Environment Bill [H.L.]

HL Deb 02 March 1995 vol 561 cc1645-714

Consideration of amendments on Report resumed on Clause 6.

Lord Marlesford moved Amendment No. 33:

Page 7, line 16, leave out ("the obligation to develop water resources") and insert ("any obligation").

The noble Lord said: My Lords, we return with this amendment, and two other amendments standing in my name, to the important subject of water and the conservation of water. Amendment No. 33 would widen the reference in line 16 on page 7 of the Bill from, the obligation to develop water resources"? to, "any obligation". Amendments Nos. 278 and 279 to Schedule 18 would place on Ofwat and on the water undertakers respectively a duty to conserve and promote the "efficient use of water". This matter was of course raised in Committee. I have corresponded with my noble friend the Minister and he wrote me an encouraging and acceptable reply as regards the Government's intention to do something in the nature of giving a remit to Ofwat and to the water providers on this important matter of water conservation. In his letter to me my noble friend made a reference, interestingly, to reservoirs. He stated he was not quite sure whether or not I was in favour of reservoirs. I think that reservoirs in this connection are absolutely crucial to what we are trying to include in this Bill. I believe they help us to understand better our earlier discussion on sustainable development. There can be no better example of sustainable development than the need to conserve water.

One can either save water from other uses, or ensure that the water which is taken does not deplete the environment through, for example, being taken out of aquifers with the disastrous effects that that has. Reservoirs are a prime example of sustainable development in that water which would otherwise go into the sea is taken from the reservoirs and used where it is needed rather than taking water from aquifers. I am very much in favour of using water from full reservoirs and of using water which would otherwise go into the sea. Of course the location of the reservoirs is another matter. That is an example of sustainable development; it is also an example of the crucial need to conserve what will become an increasingly scarce resource in this country; namely, water. I hope that my noble friend will be able to give us some inkling of what he may propose, either at Third Reading, or perhaps in another place, to put into the Bill to meet the anxieties that some noble Lords—I believe on both sides of the House—have on this issue. I beg to move.

Lord Williams of Elvel

My Lords, I have sympathy with what the noble Lord, Lord Marlesford, proposes, and his general theme. My only doubt is the doubt that I expressed at Committee stage when this matter was discussed; namely, whether laying a duty on Ofwat to promote the efficient use of water would open the way for Ofwat to insist on metering. That is the problem that we ran up against in Committee. As the noble Viscount knows, we are totally opposed to giving Ofwat a power to impose on water undertakers a duty to meter.

Viscount Ullswater

My Lords, Amendment No. 33 moved by my noble friend Lord Marlesford would widen the proviso which states that the duties of the agency under Clause 6(2) shall not affect the obligation of water undertakers to develop water resources to meet their water supply obligation under Section 37 of the Water Industry Act 1991 so that the proviso would cover all their obligations flowing from that section.

This is primarily a question of drafting. I share the aim of the noble Lord that the agency's duties should not displace those of the water undertakers. We believe that the present drafting of Clause 6(2), which follows that of the existing provisions, achieves that aim. We therefore see no reason for change. I therefore ask my noble friend to withdraw that amendment.

Amendment No. 278 proposed by my noble friend amends Section 3 of the Water Industry Act and would place a duty on the Secretary of State, the Minister for Agriculture, Fisheries and Food, the Director-General of Water Services and every water undertaker, to comply with a requirement to further the conservation of water resources and promote water efficiency when considering proposals that relate to a water undertaker's functions.

Amendment No. 279 improves on my noble friend's earlier attempt during the Committee stage of this Bill. However, the amendment tabled here is still deficient in that the substitution proposed for Section 37(1) of the Water Industry Act 1991 will remove the duty water undertakers have under Section 37(1) (a) to make arrangements for the provision of water supplies to premises in their area and make supplies available to persons who demand them, and under Section 37(1) (b) remove their duty to maintain, improve and extend the water mains and other pipes in their area. I do not think any of us would wish to contemplate such a relaxation in the duties of water undertakers.

I remind noble Lords of the earlier debates on 19th January and 14th February. I said then that we were sympathetic to the important issue of water conservation and the proposal for water undertakers to be given a duty to promote the efficient use of water. I gave a commitment to consider, during the passage of the Bill through Parliament, whether it should be amended to introduce provisions about water conservation. That action is in hand, as I indicated on the previous occasion.

I understand the concerns that the noble Lord, Lord Williams of Elvel, indicated on that occasion and repeated tonight. We are considering whether any extension is required to the duties and powers of water companies and the Director-General of Water Services to promote the economic and efficient use of water among consumers. We are wholly in favour of those objectives. If necessary, we shall bring forward appropriate amendments in another place.

Although I sympathise with some of the aims of the amendments, I believe many of them to be deficient and unnecessary. I therefore ask my noble friend to withdraw his amendment.

Lord Marlesford

My Lords, all that I can say is that we shall look forward with interest to what the Government bring forward in respect of what I regard as a very important subject and objective. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Viscount Addison moved Amendment No. 34:

Page 7, line 18, at end insert:

("( ) In exercising its powers under subsection (2) above the Agency shall at all times endeavour to protect and safeguard the interests of any owners of land insofar as these may be adversely affected by its actions.").

The noble Viscount said: My Lords, at Committee stage I spoke to two amendments designed to help safeguard the interests of landowners who suffer subsidence and other damage to their land and businesses through the activities of major water abstractions. Some noble Lords may subsequently have seen the issue well reported and discussed in an edition of "Country File" on BBCI last Sunday 26th February.

I return to the issue now because I believe that the Minister may be able to give a more encouraging reply than he was able to give in Committee. Subsequent to that debate I wrote to the Minister giving fuller details of cases in which damage has occurred consequent on water abstraction. I also outlined some of the legal advice which has been received on those cases. I offered several possible solutions to those difficulties, or options meriting further study in striving to find an acceptable way forward. The current law is quite unsatisfactory on these matters.

I hope that the Minister, if he is not able to offer immediate solutions, will at least be able to undertake to examine the issue thoroughly with a view to proposing suitable amendments to the Bill in another place.

At Committee stage I moved an identical amendment to Amendment No. 280, which would remove what I see as an unfair and discriminatory provision within the Water Resources Act 1991. I refer to the power conferred upon the NRA by Section 57 of that Act to curtail direct water abstraction for spray irrigation. By exercising that power the NRA can drastically affect farm businesses, particularly those producing high-value horticultural crops to exacting standards. In contrast, other commercial users of water such as car washes are protected from such drastic measures. Their use of water, which may be equally critical for the environment in times of drought, can only be curtailed through the imposition of a drought order. There is no question of an overnight cut-off for them.

I was grateful for the support which several noble Lords gave to my amendment at Committee stage. However, I was disappointed with the response of my noble friend the Minister. Effectively, all he was able to offer was the statement that the Section 57 provisions are only one among several other provisions to manage drought conditions, and the fact that they exist does not necessarily mean that they should be used first. I hope that having reflected on the debate at Committee stage the Minister may be able to be a little more helpful in replying to the following points.

First, will he confirm that the decision to exercise the powers granted by Section 57 of the 1991 Act will be subject to the requirements under Clause 37 of this Bill to take account of costs and benefits? One group of irrigators who suffered a total ban in East Anglia halfway through the growing season in the recent drought estimated losses at £10 million. The ban meant that they could not finish their crops to the standard required and they had to suffer reduced prices, if they were able to salvage a marketable crop at all. In addition they also had the tag of unreliable supplier attached to their businesses and, as all suppliers know, supermarket buyers cannot and do not deal with unreliable suppliers.

Secondly, in these days when the NRA at any one time has an immense amount of information available to it on the water resources situation, there should be some possibility of advance planning of irrigation needs and consultation with licence holders over the possibility of bans being introduced. The NRA in East Anglia learnt some valuable lessons from its early experience of the recent drought. It subsequently ensured that forecasts were made for irrigators at the beginning of each irrigation season of the likely water resources situation. It backed this up with an early-warning system to allow for advance planning if the water resources situation began to look more difficult. That helped farmers to plan their use of spray irrigation, and that in turn may have helped to avoid the need for subsequent all-out bans with their disastrous consequences for farming businesses and the economy of the rural areas affected.

That experience should be translated into a national planning and early-warning system in which both the agency and irrigators can work together to ensure the most effective management of water resources to satisfy all needs in times of water shortage.

Thirdly, and finally, I should like to suggest that the Minister should include consideration of all these matters in the review which I understand is currently being undertaken of the scope of drought orders and the procedures relating to them. Moreover, it would be helpful if he could undertake to consult bodies representing irrigators to discuss these matters, and how best the current unsatisfactory situation may be improved.

The current provisions are discriminatory. We need to show the horticulture industry that the problem is recognised and that the Government are committed to redressing the balance to ensure greater fairness for water users all round. I beg to move.

8 p.m.

Lord Crickhowell

My Lords, I listened with a good deal of sympathy to what my noble friend said. I do not have too much difficulty with the general objective of his first amendment. I have difficulty with the wording. A clause which requires one to endeavour, to protect and safeguard the interests of any owners of land", raises the difficult question as to the extent to which one has to protect and safeguard those interests. A clause might refer to the agency having "proper regard to", or some such phrase. However, I have anxieties about the wording on the Marshalled List. It would make it very easy for landowners in a variety of situations to challenge the actions of the agency.

However, I wish to speak principally on the other amendment, relating to spray irrigation. One cannot help but have a good deal of sympathy with the problems faced in drought years. My noble friend referred to the efforts of the NRA to give advance warning, to consult, and to introduce arrangements which minimised those difficulties. At the same time, we learnt a lesson during those drought years. It was often precisely in those parts of the country where spray irrigation was carried out on an extensive scale that we saw some of the gravest threats to the environment. Noble Lords made representations to me in this House about the condition of wetlands and other vulnerable areas threatened by drought. There is a conflict of interest here. On the one hand one needs to protect the environment and, on the other, to protect the interests of farmers and landowners.

My noble friend suggested that there was a discriminatory system in operation. I am not sure that that is right. A clear distinction needs to be drawn regarding water abstracted from rivers and from under the ground, stored by water companies. Water companies make huge investments in their supply systems in order to achieve a reliable supply during dry periods. During such dry periods most of the water for their customers comes from storage in the systems rather than from the natural water environment. Therefore the supply of water by the water companies for such purposes as car washing does not have a direct and immediate impact on the water environment during drought periods.

Of course there is a price to be paid for that reliability. Those who obtain their water supplies from the water companies pay a great deal more than do those who are obtaining water directly from the water environment for spray irrigation. The impact of spray irrigation upon river flows in dry periods can be very considerable and arises very quickly. It can cause dramatic reductions in river flows. However, even if the agency obtained emergency drought permit powers, the time taken to obtain those powers is likely to be too long to enable the agency satisfactorily to protect the environment.

Many licences are already in existence where, in practice, the sources are over licensed, and therefore there is an even greater need to be able to vary the abstractions in order to prevent environmental damage. Most of those licences have been issued in the knowledge that their use can be restricted in drought conditions. They would not have been issued in the present form if that were not so. Therefore, without such powers, the amendment poses a serious threat to the environment.

For many years the Government and other organisations have been urging on those who are dependent on spray irrigation the construction of storage arrangements so that they can draw their water in winter, when there is usually plenty, for use during drought periods. My noble friend referred to losses of some £10 million occurring in an area during a specific period. That suggests to me that the turnover of those businesses must have been very considerable indeed. It seems to me that any industrial company manufacturing goods with that kind of turnover and profit or potential loss would invest a good deal in the necessary equipment to deal with that potential hazard. It does not seem unreasonable to suggest that businesses which operate on that scale, supplying to the markets at the level of quality now demanded, must be expected to provide at least a significant part of their spray irrigation from winter drawn supplies which have been stored to meet the possibility of drought in summer.

I believe that before we move away from the present arrangements we need to be careful that we do not create a situation which would soon lead to strong complaints from many people—I suspect that they would include some noble Lords who have taken part in the debate—that an essential protection of the environment had been removed.

At some stage we may need to consider again the exact arrangements under which the licences have been issued. However, if we allowed the amendment to be carried, we should face a serious threat to the environment in times of drought.

Lord Northbourne

My Lords, I wish to speak briefly to the amendment, as I did at Committee stage. There is a great deal of good sense in what the noble Lord, Lord Crickhowell, said. However, he misses the point, which is that agriculture is treated as a poor relation in this respect relative to other industries. Other industries are not subject to having their water supplies suddenly cut off in this way. When. I used to be a producer of vegetables, it was a continual source of extreme annoyance to see the chemical factory down the road. We knew that it was drawing a million gallons a day; there was no attempt to stop that. I would wish to see some regulation which removed that manifest unfairness.

Viscount Ullswater

My Lords, Amendment No. 34, moved by my noble friend Lord Addison, would require the agency in fulfilling their water resource duties to protect and safeguard the interests of landowners in so far as they may be affected by new abstractions.

As I said during Committee when my noble friend first raised the question, the duties under Clause 6(2) effectively carry on the work of managing water resources in England and Wales introduced by the Water Resources Act 1963. The subsection provides the general back-up to the more specific functions dealt with elsewhere in the legislation.

Nevertheless, I am grateful to the noble Lord for raising this question again at this stage of the Bill. It is a complex issue and, after further analysis, I have concluded that there is a case for a more detailed examination of these questions. Because of their complexity and the wide range of interests that would need to be consulted, I do not think that it would be practicable to develop any solutions during the course of this Bill. I am, however, prepared to undertake to publish a consultation paper on this subject, which would enable a proper consideration of this whole question to take place and, I hope, an agreed solution to be developed. On that basis, perhaps my noble friend will not seek to press Amendment No. 34.

Amendment No. 280, which again was moved by my noble friend, would, by repealing Section 57 of the Water Resources Act 1991, curtail the existing powers of the NRA to manage the effects of spray irrigation during drought conditions. Those powers form part of the armoury available to manage water resources during droughts, as we heard from my noble friend Lord Crickhowell. The armoury includes hosepipe bans, changes in abstraction licences and the rules on compensation water. Because the powers on restricting spray irrigation are vested in the NRA, it does not mean that they are the first weapon to be used. I am also advised that they would be subject to Clause 37.

As I said about the proposals of my noble friend Lord Crickhowell for drought permits, we favour the environment agency having a wider range of weapons in its control so that it can have a wider discretion in developing the appropriate response to any drought. We intend that amendments to that effect should be made to the Bill. I hope that, with those explanations, my noble friend will be able to withdraw his amendment.

Viscount Addison

My Lords, I thank the Minister for the way in which he has tackled and will continue to pursue my first amendment on extraction and the problems that exist. I believe that the helpful response to my amendments goes some way towards alleviating the fears of irrigators, in that a review will reduce the likelihood of irrigators justifiably becoming irritators! I therefore beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Baroness Hilton of Eggardon moved Amendment No. 35:

Page 7, line 32, at end insert: ("(b) it shall be the duty of the Agency to—

1. (i) provide and operate in the area of each regional and local Flood Defence Committee flood warning systems;
2. (ii) provide, install and maintain in such areas any necessary equipment required for the purpose of such systems;

(c) it shall be the duty of the Agency to issue a flood warning to all such persons and organisations specified in paragraph (d) below in a timely manner in the event that the systems established under paragraph (b) (i) above indicate that there is a threat from flooding to life, persons and property in any such area; (d) the persons and organisations to whom a warning is to be issued in accordance with paragraph (c) above are emergency services, local authorities, statutory undertakers, local media and such other persons or organisations as may be from time to time so specified by the Minister by Order; and (e) the power to make an order under paragraph (d) above shall be exercisable by the Minister by Statutory Instrument.").

The noble Baroness said: My Lords, Amendment No. 35 seeks to establish a statutory duty to issue a flood alert or warn the public of impending flooding. At present there is no statutory duty on any organisation either to issue a flood alert or to warn the public. The NRA has existing powers—not duties—under Section 32 of the Land Drainage Act 1991 which it interprets as providing limited flood monitoring systems and the warning of police. Having myself had experience as chief superintendent of various riparian divisions in London, I am well aware that one sometimes receives rather belated flood warnings. The public in Chiswick, Battersea and other places where I have served believe that it is the fault of the police when cars are flooded or basements filled with water. The police service would be grateful if a statutory duty were imposed on some other organisation to initiate the flood warning in the first place.

Police forces can keep tables of tides and so on, but they cannot be aware of flood waters coming down vast rivers like the Thames from a long way up the Thames Valley. Those often lead to surges in water when the flood conflicts with a rising tide. So it is essential that those organisations which understand what is happening in terms of river flows should have monitoring systems a long way up the river. Then they can give sufficient warning to alert members of the public to remove their cars, put up flood boards or in some cases carry out more elaborate work to protect their lives and property. It is essential that there should be a statutory obligation on some organisation. In this case we suggest that it should be the environment agency which must provide flood warnings in time for appropriate action to be taken.

Therefore, I press the Minister to say what the Government's plans are in relation to providing flood alerts and warning the public of impending flooding. I beg to move.

8.15 p.m.

Lord Crickhowell

My Lords, I lived for the first 20 years of my life on Chiswick Mall, which is flooded in part at virtually every very high tide. I lived in a house to which it was impossible to gain access when the tide was high, thus, I fully understand the desirability of having flood warnings.

However, giving flood warnings is in some ways an unscientific and unreliable business. Within the past two or three weeks, we have had a surge on the Severn whose extent was not forecast even one or two hours before it occurred. The wind changed direction and the level rose about a metre above what had been reasonably forecast even an hour and a half earlier.

There is a problem in dealing with the matter. One must be cautious, therefore, about creating a duty which might impose obligations which cannot be fulfilled. Of course, it is desirable that the environment agency should play a major role in providing flood warnings, though the agency itself depends on other agencies to obtain the information on the weather, tide and so on.

A working group involving the NRA, MAFF and representatives from the Home Office, the police and local authorities, has been reviewing for some time the issue of flood warning systems. One of the problems that we face in the future is that there is a growing reluctance among chief constables and police authorities to carry out the duty of knocking on people's doors. That poses a problem because there is no way in which the agency will be adequately equipped with people who can do that. I note that the amendment does not require the environment agency to go down the road of individual warnings. It suggests that the warnings should be provided by the agency to local authorities and other bodies defined by the regulation.

A problem exists, because there is no doubt that, with all the financial difficulties that confront them, local authorities and police forces are reluctant to carry out the duties. The problem is not only to provide accurate warnings but also to have satisfactory arrangements which can be carried out through a number of organisations. The NRA has always accepted that it has a major role in operating flood warning systems. At present it passes the information and warnings to the police, who then alert local inhabitants, local authorities, the emergency services and so on. The NRA also issues media bulletins on flood events. Two pilot schemes are being run at present to examine the feasibility of the agency having a properly defined lead role.

The amendment raises a perfectly proper issue but I suspect that it imposes too rigid and confining a duty on the new agency. I hope that the Government will consider some form of requirement that is at least flexible enough to respond to the realities of the real world, in which we must face uncertainties. Otherwise there is a danger that the agency would incur legal obligations which could be costly and lead to court action.

There are other difficult issues to be resolved. For example, if the agency is to have an arrangement for doing as suggested, where will the money and resources come from? Would they be raised by precepts from the flood defence committees on local authorities? I do not know the answer to that, but the mere fact that one is bound to ask it suggests that complex issues need to be addressed. It is right for them to be considered by the Government, but I do not believe that they can be covered by passing such an amendment on this occasion.

