the river purification boards that presently exist in Scotland. One-third of the membership of those boards was appointed by the Secretary of State. Over the past 30 years it has been very much my opinion that those members who were appointed by the Secretary of State were by far the most active. That is not meant in any way as a criticism of the representatives who were appointed by local authorities. But, of course, local authority councillors had many other duties to attend to and, in many cases, did not have the time to address their extra duties—it I may put it that way—of being members of a river purification board.

With very great respect to our elected councillors, many of whom are extremely dedicated people regardless of political party, I must stress that when it comes to environmental matters I believe it is important for us to have people who have the greatest experience in the field, and not necessarily locally-elected personnel.

Lord Elton

If the noble Lord is thinking of this as more than a probing amendment, I believe that it would probably be worth his while to explain how it is that the wording, which would appear to be designed to replace only paragraph 4 of the schedule, actually strikes out paragraphs 3 to 7, thus leaving the size of SEPA and the method of appointment, the duration of appointment and the actual role of the Secretary of State completely unstated. I do not believe that that point is picked up in the rest of the group, although there may be something that I have missed.

Lord Monkswell

During her remarks, the noble Baroness, Lady Carnegy of Lour, referred to my local government experience. I thank her for doing so. However, I should have advised Members of the Committee of a vested interest in the matter. I was educated in Scotland and I have relatives in Scotland. One of the things that I like doing in Scotland is swimming. Indeed I like swimming off the beach of Portobello in Edinburgh and I also like swimming off the Western Isles.

My vested interest is in ensuring that bathing water is clean. We have only to look at the history of the past few years to realise that our national Government do not seem to have that as a very high priority. I am concerned for the people of Scotland and, as I said, I want nice, clean bathing water when I go swimming. I want to ensure that the Scottish people have control, so to speak, of SEPA so that they are looking after their vested interests. That would ensure the best for the people of Scotland. It must not be controlled by the national Government here in Westminster who, unfortunately, still seem to like this country to go under the epithet of "the dirty man of Europe". I hope that that helps the debate.

Baroness Carnegy of Lour

I do not want to prolong the debate, but I expect that the noble Lord appreciates the fact that beaches have, for a long time, been the responsibility of local authorities.

The Earl of Lindsay

We are discussing a most important part of the Bill; and, indeed, the noble Lord, Lord Carmichael, raises a most important issue. The amendments seek to involve local authorities in the work of SEPA. Yet, at the same time, they seek to remove from the proposed scope of the agency those functions currently carried out by local authorities in Scotland.

Amendment No. 131 would mean that SEPA would only comprise of local councillors who, in effect, would be appointed by the Convention of Scottish Local Authorities (CoSLA). I would certainly not rule out that appointments to the SEPA board made on the basis of merit, and the contributions that could be made to the effective running of the agency, may well include some individuals from local authorities. However, I cannot accept that that group should have an exclusive right of membership.

It has been suggested that the amendment would make the agency more accountable. I am not sure whether I accept that that would be the exact case. CoSLA is not itself elected and any representatives appointed to SEPA would not be accountable to their electors for that work. That is not to say that individuals with experience of local government may not have much to offer, but they would be appointed for their personal qualities and, most important, those appointments would not be made simply because their status is that of a councillor.

It would be very difficult for this non-departmental public body to be accountable to the Secretary of State, and through him to Parliament, if he was not responsible for appointing the members of the body. Choosing the members of the board is a crucial element of the Secretary of State's responsibility for the overall performance of the agency. I stress that point for the benefit of all noble Lords who are concerned that there may be a weakening of the democratic link between the operations of SEPA and those people who live in Scotland.

It seems to me to be vital that the operation and performance of SEPA is properly accountable to Parliament. I should stress that the Secretary of State will be answerable for the agency's overall performance, the specific aspects of its work related to his responsibilities as set out in Clause 4 and the appointments he makes to it. If the appointments to the board and the regional boards were made by the local electorate, the responsibility of the Secretary of State to Parliament would be very much diminished.

However, no one doubts that there is very probably a role for elected councillors at different levels of SEPA. I have already described the duty that SEPA has to establish regional boards. The Government certainly envisage elected councillors playing a full part on regional boards. I emphasise that to both noble Lords opposite and my noble friend Lady Carnegy of Lour. Everyone acknowledges, especially in Scotland, the great role played by local authorities in environmental protection.

Amendment No. 140 would ensure that each of SEPA's regional boards included an elected councillor appointed by each local authority within its geographical area. I can envisage that the regional boards will, as I said, include a significant number of elected councillors. That will be included in the guidance which my right honourable friend gives to the agency. However, appointing one representative per authority could, in certain cases, make the regional boards unmanageably large as a wide range of interests would need to be reflected on the boards.

Amendments Nos. 143 and 144 would stop the transfer of local authorities' waste regulatory functions to SEPA. Amendment No. 145 would stop the transfer of local authority air pollution control to SEPA. Amendment No. 181C would remove integrated pollution control and local air pollution control from the list of SEPA's pollution control functions in Clause 31. In order to deliver environmental protection in a properly integrated manner it is important that the agency assumes responsibility for waste regulation. Another key benefit is the removal of dual responsibility for waste regulation and waste disposal. District and islands councils in Scotland currently perform both roles which effectively requires them to regulate themselves. Although this may not have caused serious problems to date, in principle there is a potential for conflict which need not exist. The Bill also transfers local authority air pollution control to SEPA. In Scotland we believe the balance of advantage lies with this more integrated approach. It reflects the comparatively small number of air polluting processes in Scotland with many local authorities responsible for only a handful of them even after taking local government reorganisation in 1996 into account. In a country of Scotland's size it makes little sense to establish a 600-strong agency with all the facilities and back-up that that entails while the 25 or so local authority staff working on air pollution control remain dispersed across all the local authorities. Pooling resources will bring real benefits in an area which is becoming increasingly technical. I would point out to the noble Lord, Lord Carmichael, that integration of such skills is widely welcomed by environmental groups as well as others.

I have listened carefully to the concerns expressed over the transfer of local authority functions to SEPA, in particular the transfer of responsibility for local air pollution control under Part I of the Environmental Protection Act. The Government believe that local authorities will continue to play an important role in combating air pollution, even after the transfer. Indeed they will be assisted by the strengthened powers to tackle nuisance in Clause 89.

However, I can announce to the Committee today that regulations will be brought forward to make local authorities in Scotland statutory consultees for the prescribed processes which they currently regulate. I hope that the noble Lord welcomes that. The new arrangements will come into force when the air pollution controls are transferred to SEPA. They will ensure that local authorities continue to have a voice in the operation of such processes in their locality.

In the meantime I can further announce that, as part of the Government's air quality initiative, local authorities in Scotland and in England and Wales will become statutory consultees for IPC processes from this April. The new consultation arrangements will remain in place after regulatory responsibility for IPC transfers to the new agencies. This is a measure which local government has been keen for us to introduce. I hope that it is welcome to all noble Lords who spoke on the need for links between SEPA, the regional boards and the local electors. I hope too that the two announcements will reassure the Committee of the important role which the Government believe local authorities should continue to have in environmental protection matters. On that basis I invite the noble Lord to withdraw the amendment.

The Earl of Balfour

Before my noble friend sits down, I think he will find that the grouping of amendments includes Amendment No. 146 in the name of my noble friend Lord Ullswater. I presume that it is purely drafting but he did not say anything about it.

The Earl of Lindsay

My noble friend is correct: it is a minor drafting amendment.

Baroness Carnegy of Lour

Before the noble Lord, Lord Williams, rises, which I know he is bound to do, I would say to my noble friend that I did not know he was going to make the announcement that local government will be statutory consultees in relation to SEPA. That is precisely what I was trying to get at when I asked him to tell the Committee—I was waiting for an answer in his speech—how the functions of local government and of SEPA which overlap will be taken care of. It seems to me that that is a good solution to the problem. I hope that the noble Lord, Lord Williams, is pleased; I certainly am.

Lord Williams of Elvel

The noble Earl has made the important announcement in response to the amendment that local authorities will be statutory consultees and that the Government will bring forward, I think he said, some statutory instrument to that effect. That is not only in the case of Scotland—as I understood the noble Earl to say—but also in the case of England and Wales. If I am wrong perhaps the noble Earl will correct me now. However, as I understood it, he included England and Wales as well. That is a very important announcement. I find it rather odd—perhaps I should address the noble Viscount here—that this important item comes in the middle of a debate about the Scottish environment protection agency. Leaving that aside, I assume that the Government will bring forward some sort of amendment at a later stage in the Bill to implement what we have been told. If I am wrong, the noble Earl, when he comes to speak again, will tell me.

I hope I may ask a question of the noble Earl relating to Amendment No. 145. I am not an expert in Scottish affairs. I have never pretended to be an expert in Scottish affairs. However, I am advised—as the noble Earl, I think, said—that air pollution powers were given to district and island councils quite recently. They have trained officers, and the new controls came into effect, I understand, on 1st April 1992 following a great deal of preparatory work. Apparently—I say "apparently" because I am open to correction—there has been no criticism of those local authorities in their carrying out of the work. It is rather odd, having given them all these powers and trained all the officers, that the functions should now be transferred to the new agency.

There is a second question to which I would ask the noble Earl to respond. He rightly says that air pollution is to be a matter for SEPA rather than local authorities in the future if the Government have their way but that this is not the case in England and Wales. He declared that Scotland in some way was different to England and Wales. I am not quite certain that I follow his argument as regards in what sense Scotland can be said to be different from Wales other than the fact that they are at different ends of the United Kingdom. The problems in Wales are more or less analogous to the problems in Scotland. Are we to take it, as a result of the noble Earl's arguments, that the Government are now prepared to accept Amendment No. 264, which we shall deal with later, which sets air quality standards for the rest of the United Kingdom apart from Scotland?

4.15 p.m.

The Earl of Lindsay

The noble Lord, Lord Williams, asks a number of questions. As regards the two announcements made today, both of which I regard as being of great importance, one will involve regulations which will be brought forward. That is the one whereby local authorities in Scotland will be statutory consultees for the prescribed air pollution processes which they currently regulate. The other, I believe—if I am incorrect, I shall make sure the noble Lord receives the correct information—involves powers which already exist under Part I of the EPA Act 1990. To repeat, it allows local authorities in Scotland, England and Wales to become statutory consultees for IPC processes from this April. That is a duty they will enjoy both from April and through the EPA. The difference between Scotland, and England and Wales, on air pollution control is very marked. While Scotland has between perhaps 1,000 and 1,200 air emission processes which fall under the scope of the regulations, England and Wales have some 14,000. Therefore the scale of the problem and the management of the problem are rightly being handled in a very different way.

Lord Carmichael of Kelvingrove

First of all I apologise to the noble Lord, Lord Elton. I will look at what he said. It may well be that something has been missed in the Bill. I am sure that that has happened before. I shall certainly consider the matter.

The situation would have been rather different if the announcement had been made earlier, but perhaps the amendments that we put down jogged the Government into providing a little more democracy. We are increasingly disturbed by the growth in the number of appointees. I believe that the country as a whole is becoming disturbed about the fact that there are these bodies which have such control over people's lives but which are accountable to nobody but the Secretary of State. People are conscious that these services are vital. We believe strongly that there should be contact with somebody on the board who can do something about those anxieties. What the noble Earl said may be helpful.

It seemed to me that the noble Baroness, Lady Carnegy, was rather against local authorities and CoSLA for pushing these points through. I know that CoSLA is troublesome, but it is meant to be. The fact that its members are predominantly not members of the party opposite makes the matter more difficult. I suspect that some of the antagonism directed towards CoSLA is not at what it does but to its members.

I thank the Minister for giving us that information, even if it is rather late in the day. We shall study the regulations very carefully when they are available. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 132 to 135 not moved.]

The Deputy Chairman of Committees (Lord Elliott of Morpeth)

I have to tell the Committee that if Amendment No. 136 is agreed to I cannot call Amendment No. 137.

Lord Carmichael of Kelvingrove

moved Amendment No. 136: Page 134, line 38, leave out sub-paragraph (1) and insert: ("(1) The members of SEPA shall elect, from amongst their members, both a chairman and a deputy chairman.").

The noble Lord said: In moving Amendment No. 136 I shall speak also to Amendments Nos. 137 to 139, 141, 159 to 161 and 173.

This group of amendments represents another strike for democracy. We want SEPA committee and board meetings to be open to the public. Most local authority committees are now open to the public. They attract a reasonable attendance because people are interested. The amendment would ensure local and general public accountability of SEPA's performance. It is also consistent with the Government's commitment under the European Union directive on freedom of access to information on the environment. I wonder whether the Government were aware of that when they prepared the Bill. That is the general tenor of this group of amendments. I beg to move.

