Lords Sitting of 9 March 1995

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Sheffield.): The LORD CHANCELLOR on the Woolsack.
Lord Roborough Lord Roborough—Sat first in Parliament after the death of his father

Education: Promotion Prospects for Women
Lord Dormand of Easington Lord Dormand of Easington asked Her Majesty's Government:
What is the number and percentage of women holding headships in (a) primary schools and (b) secondary schools; and what is the number and percentage of women holding posts in Her Majesty's Inspectorate of schools.
Lord Lucas: My Lords, provisional information for March 1993 shows that in England and Wales there were some 10,700 headmistresses in primary schools and 1,000 in secondary schools. On the basis of those figures, women account for 50 per cent. of headteachers in primary schools and just under 22 per cent. in secondary schools. In February 1995, 63 women held posts in Her Majesty's Inspectorate of schools, accounting for 29 per cent. of HMI.
Lord Dormand of Easington: My Lords, first I wish to comment that the information which the noble Lord gave us is two years out of date. I thought that the Department for Education could do better than that. In any case, do not those figures demonstrate what has been shown all this week in your Lordships' House and the other place that equal opportunities do not exist for women with equal qualifications?
The noble Lord did not mention that in primary schools 80 per cent. of the teachers are women, but headships are held by only 50 per cent. In secondary schools, the position speaks for itself, not only from what we read in the records but from what the noble Lord said. Is he aware that the ludicrous decision of the Government to privatise the inspection of schools has also led to a deterioration in the number of women taking part in that important work? Is it not time for a full review of the situation?
Lord Lucas: My Lords, most unusually, the noble Lord, Lord Dormand, is talking complete rubbish. As I am sure many noble Lords are aware, the situation is that entry into the teaching profession is on the basis of equal opportunity. There is no bar on entry in any way at all. Promotion at all stages throughout the teaching profession gives equal opportunities. Equal numbers of men and women relative to the numbers at each level in the profession are promoted every year. Indeed, equal numbers of women who have returned to the profession are promoted every year, compared with people who have stayed in the profession.
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There is no remaining sexual discrimination in the education service. Clearly, historically a large number of men were promoted to be headteachers in days when perhaps those conditions did not apply. I shall be fascinated, when the noble Lord comes to ask me a Question from the Opposition Front Bench, to learn whether it will be Labour Party policy to sack the excess headteachers or to refuse promotion to men.
Lord Morris of Castle Morris: My Lords, if women teachers are doing so well under this Government, can the Minister explain why in 1979—and I invite him to take note of that date—female teachers' earnings were 86.9 per cent. of male teachers' earnings but in 1994, they were still 86.9 per cent. of male teachers' earnings?
Lord Lucas: My Lords, if I were to take a guess at the reason for that, based on the statistics I have, it would be because so many more women have entered teaching over the past 15 years that the lower ranks of teaching now contain many more women than they used to. If we are considering the global average for teachers, then women teachers' pay may well have decreased because so many more women are in the junior ranks of the profession.
Lord Elton: My Lords, is it not the case that many more schools are being inspected now than ever before, with much more regularity, and that teacher training institutions are also subject to inspection? All those are considerable advances in the system which the noble Lord, Lord Dormand, failed to note.
Lord Lucas: My Lords, I am afraid that that happens quite often.
Baroness Gould of Potternewton: My Lords, I am glad that the Minister mentioned promotion. It seems to me that exactly the same unsatisfactory situation applies to higher education. Does the Minister agree that the situation is unsatisfactory since there are only three women vice-chancellors, only 5 per cent. women professors—only 3 per cent. at Oxford—and only 4 per cent. women chairs of TECs? Does the Minister believe that it is a good image for women students and women wishing to be promoted in the future?
Lord Lucas: My Lords, of course, universities are totally autonomous institutions and I cannot answer for them.
Baroness Platt of Writtle: My Lords, does my noble friend agree that it is most important that the monitoring to which he referred should continue to take place? There is no doubt that it will encourage good practice and the situation shows considerable improvement over the years.
Lord Lucas: My Lords, we publish the figures every year as part of our evidence to the teachers' pay review body.
Lord Glenamara: My Lords, can the Minister say whether, in recruiting the new lay element into the inspectorate, as is being done at present, there is an even

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balance between men and women? Can the noble Lord say what the figures are for men and women in that element?
Lord Lucas: My Lords, I cannot give an answer to the second part of that question because we have not yet reached that stage. As regards the first element, we shall keep an even balance as regards quality.
Lord Glenamara: My Lords, a large element of the inspectorate is being recruited now. Can the noble Lord tell us how many men and women there are?
Lord Lucas: My Lords, I shall be happy to answer that question when the final figures are received.
Baroness Perry of Southwark: My Lords, is my noble friend aware how much better matters are now in HM Inspectorate than they were 20 years ago? When I joined the inspectorate it was known universally as the "brotherhood". There were very few women and the senior chief inspector of the day in the year in which I was recruited promised the HMI association that the number of married women in the inspectorate would never be more than the fingers on his one hand.
Lord Lucas: Yes, my Lords, there is now fortunately a large number of excellent women in HMI.
Baroness Lockwood: My Lords, does the Minister agree that there is a certain similarity between the education service and the health service? Both rely partly on national and partly on local policy makers and the implementation of policy at local and national level. Given that that is so, will the Government consider introducing some kind of equal opportunity policy in the education service, with the same targets and objectives as they have introduced in the health service?
Lord Lucas: My Lords, we have no plans to do so. At present, there is no evidence of any need to do so.

London Travelcard: Future
3.10 p.m.
Lord Dubs Lord Dubs asked Her Majesty's Government:
Whether they have any plans to alter or scrap the present Travelcard arrangements for public transport in London.
The Parliamentary Under-Secretary of State, Department of Transport (Viscount Goschen): My Lords, no, the Government have no such plans.
Lord Dubs: My Lords, I thank the Minister for giving that assurance. Nevertheless, what will happen to the Travelcard when privatisation hits public transport in London? Will he give an assurance that whatever the scope of privatisation—which I personally regret—the Travelcard will remain for the use of Londoners on all modes of travel for which it is currently available?
Viscount Goschen: My Lords, the Secretary of State for Transport has instructed the franchise director to take all appropriate steps to provide for the participation by
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franchisees in multi-modal travel schemes. The privatisation of British Rail will not affect the Travelcard. The Travelcard will continue.
Lord Clinton-Davis: My Lords, when the Minister says that the Secretary of State has given instructions to the franchise director, is he saying that in this case—unlike others where only guidance can be given—the franchise director is obliged to act on the instructions of the Secretary of State?
Viscount Goschen: My Lords, in this case it is a matter of instructions, not guidance.

UK Industry: Competence in Languages
3.12 p.m.
Lord Quirk Lord Quirk asked Her Majesty's Government:
How satisfied they are with the progress of their efforts to make British industry more responsive to the need for staff competence in foreign languages.
Lord Inglewood: My Lords, we have made a good start. This is a long-term effort, since a change in public attitude and business culture is required. There has nonetheless been a discernible positive shift in awareness since the Government launched a three-year National Languages for Export campaign in October 1993.
Lord Quirk: My Lords, any progress in this area is good news and I am grateful to the Minister for the crumbs of comfort that he has been able to offer. But may I ask him whether, in view of the fact that it is not just the exporting industry but the promoters of tourism in this country who need to be shedding their complacency, he can assure us that they also are heeding the DTI's warnings that not all foreigners are equally comfortable in the English language?
Further, could I just ask, given the fact that it has long been easier to persuade, say, Spanish people to learn English than it has been to persuade English speakers to learn, say, Spanish, how come that other English speaking countries are so much more accommodating and enterprising than our own country?
Lord Inglewood: My Lords, there are two aspects to this question. On the business side, we live in a world of international trading. Perhaps we in Britain have been slower than some other nations to appreciate that language skills and the ability to deal with people in languages that we do not ourselves speak is an essential business tool. Clearly, against that background we want to see improved skills throughout. Efforts are being made to bring that about—and not only at the educational level through the national curriculum. That seems a good basis on which to build.
Lord RentonMy Lords, bearing in mind the obvious expansion that is taking place in business and trade in the Far East, will the Government do all that they can to encourage the learning of the languages of the Far East?
Lord Inglewood: Yes, my Lords. Historically in this country the learning of languages, particularly at higher

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levels, has been perceived as disqualifying people for careers in business. Therefore we very much welcome the advent of mixed degree courses which provide business skills and language skills together. We believe that that will be important.
Lord Ennals: My Lords, the Minister says that there is evidence of improvement in relation to this very important issue. Will he give the evidence, indicate the percentage, and give whatever other statistics he has at his disposal?
Lord Inglewood: My Lords, I cannot helpfully quantify this matter. Suffice it to say that the response to the National Languages for Export campaign has been good. Activity is taking place on the ground, and we are confident that the campaign will not only raise awareness of the problem but that it will also lead to better language skills.
Viscount Eccles: My Lords, given the fact that we live, or will live, in an English speaking world, is it not the Minister's first duty to see that all our own children can speak very good English?
Lord Inglewood: My Lords, my noble friend is absolutely right. The primary duty of the education system in this country is to ensure that all our citizens can read and write and are properly equipped in their own language. However, we must not be seduced by the fact that there is a very considerable use and knowledge of English elsewhere around the globe. If we are trying to sell things to people, we must remember that the customer is always right. If the customer wants to deal in his own language, he is entirely entitled to do so. It is for us to try to ensure that we deal with him on that basis where appropriate.
Lord Haskel: My Lords, does the Minister therefore agree that good relationships are essential in today's tough business environment and that languages play an important part in that? Can he say how many telephone operators at the DTI speak a foreign language so that inquiries from abroad do not fall at the first hurdle?
Lord Inglewood: My Lords, I thank the noble Lord for his question. I am afraid that I am not immediately in a position to give him the reply that he seeks. Had the noble Lord rung up the DTI himself, he might have been able to gain the answer that he seeks at first hand.
Viscount Montgomery of Alamein: My Lords, is my noble friend aware that, after English, to which my noble friend Lord Eccles referred, the second most internationally spoken language is Spanish? Is he further aware that there are today in the United Kingdom a large number of public and private institutions teaching that language—I must declare an interest in that I am associated with two of them—and that the facility to learn Spanish is now widely available?
Lord Inglewood: Yes, my Lords. But it is interesting that, now, most of our exports go to German speaking countries.
Lord Monkswell: My Lords, are the Government aware that the best time for a person to learn a language
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is in the early years in primary school? Can the Government advise the House as to what financial assistance they provide to primary schools to ensure that foreign languages can be taught?
Lord Inglewood: My Lords, clearly, the noble Lord is right: the best place to start acquiring a knowledge of languages is in school. That is why we made it mandatory under the national curriculum in 1992 that languages should be a part of what every child is taught. The appropriate way to deal with this is through the education budget.
Lord Quirk: Nonetheless, my Lords, to what extent does the Minister agree that until employers show, perhaps through their job ads, that language skills are valued in the job market, schoolchildren will not take up the option of learning foreign languages?
Lord Inglewood: My Lords, the noble Lord is absolutely right. It is crucial that people realise that if they want a good job, one of the best ways to get it is to have these skills which are very valuable to business.

Oxford and Cambridge Undergraduate Fees: Funding Level
3.18 p.m.
Baroness Perry of Southwark Baroness Perry of Southwark asked Her Majesty's Government:
Whether they are considering any change in the arrangements for funding the fees charged to students by the colleges of Oxford and Cambridge.
Lord Lucas: No, my Lords, we have no such plans.
Baroness Perry of Southwark: My Lords, I thank my noble friend for that reply, which will give great pleasure to the colleges of Oxford and Cambridge, and I hope to others as well. However, in the light of the statement that was made earlier this week by the Labour Party spokesman on higher education that his party, if elected, would abolish the funding for Oxford and Cambridge fees, can my noble friend assure the House that this Government are not committed to going down the route of giving equal funding to all, regardless of quality, but that they will continue to reward academic excellence in those universities which are capable of attracting the brightest and most able students and the brightest and best staff?
Lord Lucas: My Lords, I am very happy to give my noble friend the assurance that she requires. Of course, I do not have any inside track on Labour Party education policy. It has occasionally seemed to me that those sitting opposite do not have one either. However, it appears sometimes that some members of the Labour Party do not believe in excellence in education except where their own children are concerned.
Lord Desai: My Lords, can the Minister tell us how much Oxbridge costs additionally compared with other

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universities? Has he any measure of value added that Oxbridge gives to its students compared with other less well known universities?
Lord Lucas: My Lords, in 1994–95 the average cost for a student at Oxbridge was £4,852. That compares with the next most expensive university, which is Imperial College, London, at £4,465. I shall be happy to supply the noble Lord with extensive information on value added but we do not have any particular index to offer.
Lord Morris of Castle Morris: My Lords, the Minister may be aware that on 1st March his honourable friend in another place, announcing that the HEFC had been asked to advise on the annual increase of the average college fee at Oxford and Cambridge, said:
"The Council has been asked to base its advice on the annual movement in public funding at universities with a similar mission".—[Official Report, 1/3/95; col. 614]
Can the Minister tell the House who decided, and when and how it was decided, which universities have a "similar mission" to Oxford and Cambridge?
Lord Lucas: My Lords, the subject was decided in agreement with the Universities of Oxford and Cambridge. In fact, the practice has been followed for some years. What has happened this year is that the responsibility for determining the final figures has been transferred to the Higher Education Funding Council.
Lord Morris of Castle Morris: My Lords, I beg the Minister's pardon. People were talking and I did not quite catch the beauty of his opening sentence. Did I hear him correctly or incorrectly? Did he say that this matter had been decided in consultation with the Universities of Oxford and Cambridge and no one else—for example, not with the Universities of Wales or London, which are collegiate universities, or with Sheffield University, which works on halls of residence?
Lord Lucas: My Lords, it was a matter for decision by the Government. The Government consulted Oxford and Cambridge. I do not see that it is a matter for any other university.
Lord Glenamara: My Lords, how do the Government justify the enormous differential between the funding of Oxford and Cambridge colleges and the funding of colleges in provincial collegiate universities—for example, Durham?
Lord Lucas: My Lords, I do not want to go into a long discussion of exactly how the higher education funding formula works. I should be very happy to write to the noble Lord if he has a particular question to ask. But the basic answer to the question is that it is on the basis of excellence.
Lord Glenamara: My Lords, is the noble Lord saying that the tuition in Oxford and Cambridge is better than the tuition in Durham? Is he really saying that? If he is, he ought not to be doing that job.
Lord Phillips of Ellesmere: My Lords, is the noble Lord aware that there has long been a dispute between
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the research councils and the British Academy on the one hand, and the collegiate universities on the other hand, as to whether those bodies should pay postgraduate fees to the colleges in those universities? To many people that seems a rather strange situation. Can the Minister tell the House whether the Government have any plans to change it?
Lord Lucas: My Lords, I am not aware of any plans to change it but I shall happily write to the noble Lord and confirm what I have said.

Environment Bill [H.L.]
3.25 p.m.
The Minister of State, Department of the Environment (Viscount Ullswater): My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be now further considered on Report. —(Viscount Ullswater.)
On Question, Motion agreed to.
Clause 59 [Duty of certain bodies and persons to have regard to the purposes for which National Parks are designated] :
Lord Vinson Lord Vinson moved Amendment No. 180:
Page 65, line 23, leave out from ("have") to end of line 25 and insert ("a duty to work with and sustain local communities within the National Park and to have regard to their economic and social well being.").
The noble Lord said: My Lords, in moving this amendment, I should like to give to the House the apologies of my noble friend Lord Derwent, who has been called abroad unavoidably.
I believe that this new amendment, which appears to have wide support, brings together the threads of a major concern raised at the Committee stage; namely, that the Bill as currently framed gives insufficient weight to the duty of care that we believe the national park authority ought to have for the interests of those who live and work in the park, without whose co-operation the daily management of our national parks would be virtually impossible.
There are two main constituents to the national park. First, there is the visiting public and, secondly, those who are visited—those who actually live and work there and on whom, certainly in the case of upland farmers, the national park depends for its overall appearance and attractiveness. Out of season and in inclement weather it is those people who populate the national park and sustain both its economic and environmental fabric. Many of us believe that the Bill must make more central and positive the recognition of their importance and purpose. We fear that unless that is done, little will prevent a divergence of attitudes developing between them the park wardens and the general public, which will be greatly to the detriment of the good working relationships that are needed.
The full impact of public access falls on the residents of the park. They are the people who repeatedly have to deal with the daily problems of the park, such as gates being left open, livestock escaping, picking up litter that

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has been discarded, lost ramblers wanting to use their telephone and their lavatories and drivers whose cars are stuck and need to use a tractor for recovery. Often they find that it is a pleasure to help such people; but on occasion they meet with downright rudeness. They are the unpaid custodians of the park. Their good will is essential.
Let us imagine an upland farmer talking to a park warden today. As things stand he could easily and rightly say to that warden, "You don't care a damn about me and my lot. You never do anything for us. So why should I do anything for you?" How much better if, on the other hand, the warden could reply, "On the contrary, my authority cares deeply about your welfare and you know that we shall do everything we can within reason to sustain you." If, as a consequence of the new section, he can truthfully reply that the interests of those who live and work in the park really do concern him, how much more likely is it that a constructive and agreeable working relationship will be built up between the administrators and the administrated, the visitors and the visited, to the benefit of all? Surely that is the kind of practical working relationship that we should wish to foster if we wish to see the national park arrangements working out satisfactorily on the ground.
I understand that, not surprisingly, the Association of National Parks, with the chairmen and chief officers of the parks, favour this amendment, as it will facilitate its work if the inhabitants feel that they are on the same side. Clearly they recognise its difficult but important task of balancing interests.
At Committee stage, in an amendment put forward by my noble friend Lord Derwent, it was proposed that the parks should foster economic and social well-being. However, we recognise that "foster" is perhaps too proactive a word. We feel that the revised wording of this amendment accurately reflects what is needed. In so doing, it does no more than take the wording from the new guidance to the national parks:
"to work for and with local communities".
But it introduces those words nearer the heart of the Bill, which will give them a greater degree of force—certainly far greater force than being left in the guidelines per se, where they could easily be overlooked.
Noble Lords will notice, however, that the wording of the amendment has been carefully chosen. The word "for" has been deleted and "sustain" has been substituted for it. The word "sustain" has been chosen because it carries no economic commitment but only a moral one. In no way do we seek—nor indeed would it be proper—for the national parks to be obliged to give economic support. But this new clause gives that authority an obligation. It is not an overriding obligation, but an obligation to work with and sustain local communities within the park and to have regard to their economic and social well-being. What is proposed in no way overrides the clear remit of the authority to manage the parks with the environment as its paramount consideration but it gives that authority a duty of care—a duty to care—for the inhabitants of the park, the
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unpaid custodians, the unpaid wardens, to preserve it and maintain it. Without their co-operation the parks would be virtually unworkable.
This amendment remains subordinate to the main clauses of the Bill. It has the support of the officers of the Association of National Parks and I believe that its general thrust will be acceptable to the Government. I hope the House will find in its favour. I beg to move.
Lord Williams of Elvel: My Lords, I do not think anyone would disagree with the noble Lord, Lord Vinson, that the well-being of local communities in the parks is a matter of concern. But the question posed by this amendment is: what is the role of the national park authorities; and how should that be reflected on the face of the Bill, if indeed it should be reflected on the face of the Bill at all? In other words, should there be a third purpose?
The Bill as drafted strikes the right balance between the statutory purposes of the parks, which are conservation and recreation, and the social and economic responsibilities of the park authorities. The drafting as it stands reflects the recommendation of the Edwards Report and provides the right legal framework for the guidance that may follow which may indeed refer in rather more detail to what the national parks should be doing. It is in that circular that all the constructive recommendations which Edwards made on working in partnership with local communities are best set out in detail. Those should not be on the face of the Bill. To try to insert this kind of detail into the Bill would distract from and would rather muddy the primary legislative framework which describes the vital relationship between park purposes—why the parks are designated at all—and the importance of having regard to the social and economic matters in pursuing those purposes.
It is our belief that the local communities within the parks are best served by the national park authorities doing what they are empowered to do under the Bill and by the local authorities, which are, after all, representative of local communities, providing the help, sustenance, economic development and so on. The two should not trespass one on the other. The national park authorities should not be burdened with any more than is in the Bill at the moment. Although I understand that the noble Lord's amendment is moved with the purest, best and right motives, I have to say that we shall not be supporting him if he decides to press it to a vote.
Lord Renton: My Lords, my noble friend Lord Vinson has moved a very important amendment. The words "shall have regard to" are interpreted in various ways, not only by the courts but by those responsible for "having regard" where Parliament has said that they shall do so. Sometimes it is regarded in a purely negative way. In other words, "we shall not do anything to upset". But the amendment has the virtue of making the obligation positive. I believe it is an obligation that should be positive.
Of course, the national park authority, as the noble Lord, Lord Williams, pointed out, has the primary duty of conservation within the national park but we have to remember that activities go on which must be allowed

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to flourish. In most national parks there is forestry; fanning; the tourist trade; transport, including the maintenance of roads, footpaths and bridges. The people living in the national park—generally there are several thousand of them—have to have their village shops and the ordinary services that people need in their every-day lives. There must be schools for the young people. With the growth of local craftsmanship we must make sure that such activities are given the chance to flourish. They will not interfere with the conservation duty on any scale. Very often in national parks there are important and quite large buildings, ancient and otherwise, which have to be maintained. There must be people capable of maintaining them. We really must ensure that all these other activities flourish in a national park so that the national park as a whole can be successful and serve the public as we all wish.
The Government have wisely anticipated that there could occasionally be a conflict between the activities of the national park authority and other bodies. That is dealt with in subsection (2) of new Section 11A which is to go into the National Parks and Access to the Countryside Act 1949. We need not worry about what will happen if there is a conflict because that is taken care of in subsection (2) with the help of the definitions of the bodies concerned in subsections (3) and (4). Therefore, I do not go along with the noble Lord, Lord Williams, in his fears about the way in which the amendment would work. The placing of a really positive duty upon the national park authority in the way my noble friend has suggested and the way I have ventured to suggest also can only lead to a strengthening of what we all have in mind.
Lord Gisborough: My Lords, I support the amendment. There seems to be an idea that one can just stop everything in the countryside and have no progress and no change. It does not work like that. For example, a moor may revert from heather to grass for various reasons. Farming methods change, which again brings a change of need, and so on. One has to have progress in the uplands just as much as in the downlands. At the moment there is an enormous assumption against planning permits for anything in the way of industry. There are many places where quarries can be opened up to the great advantage in terms of work of the people in the area. They would not be visible because they are dug into the ground. They do a lot of good for the local economy. Control could come in to ensure that such developments were not visible, that the architecture was appropriate and the siting was such that they were not intrusive.
The Earl of Lytton: My Lords, I very much support the amendment. As always, I declare my interest as a farmer in a national park. I take the point made so eloquently by the noble Lord, Lord Vinson, that it is not satisfactory to leave this matter wholly to guidelines. We know from experience that the provisions of Section 37 of the Countryside Act 1968 have not been strong enough. The formula of words there was,
"to have due regard to",
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the social and economic needs of rural areas. But over time that has effectively meant that those very interests have been sidelined.
Several national park authorities seem to believe that they have no direct responsibility for social and economic activity in their area and that they should act as an enabling authority to facilitate the Rural Development Commission and others to deal with that. But we are dealing with a new situation where national park authorities will have planning and development control powers and will determine housing and other policies, as the noble Lord, Lord Renton, so eloquently put it. In due course, they may indeed become highway authorities if amendments to that effect are agreed to. No other authority has those kinds of powers and they are at the heart of implementing any sort of social and economic momentum and keeping it going. Therefore, I do not believe it is satisfactory that we should have a process which my children would recognise as "pass the parcel". The effect is that the parcel never stops anywhere and nobody takes responsibility for these matters at all.
I hope that that is a partial answer to the point raised by the noble Lord, Lord Williams of Elvel. He appeared to advocate split responsibilities. I am not sure that I can accept that idea in national parks. I am interested in integrated responsibilities. I thought that we were getting close to the concept of multi-purpose authorities for national parks. As I see it, the amendment does no more than integrate social and economic factors with all the other duties, but it does not pre-empt those other duties and neither does it give any kind of priority. It makes sure that this particular duty is stated overtly in legislation and the reason for that is because in the past it has been sidelined.
The amendment refers to "local communities" and that picks up a thread which appears elsewhere in the Bill. I would like to be sure that the Government mean that all composite parts of local communities are included in that description, which includes individual land managers, and that their interests are given not pre-emptive but due weight. The Minister gave an indication that that might be so in an answer he gave earlier to his noble friend Lord Onslow in debates on this Bill, but he answered in rather negative terms. I should like to encourage the Minister to make the same comment but in more positive terms if he will be kind enough to reply to that point.
Lord Willoughby de Broke: My Lords, I support this extremely good and important amendment for those who live in the national parks. I farm myself, but I do not have the misfortune, if that is the word, to farm in a national park. I know that if I did I would be much happier with the terms of this amendment than simply being told that the national park authority will have due regard for my needs as a farmer. As my noble friend Lord Vinson said, I should like to have my interests looked after by the national parks and work together in a positive way rather than feel that I am being sidelined and being duly regarded; but not as manager of the land as I would be as a farmer in a national park. It is very