Lord Howie of Troon

My Lords, that was an interesting intervention but it had two difficulties. First, it seemed to confuse a warning with a prophecy. In his first remarks, the noble Lord, Lord Crickhowell, said that a warning might be given and then the wind might change and the warning would not be necessary. However, a warning is not a prophecy. A warning says: "Get ready; be prepared". There is no point in the noble Lord shaking his head. A warning means: "Be prepared for an eventuality which may or may not occur." If it occurs, you are in terrible difficulty, and if it does not occur you are in a situation of some modest happiness—

Lord Crickhowell

My Lords, I am grateful to the noble Lord for giving way. I wish it was quite as simple as that. The difficulty is that if you are—

Viscount Ullswater

My Lords, this is Report stage, and therefore I believe that the intervention is out of order.

Lord Howie of Troon

My Lords, I am not sure about that. I am quite happy for the noble Lord to intervene. Is it out of order? I am terribly sorry that I cannot deal with the noble Lord's point.

There seemed to me to be a weakness in the noble Lord's comments, in his suggestion that the constabularies and others were reluctant to carry out the duties. I did not care for that very much. The amendment put down by my noble friend on the Front Bench contains a good deal of sense. If the sense required to be beefed-up a bit by funds and so on for the authorities, that would not be such a bad thing. I support the amendment quite strongly.

Viscount Ullswater

My Lords, this amendment to Clause 6 introduced by the noble Baroness, Lady Hilton, would make it obligatory for the agency to operate flood warning systems throughout England and Wales and issue warnings to bodies named in the amendment or in an order made by the Minister.

It is obviously vital that clear and effective flood warning arrangements exist to protect the public. My noble friend Lord Crickhowell indicated, quite rightly, that the Government have established a working group. I do not believe that I need say any more about that. He also indicated that new arrangements are being trialed in the Isle of Wight and in Lincolnshire this year. Once the results are to hand, the working group is expected to put forward recommendations as to how the present arrangements could be improved.

The powers under the present legislation are flexible and can be used in ways that suit local circumstances and fit in with the contingency plans worked out with the local authorities, the police, the port authorities and others. We consider that the amendment proposed is premature in the light of the trials that are currently taking place and, moreover, too prescriptive in attempting to set details by order which may best be determined at local level. For those reasons, I hope that the noble Baroness will not press the amendment.

Baroness Hilton of Eggardon

My Lords, my understanding is that the working party does not have its final meeting until 5th April and therefore, presumably, its report and recommendations will be too late, even if it did recommend that someone had a statutory duty. I hope that the Minister will ask his staff to look at this matter again between now and Third Reading and consider whether some modified form of this amendment might be appropriate.

I was not of course suggesting that the environment agency should knock on doors or use loudhailers; that would remain a responsibility of police. I simply felt it would be useful if there were a statutory obligation on the agency to issue warnings in the first place. However, in the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 [General environmental and recreational duties]:

Lord Norrie moved Amendment No. 36:

Page 8, line 18, leave out ("other than its pollution control functions").

The noble Lord said: My Lords, in speaking to this amendment, I also speak to Amendments Nos. 40 and 48. All three amendments raise the issue of the agency's environmental duties.

It is self-evident that a new body set up to protect and enhance the environment should have the strongest possible duties to enable it to perform this role. We discussed the effect of Clause 7 in Committee, and I listened closely to what my noble friend the Minister had to say in response. I welcome the fact that the Bill will extend new environmental duties to integrated pollution control and waste functions. This is an important step forward. However, I still do not understand the justification for removing the duty to further conservation in relation to pollution control functions which are so important to the NRA.

There is a widespread view outside this House that the agency's duty to further environmental protection should apply to all of its functions, including pollution control functions. There will be real concern if this Bill is not amended to achieve this.

As my noble friend Lord Crickhowell so eloquently explained to the House on a number of occasions, this duty has been a vitally important bolster for the NRA in tackling water pollution issues across the country. The Broads authority is one of many organisations which are concerned by this clause. It has expressed particular concern about the effect of the clause on the efforts of the NRA to remove phosphates at sewage treatment works. That is vital to its conservation strategy for improving these important wetlands.

The key question that I asked the House to consider is whether it is content to see the duties which currently apply to the NRA being weakened. My noble friend the Minister assured the House in Committee that the Government do not seek to weaken the agency's commitment to conservation. But I have heard nothing which reassures me that that will not be the effect of Clause 7. We have certainly not heard any explanation which could justify the loss of such an important duty. I hope that my noble friend can provide a positive response to these widely held concerns, or suggest another way through this difficulty. I beg to move.

Baroness Hilton of Eggardon

My Lords, I support the amendments proposed by the noble Lord, Lord Norrie, although I can see that there is a tension between pollution control, discharge consents, and so on, and the other obligations on the agency. I speak particularly to Amendment No. 37, which offers in a sense a fallback compromise position. If the Minister feels that the other amendments go beyond the current duties of the NRA, then this amendment would include merely the current NRA duties but would exclude the current duties of Her Majesty's inspectors of pollution. Thus it would effectively preserve the status quo and would address the issue of greatest concern. I hope that this amendment might be welcome to the Government, and that it might suggest a possible way through. Although I would regret weakening the amendments proposed by the noble Lord, Lord Norrie, I think that this might offer a position that the Government might be willing to adopt. I therefore encourage examination of Amendment No. 37.

The Earl of Lytton

My Lords, while I can well understand the reason why the noble Lord, Lord Norrie, moved this amendment, I intervene to say that it seems to me that in the question of controlling pollution one is dealing with the matter of degradation of the environment; whereas with the question of enhancing natural life forms, it is a matter of trying to build and improve things. They are essentially two sides of the same coin. One cannot improve the environment in terms of habitats and species unless one has first controlled the pollution. It seems to me that that is the greater evil that has to be addressed. It should not be made subservient to other interests. I do not know whether that is the reason that the Bill has been formulated in the way that it has. I should be interested to know from the Minister whether that supposition on my part is correct.

Lord Moran

My Lords, perhaps I may say a word on Amendment No. 36. Normally the name of the noble Lord, Lord Norrie, at the head of an amendment is a guarantee that it is environmentally sound and sensible. I am therefore particularly sorry to have to differ from the noble Lord on this particular amendment. It is very rare for me to do so.

I think we are all agreed that the environment agency should have a strong duty to take conservation considerations very seriously indeed and do its utmost for conservation; and that that duty should be no weaker—and hopefully somewhat stronger—than that which is now imposed on the NRA. I think it is also generally accepted, and it is certainly my view, that the NRA has done very good work in dealing with conservation problems.

As we all know, late last year there was a great clamour by statutory agencies and NGOs arguing that the environment agency's duties as regards conservation were weaker than those that the NRA now has. In response, the environment Minister changed the wording of the duty to "further" conservation, except in respect of pollution control functions. The statutory agencies and a number of NGOs seem to think that to make that exception is simply perverse. For example, the RSPB says: The motive behind the Government's determination to exclude pollution control from the duty to further nature conservation remains obscure". At Second Reading I said that I was one of the few who tended to think that the Government had got the matter about right. I referred to the evidence given by Dr. Slater, head of HM Inspectorate of Pollution, to the Environment Committee of another place on 23rd November last year. I hoped that the NGOs and others concerned would study carefully what he had said. In that hope I have been disappointed. Therefore, I ought to tell the House in summary what Dr. Slater said on that occasion. He was asked specifically whether it was a fact that pollution control was only to "have regard to" conservation. He replied as follows: Yes, but that is rather stronger than we have at the moment. At the moment under IPC we have to prevent, minimise and render harmless; we have to take clear note of impact of operations; and we have to basically put the environment back better than we found it. Here this direction actually, even in pollution prevention, requires us to have regard to the desirability of conservation. We think that is an extension of what we do at the moment". He went on: The Environmental Protection Act is pretty powerful in what it allows you to do in terms of environmental protection…We think adding a requirement to having regrd to conservation takes us further". He concluded: 1 think our position is that legally we feel, with the current wording of the Bill, we can do everything and more we need to do in terms of pollution control to protect the environment". From someone who is intimately concerned in dealing with pollution control all the time, that seems pretty conclusive.

Clause 7(1) (a) of the Bill—the part that deals with all the duties of the agency except pollution control—says that the agency is to have a duty: to further the conservation and enhancement of natural beauty and the conservation of flora, fauna and geological or physiographical features of special interest". That is "so far as may be consistent" with four important qualifications, the first of which is that it must be consistent: with the purposes of any enactment relating to the functions of the agency". So the duty to further is very heavily and powerfully qualified. However, in Clause 7(1) (b)—the part dealing with pollution control—the duty "to have regard to" conservation is not so qualified. So in practice, for Clause 7(1) (a), where the duty and the purposes of an enactment conflict, the duty may in some circumstances have to be put aside. It could be challenged in the courts. A qualified duty may therefore in practice be weaker than an unqualified one "to have regard to" it.

So maybe this amendment and its supporters are inadvertently arguing for a partial weakening of the conservation duty in relation to pollution control functions. In any event, from the information that I have it seems that the conservation duty has had a minimal effect on the NRA's functions.

Earlier this evening the noble Earl, Lord Cranbrook, mentioned the correspondence that he had circulated to some Members of this House. I was one of those Members. I read the Minister's letter to him with great interest. In that letter he made it clear that when the NRA has been tackling sewage discharges affecting SSSIs, it was: part of the NRA's general work of seeking to secure improvement in river quality and depends upon the powers to set discharge concentration conditions and to require improvements in the effluent quality…the advice my officials have received from the NRA is that the [conservation] duty has had no effect with regard to its issuance of discharge consents". It seems to me that we are not therefore concerned with any weakening of a current function. I am surprised that the organisations that are supporting this amendment—I have received briefs for this Report stage from the Countryside Commission, the RSPB, the CPRE and the Wildlife Trusts—apparently have paid no attention to Dr. Slater's evidence, to which I referred at Second Reading, or to the qualifications to the duty to further conservation, which none of them mentioned at all in the briefs for Report stage, particularly as I wrote to one of the organisations on 3rd January drawing its attention to those considerations and the Minister's view as expressed at Committee stage.

Therefore, I believe that this amendment is misconceived. I hope that the Government will not accept it. I believe that the wording in Clause 7 is right. On balance, in the light of what Dr. Slater said, it seems to me that, as we wish, it somewhat strengthens and extends the responsibility of the environment agency to give weight to conservation considerations.

8.30 p.m.

Lord Crickhowell

My Lords, after that, I suppose I should be feeling rather chastened. I and a good many of my colleagues at the NRA have continued to be quite concerned about this issue, despite the observations of the noble Lord and the statements of Dr. Slater.

This is an extremely complex issue. One has only to read the letter that my noble friend Lord Ullswater wrote to me, and a similar letter that he sent to my noble friend Lord Cranbrook, to see that we are in tricky legal waters. I am not a lawyer. I hesitate when I am asked to balance the likely strengths of various subsections against other subsections should they be interpreted by the courts.

It is perfectly true that in very specific terms the NRA has not been able to find a case in which we could say without qualification that it has enabled us to act. But my noble friend Lord Mills cited a case in the north-west of England in which certainly those who were acting for the NRA believed that they were acting because of those powers. What is more, they were very confident that the water authority reacted as it did because it too thought that those clauses had that effect. So we moved from a situation in which people were interpreting the law to that effect to a situation in which it might perhaps be different. So we must move with some caution.

I was taken by surprise when my noble friend Lord Cranbrook raised this issue with an earlier amendment, on the introduction of the Government's new Clause 4. He put a rather interesting question of whether the effect of the Government's new clause was to give cover on this particular point. I am not sure that my noble friend responded and gave a very clear answer then, but it was an interesting question. Turning to the list of SSSIs which English Nature suggested might be put at risk and to the observations of English Nature, I observe that there is reference to the special ecosystem classification for water quality objectives.

I observe also that in his letter to me my noble friend suggests, as did the noble Lord, Lord Moran, that Clause 7(1) (b) may be useful in that context. Fine, I think it may be. But if Clause 7(1) (b) is to have the effect that my noble friend Lord Cranbrook and I want, it can only be really effective if statutory water quality objectives are implemented. I do not believe that sites of special scientific interest, including all those in the English Nature list, will be fully protected without the implementation of the special ecosystem component of SWQOs to which my noble friend referred in the paper that he circulated. My anxiety is that, while it is true that after five years the Government have started on the process of allowing us to proceed with a small number of trial statutory water quality objectives, there is a clear hint that they do not believe that the trial will be extended very far or that we are likely to have a large number of statutory water quality objectives.

I return to a point which I have made again and again and which I shall go on making, because I do not believe that the Government are right on this issue. We cannot have effective protection of the water environment and we cannot protect my noble friend's SSSIs and have a fully effective Clause 7(1) (b) unless we have a proper system of statutory water quality objectives and the ecosystem component of them. The Government may have convinced me that their lawyers are better than my own legal expertise—they certainly are—and I shall not challenge the careful balance of argument put forward by the Government's lawyers in the letter that was circulated. But from the practical experience of those on the ground I remain utterly convinced, after five years, that the environment will not be effectively protected unless a proper system of water quality objectives is introduced.

The Earl of Cranbrook

My Lords, it is convenient to have most of one's speech given by someone else, especially when that someone else is as authoritative as my noble friend Lord Crickhowell. I intervened at an earlier stage on an amendment tabled by my noble friend the Minister. In fact I used the example to ask a question: if it is now—under his amendment, to which we agreed—the principal aim of the agency to achieve sustainable development, with all the corollaries that exist in the amendment, will that have the result of ensuring that the agency achieves the active conservation achieved by the NRA in conjunction with English Nature? That was the reason I brought forward elements that, as my noble friend the Minister said, were more appropriate to a debate on this amendment. But that is the critical question.

If sustainability feeds through in that way, we may be covered. Sustainability consists of a proper balance of regulation and economic measures. That is the essence of what we are trying to achieve, whatever we call it. I am not worried about the definition because I understand perfectly what it means. There must be a regulatory basis. I am convinced, as my noble friend Lord Crickhowell said, that the special ecosystem and the levels of purity and quality of water required in order to sustain the conservation values of those waters need to be applied by regulation and cannot be achieved by economic measures. That is why I brought forward my figures and examples. Your Lordships have heard them before and I have no need to repeat them.

8.45 p.m.

Viscount Ullswater

My Lords, Amendments Nos. 36 and 40 seek to delete Clause 7(1) (b) and include the agency's pollution control functions in subsection (1) (a), meaning that the agency would be under a duty to further conservation in respect of all its functions. Amendment No. 48 is consequential on those.

The Government have considered carefully the conservation role of the agency. We are sure that it is right that it should have proper regard for the needs of conservation in discharging all its functions, and the Bill seeks to ensure that. We have already rehearsed the arguments on this duty on a number of occasions. As I have said before, the NRA's existing duty is not unqualified and must be adapted to the broader functions of the agency. To further conservation in every case would be inconsistent with the agency's role in issuing environmental licences. And I do not believe that the changes to the duty in relation to water discharge consents will in practice damage the interests of conservation, all of which I indicated at Committee stage.

The proposed provisions will give the agency all the powers it needs to protect the interests of nature conservation, and in certain respects it might be able to go further than would have been possible had its water discharge function continued to be subject to a provision along the lines of Section 16 of the Water Resources Act 1991. I think that the provisions in this Bill will be at least as effective as the current duty in the context of the agency's pollution control functions; I recently provided a lengthy explanation of how they might work in practice in a very detailed letter to my noble friends Lord Crickhowell and Lord Cranbrook which I understand my noble friend Lord Cranbrook and English Nature have made widely available to interested Peers.

I agree with the noble Lord, Lord Moran, that the environmental NGOs hay e underestimated and misunderstood the effect and significance of the duty to have regard to the interests of conservation in what is now Clause 7(1) (b). That will apply to the agency's functions under the Alkali Etc Works Regulation Act 1906, Part I of the Health and Safety at Work Act 1974, Part I of the Control of Pollution Act 1974, and so forth, listed under Clause 5(5). It was right for the noble Lord to point out that those functions are now listed in the Bill.

In formulating or considering any proposals relating to its functions under each of these enactments, the agency will have a duty under Clause 7(1) (b) to have regard to the desirability of conserving and enhancing natural beauty and the conservation of flora, fauna and geological or physiographical features of special interest. I believe that the extension of this duty in its more specific form across the whole of the agency's pollution control functions represents an important extension of its ability to take proper account of conservation in discharging its functions, while at the same time avoiding ambiguities and inconsistencies in the way that conservation is taken into account.

My noble friend Lord Cranbrook returned to the consideration of how Clauses 4 and 7 met together. What we sought to do in Clause 4 was to identify the principal aim of the agency, whereas in Clause 7 we are looking to the duties of the agency. I believe that there is a distinction between the two. The distinction is sometimes blurred. We are careful to express what the duty of the agency is, but the aim of the agency must be qualified in guidance by Clause 4.

Amendments Nos. 37 and 51 are perhaps seeking to address the point I have made before, in that it would not be possible for the agency to further conservation while issuing authorisations under IPC. These amendments seek to limit the definition of "pollution control functions" to mean only the functions transferred from HMIP. The noble Baroness is thus making a very odd distinction between the pollution control functions of HMIP, on the one hand, and those of NRA and the waste regulation authorities, on the other. I cannot accept that there should be such a distinction between the conservation duties relating to the control of pollution of air, land or water. Such an approach is completely inconsistent with the Government's integrated approach to pollution control.

Amendment No. 38 would have the effect of removing the requirement from the agency of ensuring that its duty to further conservation under Clause 7(1) (a) is consistent with its duties in respect of sustainable development and other objectives under Clause 4. We have already discussed at length both the aim of achieving sustainable development and the guidance which will be provided to the agency in connection with this aim. Conservation is one part of sustainable development, but it is not the only factor to be considered. It is essential to recognise that at the end of the day the agency's core purposes are environmental protection and water management. The agency's conservation duty must logically be subject to the guidance on sustainable development and other aims.

Sustainable development is government policy. It is a policy of governments around the world and it takes proper account of the importance of conservation in balance with other relevant factors. That is in line with our approach to Clause 7 as a whole. With that explanation, I hope that my noble friend will feel able to withdraw his amendment.

Lord Norrie

My Lords, I am grateful to the Minister for his response. I am also grateful to the noble Earl, Lord Lytton, the noble Lord, Lord Moran, and my noble friend Lord Crickhowell for their contributions. It is a very complex issue. I and the organisations which have supported the amendments will be reading Hansard very carefully tomorrow morning before we decide whether we shall want to do anything at the next stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 37 to 41 not moved.]

Lord Howie of Troon moved Amendment No. 42:

Page 8, line 38, after ("buildings,") insert ("structures,").

The noble Lord said: My Lords, I rise with a mixture of gratitude and shame to move this amendment and to speak to one or two other amendments standing in my name. I say "gratitude" because the Minister has tabled some amendments which respond to arguments which I posed at the Committee stage of the Bill and which I shall gratefully accept and will most thankfully support. I think that he followed the precedent of the British Waterways Act which I mentioned at Second Reading; but I may be wrong there. I know how difficult it is to move Whitehall, and I am extremely glad that the Minister has moved as far as he has. This is where my shame comes in. Despite my gratitude for the movement he has made, I am asking him now to move a little further in response to the arguments which I have already made and will now make again. That is why I have tabled Amendments Nos. 42, 46, 50, 77, 80 and 82.

I know that this is a sideshow in a Bill which is very vast and wideranging but it is a sideshow which is of importance to a substantial profession in our country. My amendments deal with the proposition that buildings include structures. In fact, they do not. The Institution of Structural Engineers, which is an important professional organisation, when it is speaking of its profession, describes it as, designing and making buildings, bridges, frameworks and other similar structures".