Lord Monkswell

I rise to support Amendment No. 136 in particular. I believe that we could learn a lesson from the way in which this Chamber itself conducts its business in that we are all equal and we can all contribute to debates. When we come to a decision it is either a consensus or a democratically-determined decision. We are all part of that decision.

One of the difficulties of having the chair and deputy chair of SEPA appointed by the Secretary of State is that effectively it raises two members of that collective body into superior beings who are answerable to the Secretary of State, who has nominated them. That will devalue the other members of SEPA and what should be the collective nature of its decisions.

I implore the Government to think again and to bear in mind the positive benefits that would accrue from accepting my noble friend's amendment. As I said, we can seek no better example than the operation of our own Chamber.

The Earl of Lindsay

I am glad that the noble Lord, Lord Carmichael, seeks to strike for democracy once again. In drafting the Bill I hope that the Government have anticipated some of the anxieties which the amendments raise.

The purpose of Amendments Nos. 136 and 137 is to take responsibility for the appointment of SEPA's chairman and deputy chairman away from my right honourable friend and place it in the hands of the agency board itself. The noble Lord, Lord Monkswell, also focused on that area. I remind the Committee that my right honourable friend the Secretary of State is in any case responsible for all the appointments to the SEPA board. Therefore, any difference would be marginal should the chairman and deputy chairman be elected rather than appointed.

The critical issue is that the chain of responsibility from the chairman to the Secretary of State and through him to Parliament is kept intact and is not diminished in any way.

The chairman of SEPA is also likely to have a high public profile. That is another reason why, for strategic reasons, his appointment must be made in line with the wider scheme of SEPA's operations.

Lord Williams of Elvel

Are we now to assume that the Secretary of State will appoint the chairman of SEPA and that he will not be elected by the members, who I agree under the terms of the Bill will themselves be appointed by the Secretary of State? Are we to assume from what the noble Earl has just said that because the chairman of SEPA will be a high profile public figure it is important that a Conservative Secretary of State for Scotland should appoint such a person, and should perhaps give him a generous contract? Are we not to say that a future Labour Secretary of State for Scotland can reverse that appointment? Are we saying that the appointment will be made by a Member of Parliament for somewhere or other who happens to be Secretary of State for Scotland and that when the Bill becomes an Act the appointment will not be reversible?

The Earl of Lindsay

I do not know the terms and conditions of the appointment. However, whoever is the Secretary of State at the time will have the power to appoint the chairman, the deputy chairman and the other members of the SEPA main board.

Lord Williams of Elvel

I am grateful to the noble Earl. I do not want to prolong the discussion, but before the Bill leaves your Lordships' House, let alone this Committee, will we know the terms and conditions of the appointment of the chairman of SEPA?

The Earl of Lindsay

I shall certainly endeavour to get all the relevant information to the noble Lord so that he can consider it.

Lord Elton

I hope that my noble friend will not be persuaded that, as in America, if there is a change of government there should be a change in chairmen of all the agencies dependent on the government, as there is of sheriffs and so on the moment the whistle goes. We all know of the steady process of erosion of appointments made by one party by its successor, but that is at the end of the term of the contract of employment. I watch the noble Lord's face with great interest as I make these remarks because it shows me his view of how the politics of this country work. It is not the same as mine.

The Earl of Lindsay

The appointment is for a fixed term, but there is provision in the Bill to remove the chairman should that be necessary.

Perhaps I may turn to the other amendments in the group as we have quite a lot of ground to cover. Amendments Nos. 138, 139 and 141, and 159 to 161 would require SEPA to hold its meetings in public, and to make any minutes of such meetings and any of its records available for inspection free of charge, and to make copies obtainable on payment of local photocopying rates. Amendment No. 173 would place a duty on SEPA to be transparent in meeting its statutory requirements in relation to public access to information.

I sympathise with the underlying aim of the amendments: to make SEPA's decision-making process more transparent in order to gain the confidence of the public. Nevertheless, Amendment No. 138 would prevent SEPA from holding any meetings in private to discuss matters in confidence; for example, where important commercial issues are at stake. Because of such considerations I believe it is right that the agency itself should be free to determine whether its meetings should be in public.

In addition to the statutory public registers which SEPA will be obliged to maintain, information held by it including minutes of its meetings will be available to the public through the Environmental Information Regulations 1992. Those regulations were in response to the European directive to which the noble Lord, Lord Carmichael, referred. Some of the amendments would, however, circumvent the important exclusions in the regulations to safeguard commercially confidential information—information which either is or might be used in legal proceedings and information which might in some way threaten our national security.

One immediate and tangible benefit of the establishment of SEPA will be in relation to the greater ease of access to its public registers. For the first time, those registers will be available for inspection at single points of contact, greatly improving the existing arrangements where the registers are dispersed across a number of authorities.

Since SEPA will obviously be obliged to meet all of its statutory requirements, Amendment No. 173 is not therefore required in this respect. Ensuring that it does so in a transparent way, and without undue inconvenience, is a matter, I suggest, for the agency's management statement. A section on public access to information is already contained in the draft published in October last year. I believe that there is already good access for the public under those regulations and I cannot therefore accept the need for the amendments.

Amendments Nos. 141 and 159 to 161 would also require copies of minutes and records to be available at "local photocopying rates" in preference to "reasonable" rates as prescribed in the 1992 Environmental Information Regulations.

I recognise the concern that can arise about the interpretation which may be placed on the "reasonableness" of photocopying charges. The establishment of a single, national agency should assist in this respect. I also believe that it is right in principle that SEPA should be able to set reasonable charges which recover the costs it incurs in providing copies of documents. But I agree that it should not seek to debar access through inflated charges.

The Government are keen to ensure maximum openness in the affairs of SEPA, without compromising its ability to discharge its functions effectively. The provisions of the Environmental Information Regulations will apply to the agency, and I believe that this will ensure good public access. I also remind noble Lords that SEPA is not obliged to charge. If it so wishes, it can provide information and facilities for inspection free of charge. I therefore invite the noble Lord to withdraw his amendment.

Lord Williams of Elvel

In many ways what the noble Earl says is welcome. However, does he agree that Amendment No. 173 should be accepted by the Government because it states in so many words, exactly what the noble Earl said?

The Earl of Lindsay

I stated that under the provisions in the Bill SEPA will have to provide the transparency and ease of access for which the amendment calls. Therefore, the amendment, although not unwelcome, is unnecessary.

Lord Carmichael of Kelvingrove

My noble friend Lord Williams of Elvel said that we have achieved something from this group of amendments. With regard to public meetings, I appreciate the necessity for certain commercial confidentiality; even in local authorities that must arise. One cannot avoid some confidential meetings. However, the amendment provides that it should be clear to people where the meetings are held and who will attend; and a general idea of what is minuted should be available.

On publication and duplication at commercial rates, a large number of small businesses in the high street, having bought the equipment do well by charging for duplicating. I do not understand why a body such as SEPA could not do the same as it does not seem to be terribly complicated.

I am glad that the register will be available and I hope that it will also be intelligible. Some reports are written in such a way that it takes diligence such as is applied by the noble Earl, Lord Balfour, when in the Library. He is one of the few people I know who can apply such diligence when required. The public in general are not always as hardworking and diligent as the noble Earl. I should like some reassurance that the report will be intelligible to the average person.

The Earl of Lindsay

With SEPA not even in existence at this stage, all I can say is that the information asked for will be provided. If there is any disappointment with the prose or presentation of that information, complaints can be made to suitable sources.

Lord Carmichael of Kelvingrove

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 137 not moved.]

The Earl of Lindsay

moved Amendment 137A: Page 135, line 26, leave out ("Subject to paragraph 3 of Schedule 2 of this Act,").

The noble Earl said: Amendments Nos. 137A and 147A contain minor changes to certain provisions concerning the staff of SEPA.

The intention underlying the reference in Schedule 6 to paragraph 3 of Schedule 2 was to ensure that the provisions enabling SEPA to determine pay and conditions would not conflict with the requirement in Schedule 2 that staff transferring to SEPA by way of transfer schemes would do so on existing terms and conditions. On reflection, we now consider that there will be no such conflict.

Amendment No. 137A makes the necessary change and would bring the provisions relative to the two agencies in this respect into line.

Amendment No. 147A is a technical amendment which ensures that when negotiations are started with existing local authorities concerning the transfer of staff and property to SEPA, it will be possible for SEPA to continue these negotiations with the new unitary local authorities where necessary after the reorganisation of local government in Scotland on 1st April 1996. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 138 to 142 not moved.]

Schedule 6, as amended, agreed to.

Clause 21 [Transfer of functions to SEPA]:

[Amendments Nos. 143 to 145 not moved.]

The Earl of Lindsay

moved Amendment No. 146: Page 21, line 30, leave out ("so far as exercisable in relation to Scotland, are") and insert ("are, so far as exercisable in relation to Scotland").

On Question, amendment agreed to.

Clause 21, as amended, agreed to.

Clause 22 agreed to.

[Amendment No. 147 not moved.]

Schedule 2 [Transfers of property etc: supplemental provisions]:

The Earl of Lindsay

moved Amendment No. 147A: Page 117, line 7, at end insert ("and, as respects any such local authority which is a district or islands council, includes, in relation to any time on or after 1st April 1996, the council for any local government area named in column 1 of Schedule 1 to the Local Government etc. (Scotland) Act 1994 which is wholly or partly conterminous with the area of that council.")

On Question, amendment agreed to.

[Amendment No. 148 had been withdrawn from the Marshalled List.]

[Amendment No. 149 not moved.]

Schedule 2, as amended, agreed to.

4.45 p.m.

Lord Williams of Elvel

moved Amendment No. 150: After Schedule 2, insert the following new schedule: ("SCHEDULE COMMON LAND Retention of land on registers 1.—(1) Where any land is for the time being registered in a register of common land in accordance with the Commons Registration Act 1965 and the registration has become final, the land shall not be removed from the register except where, under the provisions of an enactment, the land is discharged from all incidents and restrictions relating to common land and to land so registered. (2) In section 13 of the 1965 Act (amendment of registers) after the words "village green" in paragraph (a) there shall be inserted the words "under the provisions of any enactment discharging the land from all incidents and restrictions". (3) In regulation 27(1) of the Commons Registration (General) Regulations 1966, after the words "village green" there shall be inserted the words "in accordance with paragraph (a) of section 13 of the Act". Amendment of registers 2. After paragraph (c) of section 13 of the 1965 Act there shall be inserted the words "; or (d) the owner of the land applies to the registration authority for its registration as common land or as a town or village green". Disturbance of land 3.—(1) Section 194 of the Law of Property Act 1925 (restrictions on inclosure of commons) shall be amended as follows. (2) In subsection (1) for the words "whereby access to land to which this section applies is prevented or impeded" there shall be substituted the words "or the disturbance of the surface of the land with the assistance of any machine or vehicle, on land to which this section applies". (3) After subsection (1) there shall be inserted the following subsection— (1A) Any consent given under this section may be given subject to such conditions as the Secretary of State may consider appropriate.". (4) In subsection (2)—

  1. (a) after the words "other work constructed" there shall be inserted the words "or other such disturbance as aforesaid made";
  2. (b) for the words "the council of any county or district council concerned, or by the lord of the manor or any other person interested in the common" there shall be substituted the words "the Environment Agency"; and
  3. (c) for the words "the work was erected or constructed" there shall be substituted the words "the work or disturbance was erected, constructed or made".
(5) After subsection (3) there shall be inserted the following subsection— (3A) Notwithstanding the proviso to subsection (3) above this section applies after the commencement of section (Agency to register common land) of the Environment Act 1995 to any land which is for the time being registered in a register of common land.". (6) In subsection (4) after the words "or work constructed" there shall be inserted the words "or disturbance made", and after the words "or constructed" there shall be inserted the words "or made". Saving for statutory undertakers 4.—(1) Subject to the provisions of this section, nothing in section 194 of the Law of Property Act 1925 shall require statutory undertakers to obtain consent for any disturbance of the surface of land which is necessary for the purpose of laying a pipe or cable in accordance with any general powers of those undertakers to lay the same in the generality of other land. (2) In exercising such powers as aforesaid, statutory undertakers shall comply with such requirements as may be prescribed by the Secretary of State by order made by statutory instrument. (3) For the purposes of the exercise of such powers as aforesaid, a local authority having functions in respect of the land under section 9 of the 1965 Act (protection of unclaimed common land) shall be deemed to be an owner of the land and a person who owns a registered right of common over the land shall be deemed to be an occupier of the land.").