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important that the individuals there who look after the landscape work positively and closely with the authorities. I support the amendment most strongly.
Baroness Nicol: My Lords, as I said in Committee on a similar amendment—and though the noble Lord, Lord Vinson, believes that the word "foster" was stronger—I cannot see the difference between "foster" and "sustain". It seems to me to have the same implication.
However, I feel that on this occasion the Government have got it right. I hope the Minister will resist this amendment. The amendment would imply a positive economic role for the park authorities and that was rejected by the Minister at Committee stage. It would not be in accordance with the recommendations of the Edwards Report on which so much of this legislation is based and to which the Government have given their complete support and approval in the past.
Park authorities are well aware of the importance of working in partnership with local communities and they have a very good record of doing so. The noble Earl, Lord Lytton, was concerned about planning opportunities which might come to park authorities under the new Bill. They have had planning functions before and in the Peak District in particular that has worked extremely well.
The Bill as it stands makes the relationship clear between the parks and the other agencies which have the duty and the means to sustain local communities. The park authorities cannot and should not blur the lines of responsibility. I believe that great disquiet and resentment may be caused within those other agencies if this amendment is passed.
The first duty of the national parks which is not mentioned in the amendment—I may have felt more kindly towards it if it had—is to further national park purposes. That must not be lost sight of. But all park authorities know that the economic and social well-being of local communities is essential to the well-being of the parks. I believe that the noble Earl, Lord Lytton, implied that landowners and fanners were not members of the community. I would be the last to suggest that that was so. I hope that they are members of their local communities.
The knowledge that they have to work with the local communities is part of the consideration which national parks give to every decision. I hope the Minister will reject this amendment because it appears to me as the thin edge of a very sharp wedge which could be driven in further at a later stage of the Bill. I should like to see this amendment rejected.
3.45 p.m.
Viscount Addison: My Lords, I am sure that we all agree that the social and economic well being of communities in the parks is important. Indeed, it is essential to the achievement of national park purposes and I wish to make that clear at the outset. However, I am not persuaded that this amendment is the right way forward. The Edwards Review Panel dedicated much of its thinking to the role of national park authorities in relation to the economic and social well-being of local
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communities. It is interesting to note that many panel members apparently set out in the belief hat national park authorities should be given a third socio-economic purpose. However, following their exhaustive fact-finding tour, consultations and deliberations, they came to a different conclusion which merits very careful scrutiny. They concluded that,
"National Park Authorities should be able to assist the appropriate agencies in fostering the social and economic well-being of the communities in the National Parks in ways which are compatible with National Park purposes".
I believe that the Government have correctly interpreted the recommendations of the Edwards Review Panel in drafting Clause 59(1) of the Bill. The Countryside Commission, the Council for National Parks and the CPRE support that view.
The new duty to have regard to the economic and social well-being of local communities in the Bill as drafted means that park authorities will be statutorily required to take full account of the socio-economic needs of local communities. The guidance already makes it clear that they should work closely with park communities to achieve that. The addition of a duty to sustain local communities is at first seductive, but I suggest that, on closer inspection, that presents many difficulties and is unnecessary. I shall expand on that in three respects.
First, let us take the relation with other bodies. As both the Edwards Report and the Government's policy statement on national parks made clear, there are numerous other bodies working in the parks whose prime role is to sustain local communities. These bodies include local authorities, the Rural Development Commission and the Welsh Development Agency. Rather than giving yet another body a duty to sustain local communities, I prefer the approach suggested by the clause as drafted and by the Edwards Report. That is that national park authorities should, mandated by their new socio-economic duty, work in partnership with those other agencies with prime responsibility for sustaining local communities.
I fear that the amendment could result in a confusion of roles, duplication of effort and a blurring of the distinction between a national park authority and a local authority. As the noble Lord, Lord Williams, said, we should not forget that local communities in the parks are served by local authorities as well as by national park authorities. There is a danger of suggesting that national park authorities should almost completely take over their role.
Secondly, there is the matter of resources. Fulfilling a duty to sustain local communities would, I suggest, have resource implications. I am concerned that such a duty would place expectations on national park authorities that they would not have the resources to deliver because the relevant funding is channelled to other bodies. Surely the crucial point is that Clause 59 should be strengthened so that the public bodies which are given funding to sustain local communities use those funds in ways that are sympathetic to park purposes.
Thirdly, there is the potential for conflict with park purposes. To what end, and in what way, the park communities should be sustained is not adequately

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qualified in the amendment. It does not capture the Edwards Report's intention that activity by the park authorities in this sphere should be such that,
"the environmental quality of the parks is sustained and, where possible, enhanced".
It is important to remember that often, in matters relating to sustaining local communities, park authorities are rightly in the position of needing to respond to the suggestions of others rather than initiating projects themselves. There may be instances where the objective of sustaining local communities gives rise to projects that conflict to some degree with national park purposes. A "have regard to" duty avoids any conflict of interest arising. Balancing is required, yet the proposed duty of the national park authorities does not specify that the requirement to sustain local communities should be in ways compatible with or furthering national park purposes.
Although it is a real brain-teaser, I put it to the House that sustaining local communities while in pursuit of national park purposes is not the same as sustaining local communities in ways compatible with or furthering national park purposes. That point was recognised by the Edwards Review Panel which included both those cross-references to "national park purposes" in its recommendations on work with local communities.
I hope that the Government will look carefully at the advice from the Countryside Commission in its Report stage briefing on the matter. The commission supports the Bill as drafted and expresses the wish that the guidance emphasise that,
"the National Park Authorities will be expected to work positively with local communities to foster these forms of economic and social development that contribute to the achievement of National Park purposes by supporting the agencies responsible for social and economic development".
Lord Shuttleworth: My Lords, I support the amendment most comprehensively moved by my noble friend Lord Vinson. In doing so, I must declare my interest as chairman of the Rural Development Commission, which has already been mentioned twice in this short debate.
I do not think that it has been emphasised enough that local support and commitment is important in the national parks both in terms of the environment and for national park purposes generally. I can only say to the noble Lord, Lord Williams, that too often we hear grumbles from national park residents and businessmen that the park authorities seem more interested in the landscape and the visitors than in the inhabitants and their livelihoods. As we have heard, the Association of National Parks Officers is anxious to see the original wording strengthened, which is what the amendment would achieve.
The amendment offers a real opportunity to address the concerns of those who live and work in the parks. That is really important for park purposes. The amendment makes it abundantly clear that the national park authorities must undertake their work with, and not in spite of, local people.
Lord Elis-Thomas: My Lords, as a result of listening to the arguments which have been deployed I feel that I
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must register my support for the amendment. I had not intended to intervene at this stage, but I feel that it is important to put on record the view of the Snowdonia park authority that there should be an integrated third socio-economic objective within the activities of the national parks and that that is not in conflict with the activity of the local authorities or of the other development agencies.
The use of the word "sustain" in the amendment brings me to another favoured concept of your Lordships—sustainable development. It seems to me that the amendment as drafted is precisely in line with government and, indeed, international thinking on the whole issue of sustainable development in that it is an attempt to link the sustainability of local communities and their economic and social well-being with the broad conservation objectives of the park authorities. Noble Lords have argued that there is a conflict in that. Of course there is a conflict, but the whole point of sustainable development strategy and of placing an obligation on the park authorities to have a clear duty to sustain local communities is to resolve those conflicts within a lead agency.
Where there is a unitary authority, as is the case in Snowdonia and as certainly will be the case following the reorganisation of local government—I am a resident of that covering Sir Gaemarfon A Meirionnydd—it will be almost coterminous with the national park boundaries. Therefore, it seems to me that to give that park authority a duty to sustain local communities enables it to work more effectively with other agencies. Indeed, given that the Welsh Office in particular is reducing the work of the Development Board for Rural Wales in mid-Wales, the southern part of the Snowdonia park; that the Welsh Development Agency is under pressure; and that other local European initiatives, such as the Leader programme, are active in economic development and diversification in the area, the park authority could become the agency that brings together those activities in a coherent national park plan. Under the Bill, the authorities will have to have such plans—but they already have them. It seems to me, therefore, that having a cross-reference of powers is positive rather than negative.
Other noble Lords have touched on the issue of park residents being able to identify with the park authority. As I have said previously on national park issues, I have lived in and around Snowdonia for most of my life and despite the activity of the warden service and the way in which the park authority has promoted the local community, there is still the feeling that the park does not belong to those of us who live and work there. The placing of the duty on the park authorities will help to change that perception. It will help to create a more progressive relationship between park authorities and local residents. If we do not do that, there is the danger that people will say once again, "Here we have a designated area which is designated contrary to the wishes of the population of that area".
Involving the population more actively and helping them to identify with the park authorities is a positive development. It is absolutely in line with current conservation thinking. You cannot conserve any

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community with outsiders working against the interests of those who live in that community. I know that there are people in certain parts of the national park movement generally who feel that local residents cannot be trusted with looking after their environment. I believe that people who think that should be involved in re-educating the local community rather than in denying that local community the opportunity of economic regeneration within a mode of sustainable development.
The Earl of Onslow: My Lords, I support the amendment because the one thing we should never allow the national parks to become is a sort of Disneyland where tourists from Manchester and Liverpool are taken around in lorries to see twee walls and Welsh farmers trotting out their sheep solely for the benefit of those tourists. As the noble Lord, Lord Elis-Thomas, suggested, that is the quickest way to ruin a national park. A national park must be a living and growing entity in which the people living in it are seriously interested in looking after it themselves and in having a decent living and a decent way of life in it. That is why I support the amendment.
Lord Norrie: My Lords, I agree with the need to keep national park communities healthy. However, like the noble Lord, Lord Williams of Elvel, I believe that the best way to do that is suggested in the clause as drafted. It accurately reflects the National Parks Review Panel's recommendations. As my noble friend Lord Addison said, the panel put a lot of effort into them.
The Minister helpfully clarified in Committee that the new duty with respect to the economic and social needs of local communities will ensure that the park authorities have to be seen to be taking those responsibilities seriously. I am sure that the new authorities will want to do that. Therefore, I suggest that the amendment is unnecessary because the new duty already provides the framework to implement all the recommendations of the Edwards Report.
Lord Lyell: My Lords, I should like to support the amendment of my noble friend Lord Vinson. I have listened carefully to all the points that have been made in support of the amendment, but for me the clinching point was raised after I made some inquiries at Committee stage. The people who live and work in these national parks are part of what national parks should be. The people living and working in them perceived, fairly or perhaps unfairly, that the balance was either neutral or swinging ever so slightly towards the more twee aspects of the national park, as foreseen by my noble friend Lord Onslow. The amendment may push the balance back.
There is not much difference in the points raised by the noble Lord, Lord Williams, let alone by my noble friend Lord Nome. But it is the perception by the people living and working in the national park, who support the life in the national parks, of the duties of the national park authority that is important, and that is why I support the amendment.
Lord Chorley: My Lords, like the noble Lord, Lord Elis-Thomas, I did not intend to intervene in this discussion; and, like him, I do not know whether I have seen a light on the road to somewhere in North Wales.
This is a question of a balance. There is a fine division between the two sides of the argument. I was particularly struck by the remarks of the noble Lord, Lord Renton, as always, and those of my noble friend Lord Lytton when he referred to integration.
The landscapes of our national parks are entirely man-made, even in the uplands where the farmers keep the sheep. As I stated previously, they are like lawn-mowers. Therefore, care should be taken by our national parks, as opposed to what happens in some other countries, of the health of the local communities and therefore the economics of the area. Our national parks are not just about tourism. Tourism would go away if we wrecked the national parks. On balance, I come down on the side of the noble Lord, Lord Vinson—I do not know whether it is the side of the angels.
Lord Marlesford: My Lords, I strongly support the sentiments and intentions behind the amendment of my noble friend Lord Vinson. Park authorities should work with and sustain local communities within the national parks and have regard to their economic and social well-being. I could hardly say otherwise, having had the honour of serving for eight years on the Royal Development Commission, six years under my noble friend Lord Vinson and six years under my noble friend Lord Shuttleworth. I also had the opportunity of serving for 12 years on the Countryside Commission under the noble Lord, Lord Barber, who, sadly, is not with us today. I am now chairman of the Council for the Protection of Rural England.
Having stated my strong belief that there should be the appropriate economic development which my noble friend would like to see in national parks, I should like to point out that the objective of creating national parks in 1949 was that they should remain as national parks. That is why we have national parks of which we can be so proud today.
The purpose of the Bill is to strengthen the means of looking after the parks. The communities within them must be looked after; that is an indivisible part of the remit. My noble friend Lord Vinson and I took part, over 10 years ago, in a study on the need to look after the economic and social welfare of the uplands of this country. Therefore I am very well aware of the needs. However, the words in the Bill as drafted by the Government, that regard should be given to the economic and social well-being of communities within the national parks, are the right ones, because, whatever else they are, national park authorities are not, were never intended to be and I believe should not become development agencies in any form.
The Rural Development Commission has that specific role, and I hope it will continue for many years. If we muddle the role for which the national park authorities were set up, if we take their eye off the ball of ensuring that the national parks survive for at least another 50 years, there is a risk of undesirable development.

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I do not trust local authorities in regard to development of sensitive areas. The reason why I am such a tremendous supporter of the noble Lord's National Trust is Operation Neptune. Half of the local authorities with precious coastlines would sell them for caravan sites at a stroke because they would be receiving all of the so-called economic benefits; and they would be lost for ever.
The national parks are so precious that the primary remit of the national park authority must be to ensure their survival. I have seen in the Peak District and in Dartmoor that one can have sensible economic development as well, and I believe that that situation will be cherished by the Bill.
Lord Annaly: My Lords, the arguments have been stated very well from all sides of the House, particularly by the noble Lord, Lord Marlesford. As the noble Lord, Lord Chorley, said, it is a question of balance. As a regular visitor to the national parks, which I love, I know many people who live in them and are custodians of them. The national parks were created in 1949 partly because they are in remote parts of the countryside where not many people live, and they are very beautiful. They would not amount to very much if a thriving community did not live in them. I do not think that the public would find much sustenance if there were only a few people living there, making a living out of them.
The balance, however it is achieved, is absolutely vital. I do not think that the amendment, which I support, does anything but try to achieve a better balance than at present.
Can the Minister confirm that the word "communities" in its legal sense embraces individuals and individual households such as those of upland farmers and others who live in the national parks?
Baroness Lockwood: My Lords, this is a very seductive amendment and the arguments that have been put forward in favour of it have also been very seductive.
None of us would disagree with the need to sustain local communities within the national parks. However, as the noble lord, Lord Marlesford, stated, the national parks were created in 1949 for an entirely different purpose. They were not created as development agencies to develop rural communities. It is essential that our rural communities are developed and that we should have the appropriate machinery for doing so; however, the national park machinery is not what is required.
The noble Lord, Lord Elis-Thomas, in his very seductive speech, talked about local people not being able to identify with the national parks authorities and that it was essential for the community to be able to do so. However, the national parks were not only created for the local communities; they were created for the nation, and the local communities are part of the parks. It is our duty as a Parliament to ensure that the local communities are well looked after but it should not be through the machinery of the Bill.
I hope that noble Lords and the Minister will adhere to the wording in the Bill.
Viscount Ullswater: My Lords, as I have said previously to my noble friend Lord Vinson, we are all in agreement that the well-being of local communities is vital for the continued success of the national parks as living, working landscapes. My noble friend spoke warmly of the unpaid custodians and wardens. However, I accept that them is a feeling that the interests of local communities, and the contribution they make to the continued success of the parks, are not always given sufficient weight in the park authorities' deliberations. That that may be the case is a matter of regret.
The noble Earl, Lord Lytton, and my noble friend Lord Annaly expressed their concern that the term "local communities" does not include farmers and managers in the parks who may not live in small towns, villages or hamlets in the parks. I am happy to assure noble Lords that we regard those people as very much a part of the park community, and that their specific interests are those to which the national park authorities will need to pay close attention, as they will for those who live within their settlements.
The duty that we have introduced in Clause 59 with respect to the economic and social needs of local communities underlines the importance which we attach to that issue. It will ensure that the new authorities will have to take into account the economic and social well-being of their local communities as they carry out their functions and duties in pursuit of park purposes. Furthermore, the new duty will ensure that the park authorities have to be seen to be taking those responsibilities seriously.
Lord Renton: My Lords, it is good of my noble friend to give way because this point is important. The words "shall have regard to", which are the words upon which he relies to fulfil the purpose which he is now describing, are somewhat ambiguous. At times they have been interpreted to mean a very specific duty, but at other times they have been regarded, as I said, in a purely negative way. How does my noble friend anticipate that those words will be interpreted and applied?
Viscount Ullswater: My Lords, if my noble friend will contain himself for a moment, I shall go on to explain what I believe to be the right balance.
We do not believe that national park authorities should themselves assume the role of promoting economic and social development. A number of noble Lords have acknowledged that point this afternoon. In fact, I do not believe that anyone said that they should have that role. We all recognise that there are already agencies which are properly charged with the specific task of promoting economic and social development in rural areas—the Rural Development Commission in England (I am glad that we heard from my noble friend Lord Shuttleworth today); the Welsh Development Agency; and the Development Board for Rural Wales—and the national park authorities will be expected to work in the closest co-operation with them. That is made clear in the draft guidance which we issued shortly before the Committee stage. The noble Lord, Lord Williams, was right to indicate that the draft guidance gives us the opportunity to develop that.

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I acknowledge that, in tabling Amendment No. 180, my noble friends Lord Derwent and Lord Vinson, and the noble Earl, Lord Lytton, do not wish to place the national park authorities in competition with those other agencies. What I believe they and other noble Lords are seeking is to reflect on the face of the Bill a means of encouraging a positive attitude—my noble friend Lord Renton called it making positive the obligation of "having regard to"; I think those were his sentiments, even if they were not his words—among the national park authorities towards their local communities.
My noble friend Lord Vinson indicated also that the Association of National Parks Officers supported his views. That is an important consideration. The noble Lord, Lord Elis-Thomas, made an interesting point—that somehow sustainable development created a tension and that in some way the amendment would help to relieve the tension. I agree that sustainable development does impose a tension and that we should be working positively to resolve the matter.
If that is the intention of the amendment, I support it strongly. I recognise that the amendment draws on words in the draft guidance, but I should like the opportunity to look more closely at an appropriate wording for an amended Clause 59 which will achieve that purpose. I therefore ask my noble friend Lord Vinson to withdraw the amendment on the understanding that I undertake further to consider the issue and to bring back an amendment on Third Reading.
4.15 p.m.
Lord Vinson: My Lords, I am grateful to noble Lords for the wide support that the amendment has received and for the sensible and balanced comments that have come from all sides of the House. I am sorry that my noble friend Lord Marlesford was not in his seat when I moved the amendment as he would then have realised that we are trying to forge a sense of common purpose between the individuals on the ground—the individual park officers—and the people who live and work there. Only through engendering a sense of common purpose will we achieve the right atmosphere in the national parks and will the whole project really work. That being said, and with the positive assurance given by my noble friend the Minister, while at the same time reserving my position, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Addison Viscount Addison moved Amendment No. 181:
Page 65, line 28, after ("to") insert ("and, wherever practicable, further").
The noble Viscount said: My Lords, the amendment addresses an issue of great importance. It is relevant to the debate on park communities that we have just had. Our national parks are not depopulated areas of state-owned land run single-handedly by national park departments of central government. As we have discussed, they are lived-in and worked-in communities. The land is in many hands, from tens of thousands of private individuals to a host of public bodies and utility companies. What happens in a park is influenced greatly by the activities and policies of many public bodies,
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with their various land management policies, development proposals, service charges and grants to the public.
The way in which those public bodies conduct themselves in the parks is therefore vital to making our lived-in and worked-in model of national parks work. That is why one of the most important recommendations in the Edwards Report was that public bodies should have a duty to further national park purposes in the exercise of their duties as they affect national parks.
In their response to the Edwards Report, the Government agreed to consider that point. In Committee, my noble friend the Minister agreed that public bodies should be expected to demonstrate that they have taken park purposes properly into account. However, he was concerned for the legitimate reason that it might not always be possible for them to further park purposes. The wording of the new amendment recognises that concern by using the words, "wherever practicable, further". I move this new amendment in the hope that the Government will find the new form of words helpful. I beg to move.
Lord Norrie: My Lords, I put my name to the amendment, which has the support of the Countryside Commission and the Countryside Council for Wales. It would provide the necessary positive incentive to encourage public bodies to engage in environmentally friendly practices. If we cannot achieve such an approach in national parks, where the Government are committed to the highest status of the protection of landscape and scenic beauty, where on earth can we achieve it?
I wish to refer briefly to the guidance on this matter because it is most relevant. I am worried that the guidance makes only the briefest reference to this subsection of Clause 59 and to the role of public bodies. The guidance does not treat the new duty as an important opportunity to ensure that national park purposes are afforded greater weight in all areas of public life. That was, after all, seen as a national responsibility by the National Parks Review Panel. Nor does the draft circular expand upon how the various public bodies should interpret their responsibilities. That reinforces my fear that the role of public bodies in national parks will not be given the priority it deserves by the clause as drafted.
The amendment gives the necessary boost to the idea that national parks are a shared responsibility; that is to say, by government departments and all public bodies. I hope that my noble friend the Minister will find that we can overcome the concerns expressed in Committee and will agree to give the suggested wording careful consideration.
Baroness Nicol: My Lords, the Government in their strategy document on sustainable development, This Common Inheritance, reaffirm their commitment to national parks, calling them,
"the jewel in the countryside's crown".
They also promised to,
"ensure that their special needs and priorities are reflected in policies affecting agriculture, forestry, transport, industry and minerals".