As noble Lords will notice, those who know about these matters distinguish between buildings and structures of many other kinds. I wonder why the law cannot do the same thing. Why cannot the law make the same distinctions as those who know about it do? For example, we talk of the building and construction industry. In our daily parlance we distinguish between building and construction. The building industry builds buildings. The construction industry for the major part constructs structures. Buildings and structures are not the same. There is no reason why they should apparently be the same in some definition in the law.

I remind the House of the Anderton lift to which I referred at the Committee stage. Its function is to lift a ship from one part of a canal at a low level to another part of the same canal at a higher level. The feature of the Anderton lift is that it moves. If it moves, it might be a vehicle or it might be a machine. It is certainly a structure. But I cannot for the life of me see how it can be a building. One of the characteristics of buildings is that they do not as a rule move; or on such occasions when they do move we become alarmed. A building does not move. Structures, however, might well move. So how on earth can a structure he a building? I know that the law is sometimes described as an ass, and I should not like to underline that. But it comes fairly close to it on this occasion. The same is true of a tunnel. How can a tunnel be a building, whether it is a tunnel on a canal or a tunnel on a railway line? How can a lock on a canal be a building? How can the lockgates be a building? The thing is absurd. How can the Forth Bridge be a building? None of them is a building. They are all structures. They are separate things. All I am saying is that we should separate buildings from structures and delete that part of the Bill which says that buildings include structures. There is no logic in this.

I see from their happy smiling faces that I have convinced the Ministers on the Front Bench, though I dare say that they will have to convince their masters in some way. But I have them in my sights. I know this. I know it from the letters they have written to me. The noble Viscount wrote to me very politely in January and explained that my demand then for a reference to engineering structures would have left out other structures. He may have been right but I could not think of any other structures that could have been left out, although I did think of Cleopatra's Needle. I do not think that is what he meant. But I could not think what he meant. So I turned away from that. Then he sent me another letter which took a different line. Perhaps Whitehall thought that that line was not too fruitful. It said that Whitehall, desired to avoid changing provisions from existing legislation except to the extent that this is strictly necessary".

One thing which has struck me during my 17 years in this House is that we keep changing existing legislation. I am certain that when we do that it is absolutely necessary at all times. But I do not believe that that is a very strong argument.

I know the Minister will realise that I do not intend to press these amendments. I want him to do something which is quite simple; namely, to consider what I have said not only tonight, but on the several occasions during the past seven or eight years when I have pursued these minor arguments. I ask him to consider those arguments with the same sympathy as he considered the arguments at Committee stage. I ask him to do the same as he did then and to return at Third Reading with a very simple amendment with which I agree. I ask him merely to put beside the word "building" the word "structure". If he does that we shall have solved the philosophical dilemma which seems to be dividing us. I know that that would make him happy and I can assure the noble Viscount that it would make me happy. He will have given substantial psychological benefit to the entire engineering profession. I beg to move.

9 p.m.

Viscount Ullswater

My Lords, Amendments Nos. 42, 46 and 50 spoken to by the noble Lord, Lord Howie of Troon, seek to include "structure" in addition to the terms "building, site or object" in Clauses 7(1) (c) and (2) (b), and to delete the definition at the end of Clause 7 which states that the term "building" includes the term "structure" for the purposes of the environment agency's conservation and recreation duties. Amendments Nos. 80, 81 and 82 would amend Clause 30, for SEPA, in the same way.

The noble Lord spoke about these amendments in respect of engineering structures so eloquently at Committee stage that both I and my noble friend Lord Lindsay agreed to consider the issue further. It is for this reason that I have tabled Amendments Nos. 43, 47, 78 and 81. These amendments would ensure that buildings, sites and objects of engineering interest are treated in the same way as those of archaeological, architectural or historic interest under Clauses 7 and 30. The remainder of Lord Howie's amendments are not necessary as Clause 7(7) makes it perfectly clear that in this context, "building" includes "structure".

I have listened to the noble Lord this evening. We were persuaded at Committee stage that the issues raised by the noble Lord were valid concerns and therefore we propose that the word "engineering" should be included in Clause 7(1) (c) and subsection (2) (b) in respect of the environment agency and in Clause 30 in respect of SEPA.

We have met the substance of the noble Lord's concerns and as today is, I understand, the noble Lord's birthday, perhaps that is a sufficient present for him. In view of that, I hope that he will not seek to press his amendment which I truthfully believe in these circumstances is covered by the words of the Bill.

Lord Howie of Troon

My Lords, I am grateful to the noble Viscount for his congratulations on my birthday. It seems such a short time since the last birthday! Does the noble Viscount believe that the Anderton Lift is actually a building?

Viscount Ullswater

My Lords, it is most probably a structure, in which case it is covered by the words in the Bill.

Lord Howie of Troon

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Viscount Ullswater moved Amendment No. 43:

Page 8, line 39, after ("architectural") insert (", engineering").

On Question, amendment agreed to.

[Amendment No. 44 not moved.]

Lord Wade of Chorlton moved Amendment No. 45:

Page 8, line 42, at end insert ("and (iii) to have regard to any effect which the proposals would have on the economic and social well-being of local Communities in rural areas.").

The noble Lord said: My Lords, in moving this amendment I shall speak very briefly to Amendment No. 52 which is merely a technical amendment associated with Amendment No. 45. The environment of our rural areas is a managed one. It depends on the people who live there, who create it and those who have businesses there. In an earlier part of the discussion on the new clause my noble friend mentioned the fact that sustainable development is a balance between ensuring the environmental advantage on the one side and how to achieve development within it on the other. Having heard many of the debates during the course of this Bill, I believe that we also need to have a balance on the face of the Bill.

Therefore, this amendment is to add a third item to Clause 7 which states that the Ministers and the agency will also have a duty, to have regard to any effect which the proposals would have on the economic and social well-being of local Communities in rural areas".

I am sure that all noble Lords will agree with me that it is very important that this Bill pays due recognition to the importance of the people who work and have their well-being within our rural areas.

I am most grateful to my noble friend for meeting me and many other noble Lords for discussions on this issue. As a result he will be aware of the support that this amendment has on all sides of the House. I am also aware that I have the full support of the Country Landowners' Association, the Scottish Landowners' Federation, the National Farmers Union, the Confederation of British Industry and the Rural Development Commission. My noble friend Lord Shuttleworth would have supported this amendment had he been here this evening. Many other organisations which are involved with social and economic matters within our rural areas also support this amendment. I hope that my noble friend and many other noble Lords throughout the House will be able to support this amendment. I beg to move.

Lord Jenkin of Roding

My Lords, after that catalogue of support for the amendment moved by my noble friend Lord Wade, it may seem somewhat of a work of supererogation that I should add my brief word in support of the amendment as well. There is a point to be made and it is important that it should appear in the Bill. People concerned with a wide range of environmental matters, particularly as regards parts of the countryside which are changing fast under the stresses and developments of modern civilisation, should also be asked to remember that there are people who have to live and work there and go about their daily avocations. They too should be in the minds of those who make policy.

I do not wish to anticipate debates which we may come to next week, but we know that in the national parks, where there has been a more intensivee environmental regime, the communities sometimes feel that the authorities responsible for administering those powers do not seem to care as much for the people as they do for the flora and fauna and the other parts of our national heritage. It is important that they do so.

My noble friend has made an extremely good point. Let us have those provisions clearly stated on the face of the Bill so that when there are the inevitable conflicts—and a balance will certainly need to be struck—at least people have something to which they can point and can say, "You have to pay attention to us because the Act says so". I hope that my noble friend the Minister will be able to respond favourably to the hopes that have been expressed.

Lord Elis-Thomas

My Lords, the noble Lords, Lord Wade and Lord Jenkin, have made very relevant points which I do not need to repeat, but I should like to emphasise my support for the amendment. To continue the theme that has been set out, a formula such as is envisaged in the amendment already exists in the Bill in relation to the national parks. The national park authorities are charged with taking note of the "economic and social well-being" of the local population. We welcome that. However, that should be a general duty on all environmental agencies and authorities because without a sustainable population one cannot have sustainable development. That seems to me to be the key to the whole argument. I hope, therefore, that either immediately or at a later stage the Government can accept the provisions of the amendment.

Lord Moran

My Lords, a particularly strong case has been made for the amendment, and I very much hope that either this amendment or something along these lines can be incorporated into the Bill.

Lord Williams of Elvel

My Lords, the noble Lord, Lord Wade of Chorlton, made a powerful case for his amendment, which I wish to support. As the noble Lord, Lord Elis-Thomas, pointed out, there seems a curious anomaly in the Bill as presently drafted, in that the national park authorities are required to, have regard to the economic and social well-being of local communities within the National Park", but those outside the national parks do not have the same benefit. That leads to the idiotic result that the national parks are obliged to look after the "economic and social well-being" of people living within their area, but those living in rural areas outside the national parks do not have the same benefit. To add another argument to those adduced by the noble Lord, Lord Wade, that seems an illogicality which the Government might consider.

Lord Pearson of Rannoch

My Lords, I would not want to cast any shadow on the welcome which has been given to this amendment in the name of my noble friend Lord Wade, except to say that perhaps the Scottish Landowners' Federation—and some of us who will be speaking later with its advice and support—feel that the clause is a little narrowly drawn, in that it is not absolutely clear that, the economic and social well-being of local communities in rural areas", necessarily includes the interests of those who own and occupy the land. When we come to Clause 30, I and perhaps other noble Lords may be making that point. It would, of course, be of great succour to those of us who are perhaps more interested in Scottish than in English affairs to hear my noble friend confirm that those interests are, indeed, covered by this amendment.

Viscount Ullswater

My Lords, my noble friend Lord Wade of Chorlton seeks to add to the agency's and Ministers' general environmental and recreational duties a duty in formulating or considering proposals relating to the agency's functions to have regard to any effect which the proposals would have on the economic and social well-being of local communities in rural areas. Amendment No. 52 is consequential upon that.

In responding to a similar amendment from my noble friend in Committee, I made clear that the Government are at one with him in recognising the importance of the agency having proper regard to the wider consequences in exercising its functions. I suggested that it would have to consider the needs of agriculture and forestry—those were the words used by my noble friend in his original amendment—just as it will need to consider the needs of other sectors it would regulate, and that, in doing so, it would need to take account of a number of considerations not specifically included in the legislation, including social ones. I noted that reconciliation of the needs of the environment with the needs of economic development lies at the heart of sustainable development and suggested that the mechanism included within the Bill by which the agency is to have regard to guidance to be provided by Ministers offers the best way of ensuring that Ministers and the agency properly consider the kinds of issue with which noble Lords are concerned. In the generality of cases I still believe this to be true, but, like my noble friend Lord Jenkin and other noble Lords, I also recognise the need to be particularly sensitive to the economic and social well-being of local communities in rural areas.

I find it difficult to indicate to my noble friend Lord Pearson that the social well-being of local communities in rural areas could somehow exclude landowners if they form part of their local community. I shall need to look closely at what he has said. If he says that there is a separation between being part of a local community and being a landowner, I shall need to think very carefully about it.

The Government believe it important to address the particular problems of rural areas on which the noble Lord and others have spoken so eloquently and forcefully this evening. I accept that in this Bill we have to acknowledge the damage that can be done if their social needs are not properly considered when deciding how best to protect and enhance the environment. Therefore, the Government are willing to accept the noble Lord's amendments. My right honourable friend the Secretary of State for Scotland will consider carefully whether or not to bring forward similar amendments in relation to the Scottish provisions.

Lord Wade of Chorlton

My Lords, I am most grateful to my noble friend for accepting the amendment. I am sure that the Bill is very much better for it. I am grateful to all the noble Lords throughout the House who have supported it. I beg to move.

Question, Amendment agreed to.

[Amendment No. 46 not moved.]

9.15 p.m.

Viscount Ullswater moved Amendment No. 47:

Page 9, line 3, after ("architectural") insert (", engineering").

On Question Amendment agreed to.

[Amendment No. 48 not moved.]

Lord Coleraine moved Amendment No. 49:

Page 9, line 40, at end insert: ("( ) Nothing in this section shall enable the Agency to require from any party reports, evidence or documentation of a nature similar to that previously considered by a local planning authority in pursuance of that authority's planning functions under the Town and Country Planning Acts and related legislation.").

The noble Lord said: My Lords, I move this amendment in the hope that my noble friend will be able to respond to concerns expressed to him by the Law Society and planning lawyers as regards the effect of Clause 7. The fear is that Clause 7 as drafted may give the agency the power to act as a second planning authority, introducing a potentially conflicting, expensive and dilatory second level of regulation. Under normal development control process, an applicant obtains planning permission for his development from the planning authority. As part of the process, the authority consults the regulatory authorities, currently the NRA and HMIP. The responses of the regulatory authorities are taken into account by the local planning authority when it issues its decision. If, having considered the representations of the regulatory authorities, planning permission is granted and the developer then has to seek consent for works specifically involving the regulatory authorities, for example land drainage works, he will be placed in an untenable position. The agency can require the developer to repeat environmental exercises that have already been undertaken in respect of the original planning application to the local planning authority. This amendment will render the taking of those additional steps unnecessary. I beg to move.

Viscount Ullswater

My Lords, Amendment No. 49 moved by my noble friend seeks to ensure that nothing in Clause 7 shall give the environment agency the power to require anyone to provide information similar to that which previously will have been considered by a local planning authority in relation to its functions under planning legislation.

I am sure that my reply would have benefited from hearing what my noble friend had to say about this matter at Committee stage. Unfortunately, at that moment I believe that he was prevented from doing so. We accept that there can be an overlap between the information that is required for planning purposes and information required for pollution control. We have tried to address it in various ways, one of which is through Planning Policy Guidance Note. No. 23. That provides guidance on the respective roles of the planning and pollution control systems. It stresses the need for proper consultation between planning and pollution control authorities, and has been prepared in consultation with interested parties.

I am sorry that I cannot give my noble friend a more detailed response to his amendment. The environment agency will need to obtain information for a variety of purposes, including the assessment of applications for licences. I think it is right that it should be able to obtain all of the information that it needs to carry out its functions properly. I hope that my noble friend will withdraw his amendment, although if he remains concerned about it I will be happy to meet and discuss it with him further.

Lord Colraine

My Lords, I am grateful to my noble friend for his reassuring reply, which is reassuring as far as it goes. I know that what he has said will be read with critical interest by those who advise me. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 50 and 51 not moved.]

Clause 8 [Environmental duties with respect to sites of special interest]:

Lord Wade of Chorlton moved Amendment No. 52:

Page 10, line 9, after ("above") insert ("(other than section 7(1) (c) (iii) above)").

On Question, amendment agreed to.

Clause 11 [Advisory committee for Wales]:

Lord Williams of Elvel moved Amendment No. 53:

Page 12, line 27, at beginning insert ("Subject to subsection (5) below").

The noble Lord said: My Lords, I beg to move Amendment No. 53 standing in my name and the names of my noble friend Lord Prys-Davies, the noble Baroness, Lady Hamwee, and the noble Lord, Lord Elis-Thomas. It may be for the convenience of the House if I speak also to Amendments Nos. 54 and 55. Yet again, we turn to the question of the relationship between local authorities and the agency, this time in Wales.

Your Lordships will be aware that there has been a local government reorganisation in Wales along somewhat different lines from the local government reorganisation which has been proposed for England. I now gather that it will be on a slightly different basis. In speaking to this group of amendments, I wish to address the local authority matter, and the noble Lord, Lord Elis-Thomas, wishes to speak to his amendment (Amendment No. 54).

Local authority associations in Wales, particularly the Council of Welsh Districts, are especially concerned about the shift from local accountability, through locally elected members of local councils, in a more indirect route to Government Ministers. That change in accountability will be felt most keenly in the area of waste regulation which of course is a current district council (or unitary council as it will be) responsibility, but will be transferred, we now hear, to the environment agency. But local authorities in Wales will continue to play a significant role in the protection of the environment, as environment health and planning authorities; and it will continue to be to local authorities that members of the public turn when they have both specific and general concerns about the environment.

For those reasons, and to maintain the necessary link between local authority regulation and regulation by the agency, we believe that it is essential that the advisory committee for Wales has a sufficient number of elected representatives serving on it.

The draft management statement of the environment agency gives no greater commitment than to appoint members representing a range of interests in the principality. By nominating those already elected as representatives of local people, the Secretary of State will ensure that the greatest range of interests is in fact represented. I beg to move.

Lord Elis-Thomas

My Lords, in Committee on 19th January on this issue (Hansard, col. 843–845) I proposed a number of amendments relating to the membership of the advisory committee for Wales. I do not want to repeat those arguments, but to endorse what has been said by the noble Lord, Lord Williams of Elvel, about the importance of local authority representation, and the scale and nature of that representation. That argument relates to one I deployed more generally earlier about the agency in England and Wales; namely, the issue of whether the agency itself is to be a partnership and is to have local accountability, or whether it is to appear to be a non-departmental public body along traditional quango lines.

In that discussion (at col. 848), the Minister emphasised that he accepted that it was important for the advisory committee for Wales to comprise a wide range of representative views. He accepted that nature conservation and pollution control experience would be useful to the advisory committee. That is why in my amendment, which is grouped with Amendment No. 53, I have stressed membership of the Countryside Council for Wales, and of at least one member of the Countryside Council for Wales being also a member of the environment agency.

I do that for another reason, of course, which is my concern about the role of the Countryside Council for Wales in environmental protection and conservation activity within the principality. In that debate, and in a subsequent debate on 2nd February, the future of that agency was raised. I received subsequently a detailed letter from the Minister's right honourable friend the Secretary of State for Wales in which he emphasised that the CCW grant for 1995–96 would be sufficient for it to fulfil its statutory duties.

I am still concerned that the review of the CCW has not been completed. It is not clear to what extent the CCW will be able to play a key role as a partner with the new environment agency if it is to see its activities curtailed severely. I am concerned that the action plan with which the agency is being threatened by the Secretary of State will concentrate its activities on limited aspects of protected areas and nature conservation without giving it that necessary broader remit of countryside activities and overall commitment to sustainable development in Wales, which seems to be necessary for a wide-ranging countryside agency.

For those reasons, and in view of the uncertainty surrounding the funding and the nature of the activity of CCW, it is even more important, in my view, that the Government should accept the amendment to ensure that there is at least one member of the Countryside Council who serves on the advisory committee for Wales, thereby ensuring that a link as regards environmental conservation, countryside management and the activity of the environment agency.

Lord Moran

My Lords, I venture to say a brief word about the amendments because I was for some years a member of the Advisory Committee for Wales under the NRA, so I have some experience of it. What concerns me a little is the fact that Amendment No. 55 would be inclined to make the committee too large and unwieldy.

I realise that waste disposal matters will be part of the remit of the environment agency and, therefore, that the composition of the advisory committee may need to change. However, at present, it is quite a small committee. When I was a member of the committee, it consisted of the NRA board member for the Welsh region, who was the chairman, the chairmen of the three advisory committees—that is, the fisheries, the rivers and flood defence committees—one representative of local government, one representative of industry, one conservationist and the regional general manager. That made a total of eight. In practice, it was useful to have just those eight people sitting down with the Ministers or the officials from the Welsh Office. We were able to make good progress.

If half the advisory committee had to come from local government, it would unbalance the committee and make it more difficult to include a proper representation of those who were either running the advisory committees under the agency—and I think that they should be members and contribute a great deal—and of outside interests like industry. I certainly believe that the advisory committee should contain a conservationist. Whether, as at present, it should be an outside conservationist or whether it should be a member of the Countryside Council for Wales is not something that matters too much. However, there certainly should be one on the committee.