The noble Lord said: I hesitate to weary the Committee, which has been discussing Scottish affairs, with matters which relate substantially to England and Wales. However, it so happens that this is the appropriate place in the Bill for the schedule I propose. For reasons of time, which I know the noble Viscount will understand, I did not move the paving amendment the other evening. I thought that it would be useful, however, to move the schedule so that we could discuss the whole matter of common land. I emphasise to the Committee that this is a probing amendment; it is not designed to be written verbatim into the Bill.

Members of the Committee will be aware of the importance of common land. It is privately owned land over which others have rights in common with the landowner to graze stock, to collect wood and to cut turf, bracken and so on. Those rights probably pre-date the private ownership of land. Commons have remained largely undisturbed and unenclosed throughout a long period of history. I am told that there are some 1.3 million acres of common land in England and Wales, but, like everywhere else, that land is under threat.

The Government recognised the importance of common land as long ago as 1983 when they set up what was known then as the Common Land Forum. The forum was a body consisting of people who had interests in commons in all respects. Its aim was to agree proposals for legislation. The Government said that if the forum reached agreement, they would consider legislation.

In its 1986 report the forum did reach agreement on proposals for access to and management of—two important points—common land. It also agreed on tidying up registration. I recognise that the Government have had great difficulty in keeping the members of the forum together in—if I may use a rugby analogy—one single scrum. They seem to have gone off in different directions since the forum reported.

I do not think it right that the Government should do nothing. I therefore propose this schedule to the Bill which will deal with the most urgent threats facing our common land. First, although the Commons Registration Act 1965 required that all common land be registered by a certain date, I am afraid that much was not registered. Therefore, by virtue of the Act, it ceased to be common land. Furthermore, not even those commons which were registered are safe. Since the registers closed in 1972, there has been a steady exit of commons from the registers. The Open Space Society has compiled a list of 75 commons which it knows have been deregistered since then. However, there may be many more that the society has not been able to find.

There are a number of commons, even at present, which are subject to deregistration procedures. The amendment I propose prevents the deregistration of commons and ensures that those which remain are safe and secure on the registers.

I refer the Committee to paragraph 3 of my proposed schedule, "Disturbance of land". Despite the existing legislation, commons do not enjoy much legal protection. I should explain— perhaps I ought to have said this at the outset—that in Wales I live on the border of a common of some 770 acres. Thus, in that sense, I have an interest. Perhaps I should also declare that I have a pecuniary interest in that I am allowed to graze 60 ewes on the commons adjoining my property. The fact that I have a grass-keep arrangement with the neighbouring farmer, which includes that, will, I hope, allow me to continue with what I have to say without being debarred through the fact that I have a pecuniary interest.

Section 194 of the Law of Property Act 1925 requires that the consent of the Secretary of State for the Environment—that is the case in England—or the Secretary of State for Wales must be obtained for fences, buildings or other works which prevent or impede access to commons. The section excludes disturbance of the soil by ploughing or other means which can be very damaging, not least to the bird life or the archaeology of our commons. My amendment brings such operations within the ambit of Section 194 of the Act. At present, that section applies only to land which was subject to common rights on 1st January 1926 when the Law of Property Act came into force. We are a long way from 1926 —nearly 70 years—and it is frequently impossible to know—

Lord Renton

I am grateful to the noble Lord for giving way. This is a rather important point. I agree with what he says about the Law of Property Act, but the application of that Act has to a considerable extent been overtaken by the Commons Registration Act 1965. So we do not have to look quite so far back perhaps as the noble Lord thinks.

Lord Williams of Elvel

I am most grateful to the noble Lord who is an expert in the matter. However, if he will kindly hear me out, perhaps I may answer his point. It is not easy to know whether the land in question was subject to rights at that point. This carries through to the 1965 Act and to today. Anyway, as the noble Lord, Lord Renton, quite rightly points out, since we have common land registers, if all the common land were on the registers I would agree that that point is of a minor nature. But it is not.

The schedule that I propose is merely to clarify and simplify the matter. The schedule should apply to all commons on the Common Land Register and the agency should be the agency that keeps the register. That is the minimum that is necessary at the moment. I agree that this Bill may not be the right place and I would have liked the Government to produce legislation of their own. If that is impossible, we have to try to ensure that the minimum is achieved. It is for that reason that I put forward this schedule for discussion. We can have a debate, the Government can respond and, in responding, perhaps the noble Viscount can tell us why we have not had legislation to fulfil the Conservative manifesto of 1987. I beg to move.

Lord Renton

The noble Lord, Lord Williams of Elvel, has done a valuable service by moving this amendment containing a new schedule which is intended to fill in what he regards as gaps in our law relating to common land and the administration of it. Undoubtedly there have been gaps. I must disclose, in relation to a case that went to the High Court—it is no longer there so it is not sub judice and I can therefore mention it—that we were very anxious about the way in which we thought that lands were common lands at Huntingdon. Until the High Court made a new scheme it would seem that they were not common lands in the full sense; but they are now. It is very important indeed that we should get the whole of this law right with regard to common land.

I would have thought that the amendment should easily fit into the framework of this Bill. It is perhaps a bit of an adumbration when it comes to fitting it in to the protection of the environment as a whole, but it relates to a part of the environment, and a part that we need to protect. Therefore, I should have thought that it is relevant for us to consider the matter.

I have to confess that I find the amendment of the noble Lord a very technical one. Although he was kind enough to imply that I know something about this branch of the law, I would not claim to understand all the detailed implications that arise from his amendment. My noble friend Lord Ullswater has no doubt taken advice on this and I shall be very interested to hear what he has to say.

Quite clearly, we do not want land which has been registered as common land to be easily removed from the register. But my experience has been that there has been difficulty in getting land which ought to be registered put on the register. That seems to me to be an even higher priority.

Lords Williams of Elvel

I am most grateful to the noble Lord for giving way. I am sure that he will recall what I said: the register set up under the 1965 Act closed in 1972.

Lord Renton

Yes, that is so—and there were very considerable difficulties during the time that it was in operation.

To summarise, this is a matter which should be considered in relation to the Bill. This schedule, technical though it is, is something that we should consider and on which we should receive the advice of my noble friend Lord Ullswater. I do not commit myself, until I have heard my noble friend, to saying that I support the amendment. But I am in broad sympathy with its aims.

Baroness David

I should like to support my noble friend in this amendment. I am very glad indeed to hear what the noble Lord, Lord Renton, said, because I think it has been a rather sad tale about our commons. There is no doubt that a lot were not registered which should have been registered and that a great many of those that have been registered have suffered, and are being reduced in number and indeed in the quality of what they offer. The tale goes back a long way. It was in 1958 that the Royal Commission on Common Land published its report and made a number of recommendations to safeguard common land and improve access to it. In fact, that did lead up to the passing of the Commons Registration Act 1965. Since then, successive governments have expressed sympathy with the recommendations of the Royal Commission, but very little has happened. We do know of the losses that are happening. The Government have not kept their word. We had a commitment to legislation in the 1987 manifesto, and repeated questions have been asked since then. My noble friend Lady Nicol, who is very sorry that she cannot be here tonight, has, I think you might say, pestered the Government over and over again with questions about when they are going to do something about common land. In April last year she asked a Question and was told by the noble Earl, Lord Arran: I can confirm that it still does remain our policy to safeguard the status of common land and to strengthen the ways in which it is protected and used".—[Official Report, 14/4/94; col. 1618.]

Our contention is that they are not being satisfactorily protected and the Government really ought to be committed to do something. My noble friend's amendment goes some way towards adding some protection. I hope that it will be very seriously considered. I know that he said it is a probing amendment and I hope that we shall get a sympathetic response. The Government owes that to the Committee.

I do not know whether the noble Lord, Lord Renton, was referring to Spring Common in Huntingdon when he was speaking, but I think he was. I understand that it is, in fact, still being damaged and, of course, we all regret that, so I shall hope for a favourable response from the Minister.

Viscount Ullswater

The amendments made by this schedule to the law relating to common land and town or village greens seek to provide a partial answer to the problems arising from common land. They do not entirely attain even that objective, and in some respects would do more harm than good.

I realise that the noble Lord, Lord Williams, put them forward by way of probing amendments; but he did say that his amendments address the most urgent threats. I have to say to him that I believe that they fail to address the principal problems associated with common land— those of removing from registers land which has been registered incorrectly and providing improved arrangements for the management of commons. I have to say, therefore, that this partial approach is not acceptable.

There is a wide range of interests concerned with this subject, particularly those who earn their living from common land. I notice that the noble Lord indicated his close connection with commons. His experience obviously gives him a certain amount of expertise in the matter. Experience with the Common Land Forum, which reported in 1986, and the consequent discussions have shown just how difficult it is to balance the interests involved, and how difficult the process of changing the arrangements for registration and management of common land would be.

My noble friend Lord Strathclyde advised the House on 27th July 1993 that the Government could see no way in which comprehensive legislation on the basis of the Common Land Forum report could be taken forward. He indicated that the priority questions which the Government wish to address are those of registration and management. Since that time a lot of careful thought and informal consultations with a wide range of interested bodies have been applied to these questions. I hope to be able to report the result of those consultations in the near future. Therefore, I do not think that it would be right to think that the Government have been entirely sitting on their hands. There are difficult problems and the way forward has not been easy to find.

5 p.m.

Baroness David

Perhaps I may interrupt the noble Viscount. Is it not a fact that at one point there was a draft Bill in his department?

Viscount Ullswater

I am not aware of that but I shall find out and write to the noble Baroness.

As a general comment, I understand the noble Lord's desire, in the context of the Bill, to involve the environment agency in matters relating to common land. But the environment agency is to be formed from Her Majesty's Inspectorate of Pollution and the National Rivers Authority. Although both organisations may operate on common land in the course of their current duties, they have no history of involvement with the subject nor expertise in the sometimes arcane legislation which governs common land.

Present arrangements place the responsibility for the registration of common land with the county councils and the London borough councils. That ensures that the registers are available for inspection in reasonably accessible locations for all who may wish to consult them. The records and the experienced staff of the registration authorities together are an invaluable resource at the core of that tier of local government.

At present, also, the power to apply to the county court in the case of any contravention of Section 194 of the Law of Property Act 1925 rests with the county and district councils and with persons interested in the land in question. The amendments made by the proposed schedule would give the sole power to the environment agency. With the best will in the world, I cannot see the agency having the resources or the local knowledge to tackle unauthorised incursions onto common land, let alone to become involved in disputes concerning unauthorised fencing or other work. Nor can I understand the logic of preventing people interested in the common from applying to the court to restrain transgressors.

In fact, I find it rather unusual to hear from the Benches opposite the suggestion that power be taken away from the commoners and the local authorities. The usual stance of the party opposite is to make certain that local authorities retain power. Giving it to the environment agency would remove the power from both the commoners and the local authority.

Lord Williams of Elvel

That is only if the environment agency has no local authority representation.

Viscount Ullswater

I bear in mind that perhaps we trespass into Scottish time. I could go through the schedule in some detail and point out inadequacies in the drafting. I see that the noble Lord shakes his head. Perhaps we need to address the matter on another occasion. In conclusion, the Government continue to believe that the problems associated with common land need a more considered and structured approach than this amendment would provide. I hope I have said enough to show why we cannot accept it. Therefore, perhaps the noble Lord will be persuaded to withdraw it.

Lord Renton

Before the noble Lord, Lord Williams, replies, perhaps I may say that I fully understand the reply given by my noble friend Lord Ullswater. I was particularly interested when he said that he hoped to make a statement before long on the result of further thoughts in the department about the protection of common land. When he makes such a statement, will it be while the Bill is going through Parliament so that any consequential amendments in the present law that might be considered necessary could be made in this Bill?

Viscount Ullswater

I quite understand that that would obviously be of some interest. But the report that I would make as a result of the consultations would not be at such an advanced stage as to allow for the statutory requirements or amendments to be made to this legislation while it is before noble Lords.

Lord Williams of Elvel

I am grateful to the noble Lord, Lord Renton, and to my noble friend Lady David. I am also grateful to the Minister for responding to my amendment. I accept every criticism about its drafting. The noble Lord, Lord Renton, will be aware that I am not a conspicuously good drafter of amendments. The amendment may be rather technical. It comes from a hand which, I am bound to say, is not mine.

Nevertheless, the amendment tries to address what we consider to be the initial and major problems relating to common land. The Minister says that the amendment does not address the major problem relating to common land. I should like to have moved an amendment which addressed the whole problem of registration and the management of common land. If I may speak from my own experience, and, indeed, as the noble Viscount knows, it is the management of common land which is a major problem. In fact, the common land which abuts my property in Wales is simply not managed at all by anybody.

I should like to have introduced such an amendment. But, as the Committee knows, my aims in all things are modest. I do not try to persuade the Committee that I want to solve all the problems at once. In moving the schedule, I simply wanted to put the item on the agenda. It is now very firmly on the agenda.