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It appears therefore to make perfect sense that public bodies should be required wherever they can to further national park purposes in their work. Many public bodies carry out activities in the parks; for example, the Forestry Commission owns and therefore works directly on 10.7 per cent. of all national park land. It also offers grants and issues licences to other forestry operators. Water companies own 5.1 per cent. of the parks. They are also responsible for managing the demand for water, which in turn determines the need for new infrastructure.
Therefore, what those public bodies do in national parks could have an important bearing on the special qualities of the parks. I welcome the amendment, which would give a positive incentive to all public bodies in relation to national park purposes. I hope that the Government will find it acceptable.
Lord Wise: My Lords, I too support my noble friends' amendment. In Committee, I mentioned the fact that the National Parks Review Panel was quite clear that a "have regard to" duty in this context would not provide the incentive necessary for public bodies to pursue their activities in ways that are entirely sympathetic to park purposes.
I also suggested in Committee that the Minister might be concerned that not all government departments would be able to further the park purposes because of the conflict inherent in their activities. I believe that this amendment strikes the right balance.
The Edwards Report stated:
"experience over the years shows that government departments have tended to regard National Park designation as a hindrance or an obstacle to their ends: certainly there has not been consistent evidence that they feel bound by the implications of designation".
The report continues:
"As a result, sectoral policies have sometimes worked against the purposes of National Parks and they have rarely worked positively to help achieve these purposes".
The report therefore specifically recommended a duty that was stronger than the "have regard to" duty of the Countryside Act. The amendment seeks to achieve that. I hope that the Minister will heed the advice of the National Parks Review Panel and agree to look again at the clause. It requires co-operation throughout Whitehall but if we cannot achieve this for the national parks what hope have we of giving greater priority to the environment in any aspect of public life?
Viscount Ullswater: My Lords, during the Committee stage, my noble friends Lord Nome, Lord Wise and Lord Addison, and the noble Baroness, Lady Nicol, moved an amendment (No. 256) which was very similar to the one before us today, only on that occasion the resulting duty on relevant bodies would have been simply "to further" national park purposes rather than to have regard to and "wherever practicable, further" national park purposes.
In Committee, I explained to your Lordships the practical difficulties in attempting to apply such an amendment because of the numerous agencies operating
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within the parks whose activities cannot be overridden; for example the supply of electricity or clean water to park communities.
While I understand that this amendment is intended to overcome that objection, I believe that the insertion of the proviso "wherever practicable" does not ease matters. What is meant by the term "practicable"? At which point is an authority expected to decide that it is not practicable to further national park purposes but instead to have regard to park purposes as it goes about its business in the parks? I therefore believe that the term is so vague that its application would bring no tangible benefits but would instead confuse and thereby inhibit the effective implementation of the duty.
I therefore ask my noble friend Lord Addison to withdraw his amendment.
Viscount Addison: My Lords, I am grateful to the Minister for his reply. I wish to explore further with him how many public bodies which have an influence on our parks can be encouraged to play a more positive role. In Committee, the amendment received much support from all sides of the House and I hope that the Minister will give the matter further consideration. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Norrie Lord Norrie moved Amendment No. 182:
Page 65, line 30, after ("purposes") insert ("that cannot be reconciled through management").
The noble Lord said: My Lords, this amendment concerns the "Sandford principle". The principle originates from the Sandford Report of 1974, which stated that, where there is an "irreconcilable conflict" between the two national parks purposes of conservation and recreation, conservation be given priority.
There appears to be overwhelming support for the intention that the Sandford principle should be enshrined in legislation. The Minister made it clear in his helpful reply to an amendment in the name of my noble friend Lord Crickhowell in Committee that it is most certainly the Government's intention to achieve this. Indeed, the Minister made a most spirited defence of it, for which I am most grateful.
The question before us is, therefore: does subsection (2) of Clause 59 implement the Sandford principle in legislation? My concern is that as currently drafted, it does not. The crucial difference is that the Sandford principle includes the word "irreconcilable"; this means that reconciliation should be attempted before giving priority to conservation. By contrast, the clause as presently drafted simply states that where there appears to be a conflict conservation shall be given more weight. I suggest that the omission of any reference to the need to attempt reconciliation significantly alters the meaning.
I have studied the Minister's response to this issue in Committee very carefully and I am also most grateful to him for meeting my noble friend Lord Addison and myself to discuss the point. We understand that there may potentially be difficulties in using the word "irreconcilable" in legislation. Our hope is that the Government will be able to find an alternative form of

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words. These should capture the agreed intention that reconciliation through management should be attempted before giving conservation priority.
It is in that spirit that I move this amendment and I sincerely hope that my noble friend the Minister will be able to help. I beg to move.
Viscount Addison: My Lords, the amendment avoids using the word "irreconcilable". It uses instead the expression "that cannot be reconciled through management", which was the suggestion that I made in Committee following the Minister's speech. In this way, we hope to make explicit the desire for management options to be explored. In contrast to the amendment tabled in Committee, this amendment no longer requires the park authority to deem that there is an irreconcilable conflict. We believe that by so doing we have met the concern expressed by my noble friend Lord Peel and referred to by the Minister that proving that a conflict is irreconcilable and may lead to such protracted debate that conservation may never be given priority.
We believe that our new amendment strikes the right balance. It has the support of the Countryside Commission, the Countryside Council for Wales, and the Council for National Parks. It endeavours to fulfil one of the important recommendations of the Edwards Report. I hope that my noble friend the Minister will feel able to accept the amendment or on Third Reading bring forward his own within the same spirit.
Baroness Nicol: My Lords, I too support the amendment, which has evolved from the amendment moved in Committee. I hope that the Minister will not apply to this amendment the formula that he applied to the previous amendment; that the Committee version was too strong but that today's version is too weak. The present form of words should be acceptable to the Minister.
I suggest that it is helpful for us all to remember that the Sandford principle is not "conservation has priority over recreation"; it is that, "where those two purposes cannot be reconciled conservation should come first".
The guidance in the circular makes it clear that the true Sandford principle is what the Government desire. I share the concern that at present, the legislation captures only part of the Sandford principle, thereby changing its meaning. The guidance and the legislation are at odds with each other. I hope that this is a drafting point and not a disagreement about objectives, and I hope also that the Minister will agree to change the legislation accordingly.
4.30 p.m.
Lord Greenway: My Lords, I warmly support the amendment and I agree with everything that has been said. I may have been the first to raise the question on Second Reading. Since that time, I am delighted to see that it has gathered support from all sides of the House. I hope that the Minister will see fit to accept the amendment. It is important that the Sandford principle should be enshrined in the Bill.
Lord Vinson: My Lords, I support the amendment because it is in general sympathy with a matter which I
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raised earlier, in the sense that, as I read it, its intention is that any differences should be reconciled on the ground in a sensible one-to-one manner before being blown up into a major conflict between the two parties.
Viscount Ullswater: My Lords, in Committee, I explained that the Sandford principle, now enshrined in Clause 59, has been policy for over 20 years and that we believe that it continues o stand the parks in good stead. I am not aware that the application of the principle, set out in Planning Policy Guidance Note 7, has caused any great difficulties or undue concern among those who have to live with its consequences.
I believe that every opportunity should be taken for negotiation and mediation before the Sandford principle is applied. Managing the parks, and accommodating the many different interests which are reflected in them, is an ongoing process. I appreciate the wish of some of your Lordships that the principle should not come into play too soon—that was the spirit of the intervention made by the noble Baroness, Lady Nicol—in the process of accommodation; but neither should it come in so late in the day that all the participants have exhausted themselves in seeking to find an accommodation where none is to be found.
If Amendment No. 182, introduced by my noble friend Lord Nome, were to be accepted, how would the parties involved demonstrate that an issue cannot be reconciled with a little bit more management? If only they had had another meeting, a further discussion, an extra site visit, perhaps they might have reached an accommodation. Who decides when the point has been reached when a particular issue cannot be reconciled through management? Although I understand and sympathise with the intention underlying this amendment, I fear that it could lead to the premature abandonment of the negotiating process and I therefore ask my noble friend to withdraw the amendment.
Lord Norrie: My Lords, I am grateful to the Minister for his reply. I am afraid that I am not persuaded by his arguments. I still believe that the clause as drafted represents a significant change to the Sandford principle but I shall study carefully the Minister's words and seek to return to the matter at Third Reading. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Ullswater Viscount Ullswater moved Amendment No. 183:
After Clause 60, insert the following new clause:
National Park authorities in Wales
(" .—(1) Where a National Park planning board has been constituted for the area of any particular existing National Park in Wales, the Secretary of State may exercise his power under section 60 above to establish a National Park authority in relation to that National Park by making an order under that section designating for the body corporate constituted as that board a date earlier than 31st March 1997 on which that body—

(a) shall cease to be a National Park planning board, and

(b) shall be constituted the National Park authority in relation to that National Park,

without affecting its corporate status (and an order made under or by virtue of that section may make provision re-naming that body accordingly).
(2) Any order under—

(a) paragraph 3A of Schedule 17 to the 1972 Act (special planning boards), or

(b) section 2(1B) of the Town and Country Planning Act 1990 (joint planning boards),

relating to the body corporate constituted as the National Park planning board in question shall have effect on and after the designated date for that body as an order under section 60 above relating to that body in its capacity as the National Park authority in relation to the National Park in question.
(3) For the purposes of any order establishing a National Park authority under section 60 above by virtue of subsection (I) above, or any order which, by virtue of subsection (2) above, has effect as an order under that section—

(a) the requirements of paragraph 2(3) of Schedule 7 to this Act with respect to consultation with councils for principal areas shall, by virtue of the establishment of the National Park planning board, be deemed to have been complied with as respects any provision of the order;

(b) in the case of any member of the National Park planning board immediately before the designated date who was holding that office by virtue of his appointment as such by the Secretary of State under and in accordance with paragraph II of Schedule 17 to the 1972 Act (which requires prior consultation), the appointment shall, on and after the designated date, have effect for the remainder of the period for which it was made as an appointment as a member of the National Park authority made by the Secretary of State in accordance with paragraph 3(1) of Schedule 7 to this Act;

(c) in the case of any other member of the National Park planning board immediately before the designated date who is on that date a member of a principal council for an area which includes the whole or any part of the National Park in question, his appointment as a member of that board shall, on and after the designated date, have effect for the remainder of the period for which it was made as an appointment as a local authority member of the National Park authority made in accordance with paragraph 2 of that Schedule; and

(d) any other requirement, whether statutory or otherwise, which must be complied with in connection with the establishment of a National Park authority shall be deemed to have been complied with by virtue of the establishment of the National Park planning board;

and, except as provided by paragraphs (b) and (c) above, no person who is a member of the National Park planning board immediately before the designated date shall, by virtue of the order, become a member of the National Park authority.
(4) The functions of a National Park planning board shall include the duty to take such steps as it considers necessary to enable it (that is to say, the body corporate constituted as that board) on being constituted the National Park authority in relation to the National Park in question by an order made by virtue of subsection (I) above, to perform its functions as a National Park authority on and after the designated date; and the functions conferred on such a board by this subsection—

(a) shall be exercisable before (as well as on or after) 1st April 1996; and

(b) are in addition to any other functions which are exercisable by such a board before that date by virtue of paragraph 13 of Schedule 17 to the Local Government (Wales) Act 1994.

(5) The functions of a principal council for an area which includes the whole or any part of the area of a National Park planning board shall include the duty to take such steps as it considers necessary to enable the body corporate constituted as that board, on being constituted the National Park authority in relation to the National Park in question by an order made by virtue of subsection (1) above,
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to perform those functions which would, apart from the order, be exercisable by a principal council but which will become functions of that body, as the National Park authority, on the designated date.
(6) Where the Secretary of State—

(a) has taken any steps with a view to, or otherwise in connection with, the establishment of a National Park planning board for the area of an existing National Park in Wales ("the proposed board"), but

(b) decides not to proceed with the establishment of the proposed board and to establish instead a National Park authority in relation to that National Park ("the proposed authority"), and

(c) the proposed authority is, or is to be, established before 31st March 1997,

the doing of anything by or in relation to the Secretary of State (other than the making by the Secretary of State of an instrument of a legislative character) with a view to, or otherwise in connection with, establishing the proposed board shall be treated, as respects the proposed authority, as the doing of any corresponding or reasonably similar thing falling to be done for the purposes of, or otherwise in connection with, the establishment of that authority.
(7) Without prejudice to the generality of subsection (6) above, in any case falling within paragraphs (a) to (c) of that subsection—

(a) any consultation with a principal council after 15th December 1994 by the Secretary of State as respects the proposed board (whether or not required by or under any enactment) shall be deemed, as respects the proposed authority, to have been carried out for the purposes of the consultation with councils for principal areas required by paragraph 2(3) of Schedule 7 to this Act;

(b) anything done by or in relation to the Secretary of State for the purposes of the consultation required by paragraph 11 of Schedule 17 to the 1972 Act (appointment of members by Secretary of State) preparatory to the appointment of a person as a member of the proposed board shall be deemed, as respects the proposed authority, to have been done for the purposes of the consultation required by paragraph 3(1) of Schedule 7 to this Act preparatory to the appointment of that person as a member of that authority;

(c) anything done by or in relation to the Secretary of State (other than the making by the Secretary of State of an instrument of a legislative character) for the purposes of, or otherwise in connection with, any other requirement, whether statutory or otherwise, of a consultative or procedural nature—

(i) which relates to a National Park planning board, and

(ii) for which there is a corresponding or reasonably similar requirement which relates to a National Park authority,

shall be treated, as respects the proposed authority, as done for the purposes of, or otherwise in connection with, that other corresponding or reasonably similar requirement.
(8) Section 54 of the Local Government (Wales) Act 1994 (powers to make incidental, consequential, transitional or supplemental provision) shall have effect as if this Part were contained in that Act, except that subsection (2) (e) of that section shall have effect as if this Part were contained in an Act passed in the same Session as that Act.
(9) In this section—
"the designated date", in the case of any body corporate constituted as a National Park planning board which becomes, or is to become, a National Park authority by virtue of this section, means the date designated by virtue of subsection (I) above in the order relating to that body;
"existing National Park" means a National Park in respect of which there was in force on 15th ecember 1994 an order under section 5 of the National Parks and Access to the Countryside Act 1949 (designation of areas as National Parks);
"National Park planning board" means—

(a) a special planning board constituted by order under paragraph 3A of Schedule 17 to the 1972 Act to discharge, as respects the area of a National Park in Wales, the functions to which Part I of that Schedule applies, or

(b) a joint planning board constituted by order under subsection (1B) of section 2 of the Town and Country Planning Act 1990 for a united district comprising the area of a National Park in Wales.").

The noble Viscount said: My Lords, in speaking to Amendment No. 183, I shall speak also to Amendments Nos. 192, 193, 194, 206, 221, 268 and 289A in my name.
The amendments introduce the conversion power in respect of the national parks in Wales which I confirmed in Committee to the noble Lord, Lord Elis-Thomas, would be introduced at this stage of the Bill.
The establishing of national park authorities in Wales will take place in the context of the comprehensive reorganisation of local government at 1st April 1996, under the Local Government (Wales) Act 1994, which will itself require the establishment of new national park bodies. For that reason, my right honourable friend the Secretary of State for Wales included in the 1994 Act provisions for the establishment of planning boards for the Welsh national parks. Consultation about the establishment of those boards has already started. My right honourable friend has, however, confirmed that, if this Bill is successful, national park authorities will be established to keep the Welsh parks in line with those in England.
My right honourable friend proposes to establish national park authorities in Wales during the autumn of 1995 to enable them to prepare for taking up their responsibilities in the following April. However, depending on the timing of Royal Assent for this Bill, it may be necessary first to establish planning boards and to convert them to national park authorities before 1st April 1996. In practice, it is likely that conversion will be effected some months before that date in order to enable a levy to be issued to the new constituent local authorities. The amendments allow that conversion to take place without affecting the corporate status of the bodies concerned.
The planning boards are in many ways similar to the national park authorities which we are now discussing. The amendments allow the work now being carried out for their preparation to count as though it was being done in preparation for the establishment of national park authorities. That will be so whether my right honourable friend is able to proceed directly with establishing a national park authority or whether he has to establish a planning board first and to convert it at a later date to a national park authority.
The amendments are limited to the three existing national parks in Wales and are further limited to cases where a national park authority is established for those parks prior to 31st March 1997. They will avoid the duplication of work and unnecessary upheaval for the parks themselves.
The amendments vest certain order making powers in my right honourable friend to facilitate the conversion arrangements outlined in these amendments. I have
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written to my noble friend Lord Rippon of Hexham, in his role as Chairman of the Scrutiny Committee on Delegated Legislation, explaining fully the powers sought and the reasons for them. I beg to move.
Lord Elis-Thomas: My Lords, I welcome these amendments and I welcome the fact that they mean that the procedure can take place in a timely and orderly manner. I wish the new Welsh national parks well in their collaboration with local authorities and in pursuit of the objective of sustainable development. But I would say that, wouldn't I?
Lord Williams of Elvel: My Lords, as a matter of clarification, Amendment No. 183 uses the expression:
"The Secretary of State may exercise".
Does the Secretary of State have any discretion not to exercise his power? I hear what the noble Viscount says about what the Secretary of State proposes to do but does he have discretion not to do it if he so chooses? It seems to me that he has. Would it not be better to have "shall" rather than "may"?
Viscount Ullswater: My Lords, because we are working on a parallel track it may not be necessary to use the power. That is why the word "may" is used rather than "shall".
On Question, amendment agreed to.
Schedule 7 [National Park authorities]:
Viscount Ullswater Viscount Ullswater moved Amendment No. 184:
Page 139, line 37, at end insert ("; and, in appointing local authority members of a National Park authority, a principal council shall have regard to the desirability of appointing members of the council who represent wards, or (in Wales) electoral divisions, situated wholly or partly within the relevant Park").
The noble Viscount said: My Lords, Amendment No. 184 gives effect to the intention of Amendment No. 258AA in the name of my noble friend Lord Derwent on the subject of membership, which he moved in Committee. At that time, I offered to look carefully at what my noble friend had said. Having given the matter further consideration, we have decided that it would be appropriate for there to be provision on the face of the Bill for local authorities to have regard to the desirability of appointing members to the national park authorities who represent wards in England, and electoral divisions in Wales, in the parks, which I believe will be in the best interests of the people who live in the parks.
Amendment No. 188 is of a minor and technical nature, to add the shorthand, marginal description of the provisions in question; namely, Sections 15 to 17 of the Local Government and Housing Act 1989.
Amendment No. 191 gives effect to the intention of Amendment No. 258EB of my noble friend, Lord Derwent on liaison with parish and community councils which he moved during Committee stage. At that time I offered to look carefully at what my noble friend said and, having given the matter further consideration, we are persuaded by my noble friend's argument that it would be appropriate to include on the face of the Bill provision to give parish and community councils the fullest opportunity to comment on and contribute to park

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policies. This amendment reflects the special importance which we attach to ensuring that the views of local people in the parks are heard.
Amendments Nos. 196, 197 and 198 give effect to the intention of Amendments Nos. 258EX, 258EY and 258EZ which my noble friend Lord Cranbrook moved in Committee. Having given further consideration to the issue, we are persuaded by my noble friend's argument that the Nature Conservancy Council for England should be added to the list of bodies which the national park authorities must notify when proposing to publish, adopt or review their national park management plans.
My noble friend also moved Amendment No. 252B to amend the first national park purpose to include a reference to natural features. At the time I assured him that we regard the characteristic natural features of the parks as an integral part of their natural beauty for which they have been designated as special areas. However, to remove any possible doubt, Amendment No. 209 alters the definition of "natural beauty" in Section 114(2) of the 1949 Act, which includes natural features, flora, fauna and geological and physiographical features, to make it refer on its face to conservation as well as preservation. That will match, and govern, the wording of the first of the revised national park purposes. I understand that my noble friend welcomes the amendments. I beg to move.
Lord Feversham: My Lords, I should very much like to welcome the amendments, especially those which, as the Minister said, were prompted by the issues raised by the noble Lord, Lord Derwent, in Committee. In particular, I welcome Amendment No. 191 which relates to a duty for national parks to consider and inform parish councils within the national parks. My welcome will come as no surprise to noble Lords because I am president of the National Association of Local Councils.
The amendments are especially welcome because although the Minister agreed in Committee to take them away and consider them, I thought that he did so with considerable reluctance. However, perhaps I am being a little unfair. I am absolutely delighted that he has brought forward such amendments. On these issues at least, the Minister smells of new mown hay if not even of roses. I hope that the noble Viscount does not find that too disconcerting.
Lord Williams of Elvel: My Lords, the amendments, especially Amendment No.184, are certainly the product of a fairly lengthy discussion that we had in Committee. There is just one point I should like to raise with the Minister. Let us suppose, for example, that the local authorities which are part of the national park authority have a particular party in control. Let us further suppose that the members of the council who represent wards or electoral divisions in Wales and who are to be appointed to the national park authority belong to the minority party in the council. Would that not create the rather odd situation of a council controlled by one party but obliged to appoint members of the opposition to the national parks authority?
Viscount Ullswater: My Lords, Amendment No. 188 strives to overcome the problem of political balance as
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regards membership. I understand that it may be difficult always to comply with the requirements of Amendment No. 184. However, it is an attempt, perhaps a duty, to ensure that councils have regard to the desirability of appointing; I put it no higher than that. I believe that Amendment No. 188 attaches the concept of political balance. I should add how pleased I am that the noble Lord, Lord Feversham, also welcomes the amendments.
On Question, amendment agreed to.
Viscount Ullswater Viscount Ullswater moved Amendment No. 185:
Page 139, line 39, leave out ("in respect") and insert ("by virtue").
The noble Viscount said: My Lords, in moving the amendment, I should like to speak also to Amendments Nos. 190, 208, 258 and 314 tabled in my name. They are all technical amendments seeking to clarify various provisions in the Bill.
Amendment No. 185 is a technical amendment to clarify that a local authority appointee to a national park authority holds appointment by virtue of being a member of a principal council with land in the appropriate national park. Amendment No. 190 is a consequential amendment to paragraph 2(7) of Schedule 7 to the Bill as a result of Amendment No. 185,
Amendment No. 208 puts it beyond doubt that the Secretaries of State for Wales and for England can operate the order-making powers within Part III of the Bill differently within the two countries. The matter was also referred to in the memorandum that I sent to my noble friend Lord Rippon of Hexham.
Amendment No. 258 is a technical amendment to Clause 105(3) of the Bill making clear that the repeal of paragraph 22(1) of Schedule 10 to the Bill will only come into force in accordance with paragraph 22(7). Paragraph 22(1) is a transitional provision defining relevant authority with regard to Section 39 of the Wildlife and Countryside Act 1981. Amendment No. 314 is also a technical amendment. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 186 and 187 had been withdrawn from the Marshalled List.]
Viscount Ullswater Viscount Ullswater moved Amendment No. 188:
Page 139, line 45, at end insert ("(political balance)").
On Question, amendment agreed to.
[Amendment No. 189 had been withdrawn from the Marshalled List.]
Viscount Ullswater Viscount Ullswater moved Amendments Nos. 190, 191 and 192:
Page 140, line 3, leave out ("in respect") and insert ("by virtue").
Page 144, line 29, at end insert:
("Liaison with parish and community councils
A National Park authority shall make arrangements—

(a) in the case of a National Park in England, with each parish council the area of which is comprised wholly or partly within the Park, or

(b) in the case of a National Park in Wales, with each community council the area of which is so comprised,

for the purpose of informing and consulting that council about the authority's discharge of its functions.").
Page 145, leave out lines 38 and 39 and insert ("means—

(a) the order under section 60 of this Act establishing that authority;

(b) any order under that section relating to that authority; or

(c) any order made in relation to that authority in exercise of the power to amend an order under that section.").

On Question, amendments agreed to.
4.45 p.m.
Clause 61 [General purposes and powers]:
Viscount Ullswater Viscount Ullswater moved Amendments Nos. 193 and 194:
Page 67, line 28, after ("period") insert ("(if any)").
Page 67, line 33, at end insert:
("() In the application of subsection (3) above in the case of a National Park authority established in relation to a National Park in Wales, the reference to any existing authority for that Park shall have effect as respects consultation carried out during so much of that period as falls before 1st April 1996 as including a reference to any principal council whose area is wholly or partly comprised in that Park.").
On Question, amendments agreed to.
Schedule 8 [Supplemental and incidental powers of authorities]:
Viscount Ullswater Viscount Ullswater moved Amendment No. 195:
Page 149, line 16, after ("a") insert ("new").
The noble Viscount said: My Lords, in moving the amendment, I shall speak also to Amendments Nos. 199, 200, 204, 210 to 220, 222, 223 and 294 to 312. When speaking to Amendment No. 183, I explained the interaction between the national park provisions in the Local Government (Wales) Act 1994 and those in Part III of the Bill and the circumstances in which either planning boards or national park authorities will be established for the national parks in Wales. The 1994 Act contained various provisions relating to national parks which it is necessary to amend to reflect the provisions of the Bill. Other amendments are required to the Bill to reflect the particular circumstances of Wales, irrespective of whether national park authorities or planning boards are established. I beg to move.
On Question, amendment agreed to.
Clause 62 [National Park Management Plans] :
The Earl of Lindsay The Earl of Lindsay moved Amendments Nos. 196, 197 and 198:
Page 68, line 43, leave out ("or") and insert ("and the Nature Conservancy Council for England or to").
Page 68, line 45, leave out ("such principal council and to that Commission or Council;") and insert ("body to which notice of the proposal is required to be given by paragraph (a) above;").
Page 69, line 1, leave out ("principal council or by that Commission or Council") and insert ("body").
On Question, amendments agreed to.
Clause 64 [Planning authority functions under National Parks legislation etc.] :
The Earl of Lindsay The Earl of Lindsay moved Amendments Nos. 199 and 200:
Page 71, line 7, after ("authority") insert ("(or, in relation to Wales, a local planning authority)").
Page 72, line 10, after ("Park") insert ("in England").
The noble Earl said: My Lords, my noble friend spoke to these amendments with Amendment No. 195. I beg to move Amendments Nos. 199 and 200.
On Question, amendments agreed to.
Schedule 9 [Miscellaneous statutory functions of authorities] :
Lord Wise Lord Wise moved Amendment No. 201:
Page 151, line 40, at end insert:
("Public rights of way
.—(1) In a National Park for which a National Park authority is the local planning authority, the authority shall be the highway authority for any public right of way for which the Minister is not the highway authority; and references in the Highways Act 1980 to highway authorities shall be construed accordingly.
(2) In sub-paragraph (1) above, "public rights of way" means any highway which is a right of way to which Part III of the Wildlife and Countryside Act 1981 applies (as defined in section 66 of that Act) or which is a way shown as a road used as a public path in a definitive map and statement prepared under that Part of that Act.
(3) Section 42 of the Highways Act 1980 (power of district councils to maintain certain highways) shall not apply to any highway for which a National Park authority is, by virtue of sub-paragraph (I) above, the highway authority.").
The noble Lord said: My Lords, in moving Amendment No. 201 I wish to speak also to Amendments Nos. 202 and 203. These amendments were ably moved by my noble friend Lord Derwent in Committee and I do not propose to attempt to repeat the detail of his arguments now. I simply begin by reminding the House that the effect of these proposed amendments would be to make national park authorities responsible for the management of the public rights of way network within the national parks. Each national park authority would be responsible for the maintenance of these public rights of way, for tackling any problems on them, and for keeping the definitive map of public rights of way in its area up to date.
The amendments would also give the authority a power to make traffic regulation orders to control use of those rights of way; for example, to restrict or perhaps prohibit, as the case may be, the use of four-wheel drive vehicles on byways, or the use of mountain bikes on footpaths. These amendments received the overwhelming support of the House in Committee and they are also widely supported by an impressive number of outside organisations ranging from the Country Landowners' Association to the Association of County Councils and the Ramblers' Association.
In its 1992 policy statement on national parks, the Government said that they expect,
"national park authorities to be leaders in the field of rights of way",
thereby endorsing a key recommendation in the Edwards Report. The 11,000 miles of rights of way in the national parks are arguably the single most important resource that the parks possess to enable the millions of visitors to enjoy their special qualities. They are vital for the achievement of the parks' recreational purposes.
However, the Government's laudable expectation cannot and will not he met unless national park authorities are given the tools for the job. The authorities