Lord Crickhowell

My Lords, I have a great deal of sympathy with the remarks just made by the noble Lord, Lord Moran. My reason for intervening is to make a brief reference to Amendment No. 54 and the suggestion that at least one member of the committee should be a member of the Countryside Council for Wales. It has only very recently been drawn to my attention that Clause 81 of the Bill (which provides that consultation should take place before certain subordinate legislation is made in England) for some curious reason for which I have not yet heard an explanation excludes Wales.

While in England advice has to be sought from the Countryside Commission and the Historic Buildings and Monuments Commission before certain quite important statutory instruments dealing with habitats and so on can be amended, there is no such reference here to Wales, to the Countryside Council for Wales or to Cadw. If they are to be left out—and I am not at all sure why they have been—it might at least be useful to have a member of the Countryside Council for Wales on the Secretary of State's Welsh committee.

Baroness White

My Lords, I have stayed here very quietly and, indeed, have not said a single word as yet. However, I feel that I should express my support on this occasion for Amendment No. 54. I believe that it is an essential step to take. I am not quite so sure as regards Amendment No. 55 as to whether we really need, half of the members of the Committee", to be nominated as proposed. That seems to me to be rather excessive. Certainly there should be some. But I would hope that my noble friend on the Front Bench will press the amendment if he feels so disposed. It is essential that in the Welsh scene we have adequate representation on the committee, and that both local authority and environmental experience should be catered for in some sensible arrangement. I would not necessarily want to go with every word of both these amendments, but I think they are very much on the right lines.

9.30 p.m.

Viscount Ullswater

My Lords, the purpose of these amendments is to ensure that at least half of the membership of the advisory committee for Wales comprises nominees of the local authorities in the Principality, and that a member of the Countryside Council for Wales is also included. I agree with the noble Lord, Lord Williams of Elvel, that the advisory committee will need to include locally elected members. My right honourable friend the Secretary of State for Wales has already committed himself to including locally elected members within the committee, which he feels is important to facilitate responsiveness to local needs.

Under the existing Clause 11, the agency advisory committee for Wales would be set up in just the same way as was the National Rivers Authority Advisory Committee for the Welsh region. It was not felt necessary to dictate in the legislation which established the latter committee any specific numbers of representatives from local government, nor indeed of other interests, and no rights of nomination were given to any body.

The National Rivers Authority Advisory Committee for Wales comprises a good balance of interests, including local authority representation. It has been very effective in bringing to my right honourable friend the Secretary of State's attention issues of particular local concern. A recent example has been the serious pollution of the Neath Canal caused by mineral discharges. The committee was able to visit the site to examine the problem at first hand and has urged that the various parties involved should work together to bring forward a solution as quickly as possible. Following this involvement, a study has been set up to identify long-term remedial measures and an action plan put forward by the local authority has been given financial support by my right honourable friend under the strategic development scheme. The advisory committee has contributed to the development of a strong Welsh identify for the region and good links with the people of Wales—for example, by publishing in England and Welsh an annual report of the agency's activities in the Principality.

Welsh Office Ministers have already stated their intention that the advisory committee will include more than one locally elected member. I do not see that there is a need to constrain my right honourable friend's ability to choose an effective membership by specifying on the face of the Bill a precise minimum number of local authority members. In addition, my right honourable friend the Secretary of State for Wales will be responsible for approving the agency's membership scheme for its Environment Protection Advisory Committee for the Welsh region, which he will also wish to see include local authority representation.

My right honourable friend the Secretary of State for Wales will consult the local authorities in Wales, through the local authority associations, before selecting members for the advisory committee for Wales. I do not think, however, that the legislation should restrict my right honourable friend to appointing from local government only local authority nominees. I think it is important that my right honourable friend is given the flexibility to make appointments, not just at the outset but in the future, which reflect the particular needs of Wales at the time and which produce the best balance of interests on the committee as a whole. I can assure noble Lords that my right honourable friend intends to ensure that the advisory committee does encompass a representative range of views and wide-ranging expertise. Indeed, this will be vital if, as we intend, the committee is to provide effective advice to assist my right honourable friend the Secretary of State for Wales as the Minister responsible for setting the policy framework within which the agency will operate in the Principality.

The noble Lord, Lord Elis-Thomas, encouraged by the noble Baroness, Lady White, suggests that the Countryside Council for Wales should have a member on the body. The Countryside Council for Wales is one example of the kind of body which could usefully contribute to the committee's consideration of conservation issues. There are others, however. For example, the senior conservation officer of the Royal Society for the Protection of Birds serves on the existing NRA committee. I think it unnecessary, therefore, for the Countryside Council for Wales to be singled out on the face of the Bill.

To answer the question of my noble friend Lord Crickhowell, I understand that the Countryside Council for Wales is a statutory adviser to the Secretary of State and therefore its advice would be considered.

The advisory committee for Wales will need to advise on a wider range of activities than the current NRA committee, as the noble Lord, Lord Moran, perceived. For example, it will need to have experience and knowledge of waste management, conservation, rivers, flood defence, fisheries and integrated pollution control. It will need to reflect the views of both industry and environmental organisations. I have to agree with the noble Lord that the requirement for half its members to he local government nominees could result in a very cumbersome and potentially less effective committee. Therefore, I ask the noble Lord, Lord Williams, to withdraw his amendment.

Lord Williams of Elvel

My Lords, I am grateful to the noble Viscount for his response, and I am grateful to noble Lords who have taken part in this short debate.

The Minister has gone some of the way in reinforcing the declared intention of the Secretary of State for Wales to select elected members of local authorities. I do not see why he should not go a little further and accept members of local authorities who have been nominated by those local authorities. That would simply reinforce the accountability chain. I do not worry particularly about whether the membership is half, a third or an eighth. The numbers do not really matter. However, there should be a sizeable number of those who have their roots in local communities and are accountable democratically to those who elected them. That is the purpose of the amendment.

Concerning the amendment of the noble Lord, Lord Ellis-Thomas, there is considerable doubt about how the Secretary of State for Wales will deal with the Countryside Council for Wales. Any mention of the Countryside Council for Wales on the face of any Bill would have my support because it would guarantee the future of that body, which is now under great threat.

I have noted the point of the noble Lord, Lord Crickhowell, about Clause 81. I have already formulated an amendment, which is included on the Marshalled List, but I shall formulate a rather more elaborate amendment designed to ensure that similar consultation takes place in Wales as the Bill provides to take place in England. We shall deal with that when we come to Clause 81.

I am grateful to the noble Viscount. The Government's position is not entirely satisfactory. I shall consult with my advisers to see what we do next or whether we leave it to another place to thrash the matter out. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 54 and 55 not moved.]

Clause 12 [Environment protection advisory committees]:

Lord Dixon-Smith moved Amendment No. 56:

Page 13, line 15, at end insert: ("( ) Without prejudice to paragraph (b) of subsection (4) above, not less than one third of the members of any advisory committee appointed by virtue of subsection (2) (b) above shall be local authority members. ( ) A person shall not be appointed a local authority member of an advisory committee for any region unless he is a member of a principal council the area of which is wholly or partly comprised in that region. ( ) Before appointing any person to be a local authority member of an advisory committee for any region the Agency shall consult with every principal council the area of which is wholly or partly comprised in that region.").

The noble Lord said: My Lords, Amendment No. 56 follows the debate during the Committee stage and the welcome pledge from my noble friend the Minister at that stage that local government members would be included on the regional advisory committees of the environment agency. The amendment attempts to give form to that pledge and establish a consultation process so that local government is widely involved in the selection of its representatives.

The need for a close and intimate relationship between local government as the planning authorities and the environmental agencies as the regulatory authorities is illustrated simply by relating the kinds of terms and conditions that would go into a waste disposal planning permission. That has nothing to do with a waste disposal licence, but the terms are almost identical. Obvious factors such as suitability of site, impact on neighbours and long term future of the land are understood. Mode of transport, access and hours of work are understood. However, included in consideration of a planning permission today—they would not have been 25 or 30 years ago—will be the geology and hydrology of the site because movement of any waste under the ground is a matter of which planners now believe account has to be taken in the light of bitter experience over past years. Any emissions, and control of emissions, will also be subject to conditions of a planning consent. The method of working, standards and quality of cover, which could also be judged to be part of the licence, are also subjects of planning permission.

For planning permission to be given for a waste disposal facility, there has inevitably to be the closest and most intimate working relationship between the professional staff of local government and the professional staff of the appropriate regulatory body, soon to be the environment agency. At that level, I do not doubt that there will be the closest possible liaison. It is equally important that in parallel with that liaison, the political level of local government finds its involvement satisfactory. However good the professional working relationships might be, we would have a disastrous situation if a political separation between local government and the regulatory bodies ever developed.

It is in that sense that I move the amendment. I hope that the Minister might consider, if I may say this without being provocative, that the English provision is slightly more reasonable than the Welsh.

Lord Jenkin of Roding

My Lords, my name appears also to the amendment. I begin by expressing my thanks to my noble friend on the Front Bench for the time he gave when I took the chairman of the south-east waste regulation advisory committee to see him to argue the case for a more structured system of representation of local authorities on the advisory committees. I stress that they are advisory committees. They are not part of the executive chain of accountability. The members are there to advise the executive arm, which in this case is the agency; and, as my noble friend Lord Dixon-Smith said, who better to offer advice from a wide range of local concerns than those who are elected members of local authorities?

We had a very curtailed debate at the end of the proceedings on 19th January. We moved a more ambitious serious of amendments which envisaged—as in the recent amendment, and as was the point of the speech by the noble Lord, Lord Williams of Elvel—that the agency should accept nominations, and accept nominated members. I understand the point my noble friend made to me, and to Mrs. Hawker (who came with me) that the Government are anxious to avoid representative members of these advisory committees. I refer to people who, in a sense, have not been chosen for their expertise in the field but somehow see themselves as accountable to the body from which they have come. It is a familiar argument. That dichotomy, that conflict, has been apparent in many different fields of Government activity. I understand that the Government are firmly committed to the idea that people shall not be representatives but shall be appointed for their merit and their value to the committee.

My noble friend's amendment moves away from that concept. All we ask is that the agency should consult with all the local authorities in the area to he covered by the advisory committee. No doubt it will receive suggestions for people who might be put forward and who will presumably be acceptable to the local authorities. From that body, the agency can select the people who it believes will make the best contribution to the work of the advisory committee.

The amendment suggests that no fewer than a third of the members of the advisory committee should be such people. I consider that that is the minimum for which we can reasonably ask on the face of the Bill in order to ensure that all the considerations are dealt with which my noble friend, with his great experience of local government, has outlined. Those considerations must be in the Bill, even after the extremely sincere assertion from the Front Bench that of course local authority elected members will be appointed. I wish to see that in the Bill, and the first paragraph of the amendment will give the Government what they want, while at the same time giving reassurance to the local authorities that they will have a say and that their members will be elected in sufficient numbers to have an influence on the work of the advisory committee. I strongly support the amendment.

9.45 p.m.

Baroness Hamwee

My Lords, I too support the amendment. In our debate on the transfer of the functions of the waste regulation authorities, one of the threads running through the resistance to my attempts to avoid that transfer was the relationship that there would be with the committees. To include the provision proposed in the amendment on the face of the Bill would flesh out that assurance. It would make the transfer of the functions a little more palatable.

It is to the credit of those in local government that they continue to argue for such a provision. The temptation must be to say, "Well, if you want it, you get on with it", but in fact, they are keen to ensure that the new system works well, even if they do not necessarily support the whole of it.

Lord Williams of Elvel

My Lords, I have no particular objection to the amendment except that if we are to write something on the face of the Bill for England, I see no reason why we should not do so for Wales. The noble Lord, Lord Dixon-Smith, may be less ambitious than the Welsh, but I would say that perhaps the English do not know how to play poker as well as the Welsh because you do not declare your hand at the outset of the game.

I take issue with the noble Lord, Lord Jenkin, on nominations versus selection. However, we have had that argument on many occasions and I do not intend to elaborate on it now. I hope that we can agree on a middle way so that if the Secretary of State wishes to retain something called "flexibility", those selected at least have the endorsement of the authorities from which they come. There must be some degree of confidence between the authorities from which they come and the fact that they are members of an advisory committee for the agency. Otherwise the chain which the noble Lord, Lord Dixon-Smith, seeks to establish will break down.

There is a good deal of residual suspicion about appointments made by Secretaries of State to unelected bodies. We are learning to work through it by various constructions that have been set up by the Government, but there is still a good deal of residual suspicion. I am sure that by adopting the kind of formula which I have suggested the Minister could go at least some way towards alleviating the suspicion. I go halfway with the noble Lord, Lord Dixon-Smith, in supporting the amendment.

Lord Taylor of Blackburn

My Lords, I have known very awkward members of local authorities who have worked on quangos and who have not been au fait with the work. Therefore, I prefer a cross-section of people to one set of "yes men".

Viscount Ullswater

My Lords, I am glad that the noble Lord, Lord Taylor of Blackburn, has at least managed to contribute to this debate. In a way, he has indicated that he is on my side. I did not seem to have many friends in the House until he decided to speak.

As I explained on the previous amendment, I would indeed expect a number of local authority members to be included on the agency's regional environment protection advisory committees. There is no doubt that such individuals will bring significant experience of local authorities and local issues. I am sure that their advice will be of great value to the agency in developing its relationships with local authorities in general.

I therefore have some sympathy with the intention behind my noble friend's amendment. Nevertheless, I do not believe it would be right for the legislation to specify the proportion of local authority members on these committees. The Bill already provides a mechanism for the agency to propose schemes for the appointment of members in each region, for consultation on those schemes, and for the Secretary of State to approve, reject or modify proposals in the light of representations made. This is designed to enable individual schemes to take account of the particular circumstances of each region. I do not believe that the legislation should pre-empt that process by providing that local authority members should comprise at least one-third of the membership of these committees. There are many organisations with a claim to a place. We should allow the agency to propose what the balance should be, and not seek to fix all or part of it in statute.

I should also explain that the committees are not intended to be the only, or indeed the primary, means by which the agency interacts with local authorities. It will be important for the agency to develop working-level arrangements with authorities in areas such as planning and development control—as my noble friend Lord Dixon-Smith said—local air pollution control and environmental health, and emergency planning. The committees should not be seen as a substitute for such arrangements.

My noble friend's amendment would also require the agency to consult every principal council in a region before appointing a person as a local authority member. I would submit that his concern is already covered elsewhere in the Bill, particularly in Schedule 3. Before appointing a member to a committee, the agency must consult appropriate bodies or persons identified in the membership scheme. In the case of individuals who are local authority members, I would indeed expect the agency to consult, under this provision, the principal councils in the relevant region.

I know that I shall not have satisfied my noble friend. But I hope I have indicated where, I believe, the right balance should lie. I therefore ask my noble friend to withdraw his amendment.

Lord Dixon-Smith

My Lords, I am very grateful to those who have supported this amendment this evening. I shall not take the time of the House for very long. I sympathise, curiously enough, with the remarks of the noble Lord, Lord Taylor of Blackburn. The last thing we want is a committee of yes-men; but equally, the last thing one would want is a committee of no-men. We need a committee of people who know what they are about. In that respect, the views of local government, because of the practical implications, are very significant.

I will consider what my noble friend the Minister has had to say, and whether I need to take this matter any further at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Elis-Thomas moved Amendment No. 57:

Page 13, line 23, leave out from ("to") to the end of line 24 and insert ("establish a Wales region").

The noble Lord said: My Lords, this amendment seeks to establish a Welsh region for the agency. I shall move it in a very reasonable manner, despite what the noble Lord, Lord Dixon-Smith, said earlier.

Reverting to our debate in Committee on 19th January (specifically at cols. 844–845), the noble Viscount responded to this question of the boundaries of the new agency and its activities. He emphasised that this was a decision for the agency itself, and that it should be determined, in the case of Wales, by his right honourable friend the Secretary of State for Wales in consultation with the Secretary of State for the Environment and the Ministry of Agriculture.

However, it is now time that this issue was clearly discussed in this House, so that the thinking that is taking place within the agency should emerge. In particular, I would want to argue that the question of the national boundary of Wales in relation to the activity of the agency is a matter for Parliament.

No doubt I shall excite the opposition of the noble Lord, Lord Crickhowell, on this issue. When dealing with the amalgamation of the three parts of the agency, we deal with different boundaries relating to different structures and different functions.

I want to start the argument from the point of view that the Government have decided not to go ahead with the proposal to establish a separate agency for Wales, as suggested by my noble friend Lord Williams of Elvel earlier. The issue was debated and no doubt it will be returned to in another place, if not in this Chamber, at a later stage of the Bill.

But given that that is not happening, it is very important that the structure of the Welsh region should remain strong in the activity of the agency. The noble Viscount said that. He said: It is important that the agency's Welsh region has a strong identity".—[Official Report, 19/1/95; col. 844.] A strong identity is best maintained by indicating clearly how the region of the agency is to function. The combination of some 430 full-time staff from HMIP, some 7,500 staff from NRA and about 1,100 staff from local waste regulation authorities joining together in the case of England and Wales—at some stage I should welcome the figures for Wales as well—will create an imbalance in the way in which the structure develops.

My fear is that HMIP's present mode of operation will be over-determined, if not drowned—that is another metaphor—by the NRA's mode of operation and structure. The expertise of HMIP in developing the integrated pollution control system and all the important features of the EPA 1990 are extremely important not only in Wales but in the regions of England as well. As we know, HMIP is responsible for regulating the large polluting processes under the IPC; the smaller processes are governed by the local authority air pollution control.

As those aspects come together in the new agency, it seems to me that at this stage it is not clear which of the options for the geographical and managerial structure of the proposed environment agency, as discussed in the Touche Ross report last year, is the most likely to be implemented. I shall not repeat this evening all the models. Some of them emphasise the activity of the waste organisations and others emphasise the NRA model. But it concerns me that this should not be a matter just for the agency itself to resolve. It should be resolved in a relationship between the agency and the Secretary of State. I believe that Parliament should express a view, in particular about the integrity of the Wales region and its boundaries.

In the structure of the agency there are nine voluntary regional waste regulation committees in England; the Welsh districts carry out that function in Wales through the Council of Welsh districts; HMIP has field teams implementing the IPC system with its seven regions; the NRA has, I believe, eight regions where previously it had 10 regions. The NRA regions do not correspond to the geography of the waste regulation regions, which tend to follow local authority boundaries.

In the debates on this issue there have been arguments from the NRA about maintaining the integrity of river basin management. On the other hand, there has been the argument from HMIP that functions should be split because of the separate nature of the activities and the dangers of self-policing. Perhaps I may ask the Minister to respond, and if he cannot reply in detail tonight, perhaps he would ask his right honourable friend in another place, the Secretary of State for Wales, to consider what has been said in this debate and perhaps respond by letter. I am concerned by what seems to be happening. I describe merely a scenario which may only approximate to what is in fact going on.

It seems to me that a working group is trying to bring about a structure for Wales which is over-determined by the activity of the NRA. The Wales region of HMIP operated as a strong region, coterminous in its activities locally with local authorities. The NRA operates under the catchment areas. If the agency is allowed to decide the nature of its regions, then we may well see an England and Wales structure led by the NRA imposed on Wales. That will mean not only ensuring that Powys remains forever England—if one can use that expression—as part of Severn-Trent, as it is under the present structure of the NRA, but also that the Minister's right honourable friend the Secretary of State for Wales will be dealing with two regions of the environmental agency.

As the waste regulatory functions are coming into the environmental agency, presumably the Part II functions of the 1990 Act now being transferred, based on existing local authorities, will be based on the new unitary authorities. But the Part I, if HMIP as part of the new environmental agency is to follow the new NRA boundaries, will be based on river catchment areas which are not coterminous with local authorities.