The Minister replied to the amendment and clarified his reply to the noble Lord, Lord Renton, saying that he would make an announcement "shortly" or "before long". We are rather cynical about ministerial announcements which are to be made as soon as possible, shortly or before long. So I wish to press the noble Viscount further. I said that the amendment was a probing amendment. If I do not receive a suitable reply—not at this stage of the Bill but at some future stage—it could easily become an amendment which stops being probing and on which I would seek the opinion of the Chamber. But since we are in Committee, we are entitled to a discussion and to have an assurance from the Minister that the Government at least recognise the problem and recognise, as the noble Lord, Lord Renton, said, that this Bill is the proper place for the matter to be addressed. I understand that the Minister may say that it cannot be done while the Bill is before this Chamber, but before the Bill leaves Parliament there should be some announcement from the Government about their intentions on common land.

As my noble friend Lady David pointed out, the problem has been around for a long time. The Government have a long-standing commitment. It is simply not good enough to say that they are still studying the problem and still consulting on it. We have heard that since their manifesto commitment of 1987. The ball is very firmly in the Government's court. I hope that the noble Viscount will honour us with an assurance that, before the Bill leaves Parliament as an Act, we shall have some announcement of the Government's future intentions for common land and the prospect of legislation.

Viscount Ullswater

I have to say no, I do not believe that this Bill is the proper place for that. It is not the proper legislation in which to include this point on common land. The use of the environment agency as a peg on which to hang this little piece of legislation is not appropriate. I indicated that informal consultations have been going on with a wide range of interested bodies. In order to report on the result of those consultations, there is need for further consideration. In this instance I sought not entirely to destroy the amendment the noble Lord proposes but I do not feel that this is the right place to introduce such legislation. I feel that it needs further thought and further consultation. It will not be ready before this Bill passes through Parliament.

Lord Renton

Perhaps I may add one point. The Bill deals with national parks. Common land and national parks are both of public concern and they are both precious parts of the environment. This is an Environment Bill. Whether or not we require the environment agency, which has quite different powers, to consider the matter, I should have thought that what we are doing for national parks would not be very different from what we might wish to do for common land.

Viscount Ullswater

What we are doing with national parks is setting up some authorities to deal with the management of national parks. That is a transfer of some local authority functions to the national park authorities. We shall be discussing that in some detail next week. The noble Lord, Lord Williams, indicated that he wanted the environment agency to have some function in common land. However, I do not believe that it is the right place to involve the environment agency in this rather specialised form of legislation.

Lord Williams of Elvel

I find the Government's response to all that the Committee has said extremely disappointing. As my noble friend Lady David said, we have been walking around this problem now for years and years and years. The Government had a commitment in the Conservative manifesto of 1987 to bring forward legislation on the basis of the common land forum. Even today, in 1995, the Minister can get up and say, "We are still considering the problem and we are still consulting with interested parties. We will make an announcement some time after this Bill receives Royal Assent". We are not satisfied with that. At a later stage of the Bill, regardless of what the noble Viscount says about whether or not this is the right place, there will be further amendments on this issue. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 23 [Functions of staff commission]:

[Amendment No. 151 not moved.]

Clause 23 agreed to.

Lord Carmichael of Kelvingrove

moved Amendment No. 152: After Clause 23, insert the following new clause: ("Production of environmental quality plans SEPA shall coordinate the production of environmental quality plans with the aim of integrating the activities of environmental regulatory authorities in Scotland and to provide a framework for guiding decisions on the management and protection of the environment.").

The noble Lord said: On behalf of my noble friend Lord Ewing of Kirkford, I wish to move Amendment No. 152 and speak also to Amendments Nos. 182 to 184, 184A, 185, 185A, 185B and 185C. The purpose of Amendment No. 152 is to enable SEPA to fulfil the Government's intention to secure the opportunity for more integrated environmental protection. It is concerned with quality plans. Threats to the environment do not arise solely from pollution and Scotland's environment cannot be protected by an agency concerned only with the pollution control end of the cycle. The environment is complex and interrelated and requires to be looked at in an integrated way.

This amendment would enable SEPA to draw up environmental quality plans which build on the experience of the National Rivers Authority which produces water catchment management plans in England and Wales. Such plans would enable the integration of the various functions of Scotland's agencies as they relate to water catchments. Integrated planning of activities within catchments would enable SEPA to play an active part in tackling problems where a number of bodies may be acting at cross-purposes. It would enable SEPA to take account of and influence activities which may have a cumulative impact on the environment but which are currently planned or managed under separate and unconnected systems. For example, a catchment plan could address the cumulative effects of agricultural run-off, forestry practice, sewage inputs and other activities on a water body and would be an economic way of avoiding problems which are very costly to remedy.

The estuary of the River Ythan in Grampian is badly affected by nitrate enrichment, mostly from agricultural activities, which has been exacerbated by the removal of buffer strips along water courses. The nutrient enrichment causes algal mats on the surface of the mudflats which prevent birds, such as dunlins, from feeding on invertebrates. An action plan based on catchment management is now seen as the only solution and is being developed by a consortium of agencies. This amendment would enable SEPA to take this approach as a matter of course before costly problems reach that stage.

The other amendments are supportive of Amendment No. 152. Amendment No. 183 brings the Bill into line with current thinking on protection of the water environment. "Cleanliness" of the water, while important, takes an extremely limited view of the water environment, ignoring the biological quality, hydrological quality and geomorphological quality. All these factors should be within SEPA's duties with respect to water.

I hope that the Minister will be able to make another little concession on what to me is a commonsense and helpful group of amendments. I beg to move.

5.15 p.m.

The Earl of Lindsay

I do not doubt the common sense of the amendment and especially the sentiment behind it. SEPA's relationship to the water environment is crucial to its functions and duties.

Amendment No. 152 would require SEPA to take the lead in the preparation of environmental quality plans, as the noble Lord described, to integrate the work of environmental regulatory authorities in Scotland and to seek to apply a common framework for the consideration of matters by these authorities. The noble Lord explained that the intention behind Amendment No. 152 is to require SEPA to adopt the catchment based management approach used by the NRA. The Government do not believe that approach is necessary in Scotland. Scotland's geography is very different from that south of the Border. Its rivers are relatively short and fast flowing with nothing comparable to the long and meandering rivers such as the Thames, the Severn, the Ouse and Bristol Avon. In addition, 95 per cent. of Scotland's public water supplies come from upland sources whereas that is true for only one-third of water supplies in England. The other two-thirds in England come from abstraction lower down the river or from groundwater sources.

These factors, combined with Scotland's relatively lower density of population and comparative lack of heavy industry, mean that the scale of potential pollution is less. As Scotland's river flow is greater, the result is that the effects of any pollution incidents are mitigated. Against this background there is less of a need for comprehensive controls of the kind which have been adopted in England and Wales.

That being said, the Government have acknowledged that existing arrangements can be improved. It is precisely because current regulatory arrangements are so fragmented that SEPA is to be set up to bring together responsibility for the key forms of pollution to air, water and land. In addition, we envisage SEPA agreeing memoranda of understanding with other public bodies which impinge upon its work. One such public body would be the HSE. The noble Lord, Lord Carmichael, mentioned a specific location in Scotland, the river Ythan estuary. It is where there are specific areas requiring environmental management that the work of SEPA will need to be co-ordinated with the work of other authorities that the memorandum of understanding and the bilateral obligations on both parties will be established.

I am satisfied that SEPA has the power to draw up joint plans, if necessary; but it would be wrong to give it the main co-ordinating role in every circumstance. For example, Scottish National Heritage might have a major interest in an issue. It would not be right therefore for SEPA to be in the lead. On reflection, I hope that the noble Lord will agree that these are not aspects on which the precision of legislation is appropriate.

The purpose of Amendment No. 182 is to remove the possibility of ministerial directions in connection with SEPA's duties with respect to the cleanliness of waters and the conservation of water resources. There is no hidden agenda here. The Government have no anxieties in relation to the river purification authorities meeting their existing duties. Clause 32(1) strengthens the current duties by widening the scope of the waters to be protected specifically to include groundwater. We should however bear in mind that these duties will in future apply to a body with a very different nature from river purification authorities. SEPA will be an integrated body whose functions encompass the prevention and control of pollution to air, water and land.

We accept the need for SEPA to have specific duties in relation to the water environment over and above its general environmental duties reflecting the existing RPA's wider scope in relation to pollution of controlled waters. However, we do not want these duties to skew unreasonably the work of the agency. This amendment would remove the safety net which we have built in to ensure this does not happen.

I should now like to turn to Amendments Nos. 183 to 185C. I have some sympathy with the general direction of these amendments, but I do not see their adoption for SEPA as appropriate. Other bodies will also have their part to play in achieving these objectives. Our aim is broadly to transfer the existing duties of the river purification authorities for water protection to SEPA with some strengthening in relation to groundwater.

Amendment No. 183 appears to reflect the European Commission's proposals for a new ecological quality of water directive. It would be inappropriate to define SEPA's role in these terms, particularly at this early stage in the preparation of a new directive, when it is far from clear what its eventual shape will be. SEPA is, for instance, unlikely to be the only statutory body contributing to the work of achieving high ecological quality in terms of the directive, should it be adopted. Other organisations such as Scottish Natural Heritage are likely to have a part to play. We should wait until the directive is adopted to define such roles.

Amendment No. 184 effectively removes any reference to practicability in relation to SEPA's role in conserving water resources, and places an onus on SEPA to determine what uses of water are proper. This is too wide a task for SEPA.

Amendment No. 184A similarly removes the reference to "practicable", and would place duties on the agency which it could not meet, given the powers available to it.

Amendment No. 185 gives a promotional role to SEPA which again goes well beyond its powers and duties as an environmental regulator. It seems to me that such a role more appropriately lies with the new water authorities. The same also applies to Amendments Nos. 185A, 185B and 185C. Those impose an absolute duty in relation to the conservation of the water environment that would deflect SEPA from its primary role as a pollution prevention and control body.

The noble Lord may be aware of Section 65 of the Local Government etc. (Scotland) Act 1994 which will place a new duty on the Secretary of State and the new water authorities to promote the conservation and effective use of the water resources of, and the provision of adequate water supplies throughout, Scotland. I would suggest that this existing legislative provision is sufficient to meet his concerns.

This is an important area and water is an important factor within Scotland. I trust that I have been able to reassure the Committee that the existing water duties on the new agency and on other bodies are sufficient. On that basis, I ask noble Lords to consider withdrawing their amendments.

Lord Carmichael of Kelvingrove

The Minister has put a very convincing case. I certainly see the relationship between Scottish and English rivers as being quite different: there is no comparison. However, I do not believe that we should take the matter too easily in that we do not need a greater ability to co-ordinate. The Minister gave the impression that there was more information to be brought out fairly soon about the powers of SEPA to carry out more co-ordination than exists at present. I believe the noble Earl said that a memorandum of understanding will be brought out to clarify some of the points which are put forward in these amendments.

The Earl of Lindsay

It may be useful if I add that the memorandum of understanding was set out in the draft management statement in October 1994. I suggest that I write to the noble Lord and include a copy of that draft management statement concerning the memorandum of understanding. The noble Lord will then know exactly what details have been established.

Lord Carmichael of Kelvingrove

If we can have that before we reach Report stage, and with that assurance, I am very happy to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 24 [Consultation with respect to drainage works]:

The Earl of Balfour

moved Amendment No. 152ZA: Page 23, line 30, after ("works") insert (", other than scouring or repairing any existing drain, watercourse or outfall, or carrying out any drainage works for the purpose of improving drainage for agriculture of any land which has at any time been cultivated,").

The noble Earl said: I am very grateful to the noble Earl, Lord Kintore, and to the Scottish Landowners' Federation for assisting me with this amendment. From a practical point of view, much of the drainage of the best agricultural land in Scotland was put down during the 18th century. Some of it involved amazing feats of engineering. The trouble is that after this length of time in some of the beautiful drainage schemes which were put in with horseshoe tiles, the tiles have collapsed.

The object of this amendment is to allow landowners in normal repair and maintenance, particularly as regards agricultural land, to be able to carry out the necessary repairs without it being necessary to get approval from SEPA or anybody else. In many ways there is a wonderful advance in knowledge today, which simply did not exist a few years ago, of how drains can be cleaned out by scouring them.

Literally, since I entered the Chamber I have received a letter from my noble and learned friend Lord Fraser of Carmyllie in which he states, The intention behind Clause 24 is to place on a statutory footing the consultation which is currently required as a condition of the payment of grant for drainage works from the Forestry Commission and the Scottish Office, and to extend the consultation requirement to other significant drainage works". I am not aware of any Forestry Commission grants. There were some grants for drainage to agricultural land. The letter continues: We [the Government] therefore envisage that the Regulations will prescribe those minor drainage works … rather than in the Bill".