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do not have the tools at present. The Bill as presently drafted fails to supply them. The amendments seek to remedy that deficiency.
I wish to comment on four concerns raised in Committee by my noble friend the Minister. I am firmly of the belief that these can all be fully addressed. First, my noble friend noted that the amendments would result in a division of responsibility, which is most certainly true. However, I should like to point out that that responsibility is, of course, already split. The Secretary of State is the highway authority for trunk roads. For example, therefore, in the Lake District the A590 and the A66 roads are the responsibility of the Secretary of State, not Cumbria County Council. In addition, Section 42 of the Highways Act 1980 gives district councils the power to claim the right to maintain footpaths, bridleways and urban roads. In the Lake District, Allerdale, Copeland, Eden and South Lakeland district councils could all choose to take the maintenance of footpaths and bridleways away from Cumbria County Council and prevent any agreement being made between the county council and the Lake District National Park. Surely the question is whether a particular division of responsibility is logical. I suggest the division proposed by these amendments would be so, and would greatly increase effectiveness.
Secondly, I wish to address potential problems of defining byways. A byway is a particular type of carriageway: one which has escaped being covered with tarmac, and thus today is used mainly by walkers and riders of horses and pedal cycles, including mountain bikes. Because, in law, byways are a sub-group of carriageways, and because there is as yet no definitive list of those carriageways which are byways, there are inevitably some whose status is not immediately clear. It must be noted, however, that these problems of definition have not stopped Parliament from legislating to give different treatment to byways on several occasions since 1981, most recently in the Criminal Justice and Public Order Act 1994. There has been recognition on those occasions that separate treatment for byways is justified, and the same applies now.
Thirdly, Amendment No. 202 includes a provision that a national park authority with responsibility for the definitive map would have power to merge the various definitive maps it inherited from the existing authorities and produce a single new map for the whole of the park area. The Minister questioned the appropriateness of including in Amendment No. 202 such a provision for a national park authority. I suggest that this provision is needed in the interests of efficient working. For example, staff in the Yorkshire Dales National Park currently have to work with three different maps which use three different combinations of scale and notation. The national park would like to have a single map for the whole area using the same modern scale throughout.
Fourthly, I turn to the benefits of giving the park authorities the power to make traffic regulation orders, which would be a useful tool for management purposes and would be available to control the use of rights of way where necessary. The amendment has been deliberately worded so that a residual power is retained
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by the main traffic authority—be it the county council or unitary authority—in case there is a need, which could be an urgent one, to make an order to regulate use both of a road and an adjacent right of way. I hope I have reassured the Minister with these replies.
Your Lordships may recall from the Committee stage debate that at present some parks have some right of way powers delegated to them, but that is not the case with all powers or all parks. In those national parks where the national park authority is a county council committee, in any arrangement whereby rights of way work is carried out by the park authority it is currently a matter of internal delegation rather than formal agreement. That situation will inevitably change with the creation of independent national park authorities. Formal agreements will have to be entered into, and highway authorities may be less willing to do so. This could apply particularly where the highway authority has itself been affected by local government reorganisation. This will be true of all the Welsh national parks and may also be the case in many English parks, depending on the final outcome of local government reorganisation in England.
In the debate at Committee stage my noble friend Lord Onslow asked the Minister what would happen if a highway authority's response to the invitation to enter into an agency agreement with a national park authority were to be, "no". My noble friend the Minister has since, in a Written Answer to my noble friend Lord Derwent, made the position crystal clear. If the highway authority chooses not to enter into an agreement, that is the end of the matter. The Secretary of State has no powers of direction. I put it to noble Lords that these amendments are both timely and necessary. I hope my noble friend the Minister can look favourably upon them. I beg to move.
Viscount Addison: My Lords, I should like to give my wholehearted support to Amendments Nos. 201, 202 and 203. What is at issue, as my noble friend Lord Wise said, is whether national park authorities are given the powers to manage the most important recreational resource in their areas: the rights of way.
I regret to have to say that I simply do not believe that the delegation approach being advocated in the guidance will work. My doubts are based on the fact that ever since 1976, when a circular in response to the Sandford Report was published, the Government have been asking that,
"National Park Authorities should be enabled to exercise all the functions relating to footpaths and bridleways now vested in highway authorities".
That has been widely ignored.
Since, in the future, highway authorities will be asked to delegate not to their own park sub-committees but to independent park authorities, they are even less likely to delegate voluntarily. Furthermore, because of local government reorganisation a number of highway authorities will be brand new local authorities. They are not likely to accord priority to giving away powers they have just received. I therefore believe that the difficulties referred to by my noble friend Lord Derwent in Committee will get worse.

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Recreational public rights of way are fundamental to the execution of one of the two statutory purposes of national parks, yet responsibility for them remains with bodies with whom the recreational part of the rights of way network is less fundamental. Indeed, national park officers question whether they will be able to carry out their statutory purposes effectively if they have no control of the public rights of way network.
Control of the public rights of way network is necessary not only to ensure that the network can be used by pedestrians or riders, but also to allow proper management of the park resources as a whole. For example, a park might wish to spend money on particular paths in order to encourage movement away from an over-used "honey pot" area.
I illustrate my support for the amendments by referring to a couple of the points raised by my noble friend Lord Wise. On the matter of divided responsibility, it is my understanding that in the Peak District the national park authority has to deal not only with seven highway authorities but also with district councils which have agency agreements with some of those authorities. For example, Derbyshire County Council has an agency agreement with Derbyshire Dales District Council for the removal of obstructions from public paths, and a separate and different agency agreement with High Peak Borough Council, this time for the maintenance of the surface of public paths. This seems a very confusing state of affairs which would benefit immensely from the national park authority receiving responsibility for the management of the rights of way network.
My noble friend Lord Wise spoke of the appropriateness of merging definitive maps. Your Lordships may be interested to note that the Welsh Office appears recently to have accepted that it needs to make provision, as part of local government reorganisation in Wales, for the new councils which are being created to be able to merge the maps they will inherit. Therefore, the principle that there is merit in creating new unified maps for new authorities is clearly established.
Surely, the primary responsibility for management of different rights of way ought to lie with the agency with responsibilities to the particular users. Thus motorways are of national importance and are the responsibility of government. Other metalled roads are of more local or regional importance and are the responsibility of local highway authorities. Footpaths and bridleways are of either recreational or very local importance and in national parks should be the responsibility of those charged with promoting recreation, namely, the national park authorities. I support the amendments.
5 p.m.
Lord Beaumont of Whitley: My Lords, we too support the amendments. The case for them has been made out by the noble Lord, Lord Wise, and the objections of the Minister have been accommodated.
The noble Lord, Lord Wise, mentioned that the noble Viscount, Lord Ullswater, spoke of his wish to issue invitations to authorities to delegate their rights of way responsibilities to the national park authorities. In the
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usual helpful way in which he injects little barbs into debates, the noble Earl, Lord Onslow, cast the noble Viscount in the role of Hotspur as one who would call up spirits from the vasty deep and ask the very difficult question:
"But will they come when you do call for them?"
The noble Viscount has admitted that they will not necessarily come when he calls them. Therefore, there is a genuine reason for writing this provision on to the face of the Bill.
Lord Feversham: My Lords, I support the amendments. The case for them has been made very well. It is an important group of amendments. After all, national parks are responsible for encouraging people to walk in the countryside. How can they do that effectively unless they control the public rights of way across which all those people will travel?
I have some input to make, from a parish council point of view. When people redraw or look again at definitive maps of rights of way they always have to turn to the parish councils to find out where they run. If people want to alter rights of way they nearly always have to ask the advice of parish councils on how that can best be done.
I am extremely suspicious of any legislation which advises local authorities of the advantage of delegating their powers to somebody else. That is wishful thinking. These amendments are extremely important. I support them wholeheartedly.
Lord Moran: My Lords, I should like to express my strong support for the amendments. The case for them has been made thoroughly by the noble Lord, Lord Wise, and the noble Viscount, Lord Addison. If we are setting up independent authorities to run the national parks it is essential that they should be able to control rights of way in particular. If they cannot do that, they cannot run the national parks effectively. I hope very much that the Government will be prepared to accept the amendments.
Viscount Ullswater: My Lords, I recognise the support which my noble friend Lord Wise has again secured for Amendments Nos. 201, 202 and 203. I have every sympathy with what he is trying to achieve.
I recognise the importance of the rights of way network to national parks as elements in securing the promotion of enjoyment of the parks, as the noble Lord, Lord Feversham, said. We are all agreed on that. Where we differ is on the best means of achieving that objective.
I appreciate the strength of feeling among your Lordships that the Government should look again at their policy that the integrity of the highway network and its management should be maintained and that that should be through the mechanism of a common highway authority. Clearly, highway authorities and national park authorities will need to work together in close co-operation to ensure that the network is well maintained, available for use and appropriately publicised.

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However, footpaths and bridleways are public highways in the same way as public carriageways, and it does not make sense to fragment legal responsibilities in this way. It is therefore not our policy that national park authorities should be given formal responsibility for the rights of way network in their areas. Highway authorities and national park authorities will have to work in close partnership so as to determine which parts of the network are best dealt with by the highway authority and which by the national park authority. Therefore, we intend to continue to invite highway authorities to enter into agency agreements with the national park authorities so that the new authorities will have day-to-day responsibility for the management of rights of way in their areas. As I indicated in Committee, we will write to each relevant highway authority asking it to consider positively its relationship to the new national park authorities and to enter into agency agreements to delegate rights of way work where it has not already done so.
Those agreements will enable the national park authorities to continue to protect and promote recreational rights of way in a way which can be tailored to meet the particular circumstances of the park. In approaching the issue in this way, rather than through statutory procedures which are the subject of Amendment Nos. 201, 202 and 203 the national park authorities will be able to contribute fully to the day-to-day maintenance and improvement of rights of way in their areas. Many of them do so already.
I believe that that relationship reflects the most appropriate manner to resource this important function. The new authorities will be confident that the constituent county councils, with their more substantial resources, will be standing behind them when unforeseen circumstances arise which require the rapid injection of large sums of money. For example, this may be because a bridge needs urgent repair to make it safe, or that a large section of footpath needs urgent treatment to prevent it falling into a river. Such expenditure, arising at short notice and requiring urgent action, could well be large in terms of the national park authorities' own budgets but small in terms of the resources which are available to the highway authorities. Thus the highway authorities will be better placed to absorb any such expenditure.
In addition, our proposed arrangements will enable the national park authorities and the highway authorities to come to sensible agreements on dealing with those rights of way which would under the statutory scheme in the amendments fall to the national park authorities but where, on practical grounds, there is general agreement that they should remain with the highway authority. I have in mind tarmacadamed or surfaced footpaths in small towns in the parks for which it is sensible that responsibility should rest with the highway authorities rather than with the national park authorities, even under agency agreements.
Some national parks have significant urban areas, and it makes little sense for the national park authorities to be statutorily responsible for the maintenance of connecting and linking footpaths in towns. Nor does it
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make sense that they should be statutorily responsible for byways which, under Section 56 of the Highways Act 1980, have to be maintained to a suitable standard having regard to the use traditionally made of them. In many cases, this will make the national park authority responsible for rights of way with significant motorised use, the maintenance of which must be integrated with the wider highway network. These activities would unnecessarily deplete the resources of the national park authorities. We are also clearly some way from defining precisely the routes which meet the definition of byway open to all traffic. To require highway authorities and national park authorities to define these immediately would deflect resources from other important areas of work.
Also, we do not consider it appropriate to amend the provisions regarding the preparation of definitive maps on a piecemeal basis. This is a specialised area of work in which the highway authorities already have considerable expertise. I believe that there would be significant diseconomies of scale if each national park authority has to take this role on in its own area.
We have, therefore, no plans for the time being to redistribute statutory responsibilities for the rights of way network to national park authorities, nor do we have any plans to give them the same powers as a traffic authority. With that comprehensive explanation, I hope that my noble friend will feel able to withdraw his amendment.
Lord Wise: My Lords, I thank all noble Lords who have spoken in support of the amendments. I also thank the Minister for his comprehensive explanation in reply. I was a little disappointed from time to time, but I can understand the point of his arguments. I wish to discuss them with my noble friend Lord Derwent to see what he thinks when he has read my noble friend's reply. I reserve the right to return at Third Reading, and meanwhile I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 202 and 203 not moved.]
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 204:
Page 152, line 21, after ("council") insert ("or county borough council").
The noble Earl said: My Lords, my noble friend spoke to Amendment No. 204 with Amendment No. 195. I beg to move.
On Question, amendment agreed to.
Clause 67 [National Park authorities to be levying bodies]:
5.15 p.m.
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 205:
Page 74, line 16, at end insert:
("() Before determining the total expenditure to be incurred by it in any financial year, a National Park Authority shall consult with every council by whom the local authority members of that authority fall to be appointed.").
The noble Lord said: My Lords, this amendment stands in the names of my noble friend Lady Hilton and myself. Clause 67 provides for the new national park authorities to issue annual levies to the local authorities

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who appoint members to them. The total of the levies, as I understand it, is to equal the difference between the authority's total budgeted revenue expenditure for the year and the income it expects to receive from other sources—mainly the national parks supplementary grant from the Department of the Environment or possibly the Welsh Office.
In theory, the local authority representatives have a two-thirds representation on the national park authority and they will be able to control its budget and therefore ensure that the levy will be kept at a level which the funding local authorities (which, after all, have to provide the money) find acceptable. However, if there are several funding local authorities, it is possible that a majority of the national park authority members might approve a budget which a minority of the funding local authority found unacceptable. As I was mentioning when the noble Viscount moved the government amendment about representation from local authorities on national park authorities, it is particularly likely to be the case if representatives from funding local authorities on national park authorities belong to minority parties in their own local authorities. They may do so simply because they happen to represent wards which fall within the national park. So there could be a conflict between the national park authority and the local authorities which are the source of the funds.
The proposed amendment would require the national park authority to consult formally with the funding authorities before settling its own budget. That happens in most cases at the moment, and would do no more than existing best practice requires, whereby a national park authority with multiple funding local authorities holds an annual consultative meeting to which it invites representatives of all those authorities before settling its own budget. That happens in best practice at the moment. Because of the new nature of the national park authorities and because of the problem introduced by the amendment which the Government put forward, I believe it is right that a consultative process of that nature should be built into the Bill. I beg to move.
Viscount Ullswater: My Lords, we place great emphasis on the importance of the new authorities having regular contacts with their constituent local authorities in matters which impinge on their responsibilities and working closely with them. I would expect that, in financial affairs, as in other issues in which they have an interest, the national park authorities will consult fully with their constituent local authorities.
I believe that it will be particularly important for the NPA5 to be in close consultation with the constituent local authorities as their financial plans are developed. Our guidance will be very clear on this issue. I am also confident that the local authority members on the new authorities will make sure that there is full consultation and the interests of their constituent local authorities are properly represented and fully considered and that due weight is given to them,
I appreciate the sentiment behind the noble Lord's amendment, but perhaps with my reassurance he will feel able to withdraw it.
Lord Williams of Elvel: My Lords, I do not believe that the noble Viscount has answered the point which I made. It is that members from funding local authorities who are on national park authorities could, as a result of the Government's amendment, be of a minority party within the funding local authority. There could therefore be a conflict between those who are members of a national park authority and those who are not members of a national park authority but control the council concerned and are responsible for setting the council tax rate.
I do not feel that the reply is other than disappointing. I understand that the noble Viscount expects close co-operation between the national park authorities and funding local authorities. He says it is important and it will be in the guidance. All that is fine, but we seek a cast-iron assurance that it will actually happen. It is a matter of worry that the national park authority could set a budget, when the national park authority itself is composed of people who do not control the budget of the local authority which funds it. That is the point that I was trying to stress. I do not think that the noble Viscount has given me an encouraging reply and I am sorry for that because there is a real problem. I shall have to examine the matter, consult with advisers and decide what to do. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 70 [Powers to make Orders]:
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 206:
Page 75, line 15, after ("instrument") insert ("; and, except in the case of a statutory instrument made by virtue of section (National Park authorities in Wales)above which only—

(a) designates a date,

(b) renames a body,

(c) makes provision under paragraph 2(3) of Schedule 7 to this Act for excluding a council from the councils by whom the local authority members of a National Park authority are to be appointed, or

(d) makes provision under section 60(2) above any such statutory instrument shall be").

The noble Earl said: My Lords, my noble friend spoke to this amendment with Amendment No. 183. I beg to move.
On Question, amendment agreed to.
Baroness Hamwee Baroness Hamwee moved Amendment No. 207:
Page 75, line 17, leave out ("include") and insert ("comprise").
The noble Baroness said: My Lords, this amendment seeks clarification of the terminology used in subsection (3) of Clause 70. Clause 70 refers to all the powers that the Secretary of State has under this part of the Bill. Subsection (3) states that the powers in question,
"shall, in each case, include",
and then lists certain powers:
"to make …incidental, supplemental, consequential and transitional provision",
within the discretion of the Secretary of State.
At the last stage I queried the use of the term "include" and asked what was not actually set out in the subsection on the face of the Bill, since my understanding of the word "include" is that there must be something that is not spelt out. I therefore propose in

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this amendment that the term "include" be changed to "comprise" to make it quite clear that there is no other power. I did so, having heard from the Minister; I thank him for his letter containing reassurance that the word "include" does not carry with it any more powers than those that are listed. I was glad to have his reassurance, and I do not doubt that reassurance. However, I feel that the word "comprise" would be very much clearer in the context. I beg to move.
Viscount Ullswater: My Lords, the effect of subsection (3) of Clause 70, read together with subsection (1), is that the enabling powers to make orders which are contained in the earlier provisions of Part III of the Bill (of which Clause 60 is perhaps the most important) include power to make incidental, supplemental, consequential and transitional provision, as mentioned. The same result could have been arrived at by putting in Clause 60 itself a provision saying that "an order under this section may include" the further provision in question, and then repeating the formula for Clause 63, but that would have been unnecessarily repetitive and clumsy.
I believe that the word "comprise" contains within it the terms: "include, contain; extend to, encompass; consist of, be made up of'. Therefore to change "include" to "comprise" in accordance with the amendment would either keep the meaning of the provision as it is, if one were to select the definition "include, contain; extend to, encompass", or make the provision nonsensical, if one were to select "consist of, be made up of".
I therefore ask the noble Baroness to consider perhaps that the words on the face of the Bill are correct, and to withdraw her amendment.
Baroness Hamwee: My Lords, before the Minister sits down (he almost has done) I wonder whether he can at any rate repeat the reassurance that he gave me in writing that the word "include" does not carry any more powers than those that are listed, Did I miss that point in his reply?
Viscount Ullswater: My Lords, I am happy to give that reassurance.
Baroness Hamwee: My Lords, I thank the Minister. I would quite enjoy continuing to discuss semantics, but perhaps it would tax further the patience of the House. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 208:
Page 76, line 16, after first ("different") insert ("areas or").
The noble Earl said: My Lords, my noble friend spoke to this amendment with Amendment No. 185. I beg to move.
On Question, amendment agreed to.
Schedule 10 [Minor and consequential amendments relating to National Parks]:
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 209:
Page 154, line 16, at end insert:
("() In section 114(2) of that Act (construction of references to the preservation of the natural beauty of an area) after the word "preservation"—

(a) in the first place where it occurs, there shall be inserted the words ", or the conservation,", and

(b) in the second place where it occurs, there shall be inserted the words "or, as the case may be, the conservation".").

The noble Earl said: My Lords, in Schedule 10, my noble friend spoke to Amendment No. 209 with Amendment No. 184. In addition, he spoke to Amendments Nos. 210 to 220 with Amendment No. 195. I beg to move.
On Question, amendment agreed to.
The Earl of Lindsay The Earl of Lindsay moved Amendments Nos. 210 to 220:
Page 156, leave out lines 4 and 5 and insert:
("() In section 184 of the 1972 Act (functions under countryside legislation) in paragraph (b) of subsection (1), for the words "subsections (6) to (8) below" there shall be substituted the words "subsections (7) and (8) below".
() In subsection (4) of that section—").
Page 157, line 16, leave out from beginning to ("in") in line 19.
Page 157, leave out lines 22 to 26.
Page 157, line 46, leave out ("after "situated" there shall be inserted "and") and insert ("the word "and" immediately preceding sub-paragraph (ii) shall be omitted and after that sub-paragraph there shall be inserted ("and
(iii)") .
Page 157, line 48, after ("land") insert (", or any part of the land,").
Page 158, line 19, leave out from ("Wales"") to end of line 26.
Page 160, line 18, leave out paragraph 30 and insert:
(".—(1) Paragraph 2(6) of Schedule 8 to the Electricity Act 1989 (definition of "relevant planning authority" for the purposes of consents under that Act) shall be amended in accordance with the following provisions of this paragraph.
(2) In this paragraph "the 1994 amendment" means the omission of the words "and Wales" in paragraph (a) of the said paragraph 2(6) by paragraph 22 of Schedule 6 to the Local Government (Wales) Act 1994.
(3) If the 1994 amendment comes into force after this paragraph, then—

(a) in paragraph (a) of the said paragraph 2(6), for the words "England and Wales" there shall be substituted the words "land in England and Wales which is not in a National Park for which a National Park authority is the local planning authority";

(b) after that paragraph (a) there shall be inserted the following paragraph—

"(aa) in relation to land in England and Wales which is in a National Park for which a National Park authority is the local planning authority, means that National Park authority; and"; and
(c) the 1994 amendment shall have effect in relation to the said paragraph (a) as amended by paragraph (a) above, and on the coming into force of the 1994 amendment the words "and Wales" shall also be omitted from the paragraph (aa) inserted by paragraph (b) above.
(4) If the 1994 amendment comes into force before this paragraph, then—

(a) in paragraph (a) of the said paragraph 2(6), for the word "England" there shall be substituted the words "land in England which is not in a National Park for which a National Park authority is the local planning authority"; and