It is an important issue. We are in the middle of a local government reorganisation and the activities of the agency should follow similar boundaries. Part II of the Control of Pollution Act will no doubt conform with the NRA model. We may well see a situation where not only is the river catchment area structure taking place at the Wales regional level, but it may also be replicated at sub-regional level so that again the activity of HMIP, as taken into the agency, will not follow the boundary of the new unitary authorities and so the local authorities and the unitary authorities will not have parallel structures with the local activity of HMIP.

All that did not emerge in the debate on the Bill. Apparently the Government have not yet taken a view on the matter. The Government should express a clear view. It is not a matter for the agency. I am not putting forward a political argument for the Welsh political boundary in a devolutionary context; I am arguing for what I see to be a more efficient structure than that which may well be imposed upon us. For those reasons, I beg to move Amendment No 57.

10 p.m.

Lord Crickhowell

My Lords, I wish to make a brief intervention. The noble Lord, Lord Elis-Thomas, need not be concerned that I shall be excited about the issue, though there are some important questions to be asked. One matter on which I am clear and which I share with him is that the Secretary of State for Wales must be responsible for what goes on in the whole of Wales. That has always been accepted. However, a group has been set up by the new advisory committee to look at this matter and examine the Touche Ross report. When one knows that Professor Ron Edwards is involved, it is likely that Welsh interests will be well looked after.

When a group is making a detailed study it seems to me to be a good idea that it should be allowed to complete its work and make recommendations before we rush into imposing solutions on a situation on the basis of a brief debate after 10 o'clock at night in this House. It does not necessarily follow—this goes for England as well as Wales—that it is appropriate to have coterminous boundaries for all the functions of the agency. There is a case, and it may well be a solution adopted in England as well as in Wales, that the boundaries in every case will not be exact. It may be sensible to have boundaries for waste functions and HMIP functions that match more closely to local authorities. But for the important reasons that the NRA advocated for employing catchment management, it may be important to keep the catchment management principle operating for the NRA functions.

I simply want to record the importance of managing rivers on a catchment management basis. Some sensible proposals were put forward before the Bill was introduced and they were discussed in great detail with the Welsh Office at the time. They would have enabled that principle to be carried forward into the new agency. They were the subject of wide consultation with the advisory committees in Wales and of wide agreement. I hope that we can leave the matter to the outcome of the discussions that are going on in the fairly confident belief that a sensible, practical solution will be developed which will both protect the environment and leave the Secretary of State for Wales with his proper responsibilities.

Viscount Ullswater

My Lords, the Government did not believe it sensible to come to a decision on the boundary of the agency's Welsh region in isolation from the agency's proposals for its organisational and management structure, in just the way my noble friend Lord Crickhowell indicated. It is intended therefore that the boundary of the agency's Welsh region will be determined by my right honourable friend the Secretary of State for Wales in consultation with my right honourable friends the Secretary of State for the Environment and the Minister of Agriculture, Fisheries and Food on the basis of proposals from the agency. Those are the words I used in Committee and have now repeated to the noble Lord, Lord Elis-Thomas.

It is important that the agency's Welsh region has a strong identity, and it is for that reason that the Bill as drafted requires the Welsh region to consist wholly of, or mainly of, or of most of, Wales. The boundary will, however, need to be consistent with the structure chosen by the agency.

The Environment Protection Advisory Committee will be set up by the agency to advise the agency on how it can best carry out its functions in its Welsh region, whatever the boundary of that region. It makes sense therefore that the Environment Protection Advisory Committee for the Welsh region should not have a remit extending beyond the Welsh region, even if it transpires that not every part of Wales is included in the Welsh region. That is different from the position in relation to the advisory committee for Wales, which will be set up to advise my right honourable friend the Secretary of State for Wales on the carrying out of the agency's functions in relation to the whole of Wales, whatever the boundary of the Welsh region.

That is the position the Government have taken. I understand the noble Lord's concerns. However, having listened to what I have had to say, I hope he will be in a position to withdraw his amendment.

Lord Elis-Thomas

My Lords, I am grateful to the noble Viscount for stating the Government's position. It does not seem to have moved from what was stated in Committee. I was pleased to hear the analysis of the noble Lord, Lord Crickhowell, that it might be possible to take different boundaries for different functions of the agency. Functions should lead in this matter rather than there being any question of trying to maintain an over-unified structure for what are, after all, diverse functions but functions which in the broad environmental remit of the agency complement one another. It is important that the integrity of the function and activity of HMIP in its relationship with local government in its Wales region should not be diminished in the transitional arrangements or indeed in the final arrangements that emerge from the Bill. With that caveat, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 [Regional and local fisheries advisory committees]:

[Amendments Nos. 58 and 59 not moved.]

Lord Greenway moved Amendment No. 60:

Leave out Clause 13 and insert the following new clause:

("Regional and local fisheries, recreation and navigation

committees

13.—(1) It shall be the duty of the Agency—

1. (a) to establish and maintain fisheries, recreation and navigation advisory committees;
2. (b) to consult those committees as to the manner in which the Agency is to carry out its functions relating to fisheries, recreation and navigation; and
3. (c) to consider any representations made to it by those committees (whether in response to consultation under paragraph (b) above or otherwise) as to the manner in which the Agency carries out those functions.

(2) (a) Each fisheries, recreation and navigation committee shall consist of—

1. (i) persons who appear to the Agency to be interested in salmon fisheries, trout fisheries, freshwater fisheries or eel fisheries;
2. (ii) persons who appear to the Agency to have knowledge of recreation interests; and
3. (iii) persons who appear to the Agency to have knowledge of navigation interests.

(b) The members of fisheries, recreation and navigation advisory committees shall not be members of the Agency.

(3) The duty to establish and maintain fisheries, recreation and navigation advisory committees imposed by subsection (1) above is a duty to establish and maintain—

1. (a) a regional fisheries, recreation and navigation advisory committee for each region of England and Wales; and
2. (b) such local fisheries, recreation and navigation advisory committees as the Agency considers necessary to represent fisheries, recreation and navigation interests in the different parts of each region;

and it shall be the duty of the Agency in determining the regions for which regional committees are established and maintained under this section to ensure that one of those regions consists (apart from territorial waters) wholly or mainly of, or of most of, Wales.

(4) If the Agency, with the consent of the Ministers, so determines, it shall also be under a duty to consult the fisheries, recreation and navigation committees, or such of them as may be specified or described in the determination, as to—

1. (a) the manner in which it is to perform its duties under or by Virtue of such of the enactments relating to conservation as may be the subject of the determination, or
2. (b) such matters relating to conservation as may be the subject of the determination.

(5) Where, by virtue of subsection (4) above, the Agency is under a duty to consult those committees or any of them, there may be included among the members of the committees in question persons who are not members of the Agency but who appear to it to be interested in matters—

1. (a) like to be affected by the manner in which it performs the duties to which the determination in question relates, or
2. (b) which are the subject of the determination,

if the Ministers consent to the inclusion of persons of that description.

(6) There shall be paid by the Agency—

1. (a) to the chairman of any regional or local fisheries, recreation and navigation advisory committee established and maintained under this section such remuneration and such travelling and other allowances; and
2. (b) to any other members of that committee such sums by way of reimbursement (whether in whole or in part) for loss of remuneration, for travelling expenses or for any other out-of-pocket expenses,

as may, with the consent of the Treasury, be determined by one of the Ministers.").

The noble Lord said: My Lords, I seem to be somewhat fated with this amendment. I did not move it in Committee. I withdrew it without speaking to it because it was part of a grouping and came up at the magic hour of 10 o'clock when the Committee wanted to go home. I have brought it back in the same form and I say at the outset that it is by way of a probing amendment. However, I am slightly thrown again by the noble Baroness, Lady Hamwee, not speaking to her two amendments which are also down in the name of the noble Lord, Lord Beaumont of Whitley. I am sorry in a way because I rather favour those two amendments as opposed to mine. They go slightly broader and include conservation as well. I had not presumed to enter into the realms of conservation.

The reason for tabling this amendment is as a result of the Touche Ross study on the potential management structure for the new environment agency. All the navigation organisations and many other respondents favoured a management structure based somewhat on that of the National Rivers Authority. They also favoured the concept of a line of management which was based on fisheries, recreation, conservation and navigation. That line would flow through head office, down through regional offices and into an area structure.

With that in mind, I propose to amend Clause 13 to include regional committees for recreation and navigation in each of the areas, as I believe it is important that these activities should be defined as part of the consultation process for the environment agency, the regions and areas.

I assumed that perhaps navigation was rather too small a part of the whole new agency to warrant representation on the main environment committee. That may have been a somewhat naive assessment. I shall be delighted if the Minister can reassure me on that point and say that there might be a way of including a navigational interest on the main committee. That original assumption made me bring forward this amendment to see whether navigation and recreation can be represented on some of the lesser committees if they have no chance of being represented on the main committee. I beg to move.

Viscount Mills

My Lords, I have some direct experience of the existing NRA advisory committees and in particular the regional fisheries advisory committees. I too had prepared an answer to the amendment of the noble Baroness, Lady Hamwee, but I believe that the principle remains the same. The regional fisheries advisory committees already deal with matters concerning recreation and navigation where they directly impinge on fisheries activities. That is very necessary. But for these committees to try to deal with all matters concerning these various other functions would be counter productive for the very simple reason that it could easily result in a committee, which would fail to deal with all or some of the constituent functions in an adequate manner. For that simple reason alone I cannot support this amendment.

Lord Moran

My Lords, I too am not happy about this amendment. I have some experience of committees. For five years I was chairman of the regional fisheries advisory committee in the Welsh region. I believe that the effect of this amendment would be to dilute the fisheries committees in a way which would unbalance them and which would greatly upset fishery and angling interests. They are already very concerned about the possibility that fisheries are going to be downgraded. There are so many new and important aspects of the environment agency's functions that fisheries, which on the whole have been very well dealt with by the NRA, will become less important. As I pointed out at Second Reading, fisheries have suffered a drastic reduction in funding. There is real anxiety and I beg the Government to take account of it.

The formulation in Clause 13 of the Bill is right. It preserves the fisheries advisory committees as they are, but allows the new agency, if it wants to, to permit those committees to take on responsibilities for navigation, conservation and recreation. I believe that they can do that. But, if it is laid down in the Bill that the committees are to include all these functions, it would mean that fisheries would be one of four functions and presumably representation would go accordingly. That means that, instead of having committees of people who know and care about fisheries, there would be committees in which only about one-quarter of the members would be so qualified. I think that that would be worrying and a mistake. Therefore, I hope that the Government will stick to their guns and to the current wording of Clause 13.

10.15 p.m.

Lord Renton

My Lords, although what the noble Lord, Lord Greenway, suggests looks reasonable on the surface, we must bear in mind that the new environment agency will have enormous responsibilities. It will be one of the biggest quangos ever. It will have to accept guidance from more than one Minister and will need quite a large organisation. If, in addition to all that, it is going to have the responsibility for finding, choosing and providing opportunities for information to be given to a number of separate committees dealing with each subject, we may well be asking too much of it. Therefore, I must join those noble Lords who have expressed doubts about the amendment.

Baroness Hamwee

My Lords, I apologise briefly to the House. I had thought that by not moving my two amendments and allowing a debate to take place on the amendment in the name of the noble Lord, Lord Greenway, I might shorten proceedings a little. I am sorry if I have confused your Lordships.

Lord Crickhowell

My Lords, I wish to make the briefest possible point in support of what the noble Lord, Lord Moran, said. Although there is a case over time for making some changes, I think that that should be done locally. The truth of the matter is that the situation varies enormously from region to region. In some regions the NRA at present (and the agency in the future) will have no navigation responsibilities; in others, the river may be an important fishery and the balance may be different. This is a case where it would be sensible for the agency to be able to move over time to a balance which represents the interests on its advisory committees. If we rush into this in legislation, I believe that the concerns which undoubtedly exist among fishing and angling interests will be magnified and we shall be getting off to a very bad start. If, however, flexibility is maintained, there is a possibility of moving over time to arrangements which suit each region.

Lord McNair

My Lords, I rise briefly to support the noble Lord, Lord Greenway. I do not want to go into a great deal of technical detail, but it is clear that there is a great deal of anxiety among many different quarters and many different interests. I wonder whether it would be a good idea to have some consultation between those different interests and the department before the Bill goes to the other place.

Viscount Ullswater

My Lords, Amendment No. 60, which has been moved by the noble Lord, Lord Greenway, would amend or replace Clause 13. This clause requires the agency to establish fisheries advisory committees and to consult them as to the manner in which it performs its fisheries duties. It also provides that the agency may, with the consent of Ministers, additionally consult those committees as to the way in which it performs its duties in respect of recreation, conservation or navigation, and may expand the membership of the committees accordingly. The amendment would instead require the agency to establish committees which would from the outset be consulted not only on matters relating to fisheries, but also on those relating to recreation and navigation.

Although fisheries will by no means be the largest of the agency's functions, it will nevertheless be a very important one. There are some 3 million coarse and game anglers in England and Wales around whom a valuable industry has developed. The future of the sport and of the businesses it supports is largely dependent on the health of our salmon and freshwater fisheries. Salmon and freshwater fish are also an important indicator of water quality and of the general status of our inland waters. The importance of the role of the fisheries function within the agency is recognised by the existing clause, which provides for the establishment of separate fisheries committees, as is presently the case under the NRA.

That is not to say that we consider the agency's duties with regard to recreation, conservation and navigation to be unimportant. At present those activities are dealt with by the NRA's regional rivers advisory committees. Under the agency, they would come within the scope of the environment protection advisory committees provided for in Clause 12 of the Bill which, in the sense that they would be responsible for all of the functions of the agency, could be regarded as the successors to the regional rivers advisory committees. It is the Government's view that recreation, navigation and inland waterway navigation interests should be properly served by the environment protection advisory committees. The chairmen of environment protection committees will be appointed by the Secretary of State and their members appointed under membership schemes prepared by the agency and approved, with or without modifications, by the Secretary of State in accordance with Schedule 3 to the Bill.

I can assure noble Lords that in appointing the chairmen and considering the membership scheme the Secretary of State will ensure that account is taken of the desirability of securing the representation of recreation, navigation and conservation interests. Schedule 3 also places a number of obligations on the agency to ensure that those likely to be interested are given the opportunity to make representations or objections as regards the schemes for appointment of members to each of the regional advisory committees.

These provisions should ensure that recreation and navigation interests are properly represented. However, we recognise that because the responsibilities of the agency will be wider than those of the NRA it is possible that the environment protection advisory committees would not be able to do full justice to recreation and navigation issues. It is for that reason we have provided that the agency may, with the consent of Ministers, consult additionally the fisheries committees as to the way in which it performs its duties in respect of recreation, navigation, or indeed conservation, and may expand their membership accordingly. The provision is there to meet the concerns that have been raised, and it can be used if need be. This may not be necessary, in which case the provision need not be used. In view of this, we consider that there is no need for combined fisheries, recreation and navigation advisory committees to be established by the Bill.

This particular amendment has attracted a good deal of interest from noble Lords around the House. Therefore, I have sought to explain rather carefully the Government's thinking. With that, I hope that the noble Lord will feel able to withdraw his new clause.

Lord Greenway

My Lords, I am grateful to the Minister for having explained his reasons in some detail. I will go away and look at them carefully. I am not surprised at the siren voices ranged against me. In fairness to my noble friend Lord Moran who speaks of the dilution of the fishing lobby's interests, I too am very concerned about the dilution of the navigation interests. But the Minister has given me slight comfort by saying that he feels the matter will be suitably covered. I am grateful to the noble Lord, Lord McNair, for his support. However, in the light of what has been said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 20 [The Scottish Environment Protection Agency]:

Lord Carmichael of Kelvingrove moved Amendment No. 61:

Page 20, line 19, at end insert: ("(3) SEPA shall, in exercising any of its powers under any enactment, protect and enhance the environment.").

The noble Lord said: My Lords, Amendment No. 61 has been linked with Amendment No. 74 in my name and also with Amendment No. 75 in the names of the noble Earl, Lord Kintore, and the noble Lord, Lord Pearson of Rannoch.

The Minister will be aware that during the Committee stage of the Bill the general consensus after considerable debate was that both the environmental agency and SEPA required clearly defined purposes centring about environmental protection and enhancement. As described by the Government on a number of occasions, the purpose of the establishment of the agencies is exactly that: the protection and enhancement of the environment. During the debate in Committee the Minister made it clear that Environmental protection and enhancement are, indeed, the main purposes for which the agencies are being established."—[Official Report, 17/1/95; col. 548.] Such a purpose is also quoted in the draft sustainable development guidance. When asked why the purpose quoted in the guidance could not be used on the face of the Bill, the Minister replied that the Government were concerned that it would render the guidance inflexible.

It is our concern that those new large quangos will have a flexible purpose and be open to modification at the whim of Ministers, and without recourse. That is worrying. A further argument advanced by the Government against giving the agencies a clearly defined purpose on the face of the Bill was that they are due to inherit a long list of functions already prescribed in legislation, and an attempt to give them an overriding statutory purpose might create duplication or conflict. That surely must be a good reason why the agency requires such a clearly defined role.

The new agencies are effectively merging a large number of independent organisations, each with different areas of work and emphasis. In the light of that, it would appear that they have a greater need than ever for a single overall clearly defined role, and that they are given directions by which they can organise themselves and function in a holistic fashion. I hope that the Minister will look on the amendment favourably. I beg to move.

The Earl of Kintore

My Lords, before speaking to Amendment No. 75, I declare an interest as a modest landowner in Scotland and member of the Scottish Landowners' Federation, of which I am a member by subscription. I thank the noble Earl, the Minister, and his officials for meeting us recently, but I fear that further clarification is needed. I have read the Minister's reply in Committee to an amendment similar to Amendment No. 75, and I note that the Secretary of State will consult the eight specified bodies and others before giving guidance to SEPA with respect to its aims and objectives.

Perhaps I may ask the Minister why there is a reluctance to put the bodies mentioned in the amendment on the face of the Bill.

Lord Pearson of Rannoch

My Lords, in supporting Amendment No. 75, I should declare an interest, in that I own modest land in Scotland which could be affected by the Bill and all the amendments to which I shall speak tonight. The amendment was ably moved in Committee by my noble friend Lord Balfour and supported then by the noble Earl, Lord Kintore. But I have to agree with the noble Earl that the assurances then given on behalf of the Government by my noble friend on the Front Bench were not entirely reassuring.

If my noble friend and the Government are prepared to guarantee that the Secretary of State will consult all the categories mentioned in the amendment, then I cannot see that there is any harm in making sure of them on the face of the Bill. Clause 29(1) requires that the Secretary of State shall from time to time give SEPA guidance as to the aims and objectives which he considers it should pursue in the performance of its functions.

Subsection (2) requires that guidance to point SEPA towards achieving sustainable development. I am not quite sure that anyone knows what sustainable development really means, although we all approve of it in theory. Whatever it means, it certainly encompasses a very broad church of possible activity. To illustrate this point, could I ask my noble friend if integrated river catchment management could be covered by subsection (2)? I believe it could, which would confirm that the clause has very wide implications.

Be that as it may, subsection (3) of Clause 29 is very strong stuff indeed. It says: In performing its functions, SEPA shall have regard to guidance given [by the Secretary of State) under this Section". So we are not dealing with guidance which SEPA may easily ignore or, indeed, ignore at all. The clause as it stands appears to me draconian and does not require the Secretary of State to consult with anyone at all. It is for those reasons that the noble Earl and I, and others, believe that all the consultees should be on the face of the Bill. The Secretary of State would, of course, be free to consult others if he so wished.