In drafting the amendment, it was partly to try to reduce the need for SEPA having to deal with every sort of minor repair. To a great extent, the ordinary landowner on an average estate today is very conscious of the effects of pollution and is only too keen to preserve his own interests without again having to go to yet another authority in order to carry out his responsible repairs and maintenance. This amendment is grouped with other amendments to which other noble Lords will no doubt wish to speak; but, for the moment, I beg to move.

5.30 p.m.

The Earl of Kintore

Amendment No. 152ZA stands in my name also. I have been briefed by the Scottish Landowners' Federation which generally welcomes the concept of SEPA. Paragraphs (a) and (b) of Clause 24(1) appear extremely restrictive and could include everything from cleaning a minor field drain upwards. The amendment seeks to allow normal farm drain maintenance. Clause 24(2) states: The Secretary of State may, by regulations…prescribe types of drainage works in relation to which subsection (1) above shall not apply". Perhaps I may ask the Minister when the draft regulations will be available.

Lord Carmichael of Kelvingrove

I do not know whether the noble Earl is agreeable to the grouping that was put forward—

The Earl of Balfour

Yes, but I thought that the noble Lord might want to speak to his own amendments.

Lord Carmichael of Kelvingrove

The noble Earl's amendment, Amendment No. 152ZA, precedes the amendments that have been grouped. I refer to Amendments Nos. 152A, 152B, 153, 154, 154A and 154B. I should like to refer particularly to Amendments Nos. 153, 154 and 154B.

I appreciate the efforts that the noble Earl has made; but I have a slight concern about his amendment. In general, the clause has to be welcomed, but it unfortunately takes a limited view of the environmental impact of drainage work. It requires only "consultation" on the precautions that should be taken to prevent pollution. It fails to encompass drainage works which could have highly damaging effects on the environment. There is great anxiety over the piecemeal, site-based approach to land drainage and flood defence in Scotland. Excessive land drainage has resulted in a loss of valuable wetland habitat and buffer strips along water courses which can filter pollutants and sediment. Despite that impact, there is no government body to maintain an overview of the potential environmental impact, be it local or catchment-wide, of such works.

The principal object of land drainage is to carry water away from the land as fast as possible. That process gives rise to many problems, including an increased tendency for rivers to flood in wet weather and a loss of wetlands in dry weather, both of which give rise to secondary problems. Improvements in technology since the 1950s have made it possible to drain almost all lowland farmland so that very little grassland is left. Drainage has also been extended to the uplands. In Tayside, for example, up to 8 per cent. of the land area was hill-drained in the 1970s, increasing the erosive potential of run-off and contributing to losses of soil and nutrients. Not only do the silt and nutrients cause problems for rivers, but farmers have no wish to lose them from the land in the first place. The consequent effect of all the drainage has been a serious decline in the wide variety of wildlife that is dependent on those wetlands.

Amendment No. 154 strengthens what I have described as a "consultation procedure". It requires those carrying out drainage works to "have regard to" rather than simply "take account of the views of SEPA. That is a fairly important difference which the Minister may find it worth endorsing. That change emphasises the importance of consultation and highlights the significant weight that should be accorded to SEPA's opinion on drainage operations.

Turning to Amendment No. 154B, the clause allows the Secretary of State to prescribe types of drainage works for which consultation shall not be required. That causes us some anxiety because it provides no rationale or clarification as to why, or what, drainage works may be excluded. Again, the Minister should be able to clear up that point fairly quickly. It would be more appropriate for SEPA to determine in the pursuit of its functions the extent and degree to which consultation is necessary for various types of drainage work. Why is it desirable to allow some drainage works to be excluded from the consultation process, and on what basis is that being done? I am sure that there is some rationale to it, but there may be a quicker way of achieving that end. Is it possible to specify the categories that could be excluded? I commend my amendments to the Committee.

Lord Beaumont of Whitley

I have great sympathy with the amendments which stand in the name of the noble Lord, Lord Carmichael of Kelvingrove; and, with the possible exception of Amendment No. 154B, I would support them.

Amendment No. 154B, and Amendment No. 152ZA (which stands in the names of the noble Earls), provide an important derogation from the main provisions. It is worthwhile having something like that. On the point of whether the derogation is too widely cast and the exceptions too wide, I shall wait to hear what the Government have to say before making up my mind. On the whole, I think that we should be strengthening anti-pollution methods in this area. As I have said, the majority of this group of amendments are worthwhile, and I hope that the Government will accept them.

Lord Elton

I imagine that my noble friend will say that the power in subsection (2) will be used to make any exemption which is necessary, such as that referred to in Amendment No. 152ZA which stands in the name of my noble friend Lord Balfour. On the other side of the coin, however, I hope that my noble friend will take on board a point which I am not quite sure that I understood from the contribution of the noble Lord, Lord Carmichael, although it may have been there. One function of undrained land is to act as a buffer between a rainstorm and a river system. It takes the water in quickly and lets it out slowly. If you drain that land, it takes water in quickly and lets it out quickly. The result is a much greater strain on the river system which has to dispose of it. That may result in floods. Therefore, I see why the noble Lord seeks to establish the way in which there shall be some communication between those who intend to increase the load on the river system and those who are responsible for the river system.

The Earl of Lindsay

I am glad that we have been able to get 18th century horseshoe tiles into the debate. Much of the debate has been about the less attractive forms of pollution, so it is good to cast our minds back in that way.

The first amendments in the group relate to SEPA's function in relation to drainage works. Amendment No. 152ZA, which has been tabled by my noble friend Lord Balfour and the noble Earl, Lord Kintore, seeks to prescribe on the face of the Bill types of drainage works for which consultation with SEPA is not required. Conversely, Amendment No. 154B would remove the Secretary of State's power to make regulations exempting those proposing to carry out specified types of drainage works from the consultation arrangements.

I do not believe that all drainage works are significant enough to warrant the imposition of these new arrangements. I therefore have great sympathy with the intention behind Amendment No. 152ZA. I am, however, afraid that the imprecise nature of the terms used in the amendment would jeopardise the successful implementation of the consultation arrangements.

The Government's intention behind Clause 24 is to place on a statutory footing the consultation which is currently required as a condition of the payment of grant for drainage works from the Forestry Commission and the Scottish Office, and to extend the consultation requirement to other significant drainage works. I say to my noble friend Lord Balfour that Forestry Commission grants cover planting, and therefore specific conditions relating to drainage and other relevant matters are linked to the grants made.

The noble Lord, Lord Carmichael, the noble Earl, Lord Kintore, the noble Lord, Lord Beaumont of Whitley, and my noble friend Lord Elton are all seeking some pattern and rationale behind the exemptions that are likely to be made. "Why, and on what basis?", was asked. We envisage that the regulations will prescribe those minor drainage works where the risk of pollution is so low as to make the need to consult unwarranted, such as tile drains, and repairs to existing drains. In view of the need to prescribe clearly the types of works to be exempted, it seems appropriate for the Government to include the detailed provisions required in regulations rather than in the Bill itself. I can tell the noble Earl, Lord Kintore, that draft regulations will be brought forward in good time for consultation before the obligations in Clause 24 come into force. I can however assure the Committee that the Secretary of State will consult widely among interested groups over the detail of such regulations and exemptions.

Amendments Nos. 152A and 152B seek to change the locus of SEPA's interest away from the preventing of pollution to controlled waters to the effect of such works and the prevention of any environmental damage. The amendments would unduly broaden the agency's interest beyond that of its functions, and could result in it becoming embroiled in matters such as land use planning.

I can assure the noble Lord, Lord Carmichael, that the definition of "controlled waters", which seems to be the concern behind Amendment No. 153, is wide enough to cover the entire aquatic environment that might be affected by drainage works. I hope that gives him some comfort.

The term "pollution" can be seen very much in the context of harm and is a well understood term in legislation. Relying additionally on the term "damage", however, as suggested in these amendments might cause problems, given that it might be interpreted in too wide a sense. For example, any works which might affect a river course, for instance by widening it, could be argued to be damaging it in the sense that it is being altered.

There is no material difference between the provisions in Clause 24, "to take account" of SEPA views, and the amendment requiring "due regard". The amendment would not strengthen the amount of attention or weight to be applied to the agency's comments. There is therefore no reason for changing the existing provision.

Amendment No. 154A would however require SEPA "recommendations" to be followed. I do not believe that individuals should be compelled to accept, lock, stock and barrel, the views of SEPA, in respect of drainage, no matter how authoritative. It is for those carrying out such works to accept the final responsibility for their actions. If they were merely "following recommendations", that responsibility would pass inevitably to SEPA. Finally, Amendment No. 215 contains proposals for forestry works to take account of their effect on the environment, including the aquatic environment. The Forestry Commission already approves proposals only if they follow the forests and water guidelines. Those guidelines have been drawn up in consultation with water and fisheries interests, including the Scottish river purification authorities. In addition, the Forestry Commission has been directed by Ministers to consult statutory bodies before approving forestry proposals.

I am quite sure that those arrangements are sufficient to ensure that the river purification authority's views are taken into account before it approves any significant proposals. The river purification authorities' responsibilities would be assumed by SEPA and the commission's consultation arrangements would therefore be extended directly to the new agency.

I do not believe that there is a need for an inflexible statutory duty. The arrangements for taking account of the effects of forestry proposals on water have worked well and the Government will wish them to continue after the new agency has been set up.

I trust that I have been able to reassure the Committee that the land drainage arrangements provide the necessary safeguards against pollution. On that basis I would ask my noble friend to consider withdrawing the amendment.

5.45 p.m.

The Earl of Balfour

In view of the serious anxieties of landowners about the provisions of Clause 24, it would be a tremendous help if my noble friend would be kind enough to ask the Secretary of State, under Clause 24(2), to produce draft regulations as to how it will affect landowners and foresters. We should be in a much better position to know how much we shall be affected. There are some amazing cundies in stone varying from four inches square to those which are large enough for us to walk down easily, and which were built years and years ago. The problem is that when they give trouble, they give real trouble. I beg leave to withdraw the amendment.

Lord Elton

Before my noble friend does that, I did not hear what my noble friend the Minister said about Amendment No. 152A and the effect of such works. As I understood it, it is not a matter of pollution but of the loading of the river system. Perhaps my noble friend will write to me about that if he does not wish to reply now.

The Earl of Lindsay

Yes. Amendment, by leave, withdrawn.

[Amendments Nos. 152A to 154B not moved.]

Clause 24 agreed to.

Lord Carmichael of Kelvingrove

moved Amendment No. 155: After Clause 24, insert the following new clause: ("Abstraction of water: control order .—(1) The Secretary of State may make an order (referred to in this Part of this Act as a "control order") for the purpose of controlling, restricting or prohibiting any abstraction of water. (2) The Secretary of State may make a control order only on the application of SEPA, acting in pursuance of their duties under this Act. (3) A control order shall apply to all inland waters or ground waters within an area specified in the order (referred to in this Part of the Act as a "control area"). (4) The power to make a control order shall be exercisable by statutory instrument. (5) A person who abstracts water in an area to which a control order applies, or causes or permits any other person to abstract such water shall, subject to subsection (6) below, be guilty of an offence under this section. (6) A person shall not be guilty of an offence under subsection (5) above if he abstracts such water under and in accordance with a valid licence under this Part of this Act. (7) SEPA may grant a licence for the abstraction of water in an area to which a control order applies in favour of and on application by a person who is, or will be when the licence comes into force, the occupier of the land within a control area. (8) Licences as granted in subsection (7) above shall be set in pursuance of SEPA's duties under section 7 of this Act.").

The noble Lord said: It may be for the convenience of the Committee to take also Amendments Nos. 156, 157, 158 and 158B. The purpose of Amendment No. 158B is to accord comprehensive abstraction control to SEPA. Water abstraction has a significant effect upon the cleanliness of rivers, inland tidal waters and the conservation of water resources. That matter is dealt with more fully in Clause 32.

For example, water abstraction affects directly the dilution ability of the water. If the river flow is allowed to get too low, it is unable to dilute sewage effluent and therefore the river purification board cannot guarantee water quality. Abstraction can also have a damaging effect upon the aquatic environment, at times leaving rivers dry and lifeless. The shoreline can be reduced to bare mineral substrates without vegetation.

RPBs licensing powers are limited currently to the promotion of irrigation control orders under the Natural Heritage (Scotland) Act which we dealt with in this place a few years ago. That control order mechanism is wholly unsatisfactory and inadequate. First, it is reactive in nature. Abstraction cannot be controlled until the damage has been caused. Furthermore, the Scottish Office has made it clear that designation of extensive control areas in anticipation of problems will not be allowed.