(b) after that paragraph (a) there shall be inserted the following paragraph—

"(aa) in relation to land in England which is in a National Park for which a National Park authority is the local planning authority, means that National Park authority; and".
(5) If the 1994 amendment comes into force on the same day as this paragraph, the 1994 amendment shall be deemed to have come into force immediately before this paragraph (and sub-paragraph (4) above shall have effect accordingly).
(6) The paragraph (aa) inserted by paragraph 22 of Schedule 6 to the Local Government (Wales) Act 1994 shall be re-numbered "(ab)".").
Page 160, leave out lines 29 to 31 and insert:
(" .—(1) In section 21(1) of the Local Government and Housing Act 1989 (interpretation of Part I) the word "and" immediately preceding paragraph (m) shall be omitted and after that paragraph there shall be added "and
(n) a joint planning board constituted for an area in Wales outside a National Park by an order under section 2(1 B) of the Town and Country Planning Act 1990."
(2) In section 39(1) of that Act (application of Part IV), after paragraph (h) there shall be inserted—
"(hh) a joint planning board constituted for an area in Wales outside a National Park by an order under section 2(1B) of the Town and Country Planning Act 1990;".
(3) In section 67(3) of that Act (local authorities for the purposes of Part V) the word "and" at the end of paragraph (o) shall be omitted and after that paragraph there shall be inserted—
"(oo) a joint planning board constituted for an area in Wales outside a National Park by an order under section 2(IB) of the Town and Country Planning Act 1990; and".
(4) In section 152(2) of that Act (relevant authorities for the purposes of imposing certain charges) the word "and" immediately preceding paragraph (1) shall be omitted and after that paragraph there shall be added "and
(m) a joint planning board constituted for an area in Wales outside a National Park by an order under section 2(1B) of the Town and Country Planning Act 1990."
(5) In paragraph 2(1) (b) of Schedule I to that Act (bodies to which appointments are made taking account of political balance) for "paragraphs (k) and (m)" there shall be substituted "paragraphs (k), (m) and (n)".").
Page 164, line 4, at end insert:
("The Local Government Finance Act 1992 (c. 14)
In section 35 of the Local Government Finance Act 1992 (definition of "special items") in subsection (5) (expenses of a billing authority not to be special expenses if they are expenses of meeting a levy from a National Park planning board) paragraphs (a) and (b) shall be omitted and at the end of that subsection there shall be added the words "or
(c) a National Park authority in relation to a National Park in Wales."").
Page 164, line 4, at end insert:
("The Local Government (Overseas Assistance) Act 1993 (c. 25)
In section 1(10) of the Local Government (Overseas Assistance) Act 1993 (certain bodies on which powers are conferred by the Act), at the end there shall be added—
"(h) a joint planning board constituted for an area in Wales outside a National Park by an order under section 2(IB) of the Town and Country Planning Act 1990.".
Page 164, line 9, at end insert:
("The Local Government (Wales) Act 1994 (c. 19)
In Schedule 6 to the Local Government (Wales) Act 1994 (minor and consequential amendments relating to planning) in paragraph 2, for the words "paragraphs 3 to 14" there shall be substituted the words "paragraphs 13 and 14".
On Question, amendments agreed to.
Clause 74 [Interpretation of Part III]:
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 221:
Page 77, line 22, after ("Act") insert ("or constituted by an order under paragraph 3A of that Schedule or section 2(IB) of the Town and Country Planning Act 1990").
The noble Earl said: My Lords, my noble friend spoke to Amendment No. 221 with Amendment No. 183. In addition, he spoke to Amendments Nos. 222 and 223 with Amendment No. 195. I beg to move.
On Question, amendment agreed to.
The Earl of Lindsay The Earl of Lindsay moved Amendments Nos. 222 and 223:
Page 77, line 32, leave out ("or").
Page 77, line 33, at end insert (", any joint authority established under section 34 of the Local Government (Wales) Act 1994 or the Residuary Body for Wales established by section 39 of that Act").
On Question, amendments agreed to.
Lord Bancroft Lord Bancroft moved Amendment No. 224:
Before Clause 75, insert the following new clause:
("Joint planning arrangements for sustainable development
After section 2 of the Town and Country Planning Act 1990 there shall be inserted—
"Joint planning arrangements for sustainable development.
2A.—(I) Subject to subsections (2), (3) and (4) of this section, where the Secretary of State at any time considers it expedient so to do in respect of any relevant area, he shall direct the local planning authorities for that area to integrate the principles of sustainable development into their strategic planning functions and to establish and maintain joint arrangements for the discharge of those functions.
(2) Before deciding whether to issue a direction under subsection (1) of this section in respect of any area, the Secretary of State shall consult with every local planning authority and with persons or bodies representative of business. industry and other relevant interests within that area.
(3) Without prejudice to his powers so to do at any other time, the Secretary of State shall, in every area in respect of which he makes an order under section 17 of the Local Government Act 1992, forthwith consult with the persons mentioned in subsection (2) of this section for the whole of that area.
(4) If in the light of any consultation under subsection (3) of this section it appears to him expedient so to do in respect of all or part of the area, the Secretary of State shall issue a direction under subsection (1) of this section which shall come into force on the same day as the relevant order under the Local Government Act 1992.
(5) In this section—
"relevant area" means any non-metropolitan area in respect of which an order is made under section 17 of the Local Government Act 1992 replacing the two principal tiers of local government with two or more single tier authorities, or any part of any such area; and
"strategic planning functions" means the functions of a local planning authority in relation to the structure plan or unitary plan, to the winning and working of minerals and ancillary operations specified in paragraph 1(1) of Schedule I to the Town and Country Planning Act 1990 and to the disposal, treatment, storage or processing of refuse or waste materials.".").
The noble Lord said: My Lords, in moving the amendment standing in my name and those of other noble Lords, I acknowledge straight away that this is not a planning Bill. But the town and country planning system is one of the most important instruments available to promote sustainable development, and sustainable development is at the heart of this Bill. Its Long Title is broad, and it therefore seems proper to use this opportunity to prevent a possible weakening of the planning system's capacity to deliver sustainable development in certain areas. This weakening may well result from the reorganisation of the bodies that are chiefly responsible for planning decisions; namely, the local authorities.
Orders have been recently approved by this House, as we all know, and in another place to abolish the Avon, Cleveland and Humberside county councils and to vest their powers in new and considerably smaller unitary authorities. An order has also been approved to create a new unitary authority for York within the area that is presently administered by North Yorkshire County Council. Orders designed to change the local government structure in some other counties—albeit generally only in certain districts of those counties—are likely to be put before your Lordships in due course. The recent announcement by the Secretary of State has, I am bound to say, increased and prolonged the uncertainty about the ultimate extent of this process.
All the orders approved so far provide for the new authorities jointly to inherit the respective county structure plans. But thereafter this and other county planning functions—notably those in respect of minerals and waste—are to be discharged by the new unitary authorities with no provision whatsoever to secure joint working.
These are all subjects which require to be tackled strategically over wide areas. That is self-evident in the case of structure planning. But in addition, a small authority naturally tends to resist mineral and waste developments on principle in its own area. But it will not be able to defend those decisions on appeal or on call-in by reference to a broader, coherent balance between economic and environmental factors.
In Cleveland there is relatively little scope for mineral extraction. But there is an intense concentration of industries producing wastes, quite often of types needing particularly careful treatment. Elsewhere, mineral extraction will generally be equally, or even more, important.
There are existing powers to set up joint planning authorities, but none of these fits the present case. Section 2 of the Town and Country Planning Act 1990 enables a joint county planning authority to be set up for more than one county, or a joint district planning authority for more than one district. But it does not enable a joint authority to be set up to exercise county planning powers within a single former county.
Earlier this week, on Monday 6th March, at col. 107 of Hansard, the noble Viscount the Minister kindly reminded me of Section 21 of the Local Government Act 1992 when I glancingly raised an analogous point on the Humberside and North Yorkshire orders. But in
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my respectful submission, Section 21 of the 1992 Act will not meet the case. This section contains default powers to set up a joint authority within a recognised area but only if it is found that the constituent authorities are failing to do so.
In reality, failure will not manifest itself until the authorities have been trying for some time to make the planning system work, according to their own lights, and bad decisions have been taken and implemented. That will be too late.
The new clause would empower the Secretary of State to direct the new authorities to set up joint arrangements to carry out these vitally important planning functions in any area where two or more single tier authorities take over the functions at present exercised by a county council. The use of his powers of direction would, one hopes, be a matter of last resort; for it would grieve me deeply to see yet more powers migrate from the localities to the north tower of the Marsham Street toast rack. I remember it well, although it is nearly a quarter of a century since I first moved in there with the noble Lord, Lord Peyton.
Many authorities will gladly collaborate over joint arrangements. To assume that all authorities will be so disposed may be a hallucination—pigs might fly. But the mere existence of that power would act as a deterrent to non-collaboration. The process is a simple one. The new clause would require the Secretary of State to exercise the power of direction if it appeared expedient after consultation with the local authorities and other interests —business, industry and organisations with an interest in the local environment and economy. That could happen at any time, but in particular the clause would require him to go through that consultation process whenever he made an order reorganising the local authorities in any area and have any necessary new joint planning arrangements in place from the start.
I repeat, it is always preferable that local authorities, as responsible, accountable bodies, should be allowed to settle their own affairs. But equally in a matter as important as the present one, a last resort should be available in time to prevent serious and perhaps irreparable damage. Existing powers do not provide for that but the new clause does. I beg to move.
5.30 p.m.
Lord Peyton of Yeovil: My Lords, I should like briefly to say how delighted I am to support the noble Lord, Lord Bancroft. In that dreadful building in Marsham Street he contributed, with his considerable intelligence, something in sharp contrast to the building which housed him. I would share to the full the grief that he would feel at the departure of any more powers from the localities concerned to Marsham Street. I hope that it will not happen. The new clause, to which I have put my name, is intended more to explore the mind of the Government than to confer yet more powers upon the Secretary of State.
I have three questions which I should like to put to my noble friend. First, how does the Secretary of State propose to use the powers that he already has to promote sustainable development? Secondly, what role does he see for the local authorities in that same task?

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I ask my third question against the background of a certain bewilderment. It may be that other noble Lords are absolutely clear, since the developments last week, about what the Government have in mind for the future of the local government commission and the proposals which emanate from it. For myself, I must confess to a certain confusion of mind. Therefore, I particularly ask my noble friend what view he takes of the capacity of small unitary local authorities to take a full part in strategic planning and sustainable development. There will be repercussions from what has happened in authorities such as Avon and Cleveland or, as the noble Lord, Lord Bancroft, mentioned, a larger authority, such as York, where there have been very considerable changes. How will either the small size of an authority or the extent of change which is visited upon an authority affect its capacity to play an effective role in strategic planning?
My underlying fear is that the Secretary of State or his successor will feel a terrible temptation to say that the local authorities do not have the capacity to do such things and therefore that he (or his successor) will take over their duty more and more. I have some very great fears on that score. For that reason, I am pleased to support the new clause moved by the noble Lord, Lord Bancroft. I shall be particularly interested to hear what my noble friend has to say about it. I hope that he will be able to allay the anxieties which the noble Lord expressed and which I share.
Baroness Hamwee: My Lords, I too support the amendment for all the reasons that have been expressed—I shall not repeat them—and for an additional reason. When the GLC was abolished, it was your Lordships' concern for strategic planning in London that led to the constitution of an advisory committee—admittedly it was advisory—to deal with planning across the whole of London. I chaired that body for the first eight years of its existence. Having been forced into an association, which probably the boroughs would have reached, eventually a great deal of time was saved and some very good work was done and continues to be done. Noble Lords showed their concern for strategic planning at that time and I hope that they will do so now.
Lord Marlesford: My Lords, I too want briefly to support the amendment of the noble Lord, Lord Bancroft. In this country, we have been arguing about the level at which planning decisions should be made for at least a quarter of a century and certainly since the 1972 reforms. At that time, many noble Lords felt that the move of planning responsibilities from counties to districts had certain risks. Certainly I believe that planning should be done at the lowest possible level. In certain cases, for example, where district councils operate on the "parish council up" base, it works extremely well.
Having said that, it is becoming more and more necessary that there should be a true strategic dimension to the kind of planning that we want. From my point of view, I see it as absolutely crucial in terms of sustainable development and the protection of the countryside. I believe that the amendment of the noble
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Lord, Lord Bancroft, would enable strategic planning to be done at as local a level as might be appropriate and not raised back to Marsham Street, or whatever successor it might have. I strongly support the amendment.
Viscount Ullswater: My Lords, let no one doubt the strength of the Government's commitment to sustainable development. The sustainable development strategy which we published last year sets it at the centre of our thinking. The strategy made clear our intention to work towards ensuring that development and growth are sustainable, and to continue to develop policies consistent with the concept of sustainable development.
We are at one with the noble Lord, Lord Bancroft, over the importance of the planning system's contribution to sustainable development. The sum total of decisions in the planning system, as elsewhere, should not deny future generations the best of today's environment. This should be expressed through the policies adopted in development plans.
We have taken significant steps to embody sustainable development in the planning system. Where there are issues which apply across regions or parts of regions and need to be considered on a scale wider than the area of a single authority, regional planning guidance sets broad strategic policies for land use and development. It provides for the implementation of policies for sustainable development across regions. That is the answer to the first question of my noble friend Lord Peyton. The primary function of regional guidance is to provide the necessary framework for the preparation of structure plans in which county councils set out key strategic policies as a framework for local planning by district councils.
Our planning policy guidance requires local authorities to take sustainable development into account in preparing their development plans. By law, local authorities must have regard to national policies such as this, and to environmental, social and economic considerations, in formulating their development plan policies, including their involvement in Local Agenda 21. That is the answer to my noble friend's second question.
Our guidance also requires local authorities to conduct environmental appraisals of their development plans. A systematic environmental appraisal is the most effective way to demonstrate how a plan takes account of the environment in its widest sense and how it works towards the Government's goal of ensuring that development and growth are sustainable. We have published a good practice guide to assist local authorities in this task of environmental appraisal. We will supplement it with a guide to good practice in applying the principles of sustainable development through the planning system.
On the matter of joint arrangements for strategic planning, we consider that the existing statutory provisions are more closely aligned with the general thrust of planning practice and procedures in this country than those of the noble Lord. The essence of our practice is that local authorities should have considerable discretion and responsibility in the exercise

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of their planning functions within the general boundaries of national policies. We have endeavoured to reflect this in our approach to joint working.
Current legislation makes each local planning authority wholly responsible for the exercise of its development plan functions within its own administrative area. Section 101 of the Local Government Act 1972 enables an authority to carry out any of its functions jointly with other authorities. There are provisions in the planning legislation to facilitate this without removing the individual authority's discretionary role to decide planning matters for its area. We are satisfied that where joint working on strategic planning is desirable, it can be achieved through voluntary arrangements based on these existing provisions. Clearly, however, there may be occasions when such voluntary arrangements fail, Although, given the long experience of local authorities in planning matters, and the fact that they have a tradition of liaison on, for example, regional planning, we expect such failures to be few.
The only difference between this concept and the concept of the noble Lord, Lord Bancroft, is that the noble Lord anticipates failure of voluntary arrangements even before a local government order is made. His amendment indicates that the Secretary of State should direct and that the direction should come into force on the same day as the relevant order, so the noble Lord is already anticipating failure. That is not the way the Government think.
However, as I indicated—the noble Lord was good enough to remind the House—when we were talking about the North Yorkshire and Humberside borders, should these voluntary arrangements fail, the Secretary of State already has a reserve power under Section 21 of the Local Government Act 1992. Where he considers that joint working is desirable following a structural or boundary change but such arrangements fail to emerge, he is able to establish a statutory joint authority explicitly charged with preparing a structure plan for the combined local authority areas in place of the unitary authorities themselves.
The noble Lord's amendment, by contrast, does not explicitly recognise the desirability of voluntary joint working. Furthermore, it would allow the Secretary of State a much wider range of discretion to intervene if he chose to do so. This is not a power that my right honourable friend wishes to have and I would be surprised if many local authorities were anxious that he should have a wide-ranging power. I would therefore prefer to remain with the existing provisions. They provide a clearer indication of the occasions on which the Secretary of State would feel it necessary to intervene.
We are keen to further the objectives of sustainable development through the planning system, and the planning system currently provides the means to do this both across regions through the framework of structure plans and within local planning authority areas through local development plans. We do not believe that the provisions in the amendment are desirable or necessary.
5.45 p.m.
Lord Peyton of Yeovil: My Lords, before my noble friend sits down, perhaps I may ask one question. My fear is that the proposals of the Local Government Commission, particularly where they result in small unitary authorities, will make strategic planning for sustainable development more difficult. Is my noble friend really saying that my fear is groundless?
Viscount Ullswater: My Lords, I cannot banish all the fear in my noble friend's mind. But what I do say is that we are working up proposals that the local authorities should form joint working arrangements so that the strategic planning concept is not just based on the identity of the unitary district or authority. That is not the concept. I agree that it is done on a voluntary basis, and that is what we should certainly like to take forward. The noble Lord is indicating in his amendment that unless, after consultation, he is absolutely assured that this is going to happen, the Secretary of State would direct it. I believe that that power of direction acts much too early in the whole process.
Lord Bancroft: My Lords, this has been a very short but interesting debate. It has demonstrated the concern felt in various parts of the House about the future of strategic planning and sustainable development in the wake of the latest round of local government reorganisation.
I listened to the noble Viscount's remarks. I think that he misinterpreted a little. The purpose of the amendment is that the Secretary of State should consult; but he should not direct unless there is no voluntary co-operation coming in sight from the local authorities. The powers of direction are very much a last resort, to be sparingly if ever used. That having been said, I should like to study the noble Viscount's remarks with care to decide whether I wish to take the issue further. I thank him. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Jenkin of Roding Lord Jenkin of Roding moved Amendment No. 225:
Before Clause 75, insert the following new clause:
("Vehicle exhaust emissions
.—a) An authorised officer of a local authority may test a motor vehicle on a road in the local authority area in which he is authorised for the purpose of ascertaining whether the requirements imposed by law as to the prevention or reduction of the emission of smoke, fumes, or vapour are complied with as respects the vehicle.
(2) The authorised officer must produce his authority to act for the purposes of this section if required to do so.
(3) The authorised officer may operate the vehicle for the purpose of testing it.
(4) If there is a defect in the vehicle by reason of which the vehicle does not comply with any construction and use requirements applicable to the vehicle relating to the prevention or reduction of the emission of smoke, fumes or vapour, the authorised officer may serve on the owner of the vehicle a notice requiring him to—

(a) pay a penalty charge to the local authority, and

(b) produce to the local authority within 56 days a certificate signed by a person having power to carry out examinations at a vehicle testing station under section 45 of the Road Traffic Act 1988 confirming that in his opinion the vehicle complies with the relevant construction and use requirements.

(5) The owner of a vehicle served with a notice under subsection (4) above shall have the right of appeal against the service of the notice to the local authority in the first instance and thereafter, to an adjudicator appointed by the local authority.
(6) The amount of the penalty charge payable under subsection (4) (b) above shall be set at a level which would allow the local authority to recover the reasonable costs of the enforcement of the provisions of this section.
(7) Before enforcing the provisions of this section, a local authority shall make and thereafter maintain and have regard to a code of practice approved by the Secretary of State.").
The noble Lord said: My Lords, in moving this amendment, I believe that it will be for the convenience of all noble Lords if we discuss Amendments Nos. 226 and 227 at the same time. It will be within the recollection of the House that, four weeks ago exactly to the day, I moved the same group of amendments dealing with vehicle emissions. I was greatly encouraged by the support which I received from all parts of the House. Indeed, these amendments are in the names of Members from all parts of the House. Since then my noble friend on the Front Bench has been kind enough to receive a delegation from the London Boroughs Association. We had what I hope was a useful and productive discussion.
Perhaps I may remind the House that the amendments deal with three particular situations where there is pollution of the atmosphere by vehicles and equipment. The first amendment gives power to local authorities to carry out kerbside testing of vehicles which have polluting exhausts. If they are found to be offending under the construction and use regulations, the local authorities have power to take the vehicles off the road. They have powers to fine and to require the owners to take remedial action. These powers exist at the moment in one form or another with the Vehicles Inspectorate and the police. But I believe that it is everybody's experience that the powers are very infrequently used. Enforcement is the real problem here and the key is to give local authorities the necessary powers to test but not to stop, because I believe that that would not be right. The only people who should stop a vehicle are the uniformed police. That is the first power.
The second provision is to give powers to local authorities to deal with machinery and equipment. Examples of these are tar boilers, cement mixers, air compressors and so on, which are used, for instance, in the construction industry. Local authorities have powers to deal with them if that machinery or equipment pollutes on a building site, because the machine can be closed down but, if the contractor just moves the machinery out into the street, then the only people who can deal with it are the police. It is quite unrealistic to expect the police, with all the pressures on them, to deal with equipment of that kind and in those circumstances.
The third power which aroused a certain amount of interest in your Lordships' House when I moved the amendment in Committee is the power as regards stationary vehicles. One sees them all the time, vehicles such as coaches, buses and lorries, standing for hours with their engines switched on and their exhausts puffing into the atmosphere. There is a need for a power to allow local authorities to have the engines switched off.
The origin of these powers lay in the London Local Authorities Bill, promoted by the London Boroughs Association. That Bill is currently before the House and contains much more detailed legislation than I have included in these amendments. I did not want to weary the House with 25 pages of detailed legislation which I suspect few of your Lordships would want to read.
There has been a great deal of consultation on this matter by the London Boroughs Association and the Association of London Authorities. When the Government published their document Air Quality: Meeting the Challenge, they actually welcomed the proposals which were being put forward by the London boroughs. The Government said that they welcomed the initiative,
"in bringing forward proposals in the London Local Authorities Bill to extend kerbside emission testing powers to London local authorities".
They went on to say,
"The proposals may present an opportunity to increase the level of roadside emissions testing in London, supplementing testing already carried out by the Vehicle Inspectorate, and may provide a blueprint for future initiatives elsewhere in the country".
So what is being proposed here is something which in principle the Government have already accepted. However, when we came to discuss the amendments, my noble friend made some general welcoming noises about the first of the three amendments concerning the roadside testing of vehicles, but, having now studied what he said, the reasons do not appear convincing. He was much less enthusiastic about the other two amendments.
This has all been discussed against the background of two very important factors. The first is the Government's very welcome intention to legislate by introducing provisions in another place into this Bill to deal with their strategic air pollution policy along the lines of the amendment which was moved by the noble Lords, Lord Lewis of Newnham and Lord Nathan. I believe that there was a very general welcome in all parts of the House. We look forward to seeing that legislation when the Bill returns from the other place. It will provide a comprehensive new policy to combat air pollution.
My noble friend also undertook to introduce general powers in the Bill for a national strategic plan and to have local air quality management powers for local authorities. It is already clear that it is local authorities which will have to play a very important role in this. So we are to have legislation.
The second point is that, since we debated these matters in this House on 9th February, my right honourable friend the Secretary of State for Transport, Dr. Brian Mawhinney, has announced what his press release was pleased to call,
"A major new programme of action to cut vehicle pollution in city streets".
It achieved wide publicity and was widely welcomed by the press and the other media when he made that announcement. The press release continues,
"In a five-pronged initiative he announced new resources for a major national blitz of polluting vehicles across 23 cities and towns over the next two months; the speeding up of tighter MOT test emission standards; a prosecutions crackdown on offending vehicles

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with fines of up to £2,500; automatic prosecution for motorists and operators who exceed limits by neglecting vehicle maintenance; and an urgent study into the possibility of roadside checks for engines burning too much oil".
That is only one of the particular problems, but it is an important one.
We are to have a national strategy. We are to have local air quality initiatives with local authorities involved. There is to be a blitz on polluting vehicles and we have had a warm welcome from the Government for the provisions in the London Bill, saying that they welcome local authorities having powers to test.
But we need to have those powers in this Bill. Why should these provisions be confined to London? Why should we have to wait for the vagaries of the London Local Authorities Bill in order for them to become law? Why should the provisions not be equally applicable to other parts of the country?
When we debated these matters earlier the Committee wanted to see these provisions in this Bill. When we met my noble friend we were given a number of answers. I do not wish to be in the least unkind to him because he was very helpful. At a time when he was extremely busy he and his officials gave us a great deal of their time. But my noble friend did not appear to me to be convincing.
Much of this work has been done. There has already been a great deal of consultation. Two factors have figured in the petitions against the private Bill—first, the power to stop by local authorities, which is not in my amendments and not in these proposals. The second objection has been to the proposition that these measures should apply only to London and not nationally. The London local authorities cannot promote national legislation, but we have it here in front of us.
The obstacles which my noble friend has put up can be overcome. Those of us who have had responsibilities in these matters are very familiar with being put under this kind of pressure by colleagues in either House. He should tell his officials to get on with it. There is no reason why they cannot now produce the clauses which are all there in draft. They have been very widely discussed with all the relevant interests. This afternoon we hope that my noble friend will say that these provisions should be added to this Bill in another place. If we miss this opportunity, how long shall we have to wait before we can propose these measures again? I ask my noble friend to give that assurance.
There are two other points. As regards stationary vehicles, my noble friend said that it was difficult because there are already powers if the vehicle makes a noise, but emissions would be very difficult to prove. That is not right. We are not going to have to prove the emissions. All that we shall have to prove is that the vehicle is sitting there with its engine on for no good reason. The local authority can then say, "Would you mind turning that off because you are polluting the atmosphere?" Therefore, I do not think that the parallel with the noise power has any relevance.
On the question of stationary equipment, it is absurd that local authorities can deal with such problems on a building site but not if the machinery is on the road.
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Again, it is not enough to say that the police can deal with it. I hope that the police are doing more important crime prevention work than stopping tar boilers puffing out black smoke. I think that the House is entitled to ask that these provisions should be introduced in another place in this Bill—not necessarily these new clauses, but provisions along their lines. I beg to move.
The Deputy Speaker (Lord Strabolgi): My Lords, I should point out that there should be a small amendment to subsection (6), where, to correct a printing error, the words "subsection (4) (b)" should read "subsection (4) (a)".
6 p.m.
Baroness Hamwee: My Lords, the noble Lord, Lord Jenkin of Roding, has dealt with the amendment extremely comprehensively. We have so much business to get through that I do not intend to detain the House other than to support warmly and wholeheartedly both the amendment and the noble Lord's supporting arguments. However, I should like to add one point. I join the noble Lord in thanking the Minister for receiving the delegation. Doing so on Tuesday morning must have been extremely inconvenient for him.
Local authorities understand the need to take such steps and, in understanding that need, they also understand that they may not be desperately popular with those individuals against whom the steps are taken. However, as I said, they recognise the overall need and understand the loud call which is now coming from city centres and the suburbs—indeed, throughout the country—for steps to be taken urgently to improve our air quality. As the noble Lord said, this is not a matter that applies only to London.
It will not be that easy for the local authorities to introduce the measures. As the Government know, such steps tend to provoke hurt and outrage among those who are caught out. As a local councillor, I am sure that my 'phone will ring with people saying, "How dare you!" Well, the local authorities do dare and would like to be given the powers to dare.
Baroness Hilton of Eggardon: My Lords, I too urge the Government to be courageous about the amendments. I was in Austria last year where such provisions are strictly enforced. All tourist coaches turn off their engines when stationary. They are not allowed to lurk in the centres of towns. There are extremely strict controls on vehicle emissions. It can be done. It is not just a question of health, asthma and the carcinogens that are pumped out with diesel fumes; it is also a question of the greenhouse effect. I note that the Secretary of State admitted yesterday that the greenhouse effect is a reality and that we are faced with global warming. It would be a small but urgent contribution to controlling vehicle emissions if the new clauses could be inserted in the Bill.
Lord Peyton of Yeovil: My Lords, during his speech of only a few minutes I believe that my noble friend Lord Jenkin of Roding produced an absolutely unanswerable case. I do not intend to repeat any of his arguments, except to say that the idea that pollution and