The Bill is a longish document, running to some 267 pages at the moment. It would not be made noticeably longer by the addition of the 14 lines required by the amendment. However, it would be much improved. I very much hope that my noble friend can accept the amendment.

10.30 p.m.

The Earl of Lindsay

My Lords, I shall refer first to Amendments Nos. 61 and 74, tabled in the name of the noble Lord, Lord Carmichael of Kelvingrove. I can assure the noble Lord that we want SEPA to protect and, where possible, to enhance the environment. Such an aim is already included in the draft management statement and in the outline of the scope of guidance which we intend to issue under Clause 29. The agency is of course to be called the Scottish Environment Protection Agency. The question, therefore, seems to be whether that aspiration should be enshrined in legislation.

In practice, an aim of this type in a management statement or guidance can sit more comfortably alongside any duties of the agency which could in other circumstances have led to conflict with the aim. However, if that non-statutory aim were to be enshrined in the Bill as a duty, along the lines of Amendment No. 61, there would be no obvious way of establishing a hierarchy of action. Certainly the guidance proposed in Amendment No. 74, might help. But, as guidance, it could not resolve the legal wrangles which a duty of the nature proposed could cause.

The noble Lord stressed that flexibility is one of the underpinning issues that he would be seeking from the agency. By having the objective of SEPA issued in a management statement and guidance, I believe that we shall achieve that flexibility with the other aims that SEPA will be pursuing.

Given the fact that SEPA would already have a more defined focus on the prevention and control of pollution than the Environment Agency for England and Wales, which would have wider functions, the Government are not convinced that it is necessary for SEPA to have a principal aim set out in legislation.

Amendment No. 75, moved by the noble Earl, Lord Kintore, to which my noble friend Lord Pearson of Rannoch spoke and to which he has also attached his name, would set out in detail on the face of the Bill the bodies that my right honourable friend the Secretary of State must consult before issuing guidance to SEPA on its aims and objectives. As regards whether or not it would be appropriate to include such a list of consultees for the guidance on the face of the Bill, I can confirm that the bodies included in the amendment would, in either event, be consulted.

I agree with the principle behind the amendment; namely, that statutory consultation in relation to the guidance should take place with interested parties. The Government will, therefore, bring forward a suitable amendment on Third Reading. I should add that that amendment will also incorporate appropriate provisions for publicity.

I should tell my noble friend Lord Pearson of Rannoch that we shall consider carefully what he said about whether or not such bodies should be on the face of the Bill. He described sustainable development as being a policy area that incorporates a "broad church" of activity. If anything, I suggest that it is because sustainable development covers almost all human activity that we are reluctant actually to start specifying individual interest groups on the face of the Bill for fear of having to run to many pages of legislation to cover all such parties. However, I have given the assurance that those bodies mentioned in the amendment will be consulted in the formulation of Clause 29 guidance.

I hope that I have been able to reassure the noble Lord, Lord Carmichael. I invite him to withdraw his amendments on that basis. I would also ask my noble friend and the noble Earl, Lord Kintore, to withdraw Amendment No. 75 on the basis of the undertaking that I have given about a government amendment on Third Reading.

Lord Carmichael of Kelvingrove

My Lords, that is probably the most generous thing that has happened to me this evening while I have been sitting here for many hours listening to the debates. It would be very wrong of me not to welcome the Minister's concession. However, in his later reply, could the Minister give me a definition of the expression "the hierarchy of action"? I wondered exactly what he meant. I can see it vaguely as meaning that the same thing would come to the top every time. But, if you have basic principles such as those suggested in my amendment, which are so simple, then the prime motive should be fairly clear to most reasonable people. I must admit that I have not heard that phrase before; and, indeed, I am dying to use it at some point. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 6 [The Scottish Environment Protection Agency]:

The Earl of Lindsay moved Amendment No. 62:

Page 136, line 26, leave out from ("appoint") to ("such") in line 27.

On Question, amendment agreed to.

Clause 21 [Transfer of functions to SEPA]:

Lord Carmichael of Kelvingrove moved Amendment No. 63:

Page 21, leave out lines 4 to 6.

The noble Lord said: My Lords, the proposals in the Bill, contrary to seeking to strengthen the organisation of environmental protection in Scotland, merely seek to supplant the operational aspects of pollution control work which should be a matter for locally based personnel, locally accountable and remaining as close as possible to the industries and communities with which, and within which, they operate. District and islands councils in Scotland have been responsible since 1975 for waste regulation in Scotland, first, in terms of the Control of Pollution Act 1974 and, since May 1994, under the Waste Management Licensing Regulations 1994 which brought into force the licensing provisions of Part II of the Environmental Protection Act 1990. The principle of separation of regulation from operation in the area of waste disposal is already achieved through administrative arrangements made by local authorities. I am not aware of hard evidence to support the case for physical separation of these functions.

New powers were given to district and islands councils to implement local authority air pollution control (LAAPC) in terms of Part I of the Environmental Protection Act 1990 over "less polluting processes". These new controls came into effect only in April of 1992 following a very great deal of preparatory work, including the training of enforcement officers. It is scarcely credible that after such a short time the Government should propose to remove these duties from local authorities in Scotland, especially as their English counterparts are, as far as I understand the Bill, to retain the function. Has there been any criticism of Scottish local authorities in their carrying out of local authority air pollution control? It is clearly anomalous that differences should exist in Scotland when the 1990 Act is a Great Britain measure. The logic behind the argument is that there are fewer air emission processes which fall under the scope of the regulations in Scotland than in England and Wales.

I hope that the Minister will be able to shed some light on this matter before I decide whether to withdraw the amendment. Even if I do, I may return to the matter on Third Reading. I beg to move.

The Earl of Lindsay

My Lords, the noble Lord in moving Amendment No. 63 has raised a number of topics. He asked whether there have been any complaints to date about the role of the local authorities in Scotland in controlling air polluting processes. I can confirm that there have been absolutely no complaints whatsoever about the local authority administration of this policy. Indeed, I believe there have been no complaints about any of the constituent ingredients going into SEPA. Generally it is realised that all these functions can be done much better if they are done on an integrated basis by a central agency rather than on a segregated basis across the country.

Further, the noble Lord asked why it was necessary at all to centralise the duty given that the local authorities have only had this duty for a comparatively short time in Scotland. In Scotland there are, I believe, some 1,100 processes throughout the whole country that qualify as LAAPC processes, whereas in England and Wales I believe there are some 12,000 or 14,000. Therefore in Scotland it makes considerable sense to centralise the management of those 1,000 to 1,200 processes with one group of skilled personnel, whereas in England it would be unrealistic to hope to manage all 14,000 processes from one central unit.

I turn now to the rest of the ground that the noble Lord covered. Under the Control of Pollution Act 1974, which the noble Lord mentioned, disposal authorities are responsible for the disposal and regulation of waste. Clause 21(1) (c) therefore seeks to transfer only those functions which cover waste regulation. Waste disposal functions will remain with local authorities.

The functions of disposal authorities under the 1974 Act are being progressively replaced by new provisions in Part II of the Environmental Protection Act 1990. There may therefore be no need to transfer the specified functions of disposal authorities to SEPA because there may be no existing functions to transfer. However, I am sure that the House will agree that it would be better to include this provision than to omit it and be left with a possible legislative gap. I do not believe that it would make much organisational sense to leave local authorities with responsibility for licensing one or two waste sites at the most when the overwhelming number of waste sites would be regulated by SEPA.

I hope that the noble Lord understands the explanation I have given. I invite him to withdraw the amendment.

Lord Carmichael of Kelvingrove

My Lords, I grasped roughly what the Minister meant. He said that there had been no complaints about the present system. I thought that we were in an age when if something is not broken you do not repair it. I read out the number of Acts that have been passed on this subject in the past few years, which is quite horrendous.

I accept the point that because England is so much bigger it would be difficult to handle the matter from the centre. That is a factor which is in the Minister's favour. I shall consider his statement with care. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 22 [Transfer of property, rights and liabilities to SEPA]:

The Earl of Lindsay moved Amendment No. 64:

Page 23, line 20, at end insert ("but only after consultation with SEPA and, in the case of a scheme which was approved by him (with or without modifications), after consultation with the local authority which submitted the scheme to him for approval.").

On Question, amendment agreed to.

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

[Amendments Nos. 65 and 66 not moved.]

Clause 24 [Consultation with respect to drainage works]:

Lord Carmichael of Kelvingrove moved Amendment No. 67:

Page 23, line 38, leave out ("pollution to controlled waters") and insert ("any environmental damage").

The noble Lord said: My Lords, in moving Amendment No. 67 it may be convenient to speak also to Amendment No. 68.

The amendment makes certain changes to the provisions of Clause 24 relating to consultation with respect to drainage works to ensure that those who carry out such works properly inform SEPA regarding the effect of the works and carry out SEPA's recommendations to prevent environmental damage.

The provisions regarding the obligation to consult with SEPA in respect of drainage works require to be strengthened. The clause limits the duty to consult to obtaining views about the precautions which should be taken to prevent pollution to controlled waters. The amendment seeks to extend the advice from SEPA to preventing environmental damage. It would have a duty to ensure that its advice was guided towards protecting against environmental damage. So there is no need for the Secretary of State to make regulations exempting certain drainage works from Clause 24(1). It is inappropriate for the Bill to have a circumvention provision of this nature.

I hope that the Minister will agree that again this is a neater way of dealing with the matter than that suggested in the Bill. I beg to move.

The Earl of Lindsay

My Lords, I understand the sentiment behind the amendment moved by the noble Lord, Lord Carmichael. However, I believe that it would increase SEPA's interest in drainage works considerably beyond its normal span of responsibilities. There is one very clear reason why it would make sense for SEPA to he consulted as to the precautions to prevent pollution resulting from drainage works. If pollution was to result from the carrying on of such works, SEPA might have to prepare a case for the procurator fiscal. The agency would have no corresponding role if the drainage works were alleged to have caused other environmental damage.

Behind this amendment seems to lie the noble Lord's ambition to expand the role of SEPA beyond the clearly focused regulatory body charged with the prevention and control of pollution, which the Government believe to be most appropriate. As we have debated at length in Committee the broad principle of the scope of SEPA's functions, I do not believe that your Lordships would wish me to repeat the arguments again.

Amendment No. 68 requires SEPA's views, or "recommendations" as they are styled, to be followed. This would leave no discretion. SEPA's advice would have to be taken and acted upon in each and every case. Whatever the agency says, the person carrying on the works would have to comply.

This would be an extremely onerous requirement. Even the system of integrated pollution control includes an appeals procedure, which would enable an operator to challenge a decision of the agency. Yet, in relation to these consultation arrangements a person would be obliged to accept SEPA's views lock, stock and barrel.

It is right that SEPA's views should be made available and taken into account, but it is for those carrying out drainage works to accept the final responsibility for their actions. To do otherwise would be to distort the meaning of "consultation" as it applies generally in practice and in statute.

What the noble Lord is suggesting in the second amendment is more akin to a system of consent rather than consultation. No case has been made that this level of regulatory burden, which would unduly interfere with the execution of such works, is justified.

The noble Lord did not feel that there was need for exemptions to be issued by the Secretary of State. However, once again I have to point out, as I believe I did at Committee stage, that some drainage works carried out in Scotland would be of a minor nature, involving maintenance or small repairs to farm field drains, and so forth. It would clearly be sensible for the Secretary of State to consider how best to deploy the resources available to SEPA and therefore to focus those resources on that part of the drainage activity which most required attention.

On that basis, I invite the noble Lord to withdraw the amendment.

Lord Carmichael of Kelvingrove

My Lords, I thank the Minister for the trouble he has taken to explain the Government's view. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 68 not moved.]

10.45 p.m.

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

The Earl of Kintore moved Amendment No. 69:

Page 24, line 2, 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; and
2. (b) it is reasonable in all the circumstances that the land he purchased compulsorily.").

The noble Earl said: My Lords, in moving Amendment No. 69, I speak also to Amendment No. 70.

Clause 25 provides that the Secretary of State may authorise SEPA to purchase land compulsorily. I have no argument with that, but would like to see some mention that the powers will be used only as a very last resort. In his reply to a similar point at Committee stage, the Minister said: 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 such powers".—[Official Report, 26/1/95; col. 1223.]

As the Secretary of State authorises the use of compulsory purchase powers, but must also guard against their abuse, I wonder whether the Secretary of State will have a conflict of interest. This was certainly recognised in the Natural Heritage (Scotland) Act 1991 and a special parliamentary procedure, as in Amendment No. 70, is in place. It is to be hoped that compulsory purchase powers will have to he used only rarely, but when they are, individual landowner's rights must be protected. I beg to move.

Lord Pearson of Rannoch

My Lords, I rise to support the noble Earl, Lord Kintore, who has ably moved Amendment No. 69, and to speak to Amendment No. 70 which requires a compulsory order to be subject to a special parliamentary procedure if the owner of the land in question objects to its compulsory acquisition. At Committee stage, an amendment similar to Amendment No. 69 was moved by my noble friend Lord Balfour and supported by the noble Earl.

I have to say that I agree with the noble Earl that the reply of my noble friend from the Front Bench did not strike me as reassuring. My noble friend suggested that the Secretary of State could be relied on in future to act as a shield against any unreasonable use of the absolute power of compulsory purchase which is now contained in Clause 25.

I have to suggest to my noble friend that that cannot be right. Whatever faith one may be tempted to place in a Conservative Secretary of State—and mine would not be complete because even Conservative Secretaries of State are human and seem to be more and more under the influence of their civil servants—I fear we must face the ghastly prospect that one day, within the lifetime of the Bill when it has become an Act, a Socialist Secretary of State might hold office. I would, of course, agree with my noble friend that such a prospect is not only unpleasant but also remote. Nevertheless, it does exist and the Bill should be amended to cater for the eventuality, however distant.

That is a general and rather obvious reason why the amendment should be included in the Bill. But there are other more specific and perhaps more important reasons. The first is that the amendment mirrors subsection (4) of Section 5 of the Scottish natural heritage Act, which was included in the SNH Bill by your Lordships' House under the far-sighted influence of my noble friend Lord Strathclyde, who piloted that Bill through this House in 1991. All the arguments which applied to SNH and which were accepted by your Lordships and the other place apply to SEPA. Indeed, some of them apply more strongly in SEPA's case than they did for SNH.

SNH has been and is a success. It has done much to promote harmony in Scotland between the various different interests which bear upon the land and which have often been in conflict. It is generally accepted that the root of much of its success lies in the amendments to the SNH Bill which were carried in your Lordships' House, even though some of them were controversial at the time, and in the amendments agreed here by the Government, guided by my noble friend Lord Strathclyde.

One of the most important of your Lordships' amendments was to insert the protection for landowners to be found in Section 5 (4) of the SNH Act, which Amendment No. 70 today imitates. I said that the argument in favour of this amendment is, if anything, stronger in this Bill than it was in the SNH Bill. This is so because, as I think the noble Earl, Lord Kintore, has rightly pointed out, SEPA is to be very much more the creature of the Secretary of State than was or is SNH. As drafted, Clauses 29, 30 and 38 of this Bill ensure that. So SEPA will not be, as originally intended by the Government, an agency at arm's length from government. It will, alas, in most respects be an arm of the Secretary of State.

This state of affairs, which many might regard as unfortunate, means that the protection afforded by this amendment is more needed than it was for SNH. Even a well-intentioned Secretary of State would find himself more in conflict with his duty to safeguard an individual from SEPA (which will be largely his alter ego) than he would have done with SNH as originally designed. For all these reasons, I very much hope that my noble friend can accept the amendment.

The Earl of Lindsay

My Lords, the noble Earl, Lord Kintore, and my noble friend Lord Pearson of Rannoch have both spoken to Amendments Nos. 69 and 70. Amendment No. 69 would prescribe on the face of the Bill the conditions which would have to be met before the use of SEPA's powers to purchase land compulsorily. Amendment No. 70 would mean that the compulsory purchase order would be subject to special parliamentary procedure in the event of any objections to it.

At present, the Secretary of State has powers to authorise river purification boards to purchase land compulsorily under Section 9 of the Rivers (Prevention of Pollution) (Scotland) Act 1951. Local authorities also have similar powers under separate legislation. Clause 25 of the Bill does not therefore introduce anything new; it merely re-enacts this existing power in respect of SEPA and extends it to all the agency's functions. The powers under the 1951 Act have not in fact ever been exercised. I point out to my noble friend that that is despite the passage of many Secretaries of State from both main parties. There is no reason to suggest that the establishment of SEPA will materially alter the need to exercise compulsory purchase powers.

I can assure the House, and my noble friend and the noble Earl in particular, that my right honourable friend the Secretary of State would authorise SEPA to use such powers in relation to specific land required by the agency to discharge its functions effectively only in circumstances where other locations were unsuitable and where it was not possible for a reasonable agreement between SEPA and the landowner to be reached. In other words, I can categorically say to the noble Earl that this compulsory purchase power would be a last-resort option open to the Secretary of State.

The noble Earl also suggested the possibility of a conflict of role for the Secretary of State in discharging this duty. I stress to him and my noble friend that the Secretary of State will be able to prevent misuse by authorising only in reasonable circumstances. Therefore, it is not so much a conflict as a prevention of a misuse of a power.

My noble friend Lord Pearson explained that he based his amendment on the limits imposed on SNH's use of its compulsory purchase powers. Given that the compulsory purchase of land has the potential to be a powerful tool in the hands of a nature conservation body to further its interests, we agreed that it was necessary to limit the exercise of such powers to fairly specific circumstances in the case of SNH. However, the purchase of such land is not a normal means of preventing or controlling pollution, and there is therefore not the same risk of these powers being used by the SEPA as a means to help achieve its objectives.

If my noble friend feels, on reflection, that further discussion is needed, I suggest that this discussion is pursued between now and the next stage of Bill, so that we can try and sort out where we may have ground that is common to us both.

Given those reassurances, I hope that both noble Lords will be able to withdraw their amendment.

The Earl of Kintore

My Lords, I thank the noble Earl for his very full reply, which I should like to read in Hansard. Meanwhile, I beg leave to withdraw Amendment No. 69.

Amendment, by leave, withdrawn.

Lord Pearson of Rannoch had given notice of his intention to move Amendment No. 70:

Page 24, line 7, at end insert: ("(3) Where the Secretary of State or SEPA has prepared a proposal which involves the compulsory acquisition of land, a compulsory purchase order shall be subject to special parliamentary procedure in any case where an objection has been duly made by the owner of the land and has not been withdrawn.").

The noble Lord said: My Lords, I think it is order for me also, as the mover of Amendment No. 70, to thank my noble friend for what he said, and to say that I very much welcome his offer of further discussion on the compulsory purchase powers of the Bill before we reach Third Reading. I would just point out that, although I accept what he said about the pollution control powers of SEPA, I think we need to have further talk in regard to the powers towards the natural heritage which are also bestowed on SEPA. I look forward to those discussions.

[Amendment No. 70 not moved.]

Lord Carmichael of Kelvingrove moved Amendment No. 71:

Page 25, line 9, leave out ("may") and insert ("shall").

The noble Lord said: My Lords, with the leave of the House, in moving this amendment, I shall also speak to Amendments Nos. 72 and 73. These amendments would ensure that SEPA makes its records open to inspection by the public.

As the Bill stands, the use of the words, may afford members of the public … facilities for inspecting … those records", is unsatisfactory. It leaves the decision to the discretion of SEPA.

In addition, the amendment would ensure that merely inspecting records is free, and where charges are made for photocopying, they do not exceed local copying costs. I spoke about this matter in Committee.