Secondly, it is time consuming. Experience has shown that it can take two years or longer to obtain a control order. Perhaps the Minister will be as surprised as I was to learn about that. Thirdly, it is limited to irrigation. SEPA must be able to control all types of abstraction. Due to those factors, and despite indications that the problem is far more widespread, only one control area has been established in Scotland. It is easy to foresee that a financially constrained SEPA will not allocate resources to this labour-intensive and unrewarding process unless it is forced to do so in a crisis.

Previously, the Scottish Office argued that Scotland has sufficient water and therefore does not require overall abstraction controls. It is true that Scotland has a lot of water but there are periods of considerable difficulty, in particular in the south west. However, the Government have concluded that selective abstraction controls should be produced following discussions with the EC on groundwater protection. Obviously, that will take several years, leaving SEPA without the powers necessary to perform its duties under Clause 33. Will the Minister say why SEPA has not been given the abstraction controls necessary for the proper performance of its duty?

Subsection (1) of the proposed new clause, set out in Amendment No. 155, provides: The Secretary of State may make an order (referred to in this Part of this Act as a 'control order') for the purpose of controlling, restricting or prohibiting any abstraction of water". The notes that I have been given on the new clauses are rather long-winded and I am sure that the Minister has already seen copies. Therefore, I shall briefly outline the intention of the new clauses. Subsection (2) provides that: The Secretary of State may make a control order only on the application of SEPA, acting in pursuance of their duties under this Act". Subsection (3) provides that: A control order shall apply to all inland waters or ground waters within an area specified in an order (referred to in this Part of the Act as a 'control area')". Subsection (4) provides that: The power to make a control order shall be exercisable by statutory instrument". Subsection (5) provides that: A person who abstracts water in an area to which a control area applies, or causes or permits any other person to abstract such water shall, subject to subsection (6) below, be guilty of an offence under this section". Subsection (6) provides that: A person shall not be guilty of an offence under subsection (5) above if he abstracts such water under and in accordance with a valid licence under this Part of this Act". Subsection (7) provides that: SEPA may grant a licence for the abstraction of water in an area to which a control order applies in favour of and on application by a person who is, or will be when the licence comes into force, the occupier of the land within a control area". Finally, subsection (8) provides that: Licences as granted in subsection (7) above shall be set in pursuance of SEPA's duties under section 7 of this Act".

That gives SEPA the power to license the abstraction of water in areas which have been identified as control areas. Is that not a way around the problem of the authority having too much power? Perhaps a fair amount of trouble would be saved if there were control areas over which it had discretion. I beg to move.

The Earl of Balfour

I refer the Committee to subsection (8) of Amendment No. 155. The last line refers to "section 7". However, it should be "section 30" because Section 7 is an English provision and Section 30 is the Scottish equivalent. For that reason, the proposed new clause is slightly defective.

The noble Lord, Lord Carmichael, referred to "underground strata" in Amendment No. 157. I am anxious about my personal position because the 42 households on the estate—by no means all of which belong to me—draw water from a spring maintained by the estate. We have never paid water rates and I should object most strongly to being charged for water, which is purely for household and farm purposes, when for many years it has been privately maintained and so forth. That is by no means an exception.

Furthermore, many of the distilleries in the Highlands have abstracted water from springs entirely maintained by them. In some cases, they have been used for more than 100 years and it would be unfair for them now to pay a fee to obtain a licence for that purpose.

Amendment No. 158B refers to water abstraction licences and I wish to add the abstraction of water from rivers. If too much water is taken out and the river is not clean and contains raw sewage, the suspended solids and the raw sewage extract the air from the water and cause the fish to suffocate. Raw sewage does not do much harm to animals and humans but it can be extremely detrimental to fish. Where people are abstracting vast quantities of water for, say, irrigation, perhaps licences should be applied for and paid for.

The Earl of Lindsay

I am grateful to my noble friend Lord Balfour for his sharp eyes. I shall pass on the correction that he suggests to those who are best placed to make it.

The noble Lord, Lord Carmichael, made his points well, as he did those proposed by his noble friend Lord Ewing. I hope that his noble friend is grateful for his tireless efforts. He will be glad to note that many of their anxieties relating to water abstraction are shared by my right honourable friend the Secretary of State.

Amendments Nos. 155 to 158 enable SEPA to license abstractions in certain areas and adopt, in broad terms, the kind of selective approach that my right honourable friend the Secretary of State announced in another place in November. Unfortunately, the amendments are incomplete and include other features that I must resist.

First, I cannot regard it as acceptable to apply the licensing regime retrospectively to statutory permissions already granted by the Secretary of State under other legislation for the use of water for hydro-electric generation or water supply purposes. It would be wrong to take away statutory rights already legally obtained by abstractors.

Secondly, the powers for charging, set out in the amendment tabled by the noble Lord, Lord Ewing, are designed to defray the costs of works undertaken to ensure the better use of water. The construction of such works is not a matter for SEPA, which will not have powers for this purpose. On the other hand, the proposed charging powers would not enable SEPA to recover the costs of administering a licensing scheme, a feature which the Government would regard as essential.

An ability to review any licence at intervals of not less than two years would be inappropriate. In many cases, abstractors will need—and will be entitled to—the assurance that a licence will enable them to use water on a long-term basis. Those are, however, matters which can be resolved.

On the general point, we are at one on the principle of selective abstraction controls contained in the noble Lord's proposals. As the Secretary of State announced in November, the Government will bring forward their own legislation to introduce such a scheme in the light of the European Commission's action programme on groundwater, on which proposals are due by mid-1995.

Because of the timing of those, it is not practical to include provisions in this Bill. I also envisage further public consultation on the proposed charging arrangements before any scheme is introduced. I believe that that answers one of the specific questions asked by the noble Lord, Lord Carmichael of Kelvingrove, as to why SEPA is not being given the power proposed by his amendments.

Broadly similar considerations apply to Amendment No. 158B tabled by the noble Lord, Lord Carmichael. However, that amendment seeks to introduce a comprehensive system of controls with SEPA having powers to exempt abstractions below a threshold which it would set.

The pressures on the Scottish water environment do not justify a comprehensive system of control even if, in specific locations—and the noble Lord mentioned one in the south west of Scotland—at specific times there are temporary pressures. Where there are potential problems, those can be dealt with through a selective approach. That approach is flexible enough to enable preventive action to be taken. The problem does not need to have first occurred. I cannot accept also that it is proper for SEPA to set exemptions. That is a matter which should be prescribed in regulations, which would enable there to be Parliamentary scrutiny.

In view of the fact that the Government will introduce their own legislation in relation to water abstraction controls in Scotland, I ask the noble Lord to withdraw the amendment.

Lord Carmichael of Kelvingrove

We shall need to look at the proposed legislation but, in view of that, it would be wrong for me to pursue this matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 156 to 158B not moved.]

Clause 25 [Power of SEPA to purchase land compulsorily]:

The Earl of Balfour

moved Amendment No. 158C: Page 23, line 43, at end insert: (", but only—

  1. (a) after SEPA has taken all reasonable steps to reach agreement for purchase of the land and has been unable to do so on terms which the Secretary of State considers reasonable;
  2. (b) where it is necessary for SEPA in the proper exercise of its functions to acquire the land; and
  3. (c) it is reasonable in all the circumstances that the land be purchased compulsorily.").
The noble Earl said: The noble Earl, Lord Kintore, and I have no objection to SEPA having compulsory purchase powers but they should be available only as a last resort and only after consultation with the owner has broken down.

We feel that without proper consultation compulsory purchase powers sometimes may be abused. I heard a tragic story of a water or sewerage authority acquiring a piece of very good agricultural land—something like 20 acres out of 100—on which to build a sewerage works. Those works were never built. The land was offered back to the original owner at a grossly inflated price because it was discovered that there was gravel underneath. The original owner could not afford to buy back the land. The authority abstracted a great deal of gravel, making a lovely profit. It then offered the land back to the original owner, by which time, he had lost what might have been his mineral rights. I believe that we need to be very careful in such circumstances.

I am very grateful to the Scottish Landowners' Federation for its help in drafting the amendment. That organisation is in favour of the Bill but it feels that the landowner must be protected, wherever possible, from an abuse of compulsory purchase powers. I beg to move.

The Earl of Kintore

Clause 25(1) reads rather like mid-20th century confiscatory legislation rather than rapidly approaching 21st century legislation. The Minister may tell me that I am talking rot but I feel that landowners today are far more co-operative towards public bodies. I accept that SEPA must have compulsory purchase powers but I hope that those powers will be used only as a very last resort.

Lord Elton

I hesitate to intervene on what is a technical matter but I sympathise with the position which my noble friend Lord Balfour has put before the Committee. I wonder whether the same purpose would be achieved more simply if the requirement for which the land was to be bought were to be stated in the order made for its purchase and thus became a covenant on the purchaser. I put that forward as an alternative because I know that the Government like to consider all options in relation to matters that they have not thought of doing themselves.

The Earl of Balfour

I am afraid that I do not know enough about land law to comment on that.

The Earl of Lindsay

I am grateful on behalf of the Government for those helpful suggestions, especially from my noble friends, Lord Elton and Lord Balfour and the noble Earl, Lord Kintore. The noble Earl, Lord Kintore, described the extent to which landowners now co-operate with various bodies and authorities. I believe that is true not only in relation to that aspect but across the whole environmental spectrum. Over the past three or four years there has been tremendous co-operation between those who use land or admit to land and those who seek to regulate how it is used and admitted. There is much greater co-operation in that regard now.

I believe that the spirit of the amendment is borne out in practice. The provisions of the Bill as regards compulsory purchase reflect an identical arrangement which has operated satisfactorily for river purification boards since 1951. Therefore, I hope that my noble friend will feel that what has worked successfully in the past will continue to work successfully in the future.

I should point out that the clause as drafted already requires the Secretary of State to authorise SEPA to purchase land compulsorily. The ,noble Earl referred to that as dated, confiscatory prose but the involvement of the Secretary of State should reassure both my noble friend and the noble Earl because the Secretary of State will act as a safety net against any such unreasonable use of such powers. In a sense, he acts to protect against the abuse of those powers.

Perhaps I may respond to my noble friend Lord Elton by saying that the Secretary of State is unlikely to authorise the necessary consent to SEPA without sufficient reason being given for the use of that compulsory purchase power. Therefore, I ask my noble friend to withdraw the amendment.

The Earl of Balfour

I am much comforted by my noble friend's response. However, I should like to read carefully what my noble friend said. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 25 agreed to.

Clauses 26 and 27 agreed to.

Clause 28 [Records held by SEPA]:

[Amendments Nos. 159 to 161 not moved.]

Clause 28 agreed to.

[Amendment No. 162 not moved.]

Clause 29 [Guidance on sustainable development and other aims and objectives]:

[Amendments Nos. 163 to 165 not moved.]

The Earl of Balfour

moved Amendment No. 165A: Page 25, line 27, at end insert: ("(4) The Secretary of State shall consult the bodies and persons specified in subsection (5) below before giving guidance under subsection (1) above. (5) The bodies and persons mentioned in subsection (4) above are—

  1. (a) SEPA;
  2. (b) Scottish Natural Heritage;
  3. (c) Historic Scotland;
  4. (d) Scottish Enterprise;
  5. (e) Highlands and Islands Enterprise;
  6. (f) the East of Scotland Water Authority;
  7. (g) the West of Scotland Water Authority;
  8. (h) the North of Scotland Water Authority;
(i) such bodies, representing industrialists and the owners and occupiers of land in Scotland, as the Secretary of State considers it appropriate to consult; and (j) such other persons as he considers it appropriate to consult.").

The noble Earl said: Clause 29 deals with sustainable development and other aims and objectives. All we seek by way of the amendment is to ensure that the Secretary of State, shall consult the bodies and persons specified", in the proposed subsection (5), including SEPA, before issuing any guidance. I am certain —indeed, it has been my experience in every walk of life—that, if consultation takes place between all parties, we manage to compromise and that makes life very much easier. I beg to move.

The Earl of Kintore

Paragraph (j) of the amendment is intended to include organisations which have advanced from being mere pressure groups to holding a useful fund of local knowledge.

Amendment No. 170A is included in this group of amendments. It deals with Clause 30 which does not appear at present to mention farming, forestry and the rural economy. Those aspects are essential for the preservation of the countryside and of local communities. Amendment No. 170A seeks to rectify that omission. Its wording is taken from Section 3 of the Natural Heritage (Scotland) Act 1991 which sets out the duty of Scottish Natural Heritage to take account of certain matters in exercising its functions.

Scottish Natural Heritage has been successful in its work for the environment in Scotland. Its balanced approach is widely regarded as being fair and successful. There is at least as great a need for SEPA to have equivalent balancing duties. It would be logical for the agency to have, so far as possible, the same balancing duties as those of Scottish Natural Heritage.