449
bad smells have to be dealt with in London but not elsewhere in the country seems far-fetched and unreasonable even by the standards of modem legislation.
Lord Brabazon of Tara: My Lords, I spoke briefly in Committee to support the principle of the amendments moved by my noble friend Lord Jenkin of Roding, and I should like to do so again this evening. I should also like to make a few suggestions about how the provisions might be put into force. First, as my noble friend said, it is an offence at the moment under the construction and use regulations to do what the amendment seeks to stop. It would be strange to have two sets of offences for that—one under the construction and use regulations and one under the provisions to be given to local authorities. I believe that the current construction and use offence should be decriminalised and that local authorities should be permitted to carry out the enforcements.
Secondly, I believe that the funds raised from fixed penalty notices should be ring-fenced for further enforcement, as happens to local authorities with parking enforcements. That is the precedent. Furthermore, the police should be reimbursed for stopping vehicles. Treasury rules should be changed to allow that funding to be additional to the core Home Office funding. I suggest also that the fixed penalty charge, which the amendment suggests, should be set at a fairly low level to begin with as drivers are often unaware that they are committing an offence. The existence of a penalty would act as an incentive to motorists to check that their emissions are in order, but I believe that it would be unfair to penalise such motorists unduly because they will face the additional cost of rectifying the vehicle. The penalties for non-compliance with a rectification notice should, however, be harsh. If people do not obey such a notice, they should be penalised.
My only other observation in support of the amendment is that the training requirements of the authorised officers in the local authorities should be the same as those of the Department of Transport's Vehicles Inspectorate. That should be included in the code of practice to which subsection (7) of my noble friend's amendment refers.
Having made those observations, I am anxious to hear what my noble friend the Minister has to say, and particularly whether he can expand on what my right honourable friend the Secretary of State for Transport said between the last stage of the Bill and today.
Lord Mishcon: My Lords, I support the principle of the amendment and ask for the forgiveness of the House if I raise what may appear to be a minor point. I am interested in the apparent justice of any provision which contains within it a penalty. Your Lordships will observe that the amendment allows a penalty to be charged by a notice served by an authorised officer of a local authority. The right of appeal against that penalty, which is payable to the local authority, is in the first instance to the local authority. The appeal from the local authority is to an adjudicator appointed by the local authority.
450
Your Lordships may feel that that chain of appeal does not include any independent person upon whom the driver can rely. I wonder whether the noble Lord, Lord Jenkin—or the Government if, as I hope, the amendment is accepted—might not think it proper that at least the last person in the chain of appeal—namely, the adjudicator appointed by the local authority—should be an adjudicator appointed by the ministry.
The Earl of Onslow: My Lords, the noble Lord, Lord Mishcon, has said almost exactly verbatim what I was going to say. I agree totally with what is proposed by my noble friend Lord Jenkin of Roding. All that I would add is that the appeal thereafter should be to the local magistrates. We have had them for 600 years and they are quite capable of doing that. It seems the simple way of dealing with the matter. Apart from those words, I am in complete agreement with my noble friend Lord Jenkin.
Lord Renton: My Lords, there is another small technical point to which I feel obliged to draw your Lordships' attention. I have great sympathy with the main purpose of my noble friend Lord Jenkin, but I draw your Lordships' attention to the top of page 13 of the Marshalled List and to subsection (6) which states:
"The amount of the penalty charge payable under subsection (4) (b) above shall be set at a level which would allow the local authority to recover the reasonable costs of the enforcement of the provisions of this section".
But if we look back to subsection (4) (b)—
Viscount Ullswater: My Lords, perhaps my noble friend should understand that the noble Lord who is in the Chair made a correction to that. It should read "subsection (4) (a)" not "subsection (4) (b)".
Lord Renton: My Lords, I did not know that. Indeed, had I known it I would not have made that point. I thank my noble friend.
Lord Burnham: My noble friend Lord Jenkin of Roding, in proposing the amendment, talked about a motor vehicle on a road. He talked about tar boilers and other similar vehicles which may not be motor driven or are unlikely to be motor driven. Will the Minister consider whether in this context it would be right to use another definition to include tar boilers and similar vehicles?
Viscount Ullswater: My Lords, these amendments seek to increase the powers of local authorities to deal with emissions from vehicles in the street. Amendment No. 225 aims to give local authorities the power to carry out vehicle emission testing and to impose a penalty charge on the owner of a vehicle failing to comply with emission standards as laid down by appropriate construction and use regulations. I hope that the noble Lord, Lord Jenkin, will note the intervention of the noble Lord, Lord Mishcon, supported by the noble Earl, Lord Onslow, when he considers whether his amendment is correct.
The noble Lord brought forward this amendment in Committee and was gracious enough to withdraw it on the basis of an assurance that government would, without commitment, consider whether they could bring

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forward their own provisions at a later stage in the Bill. I am afraid that I can add little to the assurance I gave then. Ministers are sympathetic to the noble Lord's aims and are actively considering the matter. The noble Lord will appreciate, however, that his proposals raise a number of complex issues in relation both to the charging regime and the use of police resources. I am afraid therefore that I can give no commitment as to the likelihood of government bringing forward provisions at a later stage of the Bill.
Although we support wholeheartedly the principle underlying the noble Lord's amendment, the Government's priority within the Bill is to move forward with the main legislative base for its proposals for air quality management. These were set out in Air Quality: Meeting the Challenge, the statement of the Government's strategic policies in this area published in January by my right honourable friends the Secretaries of State for Transport and for the Environment. We will be bringing forward amendments establishing that framework in another place.
The noble Baroness, Lady Hilton, urged me to be courageous about these amendments: I believe that we are being courageous about those amendments but perhaps not about these amendments. These are likely to be similar in effect, if not form, to those brought forward by the noble Lords, Lord Nathan and Lord Lewis in Committee.
The Government are giving detailed consideration to the kinds of new powers and tools that may be needed by local authorities to carry out their new responsibilities in the area of air quality management in addition to the planning, transport planning, and local air pollution responsibilities they already possess. This week we commenced formal discussions with local authorities and local authority associations, including the LBA, on implementation of the Government's air quality management proposals. We expect to cover in depth the issue of additional powers and tools and how best they might be framed. Air Quality: Meeting the Challenge explicitly recognises that the power to test vehicle emissions may well prove useful to local authorities in, for instance, air quality management areas.
In that context, I appreciate the helpful intent with which my noble friend brings forward his amendments. However, it is important that we do not move ahead of ourselves. Of paramount importance is establishing the legislative framework for air quality management within which the provision of further powers can be considered. As I indicated, we hope to do that in another place. Once that is established, we shall better be able to consider the new tools that local government may need and how best they might be framed. We would hope to bring forward such provisions at a future legislative opportunity, although again I am unable to give any assurances in relation to the specific powers sought by my noble friend. The Government are, however, fully committed to increasing resources available for vehicle emission testing. Only last month the Secretary of State for Transport announced a programme of further measures to address vehicle
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pollution. This includes a further Vehicle Inspectorate emissions testing blitz, building on the considerable success of a similar exercise at the end of last year. It is hoped that more blitzes may take place later in the year. The Secretary of State has also announced a prosecution crackdown on offending vehicles with fines of up to £2,500, and he will be bringing forward the date of introduction of tighter MOT emissions standards for older, more polluting vehicles.
Air Quality: Meeting the Challenge highlights the importance of partnership between central and local government in securing sustainable improvements in air quality. To that end, future Vehicle Inspectorate-operated emission testing blitzes will be subject to consultation with local authorities. This is critical to ensuring the most effective use of resources for emission testing.
Amendment No. 226 seeks to extend the statutory nuisance controls in Section 79 of the Environmental Protection Act 1990 to include smoke, fumes or gases emitted from any vehicle, machinery or equipment in the street, excepting those emitted from vehicle exhaust systems. As I indicated in Committee to my noble friend, although again I cannot find fault with his intentions, the Government believe that there are already sufficient powers available to the police, vehicle inspectors and others to control these emissions. These include the Road Vehicles (Construction and Use) Regulations 1986 and a variety of provisions under health and safety legislation. The Government therefore feel that the amendment would be an unnecessary duplication of existing controls, which was also a fear of the noble Lord, Lord Brabazon. The Government oppose the amendment.
Amendment No. 227 seeks to deal with motorists who leave their engines running unnecessarily when parked. Again, I am forced to repeat myself. When the noble Lord brought forward this amendment in Committee, I stated that it sounded attractive and that I was very much in sympathy with the intent behind it. Any noble Lord walking around Whitehall or St. James's during the height of the tourist season cannot fail to notice the unpleasant emissions from tourist coaches idling their engines while waiting for their passengers to embark. However, there are difficulties with the approach suggested by my noble friend and it is not clear that his amendment is the answer. A similar offence to the one he proposes already exists in relation to noise emanating from stationary vehicles. I refer to Regulation 98 of the Road Vehicle (Construction and Use) Regulations 1986. This requires that drivers should take appropriate action to prevent unnecessary noise by switching off their engines when stationary. In practice, however, the offence is very difficult to prosecute and difficult to prove. The Government would not wish to duplicate those difficulties in respect of emissions.
I have indicated that the Government are moving forward on this front. My noble friend wishes me to go further and faster. However I hope that in the light of what I have said he will not press the amendment.
Lord Jenkin of Roding: My Lords, when I heard the dreaded words "future legislative opportunity" my heart

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sank. I cannot think why Parliament should have to wait for future legislative opportunity to do something for which such widespread support has been expressed in the House. I shall not repeat my arguments, particularly those about the second and third amendments, except to say to my noble friend Lord Burnham that tar boilers are within the definition of subsection (2) of Amendment No. 226 which refers to smoke, fumes or gases emitted from machinery or equipment in the street.
The noble Lord, Lord Mishcon, and my noble friend Lord Onslow have a good point. Anyone wishing to look at this legislation, as I hope they will in another place, will recognise the wisdom of going down that road so far as there is an external appeal.
I was grateful to have the support of noble Lords, and in particular that of my noble friend Lord Brabazon of Tara, because I am aware of the interests that he is so eloquent in supporting and defending in the House. To have his support for this group of amendments is valuable. We should not wait for a "future legislative opportunity". It would greatly encourage the Government and their officials to produce suitable legislation in another place if we had put these amendments into the Bill. I think that I want to test the opinion of the House.
6.20 p.m.
On Question, Whether the said amendment (No.225) shall be agreed to?
Their Lordships divided: Contents, 56; Not-Contents, 89.

Division No. 1

CONTENTS

Acton, L.

Jenkin of Roding, L [Teller.]

Airedale, L.

Jenkins of Hillhead, L

Archer of Sandwell, L.

Jenkins of Putney, L

Bancroft, L.

Kennet, L

Beaumont of Whitley, L.

Kilbracken, L

Blackstone, B.

Kilmarnock, L

Boyd-Carpenter, L.

Lawrence, L

Carnock, L.

Lovell-Davis, L.

Chorley, L.

Lytton, E.

Clinton-Davis, L.

McNair, L

Cocks of Hartcliffe, L.

Meston, L

Craigavon, V.

Mishcon, L

Darcy (de Knayth), B.

Monkswell, L

Dormand of Easington, L.

Moran, L

Dubs, L.

Nelson, E.

Elis-Thomas, L.

Nicol, B.

Gainsborough, E.

Onslow, E.

Gladwin of Clee, L.

Peyton of Yeovil, L

Glenmara, L.

Redesdale, L

Graham of Edmonton, L.

Rodgers of Quarry Bank, L

[Teller.]

Shannon, E.

Hamwee, B.

Strabolgi, L

Harris of Greenwich, L.

Strathcona and Mount Royal, L

Harrowby, E.

Tordoff, L

Henderson of Brompton, L.

Walpole, L

Hertford, M.

Wharton, B.

Hilton of Eggardon, B.

Williams of Crosby, B.

Jeger, B.

Williams of Elvel, L

Young of Dartington, L

NOT-CONTENTS

Abinger, L

Birdwood, L

Addison, V.

Blaker, L

Astor of Hever, L

Blanch, B.

Astor, V.

Blyth, L

454

Braine of Wheatley, L

Mackay of Ardbrecknish, L.

Brigstocke, B.

Mackay of Clashfern, L [Lord Chancellor.]

Brougham and Vaux, L

Butterworth, L

Mancroft, L

Campbell of Croy, L.

Marlesford. L

Carnegy of Lour, B.

McColl of Dulwich, L.

Chalker of Wallasey, B.

Mersey, V.

Chesham, L.

Miller of Hendon, B.

Clanwilliam, E.

Monk Bretton, L.

Clark of Kempston, L.

Monteagle of Brandon, L.

Constantine of Stanmore, L.

Mottistone, L.

Cork and Orrey, E.

Moyne, L.

Courtown, E.

Munster, E.

Craborne, V. [Lord Privy Seal.]

Murton of Lindisfarne, L.

Cross, V.

Northeask, E.

Cumberlege, B.

Orkney, E.

Denton of Wakefield, B.

Orr-Ewing, L.

Donegall, M.

Pearson of Rannoch, L.

Dudley, E.

Renwick, L.

Eden of Winton, L.

Rodger of Earlsferry, L.

Elles, B.

Saltoun of Abernethy, Ly.

Erroll, E.

Sharpless, B.

Flather, B.

Shaw of Northstead, L.

Fraser of Carmyllie, L.

Shuttleworth, L.

Goschen, V.

Skelmersdale, L.

Greenway, L

Halsbury, E.

Skidelsky, L

Hayhoe, L

St Davids, V.

Henley, L

Stewartby, L

HolmPatrick, L

Stockton, E

Hooper, B.

Strathcarron, L

Howe, E.

Strathclyde, L [Teller]

Hylton-Foster, B.

Suffield, L.

Inglewood, L [Teller.]

Thomas of Gwydir, L

Kingsland, L

Trumpington, B.

Lane of Horsell, L

Ullswater, V.

Leigh, L

Wade of Chorlton, L.

Lindsay, E.

Weatherill, L.

Lindsey and Abingdon, E

Willoughby de Broke, L

Long, V.

Wise, L

Lucas, L

Wynford, L

Lyell

Resolved in the negative, and amendment disagreed to accordingly.
[Amendments Nos. 226 and 227 not moved.]
6.28 p.m.
Clause 75 [National waste strategy]:
Lord Elis-Thomas Lord Elis-Thomas moved Amendment No. 228:
Page 78, line 28, at end insert ("and (iv) suitable disposal sites or installations.").
The noble Lord said: My Lords, the purpose of the amendment, which was suggested to me by Earth Rights, the environmental law and resources centre, is to comply with EC directive 75/442, as amended, so as to ensure that suitable disposal sites or installations are mentioned specifically, and included within the national waste strategy. We have now had the benefit of seeing the Government's draft of their waste management plan on the import and export of waste. This is a DoE, Welsh Office, Scottish Office, and DoE (Northern Ireland) joint document. Paragraph 11 states:
"It is the Government's aim to facilitate and enhance a network of disposal and recovery facilities within the United Kingdom through its National Waste Strategy".
Therefore, it is surprising that there is no reference in the Bill to the issue of sites.
The new EPA Section 44A, which arises at Clause 75, provides for that national waste strategy for England and Wales. However, that strategy contains the

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Government's policy on waste recovery and disposal as required by the EC directive to which I referred. That strategy is to be drawn up by the Secretary of State; it is not a strategy which is to be considered by this House.
One of the essential requirements of the directive has, in my view and in the view of Earth Rights, not being included. Article 7 of the directive requires four particular matters to be included within the strategy and in waste management plans. The first is the type, quantity and origin of the waste to be recovered or disposed. The second is the technical requirements that generally apply. The third is any special arrangements for particular wastes and the fourth is suitable disposal sites or installations. The section requires only the first three of those matters to he included within the strategy. Therefore, the requirement relating to suitable disposable sites has not been included. I beg to move.
Viscount Ullswater: My Lords, Amendment No. 228 would require the national waste strategy for England and Wales to include provisions relating to suitable disposal sites and installations.
The amendment is well intended. It aims to ensure that we meet fully the requirements of the amended EC framework directive on waste, Article 7 of which does indeed require waste management plans to relate to suitable disposal sites or installations. However, the omission of this requirement from the list of provisions which the national waste strategy must cover is deliberate, and reflects the existing arrangements for implementing Article 7 of this directive, which will be partly superseded by the provisions of Clause 75.
At present, Article 7 is implemented jointly by waste disposal plans drawn up by waste regulation authorities under Section 50 of the Environmental Protection Act, and by development plans drawn up by local planning authorities. The precise arrangements for implementing the directive are contained in Schedule 4 to the Waste Management Licensing Regulations 1994. Paragraph 7 specifically requires the waste policies in development plans to include policies in respect of suitable disposal sites or installations. That is because the siting—and criteria for siting—new waste facilities is a matter for the planning rather than the waste regulation authority.
In drawing up the waste strategy provisions, we have been careful to retain this distinction and the waste strategy accordingly must relate to type, quantity and origin of waste, general technical requirements and special arrangements for particular waste. But it is not required to relate to suitable disposal sites or installations, which rightly remain the responsibility of local planning authorities and for which the latter will continue to be required to make provision in their development plans.
I should add that neither the strategy nor development plans need be confined to the matters set out in the directive and I have no doubt that there are other matters which the Secretary of State will wish to include in his strategy, including information about existing facilities which will be obtained through the national waste survey. However, we believe it important to maintain
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the distinction between the role of the planning authority and the role of the Secretary of State in determining the location of new facilities.
I hope that, with this explanation, the noble Lord will feel able to withdraw the amendment.
Lord Elis-Thomas: My Lords, I am grateful to the Minister for indicating that, in reference to yesterday's debate, this is some kind of subsidiarity in relation to the national waste strategy and local planning authorities. He has clearly pointed out that the installations and suitable sites are regarded as planning matters.
I shall study what he said. I am grateful to him in particular for noting that there may be further guidance from the Secretaries of State on this matter. For those reasons, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman (Lord Strabolgi): My Lords, I must inform the House that, if Amendment No. 229 is agreed to, I cannot call Amendment No. 230.
Viscount Ullswater Viscount Ullswater moved Amendment No. 229:
Page 78, line 30, leave out from ("State") to ("may") in line 37 and insert:
("(a) shall consult the Environment Agency,
(b) shall consult—

(i) such bodies or persons appearing to him to be representative of the interests of local government, and

(ii) such bodies or persons appearing to him to be representative of the interests of industry,

as he may consider appropriate, and (c)").
The noble Viscount said: My Lords, Amendments Nos. 229, 231 and 233, which are tabled in my name, respond to concerns expressed by noble Lords during Committee—in particular my noble friends Lord Wade and Lord Lucas and, among others, Lord Mottistone—about the need to consult industry on the national waste strategies and on the waste surveys carried out by the agencies. We accept that industry should have an opportunity to make known its views on the scope and conduct of the survey and on the content of the strategy in advance of any decisions on these matters. These amendments will ensure that such consultation takes place. I beg to move.
Lord Wade of Chorlton: My Lords, I thank my noble friend for tabling these amendments in response to our discussions in Committee. They make redundant my two amendments and I am sure that my noble friend's amendments are more efficient than mine. I support them.
Viscount Ullswater: My Lords, I am grateful that my noble friend has indicated his assent to my amendments, thereby indicating that he will not move his amendments.
On Question, amendment agreed to.
[Amendment No. 230 not moved.]
The Deputy Chairman (Lord Strabolgi): My Lords, I must inform the House that, if Amendment No. 231 is agreed to, I cannot call Amendment No. 232.
Viscount Ullswater Viscount Ullswater moved Amendment No. 231:
Page 79, line 28, leave out from ("consult") to ("it") in line 30 and insert:
("(i) such bodies or persons appearing to it to be representative of local planning authorities, and
(ii) such bodies or persons appearing to it to be representative of the interests of industry,
as").
On Question, amendment agreed to.
[Amendment No. 232 not moved.]
Viscount Ullswater Viscount Ullswater moved Amendment No. 233:
Page 81, line 7, leave out from ("consult") to ("it") in line 8 and insert:
("(i) such bodies or persons appearing to it to be representative of planning authorities, and
(ii) such bodies or persons appearing to it to be representative of the interests of industry, as").
On Question, amendment agreed to.
Clause 76 [Producer responsibility: general]:
Lord Wade of Chorlton Lord Wade of Chorlton moved Amendment No. 234:
Page 82, line 40, after ("but") insert (", other than in respect of packaging waste,").
The noble Lord said: My Lords, the amendment follows on from the discussion that we had in Committee about a multipoint or a single point scheme for the disposal of packaging waste. The purpose of the amendment is to refer only to packaging waste. The amendment that I tabled in Committee sought to delete a whole sentence from the Bill but my noble friend pointed out that there were a number of waste streams and it would be appropriate for some to be dealt with in one way and some in another.
Amendment No. 234 seeks to ensure that the Government will not place a single point system on the handling of packaging waste. The Producer Responsibility Group, which the Secretary of State asked to report on the matter, came forward with a detailed report. It acknowledged that the responsibility for packaging is shared between all parts of the packaging chain; that is packaging manufacture, packer/filler, distribution and retailing. We must ensure that the individual requirements of those various sections of the chain are adequately met and ensure the satisfaction of the final consumer. We must remember that the final consumer is probably completely unaware of the complex nature of the supply chain and the various parts of the packaging and the materials involved. The PRG concluded in its report that its proposals could achieve a recovery level of 58 per cent. of packaging waste by the year 2000, which was in line with the Government's requirements.
The packaging and associated recycling industries are extremely complex. No single element should be organised or controlled in isolation. I speak on behalf
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of all sectors of the packaging industry and they have indicated to me their anxiety about this matter. They believe very strongly that the legal obligation should be placed on the whole packaging chain and not just on a specific part of it; in other words, it should be a multi-point obligation.
There is reason to believe that at this stage officials favour a single-point option because they feel that such a system would be easier to police and would be easier to control by government. But the industry believes very strongly that such a solution would create more problems than it would solve. The system would be extremely unfair. If that system were used, it is extremely unlikely that the requirements and targets would be met. The industry believes strongly that no single part of the chain has the ability to deliver what the Government seek, when one considers the responsibilities in relation to the delivery aspect and, importantly, the recycling aspects of the industry.
I must emphasise that every stage of the chain is involved with the handling of packaging and packaging materials which are passed down the distribution chain. But that also generates further waste for which each part of the chain has further responsibility. I cannot emphasise too strongly that whatever is achieved can be achieved only with the industry co-operating fully with the scheme. At the end of the day it is the packaging industry and all the different parts of it which can deliver what the Government want. The industry has considered all aspects of the matter in great detail and it is strongly of the view that only through a multi-point scheme can there be any possibility of achieving what the Government want.
The first of the packaging proposals was put into effect in Germany and German industry decided upon a single-point system, which the Government now appear to favour. It would be fair to point out that industry costs are running at between 6 billion and 8 billion deutschmarks per annum; that is something in the order of £3 billion to £4 billion. That is far higher than anybody ever expected. The situation is so complicated that there are now reckoned to be some 320 plants in Germany, many of which have to separate the various packaging materials by hand. That is why the costs are so high.
I hope that the Government will make some very encouraging remarks on this matter. The industry eagerly awaits a positive response and hopes that the Government will support its strong view that the multi-point scheme will be most effective in delivering what the Government want and what we all want from this legislation. I beg to move.
6.45 p.m.
Baroness Nicol: My Lords, I support the views of the noble Lord, Lord Wade, on the packaging industry but I do not believe that it would be a very good idea to single out the packaging industry and leave other waste streams to be dealt with perhaps by a single-point scheme.
There are many other waste streams to be considered. The British Retail Consortium is extremely anxious that if we make a definite commitment, we should remember