There must be this right for the public. You can go to the national archives in Scotland and get almost any other record. You can go to the local library and get details of local council meetings. And of course the press attend most council meetings. You can even attend the committees of local authorities now. This facility will not be abused; there will be only certain matters for which certain people will wish to be there. It is extremely important that these amendments, or others that are in empathy with them, should be accepted. I beg to move.

11 p.m.

The Earl of Lindsay

My Lords, Amendments Nos. 71, 72 and 73 moved by the noble Lord, Lord Carmichael, deal with measures related to public access to information held by SEPA. We covered this subject in some detail in Committee, as the noble Lord said. However, these amendments are specific to SEPA's preserved records—that is to say, those records which in the agency's view are worthy of preservation and are kept and managed accordingly.

Amendment No. 71 would require SEPA to make all of its preserved records available to the public. Amendments Nos. 71 and 72 taken together would mean that inspection of those records would be free of charge, and copies or extracts would be obtainable either free of charge or on the payment of local photocopying rates.

The specific provisions in respect of preserved records are in addition to provisions in the Environmental Information Regulations 1992, which do give the public a right of access to information. SEPA will not therefore have the discretion to withhold information without good cause. Only exemptions permitted by the regulations will be possible.

Preserved records may contain sensitive information, just like any other records. I should not therefore support an absolute requirement to give the public access to all of SEPA's preserved records. Such a requirement may mean that companies would be reluctant to pass commercially confidential information to SEPA because the agency would be obliged to make that information publicly available. That would surely interfere with the efficiency with which SEPA is able to pursue its duties. Moreover, their manner and location of storage may make public access quite tricky. If the inconvenience and staff time involved appears disproportionate to the value of the data on the record, then it is surely right that SEPA should have some discretion.

Amendment No. 72 would use the approach that we have adopted to public registers and apply it to preserved records. However, I believe that there is a clear distinction between a public register, which exists solely as a means of making information about authorisations and consents readily available, and records, which have other justifications.

The clause as drafted in the Bill would enable SEPA to make inspection facilities freely available; but it also gives the agency the flexibility to charge a reasonable amount. Free access to registers is one thing, and it would be appropriate for SEPA to bear the costs involved; but access to preserved records has much wider implications because of the sheer scale of material stored. Against that background, I believe that it is right and proper that SEPA should be able to recover some or all of the expense involved.

I also believe that SEPA should have the scope to recover, through reasonable charges, the costs involved in obtaining copies or extracts of records. I cannot therefore accept Amendment No. 73, which would restrict payments to "local photocopying rates", assuming that such a term can be defined. One of the potential benefits of SEPA is consistency of procedures and I would hope for a standard photocopying charge, not fluctuations depending on which local office is involved. Again, the clause as drafted in the Bill does not require there to be a charge. But if one were to be levied, I think that SEPA should be able to recover some or all of its costs.

The Government recognise the importance of public access to environmental information. The amendments would, however, unduly fetter SEPA's discretion and possibly tie up staff resources, which could be better deployed on tasks more central to pollution control. On that basis, I invite the noble Lord to withdraw his amendments.

Lord Carmichael of Kelvingrove

My Lords, I understand the point made by the Minister about the records and competition and the disadvantage that could be incurred by people doing specific work of whatever nature for the agency. But I find it difficult to believe that there is any great loss in payment at local photocopying rates, when one considers that practically every new post office in the country has a little machine in the corner from which for two or three shillings (in old money) a member of staff could obtain copies. Also, most libraries have a machine that will make copies. It makes one wonder whether there is any eagerness to let the public know what is happening.

The Earl of Lindsay

Perhaps I may point out that this point was touched on earlier at Committee stage. The photocopying machine in the corner of a post office or library which charges a certain number of pence per copy is a machine to which you take the information that you have brought to the premises, photocopy it yourself and again leave the premises. With SEPA you may go in and request information which may not even be stored in that building and which has to be retrieved from another building, and so on. There is a worry that a disproportionate amount of SEPA's resources may be deployed in simply retrieving pieces of paper from other buildings at too low a cost in these circumstances.

Lord Carmichael of Kelvingrove

My Lords, the speech of the Minister cleared up some points. I have no objection to such a situation in that there are bound to be delays and so forth, as there are with wills and things like that. But after a certain time a will can be obtained merely by going to the appropriate office in Edinburgh. We are not suggesting that a person should be able to go to a village in Scotland and demand that somebody be sent to obtain a record. The individual involved must obtain it.

I have a feeling that we are not going to get a great deal further with this matter tonight. We have raised the point and I hope that at some future date we shall be able to look at it again—perhaps not in this Bill but in some other Bill. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments No 72 to 74 not moved.]

The Earl of Kintore had given notice of his intention to move Amendment No. 75:

Page 25, line 29, 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;
9. (i) such bodies, representing the owners and occupiers of land, and industry in Scotland, as the Secretary of State considers it appropriate to consult; and
10. (j) such other persons as he considers it appropriate to consult.").

The noble Earl said: My Lords, I thank the Minister for his comments and look forward to the Government's amendment at Third Reading. In the meantime, I shall not move the amendment.

[Amendment No. 75 not moved.]

Clause 30 [General environmental and recreational duties]:

[Amendments Nos. 76 and 77 not moved.]

Viscount Ullswater moved Amendment No. 78:

Page 25, line 36, after ("architectural") insert (", engineering").

The noble Viscount said: My Lords, I spoke to this amendment with Amendment No. 43. I beg to move.

On Question, amendment agreed to.

The Earl of Kintore moved Amendment No. 79:

Page 25, line 40, at end insert "and—

1. (d) to have regard to the needs of agriculture, fisheries and forestry;
2. (e) to have regard to the need for social and economic development in Scotland or any part of Scotland; and
3. (f) to have regard to the interest of owners and occupiers of land and of local communities.").

The noble Earl said: My Lords, I can be brief in speaking to this amendment following the acceptance of the amendment of the noble Lord, Lord Wade of Chorlton. I hope the Secretary of State for Scotland will be able to consider the Scottish aspect in Amendment No. 79 before Third Reading. I beg to move.

Lord Pearson of Rannoch

My Lords, in supporting Amendment No. 79 I shall recall what I said in relation to the amendment of my noble friend Lord Wade.

I begin by reminding your Lordships of the passage of the Natural Heritage (Scotland) Bill through your Lordships' House. Clause 3 of the SNH Act includes the words, it shall be the duty of SNH in exercising its functions to take such account as may be appropriate in the circumstances of". It then goes on to identify various categories which SNH is obliged to consider, including, (b) the needs of agriculture, fisheries and forestry; … (e) the interests of owners and occupiers of land; and (f) the interests of local communities". I think I am right in saying that all those categories were inserted into the SNH Bill either by Divisions in your Lordships' House or by agreement with my noble friend Lord Strathclyde, who was in charge of the Bill. Here again, exactly the same arguments apply to our consideration of SEPA's duties (especially when they are physically linked with those of the Secretary of State as they are in the first line of Clause 30) as applied to our consideration of SNH's duties in 1991, which then led us to make the changes in that Bill to which I referred.

In those circumstances I hope that my noble friend will feel able to consult with those of us who are interested in the clause before he brings forward amendments similar to the ones made to Clause 7 earlier this evening.

The Earl of Lindsay

My Lords, Amendment No. 79, moved by the noble Earl, Lord Kintore, and spoken to by my noble friend Lord Pearson of Rannoch, would place balancing duties on the Secretary of State and SEPA in relation to agriculture, fisheries and forestry, social and economic development and the interests of owners and occupiers of land and of local communities.

I envisage that the matters addressed by this amendment will be covered by the guidance we will issue under Clause 29. Nevertheless, I shall consider further whether additional balancing duties should be written on the face of the Bill. The Government will bring forward their own amendment at Third Reading. In framing our amendment, we shall certainly wish to take the noble Earl's amendment into account during our deliberations, and indeed everything that has been said tonight. We shall also want to look at any implications for Scotland resulting from the amendment moved by my noble friend Lord Wade to Clause 7 in relation to the environment agency for England and Wales. On that basis, I invite the noble Earl to withdraw his amendment.

The Earl of Kintore

My Lords, I thank the noble Earl for his reply. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 80 not moved.]

Viscount Ullswater moved Amendment No. 81:

Page 26, line 3, after ("architectural") insert (", engineering").

The noble Viscount said: My Lords, I spoke to this amendment with Amendment No. 43. I beg to move.

On Question, amendment agreed to.

[Amendment No. 82 not moved.]

Clause 32 [General duties with respect to water]:

[Amendments Nos. 83 to 85 not moved.]

[Amendment No. 86 not moved.]

Clause 35 [Incidental general functions]:

Viscount Ullswater moved Amendment No. 87:

Page 29, line 21, after ("property") insert ("and").

The noble Viscount said: My Lords, this amendment is grouped with Amendments Nos. 88 and 89. I shall speak to all three amendments. Amendment No. 88, in the name of the noble Lord, Lord Coleraine, seeks to delete the power under Clause 35(1) (b) for the environment agency to institute criminal proceedings. I would stress that the NRA already has this power under Section 4(1) (b). The NRA has made good use of this power. In the circumstances, I am not persuaded that the agency should be denied the power which the NRA now has and has needed to use in order to carry out its functions. I am sure that my noble friend will want to speak to the amendment but I have indicated that I believe that the power is required. Indeed, in Committee I undertook to consider an amendment from my noble friend Lord Crickhowell about the agency's ability to institute civil proceedings also. I am giving careful consideration to what might need to be done in this respect. However, I wish to clarify the position which we have been discussing about the environment agency's powers under Clause 35(1) to institute criminal proceedings. Amendments Nos. 87 and 89 are minor and technical government amendments which make it clear that the environment agency and not SEPA has the power to bring criminal proceedings and that it may do so only in respect of England and Wales. I beg to move.

Lord Coleraine

My Lords, I wish to speak to Amendments Nos. 87, 88 and 89. I assure my noble friend on the Front Bench that it is not the intention of Amendment No. 88 to delete the power of any agency to institute criminal proceedings. The intention is to make it quite clear by the deletion of this line that the power extends to both criminal and civil proceedings. I rely for this on the contention that under subsection (1) (a) the powers granted are sufficient to cover both civil and criminal proceedings and that the reference to criminal proceedings is not necessary in subsection (1) (b).

I go back to the discussions in Committee on 31st January (at cols. 1343 and 1344 of the Official Report) when my noble friend Lord Mills sought to introduce a specific reference to civil proceedings. On that occasion my noble friend assured him that subsection (1) (a) was sufficient to cover the civil proceedings.

I would use the same argument in relation to criminal proceedings. I go a stage further and say that I do not believe that my noble friend's answer in Committee was completely correct. Certainly, there is bound to be doubt that civil proceedings are included in the wording at present in line 23. Although it appears to be covered as an example of a general list of things which the agencies can do, nevertheless there is another principle that the reference to one matter may be thought to exclude the other. Therefore, there would be a very considerable body of opinion which would say that when criminal proceedings are referred to it is automatically suggested that civil proceedings are not included.

Having dealt with my own Amendment No. 88, as regards the way in which the Bill stands at the moment, I should look at the two amendments in the name of my noble friend. He said that they are simple drafting amendments. I agree that the drafting of line 23 may be defective. I do not believe that it would be improved all that much by Amendment No. 89 to add as a limp tail to a list of things which each new agency may do the bald rider that the English and Welsh agency may, institute proceedings in England and Wales". In my opinion, that flies in the face of good and clear drafting. It is both confusing to the reader and leaves at large and in limbo the question of what proceedings may be instituted by the Scottish agency. I have some considerable doubt as to when and where the English and Welsh agency may institute civil proceedings.

At this late hour, I suggest that my noble friend might take this matter away. The point which my noble friend wishes to make can best be dealt with and best made with a different amendment altogether delegating to the generality of subsection (1) (a), and that the Bill would be improved by the acceptance of my Amendment No. 88 to which Amendment No. 87 is a most welcome paving amendment.

Viscount Ullswater

My Lords, in speaking to the previous amendment, I addressed this amendment. I believe that we tabled these amendments to make certain that there was no doubt remaining on the face of the Bill. I said as regards the previous amendment that I needed to look to see whether the agency's ability to institute civil proceedings was there. My noble friend Lord Crickhowell was concerned about that. I have given careful consideration to what might be done in that respect. I believe that the Government amendments are the correct ones in the correct place in order to clear up doubts.

Lord Crickhowell

My Lords, I am not sure whether I am entitled to rise after the Minister. It is clear that I am not.

On Question, amendment agreed to.

[Amendment No. 88 not moved.]

Viscount Ullswater moved Amendment No. 89:

Page 29, leave out line 23 and insert: ("and the Agency may institute criminal proceedings in England and Wales.").

On Question, amendment agreed to.

Lord Williams of Elvel moved Amendment No. 90:

Page 29, line 25, at end insert: ("( ) Each new Agency shall work with such industry bodies as it considers appropriate to promote in the United Kingdom—

1. (a) research into clean technology; and
2. (b) monitoring of the use of clean technology.").

The noble Lord said: My Lords, in moving this amendment, it may be for the convenience of the House if I also speak to Amendment No. 91. We had a short debate in Committee on these two matters. I thought it worthwhile raising them again at Report stage in the hope that we might get something more encouraging from the Government than we had in Committee. It seems to us that both agencies should encourage research into clean technology and monitor its use. This is a very simple proposition. As we have argued from Second Reading onwards, the agencies are not simply a joining together of three bodies, as some have tried to pretend. Their remit is much wider than that and, in our view, part of that remit should be the subjects mentioned in Amendment No. 90.

As regards Amendment No. 91, it is again a question of promoting the proper reporting by private companies, government departments and other bodies of the effects on the environment of their activities. As I said in Committee, the CBI and local authorities have gone quite some way in that regard. It is a matter of general interest and I very much hope that the Government will accept that it is a proper function of the agency to engage in such promotion. As I have said, I am waiting for words of encouragement from the Minister so I shall not take up any more of your Lordships' time. I beg to move.

Viscount Ullswater

My Lords, as the noble Lord, Lord Williams, said, he has returned to these two subjects which he raised during the Committee stage of the Bill, and I hope that this time I can satisfy him as to why I do not think that his amendments are necessary.

Amendment No. 90 seeks to place a duty on the agency to promote research into clean technology, and also to promote monitoring of its use. The agency is already required under Clause 5(4) to follow developments in technology and techniques for preventing or minimising or remedying or mitigating the effects of pollution on the environment. Clause 35(5) (a) places a duty on each new agency to make arrangements for the carrying out of research and related activities, whether by itself or others, in respect of matters to which its functions relate. Where clean technology can make a contribution to controlling or preventing environmental pollution, the agency already has clear duties. Similarly, Clause 5(2) requires the agency to compile information relating to pollution of the environment, whether obtained through its own monitoring or other activities, or from other sources, for the purposes of facilitating the carrying out of its pollution control functions or enabling it to form an opinion of the general state of environmental pollution.

In addition, in exercising its IPC functions, each agency must encourage the use of the best available techniques not entailing excessive costs (BATNEEC), and the concept of the best practicable environmental option underlies many of the agencies' functions. BATNEEC in itself encourages innovation, and this seems the appropriate way for regulatory bodies such as the agencies to encourage clean technology.

Amendment No. 91 seeks to place a duty on each new agency to promote the proper reporting by private companies, government departments, local authorities and other appropriate public bodies of the environmental effects of their activities. I would not wish to disagree that such reporting on environmental performance is something we would wish to encourage; we would also wish to see the development of business-led good practice in environmental reporting, and similar initiatives throughout the public sector. But I am not persuaded that that is a role for the agencies.

Of course it is right that, in seeking authorisations for potentially polluting processes, companies should assess and provide information on environmental impacts. That is why the Environmental Protection Act 1990 already provides for this. Similarly, the agencies will deal with local authorities at a local and practical level in the context of carrying out their pollution control and water management functions. I do not think that promoting environmental reporting to local government fits in naturally with this, or that it is something the agencies should logically do. Government departments are required to carry out environmental assessments of key new policies, and to make an environmental statement in their annual departmental reports or equivalent documents. And while we would indeed wish to encourage other public bodies to set out details of their environmental performance, I do not think it is for the agency to decide which of those bodies should be encouraged to do so. With that explanation, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Williams of Elvel

My Lords, I am grateful to the noble Viscount. I am reasonably satisfied with his reply to Amendment No. 90 although I shall have to read what he said in the light of his reference to provisions in the Bill. However, I am not satisfied with his reply to Amendment No. 91. I believe that it is a proper function for the agency to do what the amendment asks. Again, that is a difference between us about the agency's role and how wide it should be. We believe that it should be wider than the Government at present intend. However, at this time of night and at this stage of the Bill I am not prepared to press the matter, but I give notice to the Government that this will certainly be taken up when the Bill goes to another place. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 91 not moved.]

Lord Lucas of Chilworth moved Amendment No.92:

Page 29, line 43, leave out ("appropriate") and insert ("reasonable").

The noble Lord said: My Lords, in moving Amendment No. 92 I wish at the outset to thank the Minister for a very useful exchange of letters. I also thank his officials for some very useful consultations over this and other matters to which I shall return, probably next week. Your Lordships may feel that this amendment is only a matter of perception. However, I draw attention to what the Minister said in Committee when he set out the two categories of information that might be made available by the agency. The first is that obtained through pure research. The other, which is of more concern to me, is environmental information which the agency obtains through its statutory duties. The agency is under a duty to make that information available at reasonable charge, according to the environmental information regulations.

In the Minister's own words, there is doubt whether it is right to use the word "reasonable" or the word "appropriate". He says in his letter that the only doubt is whether the use of "reasonable" in the Bill will have unintended effects. I ask my noble friend why that doubt should arise when it has been used previously in primary legislation, notably in Section 52 of the Environmental Protection Act 1990 and the Control of Pollution Act 1974, although I accept that those provisions have now been superseded.

Perhaps I may say a little mischievously en passant that in Amendment No. 161 in the name of my noble friend Lord Ullswater the relevant wording is to secure that the registers maintained by them under this section are available, at all reasonable times, for inspection by the public free of charge… If it can be used effectively in the 1974 and 1990 Acts and in Amendment No. 161 in this Bill, why cannot it be used in the instance to which Amendment No. 92 refers? I beg to move.

Lord Elis-Thomas

My Lords, I speak briefly to Amendment No. 93 which is grouped with the one moved by the noble Lord, Lord Lucas of Chilworth. The purpose of Amendment No.93 is to ensure that the agency's power to charge such fee as it considers appropriate for research and related matters is subject to a reasonable cost.

Clause 35(5) (b) attempts to give the agency power to charge whatever sum it considers appropriate for the results of research and related activities. The advice that I have been given by EarthRights—the law and resources centre—is that Article 5 of Directive 90/313/EEC provides that any charge for the provision of the agency's environmental information may not exceed a reasonable cost. Therefore, EarthRights argue that the clause as it stands may be unlawful. The results of research and related activities carried out by the environmental agencies will virtually always constitute environmental information within the terms of the European directive. So, if the agencies' power to charge for the supply of that information where it was in the form of "research or related activities" was "such as it considers appropriate", there is a danger that the directive's requirement of "reasonable cost" would be evaded. I do not expect the Minister to comment on this in great detail at this time of night, but I request that he consider the matter further during the Bill's passage.

Viscount Ullswater

My Lords, Amendment No. 92 would amend Clause 35(5) (b) to enable the agencies to charge a "reasonable" fee for research and related activities, instead of an "appropriate" charge, as currently provided.