6.15 p.m.

Lord Howie of Troon

I do not wish to detain Members of the Committee for any length of time, but we are dealing with a very miscellaneous grouping of amendments which contains my Amendments Nos. 169, 170, 171, 172 and 174. Those amendments are very narrow and have nothing whatever to do with sustainable development, and so on.

I should like to say how agreeable it is for me to see the noble Earl, Lord Lindsay, sitting on the Government Front Bench. I had not noticed his promotion and had therefore neglected to congratulate him. The noble Earl and I meet from time to time on railway matters. I believe that he strengthens the Government substantially; indeed, that is probably why they have advanced in the opinion polls during the past few days.

I have little to say about the amendments which are almost identical to those I moved last week on Clause 7 which deals with England and Wales. I referred to them in detail, so I need not elaborate too much. My general argument can be found in the Hansard report of the debates.

Basically, when considering the preservation of artefacts, especially in relation to waterways, railways and so on, Clause 30 of the Bill provides that SEPA must, have regard to the desirability of protecting and conserving buildings, sites and objects of archaeological, architectural or historic interest". I am really saying that if things can have architectural interest—which they certainly can—there are also many things which can have engineering interest, which is quite separate and different. That fact should appear on the face of the Bill.

I wish to outline a situation which is somewhat fanciful. If we desired to preserve, for example, the Forth Bridge on some future occasion, it would be because it is a great engineering achievement and one on which no architect laid a hand. At present, it would be rather good if the Forth Bridge received a coat of paint; but that is a totally different matter.

Perhaps I may refer to a less fanciful situation. Clearly, the Forth Bridge would be preserved under some guise. For example, let us suppose that under privatisation the railway line (which the noble Earl will know well) up to Mallaig were to be abandoned. It is quite feasible that it could be. Not many people travel on the line. In that case, we would have to consider the Glen Finnan viaduct, a great mass concrete structure which is not architectural, historical or archaeological. It is, however, of great engineering interest. It was built by Sir Robert McAlpine whose grandson is a Member on the Benches opposite. If that viaduct were to be preserved in the future— as, indeed, it ought to be— the reason would be its great engineering significance and not any other. I see that the noble Lord, Lord McAlpine, has entered the Chamber. I hope that the noble Lord takes his seat so that I can congratulate his grandfather, "Concrete Bob". I am glad to see that he has done so.

When we debated the matter last week, the noble Viscount, Lord Ullswater, looked pretty kindly on my amendments. However, I believe that he thought I was slightly churlish in my reception of his response. I hope that I can reassure the noble Viscount that that is not so. I hope also that the noble Earl, Lord Lindsay, will be at least as accommodating so that we can reach some agreement along the lines I have suggested. I believe that that would greatly enhance the Bill and greatly please the engineering profession.

Lord Carmichael of Kelvingrove

The noble Lord, Lord Howie of Troon, has given the Committee a most interesting trip around the historic engineering sites of Scotland. I wonder whether the noble Lord knows (again, this is a diversion) that within the Glen Finnan viaduct, there is, not a human body, but that of a horse, which fell in while concrete was being poured in. Unfortunately, it was not possible to get the animal out. That is one of the stories I have heard; no doubt, the noble Lord will be more familiar with it.

I endorse some of the remarks that have been made. Perhaps I may first deal with Amendment No. 166 which is tabled in the name of my noble friend Lord Ewing of Kirkford. The purpose of the amendment is to give a duty to further conservation across all the functions of SEPA. The duty proposed for SEPA in the Bill is to, have regard to the desirability of conserving and enhancing". This strikes me as being a rather weak duty. I am advised by the Royal Society for the Protection of Birds that Scotland should be able to do better. This amendment, which is put forward by that body, and which I and my noble friend Lord Ewing of Kirkford are only too pleased to submit to the Government, would give the agency a duty to further wildlife heritage demands rather than just have regard to them. We seek to make this duty more positive rather than a purely passive one.

The effect of Amendment No. 167 is again to give a duty to further conservation across all the functions of SEPA. It is a brief amendment to Clause 30 and will strengthen the environmental duty for SEPA. The proposal to give SEPA only a weak duty in relation to the natural heritage of Scotland is not convincing or too satisfactory. The duty to have regard to the desirability of doing that is rather weak. I would suggest that the words of the amendment are preferable.

We shall reach Amendment No. 186 later. It is grouped with the amendments I have been discussing. This amendment removes an unnecessary burden on Scottish Natural Heritage to provide SEPA with predictions as to why important sites might be vulnerable to SEPA's activities. I will move these amendments when the time comes.

The Earl of Balfour

I feel that I must apologise to the Committee for not bringing into my original remarks Amendment No. 170A. However, I am very glad to say that the noble Earl, Lord Kintore, did bring it in. Equally, I feel that unless this Bill and SEPA help farmers, foresters and fisheries, urban rules and regulations will kill rural industries and development. I also very much support the principle behind Amendment No. 173 in the name of the noble Lord, Lord Carmichael. I feel that, if we can have statutory rights of access to information held by SEPA, I personally shall feel that the situation is better.

Lord Monkswell

I rise in this debate to support the amendments that have been tabled by my noble friend Lord Howie of Troon. I must advise the Committee that when a similar amendment was discussed earlier in the Committee's proceedings it was rather late at night and it would not have been useful for the Committee to hear more speakers at that time of night. However, tonight— thank goodness!— we are discussing this matter a little earlier and it gives me great pleasure to support my noble friend Lord Howie of Troon with regard to his amendments.

The Committee needs to be aware that, although the previous debate held in Committee involved only the one speaker, the noble Lord, Lord Howie of Troon, that does not signify that he was the only one who felt the subject was important. I would remind the Committee that earlier today we discussed at Question Time a Starred Question which concerned the importance of science and technology. There was support for what was proposed from all around the Chamber. I was going to suggest— however, there was limited time— two of the things that the Government could do, bearing in mind the shortage of engineers in both Houses of Parliament. First, the Government could promote the idea among all political parties that they should select for election to the other place candidates who were engineers. Also, as regards the membership of this Chamber, whenever the powers that be consider conferring peerages, the qualifications of engineers should also be highly regarded in terms of elevation to the peerage.

As regards the consideration of this Bill, one of the ways in which we can give support to the very important role in our society and our lives which is played by engineering and engineering structures is to support this amendment. I believe it would send a message not only to the engineering community in this country that its work was supported and recognised, but also to the public at large that Parliament felt that the contribution of engineers, and of these engineering structures that we are talking about, is important. With those few words I hope that the Government will look sympathetically on these amendments.

The Earl of Lindsay

In response to the point made by the noble Lord, Lord Monkswell, it is not the quantity of engineers that one has in either Chamber but the quality that is important. This Chamber is lucky to have the noble Lord, Lord Howie. He is probably worth 100 engineers put together. Therefore we have no need of others.

As I think the Committee can guess, railwaymen when they get together— even if they are staring across this Chamber— have a rather blurred vision of each other. It is not always accurate but nevertheless it is warm. I am grateful to the noble Lord, Lord Howie, for his kind remarks. Like the noble Lord, Lord Carmichael, I thoroughly enjoyed the tour of the Western Highlands, and indeed the Forth Rail Bridge, which he gave us. As regards the Forth Rail Bridge a period of research and analysis is being undertaken at the moment to assess different systems of maintenance and of painting. I do not want the noble Lord to think there is inactivity with regard to the bridge. This is simply a time for deciding on the best way forward. I am sad that my noble friend Lord McAlpine is not in his seat because I think his grandfather's viaduct on the West Highland Line is indeed one of the finest there is.

I now turn to this group of amendments. I start with Amendment No. 165A, which seeks to set out who my right honourable friend should consult before issuing guidance to SEPA with respect to its aims and objectives. Of course, this guidance must include guidance in relation to the contribution SEPA is to make towards the Government's goal of sustainable development, and my right honourable friend has already announced that he will consult fully on the content of this guidance.

In the light of his commitment, I do not see any need for the specific list of consultees proposed in this amendment in the names of my noble friend Lord Balfour and the noble Earl, Lord Kintore. I am happy to assure both noble Earls that all eight specific bodies listed in the amendment will be consulted, as will such industrial and landowning groups as the CBI and the Scottish Landowners' Federation. Indeed, I would expect the consultation to go much wider than that. The Committee may for instance be interested to know that over 160 comments were received on the original SEPA consultation in 1992.

Amendments Nos. 166 to 168 seek to strengthen the Secretary of State's and SEPA's environmental duties. Amendments Nos. 166 and 167 would mean that rather than "having regard to the desirability" of conserving and enhancing the natural heritage of Scotland, they would be required to "further" such matters. Amendment No. 168 would have a similar effect in relation to the protection and conservation of certain buildings and sites.

The Committee will be familiar with this debate, as these issues were raised in relation to the duties on the environment agency for England and Wales in Clause 7. Therefore, I do not wish to dwell at length on Clause 30 because of the extent to which we aired all those issues on another occasion. However, I wish to make a few points.

The Bill recognises that matters such as nature conservation are important, and SEPA should, where appropriate, take account of them. However, a duty to further nature conservation could distort the exercise of SEPA's pollution control functions, and its pollution prevention and control functions lie at the heart of its very existence. Few pollution control licences could be issued if SEPA were required to ensure that the levels of pollution they permitted furthered nature conservation.

Unlike the provisions for the Environment Agency for England and Wales, there is no need to make a distinction in the Scottish provisions between SEPA's pollution control and other functions. The more limited scope of the Scottish agency means that it will not have functions for which a duty to "further" would be appropriate.

It is for that reason that SEPA's constituent bodies have no such "furtherance" duties. However, SEPA's duties will not be any weaker. Indeed, given that the full range of SEPA's environmental and recreational duties are not currently imposed on all of its constituent bodies, the new duties will be broader in their application.

The noble Lord, Lord Howie, also raised in Amendments Nos. 169, 170, 171, 172 and 174 the question of whether engineering structures fall within the scope of SEPA's environmental duties. I can assure the noble Lord that if he withdraws the amendments I will ensure that the further consideration promised by my noble friend Lord Ullswater in relation to the equivalent provisions for the Environment Agency for England and Wales is extended to cover the relevant provisions for SEPA.

Amendment No. 170A seeks to give SEPA much wider general duties in relation to carrying out its functions. SEPA will need to take account of many such matters, all of which could be covered by specific references to duties in the Bill. These are matters which the guidance issued under Clause 29 was designed to address. I therefore do not see the need for the amendment, although I understand what it seeks to achieve.

The noble Earl, Lord Kintore, drew a parallel with Scottish Natural Heritage and the Natural Heritage (Scotland) Act and what he saw as the balanced duties imposed on SNH. He quite rightly said that SEPA needs the same balanced duties. Indeed, it does have the same balanced duties. I draw the noble Earl's attention to the guidance which must be issued in the pursuit of its duties. I also draw his attention to the fact that any body seeking to contribute to sustainable development can only do so in a balanced manner. The concept behind sustainable development is that one balances and reconciles different needs and requirements.

I must also point out that SNH legislation is designed for a specific body which has been set up for a specific purpose. The clauses relating to SEPA are designed for a specific body set up for a specific purpose. Therefore, to seek to mirror clauses from one Act in another is not something that the Government would like to consider. Amendment No. 186 would remove the requirement on Scottish Natural Heritage to give SEPA reasons for considering that an area of land may be affected by activities or authorisations of SEPA.

Clause 33 requires SNH to notify SEPA of sites of special interest or natural heritage areas which SNH considers may be affected by actions by SEPA. I believe that it is appropriate for SNH to be additionally obliged to make the reasons for its considerations known to SEPA. SEPA must, except in an emergency, consult SNH where it appears likely to SEPA that its actions may affect such land. Knowing why SNH thought that the land might be so affected in the first place would, I suggest, help SEPA meet that obligation.

Amendment No. 187 would restrict the definition of emergency to "danger to life or health". That would limit the circumstances in which the consultation arrangements could be circumvented. I recognise that we should be careful to avoid any unnecessary abuses of that exemption, but I do not believe that this is the best way of doing so as it would fetter SEPA's discretion to an unreasonable extent. For example, it does not seem to cover an emergency which may cause serious environmental harm. Much would depend on how "life" was interpreted. Contamination of soil may not directly threaten life but it could well constitute an emergency. We should be prepared to trust SEPA to discharge its statutory functions to protect the environment when it believes it is imperative to do so urgently.

There is, of course, still a requirement on SEPA, if it takes emergency action, to notify SNH as soon as practicable after the event.

The Government are keen to ensure the correct balance is struck in SEPA's environmental duties. We believe that the provisions as drafted achieve that. On that basis, I hope that Members of the Committee will feel able to withdraw their amendments.