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those other streams; for example, newspapers, batteries, electronic goods, tyres and motor vehicles. In all those cases, it would be extremely difficult for the industry concerned if a single-point scheme were introduced. Putting an express power of that kind into the Bill now would seem to indicate that the Government are not taking very seriously the consultation process which they have promised on this issue.
Therefore, although I am extremely sympathetic towards the amendment moved by the noble Lord, Lord Wade, I should not wish to see a specific commitment made at this stage unless we are assured that genuine consultations will take place at the same time with the rest of the industry.
Lord Moran: My Lords, I spoke on this subject in Committee and I support what the noble Lord, Lord Wade, said. The arguments for a multi-point scheme are overwhelming, and I shall not repeat what I said at an earlier stage.
I have a good deal of sympathy for the view expressed by the noble Baroness, Lady Nicol. It is important that other waste streams, which at the moment are being considered by other producer responsibility groups, should be borne in mind. I too was briefed by the British Retail Consortium and I am impressed when it says that:
"There seems no evidence to suggest that a single-point responsibility would be effective or fair for these goods".
It seems to me that a single-point responsibility is not satisfactory for the packaging industry. It is extremely important to be fair and to pay attention to the many firms concerned, all of which seem unanimous in their view that a fair system must apply to each stage along the chain and not to one single point simply for the sake of convenience.
Lord Mottistone: My Lords, I too strongly support the amendment moved by my noble friend Lord Wade. Whether it will affect only one part of the waste system at this stage I should not like to guess. It may be possible to change the amendment and widen its scope.
However, it is extremely important that we should have the multi-point option which the producer responsibility group recommended after taking immense trouble to get the thing right. I am slightly fearful that the Government might feel that because the Germans have adopted a particular line, that must be right. I have not always found that to be a necessary conclusion.
Also, the Government might think that the single-point approach will make it easier for them. I am not sure that it will. Certainly they could not have taken the same trouble as have the people who form the producer responsibility group. Those people are the experts and they know about this matter; officials serving the Government do not. They have to accept advice. Some departments—I am not saying that my noble friend's department is one of them —may jump to conclusions and, therefore, not pay proper regard to the views of the group.
It may be that the wording of the amendment could be improved or that we need to make amendments to another part of the Bill. But I hope that the Minister will
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give us some sort of encouragement and say that before the Bill leaves both Houses of Parliament, it will provide that it is not essential that the single-point solution to the problem is the only solution that can be adopted.
The multi-point option must operate if we can set up the necessary machinery for that. That must not be kept out of the Bill as it stands. I hope that my noble friend will be able to give that encouragement.
Viscount Ullswater: My Lords, Clauses 76 to 78 of the Bill concern the policy area of producer responsibility for waste. Before I turn to the amendment of my noble friend Lord Wade, I should just like to clarify the position on an amendment that he laid in Committee and which I said I would consider. The amendment was to clarify that the term "recovery" encompassed "energy recovery". We have always used the term recovery to denote "value" recovery in the broadest sense. That would indeed encompass energy recovery, but I agreed that I would consider whether we should clarify that on the face of the Bill.
We are still in discussion on whether that would be appropriate and, if so, how it might be done. If we conclude that it is necessary, we will bring forward an amendment to achieve that effect. I apologise to the House that those discussions have not concluded in time for me to let my noble friend have a final view at this stage, but I will inform him of the outcome as soon as I am able to do so.
I now turn to Amendment No. 234. The purpose of the amendment is to limit the options for producer responsibility for packaging waste by removing the possibility of an obligation placed at one stage in the production process for this wast stream alone.
I know that there was considerable interest in the issue in Committee. I considered the issue thoroughly then and gave my reasons for refusing the amendments at that time. I have returned to the issue once again in response to my noble friend's amendment and have looked hard at the whole issue of where the obligation should fall. Again, my conclusion has been that to limit our options on the face of the Bill now would not be appropriate. Let me explain why I have come to that view.
The clauses that we are discussing here have been brought forward in response to a request from the packaging industry that we should provide framework legislation to prevent companies which refused to participate in recovery and recycling operations gaining a market advantage. The task of legislating places a responsibility on government to ensure that the systems put in place are workable and effective. Government will also have a legitimate interest in the extent to which the proposals are consistent with a broad range of policies. In line with that, we will always try to reflect the wishes of industry, particularly in cases such as this where we have worked closely and fruitfully with the interested parties.
I am aware that some elements of the packaging industry have been vocal in their view of where the producer responsibility obligation should fall. But they are not the only parties who have a legitimate interest in these issues. In fact, a number of different models

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have been promoted as part of the debate on the relative merits of "single point" and "multi-point" options for the statutory obligation. Industry has put forward options based on both the single and multi-point model. Although those favouring the multi-point systems have captured rather more interest, I do not think that that should blind us to the range of options which have been proposed by other sections of industry during our discussions.
We are continuing to hear as many views as possible and to promote useful and proper debate. But we have yet to consult formally on the available options, as the legislation will require us to do. Indeed, the noble Baroness, Lady Nicol, was quite right to remind the House of that requirement in the Bill.
There is a much wider constituency which deserves a hearing. We should not take action based on informal discussions when we fully intend to carry out public consultation. That is not to say that the different forms of model which industry propose should not be part of the consultation. I hope that a number of them will be. But I am very keen at this stage that nothing is ruled out. I must make clear that no final decisions have been taken, and we will not do so until after the consultation process is complete.
It is essential, therefore, that we do not pre-empt the consultation in any way. We must listen to the views of those who are most concerned but we must not make premature and permanent judgments. It is conceivable that the proposed amendment might remove the flexibility to deliver what industry requires.
Therefore, the next step in that process must be the preparation and publication of a consultation paper on those issues. The document has been delayed as a result of the thorough process of informal consultation which must necessarily inform its contents. That process is drawing to a close and we shall endeavour to publish the consultation paper before the clauses are considered in detail in another place.
We anticipate that the consultation paper will discuss a number of possible approaches. The options to be included will need to perform well against the series of tests for the legislative option which we published on 2nd February. Prior to publication, we will do what we can to improve the performance of the different models against the tests. The multi-point model, to which my noble friend referred, has already been improved in that respect. I am not yet able to say with any finality that we will include that or any other model proposed by industry in the consultation paper, but both we and industry have worked intensely on these issues and it is our aim to reflect its wishes in that respect. Although I understand my noble friend's wish to put forward these views strongly now, they would more appropriately be put as part of the consultation process.
I believe that the noble Baroness, Lady Nicol, was right to point out that, of course, the provisions in the Bill are there to cover a number of waste streams, not just the one which is the subject of the amendment now before us. In Committee, I indicated that we did not want to have our options reduced; that there may be
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certain waste streams which would either go through the multi-point system or the single-point system and that we needed to provide that framework in legislation.
I believe that I have indicated to my noble friend that we have thoroughly considered the issue and, as a matter of principle and to avoid curtailing or pre-empting what will be a full and thorough consultation process, I have concluded that I cannot accept the amendment. However, with the assurance that I have given, I hope that my noble friend will feel able to withdraw his amendment.
Lord Wade of Chorlton: My Lords, I should like first to thank my noble friend the Minister for his comments on energy. I am delighted that he is still looking at that issue. It is to be hoped that we shall receive some helpful comments on that matter at a later stage. As regards packaging waste, I am most grateful to my noble friend for his detailed and comprehensive reply to my amendment. Obviously I am disappointed that he could not be a little firmer. However, I believe that my noble friend understands that there is very clear feeling from all sides of the House on the issue. Indeed, I am most grateful for the support that I have received. I shall read what my noble friend said and clearly, when the consultation period comes along, he should have no doubt that there will be very strong representation on the multi-point system. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Wade of Chorlton Lord Wade of Chorlton moved Amendment No. 234ZA:
After Clause 78, insert the following new clause:
("Conservation of natural resources: combined heat and power
.—(1) For the purposes of promoting or securing the conservation of natural resources and the efficient management of waste the Secretary of State may develop a strategy and take such steps as he considers appropriate to encourage the use of local combined heat and power schemes.
(2) In this section "combined heat and power" means the incineration of waste to generate electricity and to supply premises in the surrounding area with heat produced in association with that electricity and steam from and air and water heated by such heat.
(3) In subsection (2) of section 32 of the Electricity Act 1989 (electricity from non-fossil fuel sources), at the end of paragraph (b) there shall be inserted "including generating stations which supply to any premises heat produced in association with electricity and steam produced from, and air and water heated by, such heat.".").
The noble Lord said: My Lords, the purpose of the amendment is to draw attention to the importance of combined heat and power in achieving the Government's sustainable development objectives. The amendment arises from the recommendations of a number of parliamentary and other committees which expressed the view that there should be a stronger role for high efficiency combined heat and power systems in the options before waste disposal authorities.
At this stage, I should like to add that, last week, the Combined Heat and Power National Conference took place in Nottingham at which Professor Stephen Littlechild—if it is permissible to mention his name on this occasion—spoke. As noble Lords will know, he is renowned for being the regulator of the electricity industry. The professor expressed the view that

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arrangements should now be put in place to bring combined heat and power within the scope of technologies supported by the Government's non-fossil fuel obligation. It is important to note that, at present, the non-fossil fuel obligation is an economic hurdle to the development of combined heat and power because the arrangements for NFFO do not specifically recognise the existence of combined heat and power.
Quite clearly, many of the issues that we have discussed depend very strongly upon the efficient use of waste and the efficient use and handling of many of the by-products from waste. It is important that we use such materials in the most energy-efficient way possible. As a result of my amendment, I hope that the Government will agree to look a little more closely at the importance of CHP in achieving what the Bill sets out to do. It is to be hoped that, at some stage, they can place either directly in the Bill, or at least in the guidance, some responsibility on the agency to promote and support energy-efficient activities, to which this very important technology can now make such a very important contribution.
As my noble friend and the House will be aware, the Government have established certain targets. They have doubled the target to five gigawatts of power from the use of CHP by the year 2000. I think my noble friend will agree that in order to achieve that there will have to be a clear and positive programme to make it happen. I hope that my noble friend and the House will support that view. I beg to move.
7 p.m.
Baroness Nicol: My Lords, I am glad to support the amendment. I am aware that the option of CHP for waste disposal is not favoured by some organisations involved with recycling, but I believe that in waste disposal as in many other environmental considerations we have to seek more than one solution to every problem. I consider this particular option an extremely helpful one in a number of ways.
There is a growing acceptance of the value of CHP. We heard from the noble Lord, Lord Wade, about Professor Littlechild, and the report of the Royal Commission on environmental pollution on the incineration of municipal solid waste drew attention to the benefits of electricity produced in this way. I understand there is a consultation paper from the DoE on a proposed waste management strategy which also features the option we are discussing. All of those bodies have taken account of the high efficiency of CHP systems. Waste plants which produce only electricity are just 20 per cent. energy efficient while CHP is 60 per cent. energy efficient. That is a considerable advance. With the growing difficulties and the growing costs of landfill, and the need to reduce our dependence on fossil fuels, the CHP option is becoming ever more attractive in environmental and in market terms. I am glad to support the amendment.
Viscount Ullswater: My Lords, my noble friend's amendment would give the Secretary of State powers to develop a strategy and take such steps as he considers
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appropriate to encourage the use of local combined heat and power (CHP) schemes which are fuelled by incinerating waste. It would provide vires to identify such CHP schemes as a specific group in future non-fossil fuel obligation (NFFO) orders. This would ensure that such CHP schemes were able to compete effectively with other forms of renewable energy for subsidy under the fossil fuel levy.
The Government attach great importance to the efficient use of energy and to the use of combined heat and power schemes to help to carry forward their energy efficiency policies. CHP is very efficient and cost effective, as the noble Baroness, Lady Nicol, indicated. It helps us to carry forward our sustainable development policy, changing people's culture by promoting realistic ways of achieving development at lower cost to the environment. Hence we share my noble friend's concern that CHP should be encouraged wherever possible. It should not suffer from unnecessary disadvantages in comparison to other methods of generating electricity and heat.
We fully understand the intentions behind my noble friend's amendment. I am concerned whether, in this technical and complex area, the amendment as drafted achieves precisely the effect my noble friend is looking for. It might be helpful if his advisers and mine were to have some discussion about the thinking behind the amendment, although my noble friend will understand that I can give no assurances about the way forward. I hope that on that basis my noble friend will feel able to withdraw his amendment.
Lord Wade of Chorlton: My Lords, I am most grateful for those very helpful comments from my noble friend. I am also grateful for the support of the noble Baroness, Lady Nicol. With my noble friend's assurance that we can meet to discuss this matter, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Lindsay: My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, may I suggest that the Report stage begins again no earlier than five minutes past eight o'clock.
Moved accordingly, and, on Question, Motion agreed to.

Prevention of Terrorism (Temporary Provisions) Act 1989 (Enforcement of External Orders) Order 1995
7.4 p.m.
The Minister of State, Home Office (Baroness Blotch)The Minister of State, Home Office (Baroness Blotch) rose to move, That the draft order laid before the House on 16th February be approved [10th Report from the Joint Committee].
The noble Baroness said: My Lords, this is the first order of its kind to be made under the Prevention of Terrorism Act. It marks a small but important improvement in our ability to co-operate internationally against terrorism. The order is the final piece of

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subordinate legislation needed to enable us to implement a bilateral agreement which we have signed with India. That agreement is a wide-ranging one, aimed at encouraging judicial co-operation between our countries in tracing, freezing and confiscating the proceeds and instruments of crime, including terrorist funds.
In compliance with our obligations under the agreement, the order designates India under the Prevention of Terrorism Act. In doing so, it enables the courts in the United Kingdom to enforce orders made by the Indian courts for the restraint or forfeiture of terrorist funds. In a moment I shall elaborate on the form that the order takes and on how it will work in practice. First, I should like to say a few words about the circumstances in which the order is brought before the House.
None of us would disagree that terrorism is a uniquely grave form of criminal activity. It is one of the most serious threats to public security with which we have been faced in modern times. The police, the security services and indeed the Government have, for many years, been investing great effort into defeating terrorism within the rule of the law. In recent months we have seen an enormous improvement in the overall terrorist situation within the United Kingdom. That does not mean we can afford to be complacent about the terrorist threat. Last July we sadly saw the return of Middle Eastern terrorism to the streets of London. Foreign-based terrorist groups are still active. They have proved themselves willing and able to operate across national boundaries. And many of them are keen to exploit differences in national laws to evade justice in their own countries.
International co-operation remains an essential part of the strategy against such terrorist groups. We have attached great importance to the work which has been done within government and by the police and other agencies to forge links with other countries which are also committed to eliminating terrorism. The links which this country has with India are long standing. Our respective enforcement agencies are already working together to tackle common problems. The bilateral agreement, which we have concluded with India, is a welcome opportunity to extend that co-operation into new areas. It demonstrates clearly our willingness to help the Indian authorities in their efforts to stem the flow of tainted money or property in and out of their country. It also gives a clear message to criminal organisations in India and around the world that we are not willing to see our financial systems abused for their unsavoury purposes.
We have already, with your Lordships' permission and approval, implemented another 23 similar bilateral agreements. This is the first to extend to terrorist funds. The order before the House is therefore somewhat novel in character. I shall explain briefly what it aims to do.
The Prevention of Terrorism Act, as your Lordships will know, created in UK law a system of offences, penalties and investigative powers aimed at tackling those who provide financial support for terrorist activity. It included a scheme enabling the courts to order the restraint or forfeiture of money or property belonging to those convicted of financial offences under the Act which the courts believe is destined to finance further
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terrorist activity. The Act paved the way for international judicial co-operation by allowing orders such as the present one to be made to enable our courts to enforce restraint and forfeiture orders similar to our own made by specified overseas countries.
The types of restraint and forfeiture orders which may be enforced under this Order in Council are defined in Article 2 at the top of page 2. This makes it clear, for example, that forfeiture orders must fit a description given in the Prevention of Terrorism Act itself. Essentially this means for present purposes that they must be in respect of funds destined for acts which we would recognise as serious terrorist offences or the proceeds of such acts or activities engaged in the furtherance of them.
Article 4 of the order makes the necessary provision to enable our courts to accept documentary evidence from overseas. Among other things it provides for the admissibility here of a certificate issued by the Indian courts giving certain information about the proceedings in that country which have led, or may lead, to the making of a forfeiture order.
Parts II, III, and IV of the order contain the schemes which enable our courts to register and enforce external restraint and confiscation orders. Your Lordships will have seen that there are separate arrangements in respect of England and Wales, Scotland and Northern Ireland. These are all virtually identical.
In order for an external restraint or forfeiture order to be enforced here, it must first be registered in the High Court or, in Scotland, the Court of Session. That court must be satisfied that the correct procedures have been followed in making the order.
The order incorporates a number of safeguards to ensure that the powers it creates are not used unfairly. A forfeiture order will be registered and enforced only if the High Court is satisfied that it is in force and not subject to appeal, that the subject of the order appeared in the proceedings in which it was made or was given the opportunity to contest it, and that its enforcement would not be contrary to the interests of justice. Similar safeguards apply in respect of restraint orders.
Before an order reaches the courts it will receive careful scrutiny. Requests from India for the restraint or forfeiture of funds will be sent, in the first instance, to the United Kingdom central authority, which is in the Home Office. The central authority is experienced in dealing with requests under our existing confiscation and forfeiture agreements, which I mentioned earlier. The central authority will check whether the request falls within the terms of our agreement with India. It will then pass the request to the National Criminal Intelligence Service, which will take any necessary action in conjunction with the police and prosecutors here. If there are any doubts about a request, further information may be obtained from the Indian authorities before an application is put to the High Court or Court of Session.
Once an order has been registered in the High Court or Court of Session it may be enforced as if it were a domestic order. These procedures ensure that anyone affected by an order has an opportunity to be heard before any property is taken from them permanently.
The investigation and prosecution of illegal fund-raising activity is a singularly complex and lengthy process. It is important therefore to ensure that the right powers are put in place so that the police can take action when they need to do so. Such powers are also valuable as a deterrent. They send a clear signal that the illicit assets of terrorist organisations are not beyond the reach of the law. This will make a modest but useful contribution to countering international terrorism. I commend the order to your Lordships.
Moved, That the draft order laid before the House on 16th February be approved [10th Report from the Joint Committee]. —(Baroness Blatch.)
Lord Graham of Edmonton: My Lords, my noble friend Lord McIntosh of Haringey has asked me to apologise for his absence and to say that the order has his full approval. We on these Benches are content.
Lord Rodgers of Quarry Bank: My Lords, we on these Benches are also content with the order. We shall support anything which gives a clear and unequivocal message that we will play our part in combating international terrorism. We may regret the need for such orders but we should support them while scrutinising them for safeguards.
There is one question I should like to ask the Minister relating to the remarks of her colleague Mr. David Maclean in the discussion in the Fourth Standing Committee on Statutory Instruments on 2nd March. At col. 6 of the report he refers to the alternative of a free-standing restraint power and says:
"A free-standing restraint power would in some circumstances be a quicker and more flexible way to proceed. We intend to take the earliest opportunity to amend the enabling power in schedule 4 [of the Prevention of Terrorism (Temporary Provisions) Act 1989]. When that has been done, I shall introduce a further order under the prevention of terrorism Act creating a free-standing restraint power in respect of terrorist funds".
Will the Minister explain to the House what is meant by "the earliest opportunity" and whether we may anticipate an amendment within the present parliamentary Session or at some other future date? Can she also clarify the further statement by Mr. Maclean that the present method contained in the order is a suitable and practical alternative to a free-standing restraint power? It is not clear to me why, if this is a suitable and practical alternative to a free-standing restraint power, the Government intend to take the earliest opportunity to amend the enabling power to make it a free-standing restraint power. I merely seek an explanation.
We support fully the objective of the order and will play our part in ensuring that international terrorism is combated in all its forms.
Baroness Blatch: My Lords, I am grateful for the welcome accorded the order. I shall try to deal with the questions asked by the noble Lord, Lord Rodgers. If I am not able to do so sufficiently fully I shall write to the noble Lord following the debate.
The Order in Council enables the High Court to restrain property in this country at an early stage by registering a restraint order made in India. This is a
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practical and effective way of proceeding. A free-standing restraint power is desirable as an additional measure because it will enable the court to restrain property without an order from the Indian courts provided that certain conditions, which we shall lay down in the Order in Council, are satisfied. In certain circumstances that may be a more flexible method,
As regards the introduction of the amendments, I understand that that will take place as soon as possible. The change is needed to allow the High Court more flexibility in the way it acts by enabling it to restrain property with or without a restraint order made by the Indian courts. I commend the order to the House.
On Question, Motion agreed to.

US Counter-proliferation Initiative
7.15 p.m.
Lord Kennet Lord Kennet rose to ask Her Majesty's Government what discussion, whether in NATO or otherwise, the Ministry of Defence has had with the US Defense Department about the US Defense Counter-proliferation Initiative; and what is their attitude to the initiative.
The noble Lord said: My Lords, I raised the counter-proliferation initiative (CPI) in the defence debate on the Queen's Speech and asked some specific questions which were not answered at the end of the debate. I consequently wrote to both the Foreign Office and defence ministry Ministers, including the noble Lord who is to answer today, and I asked for an answer. The Ministry of Defence referred me to the Foreign Office, but I have had no reply. That is why I am asking this Question today. I am sure that the noble Lord will understand.
What is the CPI? It is an American programme of military procurement, brought about by industrial momentum and accompanied by the usual justificatory doctrines and assumptions. Last month the House of Representatives threw out the Republicans' idea of reviving the old strategic defense initiative (SDI)—President Reagan's star wars. But that leaves untouched this other, more comprehensive, initiative.
The end of the Cold War did not stop defence people producing brilliant technologies. The momentum is still colossal. President Reagan, a Republican who was far from believing in balanced budgets, had invested so much talent and wealth in the now defunct SDI that ever smarter weapons and systems are now arriving just as if it had not been abandoned. Moreover, interest payments on the US budget deficit are increasingly absorbing the country's revenue, so weapon sales abroad look more and more useful.
Last May, John Deutch, the US Deputy Secretary for Defense, listed 16 "areas for progress" that needed more money. Among them were the following: capability to detect, locate and disarm, with a high degree of assurance and in a timely fashion, outside the United States weapons of mass destruction hidden by a hostile state or terrorist in a confined area; real-time detection and characterisation of bacterial and chemical weapon agents; detection and characterisation of underground structures; and hard underground target defeat including

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advanced non-nuclear weapons (lethal and non-lethal) capable of holding counterforce targets at risk with low collateral effects. These last include a rather new class of weapons, smart burrowing munitions. They burrow into the ground and only go off when they find a space—a chamber.
To carry forward this procurement and the sales of it abroad, there has to be a military doctrine about what to do with the weapons. This is much the same problem as faced Kennedy in 1961 when, having won the election on a missile gap with the Soviet Union which reconnaissance had already shown did not exist, he still had to order vast numbers of Minutemen, many times what his predecessor, Eisenhower, who was a soldier, had ordered. Then Kennedy had to find a military doctrine to fit the numbers. That was the second strike counterforce doctrine, which was the fuse that lit the Cuba crisis because the Russians, not surprisingly, understood it to comprise a first-strike counterforce threat as well.
The doctrine was then, and is now, that possession of a counterforce system will deter attack, but the reality is that, if it works at all, it works both defensively and aggressively. While a second counterforce strike would not be unlawful—the US would already have been attacked—a pre-emptive first counterforce strike in the absence of war would be aggression and therefore very unlawful indeed.
The prototype operation for the CPI is Israel's 1981 strike on Iraq's nuclear facility—Osirak—which, of course, triggered many of the current arms races in the Middle East. Our Government have always made clear that that attack was wholly unlawful. The Reagan administration unfortunately found it quite tolerable and Israeli officials have recently been suggesting that they could do the same to Iran. I have seen no objection to that unlawful suggestion from the American Administration, which is, of course, funding the local anti-missile missile programme to shield Israel from Iranian retaliation. All that, at the very time the United States has apparently agreed not to press Israel on the non-proliferation treaty, while still pressing all the Arab states to sign up.
But a military doctrine for the new purchase is not enough. There must also be a political doctrine. This goes more or less as follows: we have seen, have we not, that neither diplomacy nor treaties can stop the proliferation of weapons of mass destruction. Out there in the big world there are these rogues, states and terrorists, who, given half a chance, will get these weapons—nuclear, chemical and biological—and missiles to put them on, so we had better be able to see what they are doing in real time. Then we had better be able to shoot them down before they can land on us and our friends. Even better still, we had better be able to identify and destroy them before they leave the ground, or even under the ground. That, sure as hell, will deter them.
Well, probably not. Elsewhere in the world, nations have long been obtaining weapons of mass destruction, not for fun and because nothing prevents them, but for very real fears, which they usually articulate quite clearly and we usually fail to listen to.
To halt and roll back proliferation, it is useless just to cry out against it and its effects; we have carefully to remove its causes. North Korea was being goaded into proliferation by the nuclear sabre-rattling and vast military exercises being ceaselessly conducted all around its borders. Iraq's programme was redoubled, not weakened, by Israel's attack. Iran's, if it has one, will be redoubled by Israel's threats.
The counter-proliferation initiative stands also on a political assumption: the world so needs American leadership that the United States - the sole hegemon, as Mr. Gingrich encouragingly puts it—must accumulate and deploy weapons to meet that need. Part of the assumption is that the world agrees and will want to give house room to American infrastructure. We could allow the use of Diego Garcia and Ascension Island, perhaps, as well as bits of the UK. There have been discussions with Namibia. At this very moment, the highest tech weapons are being offered to Poland and the Czech Republic, who surely have better things to spend international aid on, and military agreements are being reached with Armenia, Albania, and several others.
The CPI implies also a faith in boundless technological capability. It is ill-founded. One serving US intelligence general has already warned about this programme of multi-sensor surveillance: do believe there are things we cannot know. Identifying the contents of underground chambers, in real time, from space; distinguishing a harmless bio-engineered pesticide from a military biological or chemical process or weapon, and then rendering them all harmless will not happen. And of course no one will ever know that, as well as ordinary technical bugs in the system, there is not a bright young hacker in it for the fun or because he disagrees with the idea.
So what is our attitude? That is what we hope to hear from the Government tonight.
To sum up, we have a strongly motivated procurement of the new generation of precision-guided munitions, including burrowing munitions, which would be launched from unmanned platforms—supersonic stealth cruise missiles, perhaps, unmanned aerial vehicles and so on—which are to be controlled and re-targeted in flight by space-based sensors and computers that can unfailingly identify and therefore trigger attack on whatever they have been programmed to identify as unacceptable. A globally operational, computer-led identification system and a globally operational, computer-led attack system, both under the political control of a single sovereign state? There would be no way in which the international community could ensure that such a system would not be misused. If it can be used unilaterally, it can be misused unilaterally.
What we need is European eyes in space. Strategy begins with geography, which we have in common with Europe, not the United States. Nor can we go on depending on information handed down to us in spoonfuls by the American intelligence apparatus. As we have learned in Bosnia, we do not know what we do not get. Iraq and North Korea and co. can just say of US intelligence: "They would say that, wouldn't they?" We do not know who is right. We—and this goes for the