I have some sympathy with my noble friend's wish to ensure that the charges which the agency makes for its research are reasonable. That is indeed the Government's intention, and I have considered the matter further since my noble friend raised the issue in Committee. However, I am advised by my lawyers that "appropriate" is the correct adjective to use in order to achieve that objective. It provides a wide discretion, from no charge at all—as is expressly provided by Clause 35(6)—to the market price. But while the agencies will have that discretion, they will also be fettered by the requirement that the charge is "appropriate". So, where it is appropriate to make research available free of charge the agencies can do so. On the other hand, where the market price is appropriate—as, for instance, in the development of a new piece of monitoring equipment—then the agencies may charge at that level. However, the agencies must not charge unreasonably. If they did so, they could be subject to judicial review.

My noble friend referred to other legislation where the term "reasonable" is used. I do not want to get into a long debate about the merits of existing legislation. I merely point out to him that Section 52 of the Environmental Protection Act, which is the section he quoted, concerns charges which may be levied by waste disposal and collection authorities on one another. It is right to use the word "reasonable" when determining statutory fees and charges, but what we are referring to in Clause 35 is payment for research and related activities. That needs to cover a range of charges, depending upon what is appropriate. All public bodies must act reasonably, and that applies to the agency in charging for research.

I hope I have convinced my noble friend that we have the right formulation for this provision, and that there is no intention of allowing the agency to make unreasonable charges for research and related activities.

Amendment No. 93, spoken to by the noble Lord, Lord Elis-Thomas, would further amend Clause 35(5) (b) to make payment of charges subject to Article 5 of Directive 90/313 on the freedom of access to information on the environment, which says that charges must not exceed a reasonable cost. That directive has been transposed into law here by the Environmental Information Regulations 1992. Those regulations (Regulation 3(4) (a)) include provisions for the imposition of a charge on any person in respect of costs reasonably attributable to the supply of environmental information.

Since those regulations will apply directly to the supply of any environmental information by the agency, they already lead to the result that the noble Lord's amendment seeks to achieve. If any agency attempted to charge a fee for environmental information, and that fee exceeded what was permitted by Article 5 of the directive, it could be subject to judicial review. So I hope that with those words I have managed to persuade the noble Lord that his amendment is not required.

Baroness Hamwee

My Lords, before the Minister sits down, he said, in connection with the term "appropriate" in Clause 35(5) (b), that a fee that was not appropriate could be challenged by way of judicial review. Will he confirm that with the fee being described as such as the agency considers appropriate, as distinct from such fee as is appropriate, the same degree of objectivity applies? In other words, will he confirm that the agency's discretion does not reduce the objectivity of the appropriateness of the fee, if I may put it in that way?

Viscount Ullswater

My Lords, I believe that under Clause 35(5) (b) the agency is in charge of: such fee as it considers appropriate", so it is a responsibility of the agency. I believe that that is where the responsibility should lie, and so it should be subject to judicial review if the consideration is that the fee is inappropriate.

Lord Lucas of Chilworth

My Lords, I thank my noble friend for his response, which I have to say was somewhat disappointing. He did not comment—I do not know whether he will—on the use of the word "reasonable" in Clause 54. It always amuses me that one calls in aid the lawyer's opinion; and we all know that one lawyer will give you one opinion while another will give you a different opinion. In the instance which I am discussing with your Lordships this evening, I cannot help thinking that there is a certain obstinacy in not acceding to my request. However, I do not believe that I can take the matter much further this evening. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 93 not moved.]

The Deputy Speaker (Lord Airedale)

My Lords, in calling Amendment No. 94, I have to point out to the House that, if it were to be agreed to, I could not call Amendments Nos. 95, 96 or 97.

Clause 37 [General duty of the new Agencies to have regard to costs and benefits in exercising powers]:

Baroness Hamwee moved Amendment No. 94:

Page 31, line 28, leave out subsection (1) and insert: ("( ) The Ministers shall from time to time give guidance to each new Agency with respect to the new Agency's assessment, or otherwise, of the financial and environmental costs which are likely to be incurred and the financial and environmental benefits which are likely to accrue, in consequence of the exercise or non-exercise, or manner of the exercise, of a power of a new Agency.").

The noble Baroness said: My Lords, I believe that that proposal might be a relief at this time of night. However, I shall speak briefly to Amendment No. 94, which is grouped with Amendments Nos. 97, 98 and 102. Amendment No. 98 is also tabled in my name and is consequential.

I accept that the Government have moved considerably with their new definition, but I remain troubled by the provision in the Bill for assessing costs and benefits. It has been described as a "novel duty", which positively invites challenges by way of judicial review. Be that as it may—and I do not suggest that that is in any way an unimportant observation—I commented at the last stage of the Bill that, as technology was moving so fast in the environmental area and public assessment of the issues was also moving fast, certain factors were going somewhat against some of my other arguments on earlier clauses.

I wonder whether the issue of costs and benefits would not more appropriately be dealt with in guidance rather than in primary legislation. I suggest that because guidance could more easily be altered to reflect the changes which, as I say, may be both at the technological level and at the level of public awareness and public opinion. I beg to move.

Viscount Ullswater

My Lords, Amendments Nos. 97, 98 and 102 are grouped with the amendment now under consideration. Therefore, I am rather surprised that my noble friend Lord Marlesford did not address the matter when he had the opportunity. With one exception, this group of amendments seeks to amend the way in which the new agencies should take account of costs and benefits. The exception is that my noble friend wishes to remove Clause 37 from the Bill.

We have already discussed at length and agreed in Committee that Clause 37 should stand part of the Bill. I undertook then to consider the one outstanding point about the extent to which costs other than purely financial costs could be included. I have spoken to amendments this afternoon, which I intend to move shortly, which clarify the meaning of the term "costs" in Clause 37, to which the noble Baroness, Lady Hamwee, drew attention. They ensure that environmental costs as well as financial and other costs are to be included in the agencies' assessment of likely costs and benefits. I therefore believe that Clause 37, amended in this way, should be included in the Bill. I believe that Clause 37, amended in the way I have explained, is the right approach to this subject.

Amendments Nos. 94 and 98 seek to replace subsection (1), which requires each new agency to take account of costs and benefits, with a new subsection which would require Ministers to give the agency guidance on costs and benefits. We have already said that we will give guidance on the taking into account of costs and benefits as part of the guidance on the contribution the agencies are to make to sustainable development. But we do not believe that the agencies' taking account of costs and benefits should simply be a matter for guidance; it is fundamental to the responsible operation of the agencies. I think that the amended version of this clause is what is required and sets out clearly what the agencies need to do. I therefore ask the noble Baroness to withdraw the amendment.

Lord Marlesford

My Lords, before the noble Viscount sits down, I had hoped—as it states at the top of the groupings list that one can speak to any amendment in its place in the Marshalled List—to speak separately to Amendment No. 102, as it is a "stand part" amendment. Is that in order?

Viscount Ullswater

My Lords, the grouping is for the convenience of the House, but as the groupings list makes clear, a noble Lord may speak to his amendment when it appears in the Marshalled List.

Baroness Hamwee

My Lords, I thank the Minister for his comments. My view remains that, particularly as the draft guidance alludes to the issue of costs in connection with the references to sustainable development, perhaps it would be better for the whole issue to be dealt with by way of guidance. But in view of the hour I do not seek to press the point. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Coleraine moved Amendment No. 95:

Page 31, line 28, after ("Agency") insert ("and any local authority to the extent specified in subsection (3) below").

The noble Lord said: My Lords, I rise briefly, and with some diffidence in view of the cross currents of the past few minutes, to move Amendment No. 95 and to speak also to Amendments Nos. 99 and 101 in my name. It seems anomalous that the agencies should be under the costs and benefits duty but local authorities exercising similar statutory functions are not subject to those duties. This amendment, or Amendment No. 101, would extend Clause 37 to apply to the powers of local authorities in relation to local authority air pollution control, statutory nuisance and contaminated land. I beg to move.

Viscount Ullswater

My Lords, Amendments Nos. 95, 99, and 101 spoken to by my noble friend Lord Coleraine, seek to apply to local authorities exercising powers with respect to local authority air pollution control (LAAPC), contaminated land and statutory nuisance, the duty to have regard to costs and benefits under Clause 37. I can, of course, understand the concern behind my noble friend's amendments, but I do not think that they are necessary or appropriate in this case. The agencies have a wide and complex range of functions; in addition to their core functions in respect of the control of wastes and industrial pollution, and water regulation, they will need to carry out research, make reports and, in fact, under Clause 35, will have powers to do anything which is calculated to facilitate, or is conducive or incidental to, the carrying out of their functions. The powers of local authorities which are caught by my noble friend's amendments have none of this breadth and complexity, but the statutes under which they operate address the issue in other ways.

In the case of statutory nuisance, local authorities are already required to use the best practicable means to deal with the nuisance. The definition of this under Section 79(9) of the Environmental Protection Act 1990 makes specific reference to the need for financial implications to be taken into account with other factors.

For local authority air pollution control under Part I of the 1990 Act, local authorities are required to use the best available techniques not entailing excessive costs (BATNEEC). My right honourable friend the Secretary of State issues comprehensive statutory guidance for local authorities on what constitutes BATNEEC for each category of industry. This is issued only after close consultation with the representatives of the industries concerned. In respect of contaminated land, the Bill already provides for the consideration of costs and benefits by enforcing authorities, which may be the agencies or local authorities. The new Section 78D(2) provides that enforcing authorities should have regard to costs and the seriousness of the harm or pollution of controlled waters in question when specifying what is to be required by way of remediation on any site.

I am not, therefore, persuaded that it is necessary for local authorities to have the further and additional proposed duty to have regard to costs and benefits. Costs and benefits are already taken into account by other means appropriate to these functions. I therefore ask my noble friend to withdraw his amendments.

Lord Coleraine

My Lords, at this hour I shall merely thank my noble friend for the comprehensiveness of his reply and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

11.45 p.m.

Viscount Ullswater moved Amendment No. 96:

Page 31, line 34, leave out from first ("the") to first ("of") in line 35 and insert ("likely costs and benefits").

The noble Viscount said: My Lords, I have already spoken to the amendment. I beg to move.

On Question, amendment agreed to.

[Amendments Nos. 97 to 99 not moved.]

Viscount Ullswater moved Amendment No. 100:

Page 31, line 39, leave out ("or meet any aims or") and insert ("any").

The noble Viscount said: My Lords, I have already spoken to the amendment. I beg to move.

On Question, amendment agreed to.

[Amendment No. 101 not moved.]

Lord Marlesford moved Amendment No. 102:

Leave out Clause 37.

The noble Lord said: My Lords, I am grateful for the opportunity to speak to this amendment separately because I believe that the proposal to omit Clause 37 is a separate proposal although we have debated some aspects of that clause.

I have two reasons for believing that the clause is unnecessary. First, the new Clause 4, which the House has already agreed and which was welcomed, makes Clause 37 that much less necessary as it provides for a principal aim of the agency to be to take into account any likely costs. In addition to our discussions in Committee, that makes it less necessary for costs and benefits to be taken into account in a separate clause.

I also suggest that there is still a real danger of vexatious litigation, with requirements for judicial review, arising from decisions taken in the context of the provisions of Clause 37. I sent my noble friend a copy of the legal advice from the CPRE's honorary standing counsel, Mr. Jeremy Sullivan QC, who made it clear that in his opinion there was a real danger that the effect of this clause would be such vexatious litigation.

I therefore ask my noble friend to consider seriously whether it is necessary to include Clause 37 in the Bill. Perhaps he would like to give his view on that question.

Lord Williams of Elvel

My Lords, that seems to be a fair question, particularly in view of Amendment No. 124 which the noble Viscount will move and which includes "costs to the environment" in "costs". If anyone can calculate what environmental benefits are, I can guarantee that they will not be able to calculate environmental costs. Therefore, the whole of Clause 37 relating to cost benefit analysis, given that costs now include environmental costs, seems to be a nonsense.

Viscount Ullswater

My Lords, as I indicated, we have discussed this at length in Committee. I have no reason to believe that a requirement to take account of cost benefits is over-restrictive or bureaucratic. It does not override the agency's other duties and obligations. It applies to those areas of the agency's work where it has a discretion and ensures that the agency cannot incur or cause others to incur costs unjustified by the environmental benefits. It does not bite where it would be unreasonable—for example, in cases of emergency where the agency must be able to act immediately.

The proposal that the environment agency should have regard to compliance costs for industry when setting environmental standards was included in the consultation paper on the agency which was issued in 1991. It simply enshrines existing good practice in the legislation.

At Committee stage we had quite a long discussion on the concept of cost benefit analysis. I remember that the noble Lord, Lord Chorley, indicated that it was one which industry was quite prepared to undertake. I believe that to be the case. That is the reason why I believe that Clause 37 should stand part of the Bill. I hope that my noble friend will withdraw the amendment.

Lord Marlesford

My Lords, I am not convinced by what my noble friend says. Obviously we can take the matter no further tonight. It will be interesting to see whether further consideration of the Bill results in Clause 37 becoming part of the Act. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 38 [Ministerial directions to the new Agencies]:

[Amendment No. 103 not moved.]

Clause 39 [Power to make schemes imposing charges]:

Viscount Ullswater moved Amendment Nos 104 to 110:

Page 33, leave out line 14.

Page 33, line 15, at end insert (", or any application for, or for a variation of, such a licence").

Page 33, line 18, at end insert (", or any application for such a transfer").

Page 33, line 19, after ("licence") insert (", or any application for such a renewal").

Page 33, line 19, leave out ("or").

Page 33, line 20, leave out (", or") and insert ("(where permitted) of an environmental licence, or any application for such a surrender; or (g)").

Page 34, line 2, after ("procedure,") insert ("suspend or").

The noble Viscount said: My Lords, in moving Amendments Nos. 104 to 110, I speak also to Amendments Nos. 112 to 123 and 289. While I accept that this is a large group of government amendments, they are minor and technical amendments which deal with only three subjects.

First, Amendments Nos. 104 to 110 arise from my promise during Committee stage to consider points raised by my noble friend Lord Lucas in connection with the current charging schemes for waste management licensing. These amendments aim to clarify that charging schemes may cover all necessary activities in relation to the granting of environmental licences.

Secondly, the effect of Amendments Nos. 112 to 123 to Clauses 45 and 46 is to enable each new agency to borrow from the National Loans Fund as well as borrowing money voted by Parliament from Ministers.

Finally, I undertook at Committee stage to look again at the important issue raised by the amendment in the name of my noble friend Lord Mills to Clause 52 regarding transitional provisions for charging schemes. Having considered the need for such a provision, I am now bringing forward Amendment No. 289 which includes in Schedule 19 transitional arrangements for charging schemes. I beg to move.

On Question, amendments agreed to.

Lord Lucas of Chilworth moved Amendment No. 111:

Page 34, line 21, at end insert: ("( ) A new Agency must provide each applicant for, and holder of, an environmental licence with a copy of any charging scheme made by it, which is for the time being in force and which is likely to affect the applicant or holder.").

The noble Lord said: My Lords, I beg to move Amendment No. 111 which goes back to the question that we discussed at Committee stage with respect to licence holders being advised of their responsibilities regarding charging. I have again to thank my noble friend for his letter of last evening in which he deals at some length with the matter of subsistence payments. That is quite clear to me.

However, I have to ask him this question. The Bill currently provides for the agency to take such steps as it considers appropriate for bringing the provisions of the scheme—that is, the charging scheme—to the attention of those it affects. I am not terribly happy about that. I should like to see licence holders receive details of the charging scheme. I do not refer necessarily to the amounts because I understand that they are subject to variation year on year. But the licence holder should know the obligations to which he is subject in relation to charges and the penalties that would accrue were those charges not met.

In relation to revocation of licences following non-payment of the subsistence charge, the Minister states in his letter of 1st March 1995: in accordance with the appropriate procedure. That procedure must be specified in regulations". He goes on to suggest that the Government would wish to consult on the regulations. I do not believe it is necessary to put into the Bill that the licence holder or potential licence holder should have a preview of the arrangements, but it is necessary to ensure that he has the ability to preview.

In an earlier letter of, I believe, 23rd February, the Minister offered to consider whether there was any guidance which the Department of the Environment could give the agency on the matter. The purpose in putting down the amendment, and speaking even at this late hour to the last amendment of the day, is to inquire whether the Minister has given further and direct consideration to the matter and will bring forward a government amendment to meet my anxiety. I beg to move.

Viscount Ullswater

My Lords, Clause 40(6) requires the agency to take such steps as it considers appropriate for bringing the provisions of any charging scheme to the attention of persons likely to be affected by them. This will require the agency to notify licence holders of all charges that are payable. Indeed, the charge for licence applications, transfers and surrenders must accompany the licence application. We envisage that it would be good practice for the agency, at the same time as informing licence holders of the level of charge, also to inform them of the penalties for non-payment. We do not consider, given all the safeguards that are already contained in the legislation, that it is necessary to include further statutory provisions to this effect. I hope that that satisfies my noble friend and that he will be able to withdraw the amendment.

Lord Lucas of Chilworth

My Lords, it does not quite satisfy me. Has my noble friend given further consideration to the point raised in his letter when he said that he would consider whether guidance should be given to the agency? I should be grateful if he could answer that, then I should know how far to take it.

Viscount Ullswater

My Lords, if I said in my letter that I would consider it, I shall do so.

Lord Lucas of Chilworth

My Lords, I am grateful for that, but I had hoped that between the end of the previous stage and now we would have progressed further along those lines. I shall have to press my noble friend in other quarters on the subject, perhaps on another day. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 45 [Borrowing powers]:

Viscount Ullswater moved Amendments Nos. 112 to 117:

Page 38, line 9, leave out ("the") and insert ("each new").

Page 38, line 10, leave out ("Secretary of State or the") and insert ("appropriate").

Page 38, line 13, after ("the") insert ("appropriate").

Page 38, line 15, leave out subsection (3) and insert: ("(3) Subject to subsection (6) below, each new Agency may borrow from the appropriate Minister, by way of temporary loan or otherwise, such sums in sterling as it may require for meeting its obligations and carrying out its functions.").

Page 38, line 19, leave out subsection (4).

Page 38, line 24, leave out ("or (4) (a)").

The noble Viscount said: My Lords, I spoke to these amendments with Amendment No. 104. I beg to move them en bloc.

On Question, amendments agreed to.

Clause 46 [Government loans to the Agency]:

Viscount Ullswater moved Amendments Nos. 118 to 123:

Page 38, line 36, leave out ("Each of the Ministers") and insert ("The appropriate Minister").

Page 38, line 37, leave out ("the") and insert ("a new").

Page 38, line 39, after ("the") insert ("appropriate").

Page 39, line 1, leave out ("either of the") and insert ("any of the appropriate").

Page 39, line 1, leave out second ("the") and insert ("a new").

Page 39, line 11, at end insert: ("(5) The Treasury may issue to any of the appropriate Ministers—

1. (a) out of the National Loans Fund, or
2. (b) out of money provided by Parliament,

such sums as are necessary to enable him to make loans to a new Agency under this section; and any sums received by a Minister of the Crown in pursuance of subsection (2) above shall be paid into the National Loans Fund or, as the case may be, the Consolidated Fund.").

The noble Viscount said: My Lords, these amendments were also spoken to with Amendment No. 104. I beg to move.

On Question, amendments agreed to.

Clause 53 [Interpretations of Part I]:

Viscount Ullswater moved Amendment No. 124:

Page 43, line 7, at end insert: (""costs" includes—

1. (a) costs to any person; and
2. (b) costs to the environment;").

The noble Viscount said: My Lords, this amendment was also spoken to with Amendment No. 28. I beg to move.

On Question, amendment agreed to.

Lord Strathclyde

My Lords, I beg to move that further consideration on Report be now adjourned.

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

House adjourned at midnight.