6.30 p.m.

The Earl of Balfour

That is a very satisfactory answer to the points that were raised. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn. Clause 29 agreed to.

Clause 30 [General environmental and recreational duties]:

[Amendments Nos. 166 to 174 not moved.]

Clause 30 agreed to.

Clause 31 [General duties with respect to pollution control]:

Lord Carmichael of Kelvingrove

moved Amendment No. 175: Page 26, line 13, after ("of') insert ("protecting the environment and").

The noble Lord said: In moving Amendment No. 175 I shall speak also to Amendments Nos. 176 to 181. These amendments are intended to strengthen the independence of SEPA and to reduce the total power which seems to rest with the Secretary of State, who generally speaking has sufficient power in any case. We want a body which will have a certain amount of autonomy. We are not opposed to the establishment of SEPA; we feel that it should be more representative.

The amendments are tabled because under the Bill as currently drafted assessments will be undertaken only at the discretion of the Secretary of State. We believe that SEPA should be free to provide regular assessments of the effects of pollution on the environment on a proactive basis. Otherwise SEPA may be requested to carry out assessments only in response to a crisis rather than using these studies to tackle issues before they become problems. That is the purpose of Amendments Nos. 176, 177 and 178.

The purpose of Amendment No. 179 is to ensure that, unlike other quangos, the working of the agency will not be shrouded in mystery. The Minister has already said that it would be going too far for board meetings and other meetings to be open to the public. I hope that he will come a little way with us and give us a reassurance that there will not be any secrecy which is detrimental to the public.

The purpose of Amendment No. 180 is to ensure that environmental costs and benefits are accounted for in identifying options for pollution prevention. When considering the costs and benefits of options for pollution control it is critically important that the environmental costs and benefits are clearly outlined. Many of SEPA's measurements of success will be the environmental benefits—clean water, clean air and clean land—which accrue from its actions. Therefore, it will assist SEPA to undertake some analysis of both the short and long-term costs and benefits to the environment which result from its action or lack of action. If it is lack of action, that may spur it on to do something more quickly. As the relationship between environmental economics and cost-benefit analysis remains a matter for debate, it should be clear on the face of the Bill that SEPA is expected to consider the environment as well as financial costs and benefits in the clause. Although it may be possible to do a purely financial analysis, in the long run from the ecological point of view that may prove to be disastrous. I hope that the Minister will be able to give us some reassurance on those points. I beg to move.

Lord Beaumont of Whitley

At this hour of night—I speak in the sense of what we look forward to—it is sufficient to say that we support the amendment.

The Earl of Balfour

Before my noble friend Lord Lindsay replies, perhaps I may say a word on Amendment No. 181B. It is a government amendment to Clause 31. Perhaps the Committee will also consider Clause 5, which is the mirror clause. Perhaps I may cite briefly from Clause 5. There is reference to the Alkali &c., Works Regulation Act 1906. That has been included in the Scottish provisions. There is reference to the river purification provisions which apply to Scotland. There is also reference to Part I of the Health and Safety at Work etc. Act 1974, which deals with waste on land. Why has Part I of the Control of Pollution Act 1974 not been included in the Scottish provisions of Clause 31? I note from the amendment that the Control of Pollution (Amendment) Act 1989 will appear in both clauses. I do not need to go further. However, I wished to ask that question before my noble friend speaks.

6.45 p.m.

The Earl of Lindsay

I begin by speaking to Amendments Nos. 181 and 181B. Once again, I compliment my noble friend Lord Balfour for putting forward his analysis of the way in which the drafting of the Bill may need improvement. Again, I shall ensure that his suggestions are passed on. Perhaps I may draw my noble friend's attention to Clause 31(5) (b) where he may find some relief. I shall certainly provide him with some more prep. to do tonight before he reports tomorrow morning.

These amendments seek to include within the definition of "pollution control powers" and "pollution control functions" for the purposes of Clause 31, references to Part 1A of the Control of Pollution Act 1974, which is inserted by this Bill and deals with abandoned mines, and the Control of Pollution (Amendment) Act 1989, which makes provision for the registration of waste carriers.

Equivalent references are already included in the definitions with respect to the Environment Agency for England and Wales at Clause 5(5). I presume that those amendments will be moved in the normal chronological order.

I turn now to the amendments so ably moved by the noble Lord, Lord Carmichael. Amendment No. 175 would put "protecting the environment" on an equal footing with SEPA's purpose to exercise its pollution prevention and control functions. I think that the amendment seeks to make an artificial distinction. What is pollution prevention and control if not protecting the environment?

The term "protecting the environment", of course, goes much wider. That is why we are placing other, more general, environmental duties on the agency. However, I think it would be confusing if we were to weaken SEPA's raison d'être: the effective control of pollution, which is a vital element in protecting the environment at large.

Amendment No. 176 and the consequential Amendment No. 178 would require SEPA to carry out and report on assessments of environmental pollution, without the need for them to be first requested by my right honourable friend the Secretary of State.

I understand the noble Lord's concern that, as drafted, it might appear that SEPA would be unduly constrained by the current provisions. I can assure him that it is in fact not so. Clause 31(2) places a duty on SEPA to compile information relating to pollution. SEPA's general and incidental functions in Clause 35 would also enable it to do anything which would facilitate or is conducive to the carrying on of its functions. Carrying out assessments of environmental pollution and reporting its findings of its own volition would certainly fall into that category.

The provision in Clause 31 is merely to clarify the relationship between my right honourable friend and the agency. It gives him a specific power to require SEPA to carry out such assessments and report its findings to him; and I think it is right and proper that he is able to direct the agency in that way.

Amendment No. 177 links SEPA's duty to undertake assessments of environmental pollution with its duty to report on options for preventing or controlling pollution.

I can certainly see that, in some instances, it would be appropriate for such an assessment to be followed up with a report on the options for preventing or controlling such pollution. But I do not think it necessarily follows in all cases. For example, an assessment may show that the level of pollution is below limits requiring any action; or the assessment may be of a very general nature for information purposes only.

I also do not feel that Amendment No. 179 is required. Some reports will, of course, be of interest to Parliament and it is right and proper that when they are my right honourable friend places copies in the Libraries of the House. But I do not believe that that will always be the case.

Amendment No. 180 seeks to define the costs and benefits identified in reports on the options for preventing or controlling pollution in financial and environmental terms. In principle, we share the belief that costs and benefits should not be viewed in narrow economic terms. Yet by seeking to define them more closely the noble Lord may be excluding other important matters such as social costs and benefits.

The present drafting has a wider meaning which already encompasses the matters specified in the amendment. I can assure the Committee that non-financial aspects will not be ignored.

Amendment No. 181 would have two effects: first, to change SEPA's duty to "follow" developments in techniques to prevent or control pollution, so that it would "promote" them; and, secondly, to include a specific reference to "damage to the aquatic environment".

As my noble friend explained in last week's debate on a comparable amendment to the duties on the environment agency, a duty to "follow" developments is not passive. Those developments will underpin SEPA's application of BATNEEC in relation to Part I of the 1990 Act.

Moreover, Clause 35 places SEPA under a duty to conduct research which could cover such developments, where appropriate. On that basis, I do not believe that there would be value in imposing such an undefined promotional role on SEPA. That is more properly a concern of others. Nor do I believe that the further refinement of this duty to highlight the aquatic environment is appropriate or necessary. The whole purpose of SEPA is to move away from regarding the environment in separate segments. We must recognise that the environmental media are often interdependent. To highlight one of them would therefore be a step backwards. SEPA is a step forward into a more integrated, inter-disciplinary era.

On that basis, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Carmichael of Kelvingrove

Having looked at the amendments, the Government may have realised that one or two matters required greater explanation; and we have had good explanations from the Minister. I am grateful to him for what appears to be unusual flexibility on the part of the Scottish Office. We welcome that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 176 to 181 not moved.]

The Earl of Lindsay

moved Amendment No. 181A: Page 26, line 43, after ("I") insert (", IA"). On Question, amendment agreed to.

The Earl of Lindsay

moved Amendment No. 181B: Page 26, line 45, at end insert: ("() the Control of Pollution (Amendment) Act 1989;"). On Question, amendment agreed to.

[Amendment No. 181C not moved.]

Clause 31, as amended, agreed to.

Clause 32 [General duties with respect to water]:

[Amendment Nos. 182 to 185C not moved.]

Clause 32 agreed to.

Clause 33 [Environmental duties as respects Natural Heritage Areas and sites of special interest]:

[Amendments Nos. 186 and 187 not moved.]

Clause 33 agreed to.

Clause 34 [Codes of practice with respect to environmental and recreational duties]:

The Earl of Lindsay

moved Amendment No. 188: Page 28, line 33, leave out (" 32(1)") and insert (" 32(2)").

The noble Earl said: This is a drafting amendment which seeks to correct an erroneous cross-reference in the Bill. I beg to move.

On Question, amendment agreed to.

Lord Carmichael of Kelvingrove

moved Amendment No. 189: Page 28, line 36, at end insert: ("() reviewing and revising all existing codes of practice in the light of new authorities and responsibilities within three years of SEPA's establishment").

The noble Lord said: This group of Amendments, Nos. 189, 190 and 191, concerns SEPA. With Amendment No. 189 we feel that SEPA, combined with the new water authorities under the local government reorganisation, will create quite a different grouping. We therefore believe that the existing codes may not be relevant, and they should at least be redrawn, reviewed and rewritten for the new circumstances.

Amendment No. 190 asks that since all the bodies detailed as consultees are quangos, if there is to be any degree of public accountability, the list must include as a matter of priority some democratically elected councillors who represent the interests of those affected by the services which SEPA is to provide.

The Minister may already have answered that point on an earlier amendment when he said that there would be a selection from local authorities on SEPA. I await his answer on this point. I should like the three amendments to be considered. I beg to move.

The Earl of Lindsay

Amendment No. 189 would require the Secretary of State to review and revise existing codes of practice within three years of SEPA's establishment. Amendment No. 190 would in effect add the Convention of Scottish Local Authorities, COSLA, to the list of bodies he has to consult before approving a code of practice. Amendment No. 191 would similarly add Historic Scotland and the Scottish Sports Council while Amendment No. 191ZA would add owners of land and industrialists.

A statutory review of codes of practice within three years of SEPA's establishment appears to be unduly prescriptive. I would certainly expect that to be achieved, but do not believe that this need be set out on the face of the Bill. It would appear to be a fairly modest objective for SEPA's corporate planning process.

I agree with the noble Lord that it is important that the views of Historic Scotland are fed into the process of approving a code of practice. But as that body is an executive agency of the Scottish Office, a requirement on the Secretary of State to consult Historic Scotland is tantamount to obliging him to consult himself.

As SEPA will not have the range of responsibilities of the Environment Agency, I do not believe the Scottish Sports Council has a strong enough interest in the activities of SEPA to justify its specific and automatic inclusion. Indeed, it is often unlikely to have any interest. I accept that COSLA and owners of land or industrialists are likely to have a valid interest more frequently. However, if it is appropriate to do so in relation to a particular code, my right honourable friend will consult these parties among others. I am not aware of any anxieties in Scotland about the range of bodies to be consulted. I believe that the consultation arrangements already on the face of the Bill are sufficient to meet the noble Lord's worries. I therefore hope that he will feel able to withdraw his amendment.

Lord Carmichael of Kelvingrove

I think that the Minister's answer is slightly disappointing. The amendments were not put down by any means to try to tie the Secretary of State's hands but rather to get the various bodies in Scotland enthusiastically behind SEPA. I am sorry that the opportunity has not been taken. I should have thought that three years would be sufficient to write a new code; we should know how and whether it is working by that time. I am also marginally disappointed that there was a certain holding back in co-operation on that. Perhaps we could come back to these small but important amendments on Report. In the meantime, I beg leave to withdraw Amendment No. 189. Amendment, by leave, withdrawn.

[Amendments Nos. 190 and 191 not moved.]

The Earl of Balfour

moved Amendment No. 191ZA: Page 29, line 6, at end insert: ("including owners of land and industrialists").

The noble Earl said: Again, the noble Earl, Lord Kintore, the Scottish Landowners' Federation and I have the rural areas, rural industries and rural development very much in mind. I beg to move.

The Earl of Lindsay

I think that I have already spoken to this amendment in replying to the ones moved by the noble Lord, Lord Carmichael. The "rural heartbeat", as it was recently appropriately described, is something which the Government are anxious to conserve and enhance. Therefore, the list of consultees will almost certainly include owners of land when codes of practice have been established.

The Earl of Balfour

I regret that I shall be unable to be present in your Lordships' House next week. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 34, as amended, agreed to.

The Earl of Lindsay

I beg to move that the House do now resume.

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

House resumed.