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whole United Nations—must have more than a single, nationally controlled, source of intelligence about whose quality and context we know next to nothing although probably we know more than any other country. The Treasury accountants, who seem not to know much history, believe it has to be cheaper to depend on another government's intelligence services. One can only say, "Wake up!"
Britain needs to join up with Helios as soon as possible. Probably we should not be buying US cruise missiles with their built-in permissive links.
The Russians are being consulted about the CPI because some of what is already being tested in the United States requires the bilateral ABM Treaty to be re-interpreted. Even the old system of global protection against limited strikes—and the CPI is far more ambitious than little old G-PALS—cuts across the indefinite and concept-derived limits of the ABM Treaty. "Tactical" to the United States is "strategic" to us. Such words measure nothing.
Certainly the Russians see some charm in participating in a very expensive scheme in which others might want to pay them for what they can contribute, but they do not intend to see any such apparatus put into the sole hands of the US. Anything like that, they say, has to be right inside a Security Council system. But unfortunately it cannot be; not if it is intended to perform automatically in real time. Nor will the Chinese, nor the Japanese, nor the Indians, nor the Koreans in the slightly longer term accept this kind of American hegemony. Nor, I think, will we in Western Europe.
If the new version of the Atlantic Assembly that Mr. Rifkind proposed in his thoughtful Chatham House speech last month were already in place, the CPI would probably not have got as far as it has. Mr. Rifkind's wish to get the United States Congress rooted more closely and democratically into the world we all share is warmly to be commended.
I say that it might not have got so far as it has, but of course we do not know how far it has got. The American chiefs of staff were supposed to be taking a decision on it at the end of January, I hope that the Minister will be able to enlighten us to some degree about what is going on and what is our own attitude to it.
The world remains unchanged in certain all-important respects which affect all countries. That is that scientific and technological predominance does not guarantee political predominance unless it is put into military terms. If it is put into military terms, it guarantees the political rejection of the country which does so, and in any case, in all the advanced countries there is a continuing danger of the political apparatus and wisdom of those countries falling permanent hostage, half unconsciously, to the pressures of technological development and of industrial profit.
7.29 p.m.
Lord Mayhew: My Lords, I must apologise to the noble Lord for missing the beginning of his speech. Indeed, I have to say that I had only the minimum notice that this debate was being rescheduled this evening.
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However, I congratulate the noble Lord very warmly on raising this matter, and on doing so in an extraordinarily well-informed and well argued speech, every word of which I heartily endorse.
Perhaps the project that he criticised is more formal and more official than he realises. I recall its being expounded, not by the Assistant Secretary of Defense, six months ago, but by Mr. Les Aspin, the United States Secretary of Defense, a couple of years ago. It certainly deserves all the arguments against it that the noble Lord deployed so well. It is based, of course, on the precedent of the Israeli attack on Baghdad in 1981. It is argued now that that delayed Saddam Hussein's nuclear programme for a few years. That may well be true. But it also inflamed still more the hostility and distrust of Israel in the region. It undoubtedly prompted the manufacture of weapons of mass destruction, not only in Iraq but in Iran and Libya. If a scheme such as the noble Lord describes is practicable; if it is technically feasible and can be afforded; if the Americans really have the outrageous arrogance to take into their own hands the whole question of the non-proliferation of nuclear weapons, it will certainly produce the same results. There will be an increase in hostility, distrust and tension, and there will be increased manufacture of weapons of mass destruction. It is a mad scheme. I should be surprised if the United States Government discussed it with Her Majesty's Government. I look forward to hearing from the Minister at what point, if at all, we were consulted about this. We ask for an assurance that, if they were consulted, Her Majesty's Government did their utmost possible to dissuade the Americans from this provocative and ill-judged scheme.
Another feature of the scheme is that it undermines the world's efforts to secure a successful non-proliferation treaty. This is a plan which assumes the collapse of the non-proliferation treaty; otherwise there would be no point in the project at all. This plan will have an impact on the conference on non-proliferation which takes place next month, to be attended by 161 member states. They will be deeply shocked at the lack of faith shown by the United States in this approach to non-proliferation. There is the assumption that only the United States has the right to prevent proliferation, and to prevent it in the most extreme and aggressive military way—an illegal way—in which this plan has been designed.
It is my wish that, at the non-proliferation conference the British Government will show more faith in the concepts of agreed non-proliferation. The fact is that so far the conference has not gone very well. As we warned from these Benches, the fact that the five excepted nuclear nations have failed to implement their obligations under Article 6 of the treaty has put them on the defensive. The British Government, too, have not fulfilled their obligations under this article. For example, I believe that they still have reservations about the comprehensive test ban treaty. They have been pushed and pushed in the direction of supporting such a treaty. But as I understand it, the French and British Governments still maintain the need for tests that are excepted from the treaty. Perhaps the Minister will confirm or deny that.

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As we on these Benches have constantly pointed out, the British Government also maintain a nuclear potential, with the number of nuclear warheads well in excess of what could possibly be required for a minimum deterrent. And they are keeping the numbers secret. Here again, the Government are inviting criticism and suspicion from the non-nuclear members of the non-proliferation treaty. Why do they not tell the world how many nuclear warheads they possess? The Russians do that, as do the Americans. Only the British Government arrogate to themselves the right, not only to possess nuclear weapons when the rest of the world, with five exceptions, is supposed not to have them, but to keep quiet about it. The British Government assume the right to insist that everybody else in the world subject themselves to intensive, intrusive inspection of their civilian nuclear capability, while reserving the right to conceal from the world the number of nuclear warheads that Britain possesses.
I am bound to say that the Government have ignored the warnings given from these Benches that, by taking this line, they would soon find themselves hopelessly on the defensive against the non-nuclear members of the conference; that they would find that when they asked for an indefinite extension of the treaty they would be met with the perfectly reasonable argument, "Why should we indefinitely extend the treaty before the five recognised nuclear powers fulfil their obligations under the treaty?". We said that they would say it, and so they are. I predict that there will be a great deal of opposition to an indefinite extension of the treaty while the five nuclear powers fail to fulfil their obligations under Article 6. That is the way that the wind will blow.
I therefore ask the Government, these questions. First, were they consulted about this illegal and provocative American project? If so, what comment did the Government make? Will the Government now put their whole weight behind negotiating a successful non-proliferation treaty? Will they take the lead by fulfilling their own obligations under Article 6 of the treaty?
7.39 p.m.
Lord Williams of Elvel: My Lords, the House will be grateful to my noble friend Lord Kennet for raising this important Question. The proliferation of weapons of mass destruction is certainly one of the major challenges to national security in the modern age. This is a particularly appropriate time to be debating proliferation issues. On 17th April, as the noble Lord, Lord Mayhew, pointed out, the nuclear non-proliferation treaty extension conference will convene in New York. At that conference the parties to the treaty will decide how much longer, and in what way, the treaty should continue after 25 years in force.
The NPT, along with other control mechanisms, such as the Nuclear Suppliers Group and the Missile Technology Control Regime, constitute part of our non-proliferation policy and our efforts to prevent proliferation happening. But the subject of today's debate concerns counter-proliferation. How do we respond to proliferation if our non-proliferation policies fail to prevent it? How do we tackle new proliferants?
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At its 1994 summit, NATO decided to seek to develop a comprehensive approach to proliferation, the primary focus of which will remain prevention. But it will also include consideration of developing the military means to deal with proliferation should prevention fail. I understand that the work is in hand but has not advanced very far yet. Perhaps when the Minister comes to reply he will be able to comment on that.
In the meantime, the United States itself has launched a counter-proliferation initiative, the purpose of which seems—I use the word advisedly—to be to enable the United States to tackle a regional adversary who is armed with weapons of mass destruction by using advanced conventional capabilities rather than nuclear ones. I understand that the Pentagon has identified a number of future capabilities which will be required to support the counter-proliferation mission area, including theatre missile defences and interdiction to deal with extant weapons of mass destruction capabilities.
I understand that so far as the British Government are concerned, a consortium led by British Aerospace has been awarded a contract by the Ministry of Defence for what is called a pre-feasibility study to examine our national options and help inform future policy decisions, including whether the UK has a requirement for ballistic missile defence. Quite why a contract of that nature has been given to a private firm—and an arms supplier at that—is beyond my comprehension. No doubt the Minister will explain why our defence policy seems now to be determined by the private sector.
Given the counter-proliferation initiative, a number of political and technological questions arise. The political risk, which my noble friend Lord Kennet spelt out very clearly, is as follows. The development of these capabilities in themselves might tempt some to use them pre-emptively rather than in response to a regional conflict initiated by a future proliferant state. A country that was merely suspected of developing nuclear or other weapons of mass destruction might find itself the subject of an attack launched in order to take out that country's suspected capability. Of course, that would be highly dangerous, because, first, if unprovoked, it would be contrary to international law and thereby could destroy completely the international non-proliferation regime; and secondly, there is no guarantee of success. Instead, it is likely to make that state more determined and antagonistic and could spark a regional war. The noble Lord, Lord Mayhew, gave an example of how that had happened in the past.
There are also technical problems with such an initiative. For example, theatre ballistic missiles and missile defences are as yet unproven. The performance of the Patriot against the Scuds in the Gulf War fell rather short of the hype provided by the manufacturers at the time. Obviously, it would take only one single nuclear warhead to penetrate one's defences for those defences to have been judged a failure. We should also be aware that ballistic missile defence is no panacea for dealing with attack by weapons of mass destruction, even if those defences work perfectly. Are there other ways to deliver such weapons—by artillery shell, free-fall bomb or low flying cruise missile; or possibly even in a suitcase?

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Any development of theatre ballistic missiles will also need to pay close attention to the terms and restrictions of the Anti-Ballistic Missile Treaty, which bans strategic missile defences almost completely. I understand that the United States and Russia are each allowed to deploy 100 launchers around a single site. Russia chose Moscow; the United States has not exercised the option. A continuation of that treaty is crucial to existing nuclear disarmament agreements remaining in place and future negotiations taking place. We should do nothing and the United States should do nothing to undermine it.
Further, there are the cost implications of any such initiative. We must be wary of being sucked into an expenditure black hole in pursuit of a technological quick fix. At every stage we must ask ourselves whether money spent on counter-proliferation might not be spent better on proliferation prevention, for example by increasing what we regard as the inadequate budget of the International Atomic Energy Agency, which is the NPT's own watchdog.
I have no doubt that the Ministry of Defence will bear those factors in mind during the quaint pre-feasibility study on which it is engaged and will weigh them very carefully before proceeding further. It is probably right to examine whether or not certain defensive counter-proliferation options are cost effective and therefore worthy of investment of scarce defence resources. But we should not let that distract us from our central focus—here I agree entirely with the noble Lord, Lord Mayhew—on trying to prevent proliferation through an enhancement of more traditional methods of international treaties, export controls and diplomacy.
7.46 p.m.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Henley): My Lords, perhaps I may start with an apology to the noble Lord, Lord Mayhew. I understood that he had been informed about the revised time of the debate when it was changed from last Monday. I offer him my sincere apologies. Obviously the message failed to get through. I am also most grateful to the noble Lord, Lord Kennet, for writing to me and setting out some of his ideas. I believe he knows that his letter went to his noble friend Lord Healey but eventually it reached me. The letter which the noble and gallant Lord, Lord Craig, addressed to me also went to the noble Lord, Lord Healey, and reached me this morning. I am not aware whether the letters of the noble Lords, Lord Williams and Lord Mayhew, who also wrote to me, went to the noble Lord, Lord Healey. Perhaps I might ask the noble Lord, Lord Healey, to answer these debates on other occasions.
The noble Lord has given me a welcome opportunity to set out our approach to the proliferation of weapons of mass destruction, which is of crucial importance to our security interests. I would rather not follow him in what I believe was almost an attempt to drive a wedge between the United Kingdom and the United States in this important area, as I suspect he was doing. I hope that he will bear that in mind as he listens to what I have to say.
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The US counter-proliferation initiative describes the American attitude towards proliferation. It was launched following President Clinton's address to the UN General Assembly in 1993 when he drew attention to the risks posed by the proliferation of weapons of mass destruction. But, as both my noble friend Lady Chalker and I have made clear to the noble Lord in letters dated 3rd and 4th February this year, the counter-proliferation initiative is very much a national US initiative, as the noble Lord, Lord Kennet, rightly stressed. Therefore, I cannot comment on it directly. The United Kingdom has been briefed about it both bilaterally and within NATO. We are certainly very interested in US thinking in this field. But we are not directly involved—and should not expect to be directly involved—in what is a distinct national US matter. Nor, despite our close relationship—I emphasise to the noble Lord, Lord Mayhew—is the United States obliged to consult Her Majesty's Government on all its initiatives.
Therefore, it is not my responsibility to defend the counter-proliferation initiative against its detractors. However, I cannot let what the noble Lord, Lord Kennet, said pass entirely without comment. In particular, I should correct his implication that the United States has given up all attempts to prevent proliferation and instead is concentrating simply on military approaches. That is a misrepresentation of what we understand the American position to be. Last year, the NATO Foreign Ministers stated:
"The principal non-proliferation goal of the alliance and its members is to prevent proliferation occurring or, should it occur, to reverse it through diplomatic means".
Lord Kennet: My Lords, I am grateful to the noble Lord for yielding. I said nothing to imply that the United States had given up on the political search for non-proliferation.
Lord Henley: My Lords, I am most grateful to the noble Lord for stressing that. However, I think it is worth my stressing on behalf of Her Majesty's Government that all NATO states had committed themselves to that goal. The mere fact that the Americans might be pursuing the particular policy which the noble Lord states they are pursuing does not rule them out of pursuing the policy of non-proliferation by means of prevention rather than by the military means I think he was suggesting.
Like us, our American allies recognise that those military measures have a role in dealing with proliferation, but, like us, they recognise that they could never be the whole answer. Nevertheless, we in the United Kingdom have not ignored an aspect of the US counter-proliferation initiative which seems to be causing the noble Lord particular concern; namely, ballistic missile defence. We have recently embarked upon a programme of studies to examine this subject in more detail and a contract for this work was placed with the consortium, referred to by the noble Lord, Lord Williams, led by British Aerospace in October 1994. I fail to understand the noble Lord's objections to our use of the private sector in this field. It certainly has the technical expertise to provide us with advice on options and the way forward. It will, in time, provide us with information on those options: on performance criteria,

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technical risk and cost, which again the noble Lord was right to stress. We have also invested in technology demonstrator programmes which could have missile defence applications.
These studies will enable us to make informed decisions about the way forward, including whether we have a national requirement for ballistic missile defence. As part of our examination of that, we naturally consult allies in NATO, including the United States, and co-operate with them on a range of associated technical issues. But it would be wrong to interpret those discussions as either United Kingdom or NATO involvement in the United States counter-proliferation initiative.
The proliferation of nuclear, chemical and biological weapons and their means of delivery is a major security concern. The acquisition of such weapons by states like Iraq not only threatens already unstable regions but also increases the risk of the United Kingdom, or our forces engaged on missions around the world, being confronted by weapons of mass destruction. It is right that the United Kingdom should keep all responses under review and should do so in concert with our allies. I shall therefore take this opportunity to set out our overall approach to non-proliferation.
Our efforts to control proliferation embrace several complementary strands. First, we seek strong and verifiable international treaties, such as the non-proliferation treaty—I shall say a little more about that later—which will bind states to various controls on the spread of weapons of mass destruction. Next, we aim to ensure that anyone breaching the treaties is held to account. It is also important for us to have, and to encourage others to have, rigorous export controls to hinder would-be proliferators. And we must also ensure that our Armed Forces have effective protection against possible attack.
At the alliance level, the United Kingdom is also participating actively in work under way to develop a NATO policy towards proliferation. This work is intended to reinforce the treaties and regimes and therefore has both political and defence dimensions. The senior politico-military group on proliferation deals with the political dimension by providing a forum for regular consultations among NATO members, and others, on proliferation and examining ways in which the alliance can contribute to the implementation and strengthening of international non-proliferation agreements.
Military implications are dealt with by the senior defence group on proliferation. The group has already produced a risk assessment and is now into the next phase of work in an analysis of the implications of these risks and the capabilities which might be necessary to combat them. The final phase of work will be to assess current alliance capabilities and identify any areas in which these might need to be improved. The work may include an examination of ballistic missile defence, but the alliance will be looking at the whole spectrum of possible responses and capabilities and not just this aspect. As your Lordships would expect, the United Kingdom has been playing an active part and will continue to do so.
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I said that I would say more about the non-proliferation treaty. I can give an assurance to the noble Lords, Lord Mayhew and Lord Williams, that we are committed to securing unconditional and indefinite extension of the treaty at the conference of states parties which starts in April of this year. We take very seriously our obligation under the non-proliferation treaty to work towards nuclear disarmament in the context of complete and general disarmament. One ought to stress on these occasions that once Trident is fully in service the explosive power of the United Kingdom's operational nuclear inventory will be some 25 per cent. lower than in 1990. As both noble Lords will be aware, we have already disposed of a considerable quantity of our nuclear weaponry. I do not think that I need elaborate on that this evening.
Perhaps I may deal with one or two other points. The noble Lord, Lord Kennet, asked why the United States is not pressing Israel to join the nuclear non-proliferation treaty but is pressing the Arab states to do so. I cannot answer for the United States but I can say that Her Majesty's Government wish to see the non-proliferation treaty universally supported and will continue to encourage Israel to accede to it. We hope that Israel will take that on board.
To conclude, the proliferation of weapons of mass destruction poses a serious threat to international security. The Government view the consideration being given in NATO and other multilateral fora to this problem as of great importance. I believe that the noble Lord, Lord Kennet, has provided an opportunity to remind ourselves of the dangers in this area. I believe, though, that he is wrong to imply that the United States, let alone the United Kingdom, has lost sight of the central importance of preventing proliferation from occurring in the first place, and reversing it if it has happened, by diplomatic means. We are examining both nationally and within NATO what role military means might have as a part of our general non-proliferation efforts. It is prudent for us so to do. But we are not being driven—I must stress this—towards any predetermined outcome. The need to reach the right conclusions is too important.
Baroness Trumpington: My Lords, I beg to move that the House do now adjourn during pleasure until 8.5 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.57 to 8.5 p.m.]

Environment Bill [H.L.]
Consideration of amendments on Report resumed. Clause 79 [Hedgerows]:
Lord Marlesford Lord Marlesford moved Amendment No. 234A:
Page 87, line 17, leave out ("may") and insert ("shall by 1st July 1996").
The noble Lord said: My Lords, we are back to hedges. As far as I can make out, there are three separate groups of amendments about hedges. In moving this amendment, perhaps I may say one or two things about

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the other amendments in the group. We have had discussions already as to whether details of hedgerow legislation should be in the Bill. The Government have decided to stick with the original plan that it should be primarily by regulation. I am happy with that perfectly fair decision. I would have preferred to have had more on the face of the Bill, but I recognise the Government's point.
However, I shall be very concerned if the regulations are just left with no date and no idea when they might come into effect. I know that a great deal of consultation is needed as to exactly what the regulations should say. I am very glad to hear that the Department of the Environment has asked ADAS to consult on the criteria. Once that has happened it would be useful to have some idea as to when the regulations may be inserted. I am suggesting the date of 1st July 1996.
Given the Government's commitment to introduce protection for hedgerows, it is clearly desirable that it should be in this Parliament. That is why I have suggested the date of 1st July 1996. If my noble friend is unable to accept that particular date, I hope that he will give an indication as a discipline for all of us when we can expect the undertaking to be fulfilled.
Perhaps I may say something about the other amendments in the grouping so I do not have to inflict myself on your Lordships again on this matter. I very much like Amendment No. 235 in the name of the noble Baroness, Lady Nicol, concerning stone walls. However, I recognise that at the moment we are talking about getting hedges into the legislation. I am quite sure that in due course stone walls should receive some statutory protection. Like everyone, I suppose, I am quite keen on ponds and have dug a few myself in my time.
Viscount Ullswater: My Lords, I believe my noble friend is addressing the next group of amendments. It would be better if we stuck to the present group before entertaining speeches concerning the next group.
Lord Marlesford: My Lords, I apologise. I now refer to Amendments Nos. 239B to 239E. Amendment No. 239B of my noble friend Lord Stanley is extremely sensible because there should be a proper right of appeal for anyone who wishes to uproot hedges. As regards Amendment No. 239C, I do not believe that the idea of planting a hedgerow is enough to justify taking up a hedgerow. What we are really concerned about is the quality of the hedgerows and often their antiquity. Therefore, planting a hedgerow is not a substitute or an excuse for uprooting. That is why I am not very happy about Amendment No. 239C.
On Amendment No. 239D, I should have thought that the decision as to the importance of a hedgerow would be taken at the appeal stage, which is provided for in Amendment No. 239B. In other words, I regard Amendment No. 239D as an alternative to, and less good than, Amendment No. 239B because, if there is to be an appeal against the appropriate Minister's refusal of consent, it would be at that stage that any considerations such as those referred to in Amendment No. 239D would be appropriate.
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Amendment No. 239E, which stands in the name of the noble Earl, Lord Lytton, refers to the provision of a "management agreement". I am sure that we all recognise the need to provide financial support where hedges have to be maintained in the public interest, but I do not think that that should be achieved by a linkage under the Bill. I would expect that hedges which are regarded as sufficiently important to be subject to an order preventing their removal would also be seen as sufficiently important to receive some financial assistance under whatever other schemes already exist. We discussed that in Committee and it seems to me to be a much more sensible approach than direct linkage.
Perhaps I may use the analogy of listed buildings. A decision to list a building does not automatically mean that one gets a management grant or any other sort of grant in connection with it. One may be eligible for such a grant, but that is a separate point that is judged according to separate criteria. That is why I would not be happy if any direct linkage were provided under the Bill. Having said that, I beg to move Amendment No. 234A.
8.15 p.m.
The Earl of Lytton: My Lords, I rise to speak to Amendments Nos. 239B, 239C, 239D and 240A. I should like to speak to Amendment No. 239E at its point in the Marshalled List so I shall not be speaking to that amendment with this group of amendments, but after the group which starts with Amendment No. 239, which is where I believe that Amendment No. 239E logically stands. Having disaggregated Amendment No. 239E, I shall cover the other amendments in the order in which they appear in the Marshalled List.
The purpose of Amendment No. 2398 is to provide for a right of appeal. I hope that that is clear. The miles of natural justice apply here and I feel strongly that there should be adequate safeguards for those who are affected by hedgerow protection orders. Many designations of one sort or another are capable of challenge at some stage. The designation of sites of special scientific interest may be challenged when one wishes to carry out certain types of work. There are similar provisions for listed building consents and for tree preservation orders. With respect to the noble Lord, Lord Marlesford, I believe that he thought that this was of necessity a right of appeal against a designation. I am seeking merely to ensure that there is some form of right of appeal in the regulations. It matters less to me at what point it appears than that it is there somewhere. I hope that that puts the noble Lord's mind at rest.
As drafted, Clause 79 provides no right of appeal, except possibly the normal default line through the heavy-handed and expensive route of judicial review which is available for many instances where there is thought to be an over-zealous use of power.
I have received today a copy of the project description for the identification of important hedgerows. It is obviously framed widely and does not of itself identify what might be described as "most important hedgerows"—nor does it set out how they might be identified. I hope that that is merely to leave the way clear for a free hand to be given to the contractor to

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investigate that side of the issue. I hope that the Minister can reassure me on that; otherwise, on the face of it, there appears to be a shift of emphasis. I hope that that is not intended. In my view, if there is such a shift of emphasis, a right of appeal is indispensable.
The purpose of Amendment No. 239C is to ensure that in considering whether to exercise its powers, an authority should have regard to the manner in which hedgerow management and restoration are already occurring on the holding in question. I believe that that would have the following effects. First, it would go some way towards procuring good conduct because land managers would realise that future treatment of any application that they might make to remove an important hedgerow might well depend on their past conduct. I see nothing wrong with that.
Secondly, it would ensure that an authority could not unreasonably penalise someone who was making a genuine effort on their holding and take a narrow view on a particular hedgerow without considering other factors. In many holdings, land management (from the land manager's standpoint) is very much a function that is integrated with all his other functions. The degree to which he is prepared to devote time and resources to good hedgerow management is derived directly from the nature of that basket of activities, which often includes diversification. I would hate to think that hedgerow protection would become another issue that stands in the way of an otherwise good scheme which, taken in the round, would be a net contributor to the environmental benefits that we all want to see.
I hope that what I have said answers some of the points that were raised by the noble Lord, Lord Marlesford. I do not think that it is a question simply of uprooting and substitution. That would be too simplistic a model. This is an important issue that needs to be taken in the round. That is the thought-process that I should like to encourage.
Amendment No. 239D would ensure that an authority would have to consider the effects on the business of the landowner or land manager of any exercise of its powers. That follows on from what I have just said. Clearly, it would be manifest bad practice if an authority was minded to deny the facility to do to a hedgerow something that was necessary regardless of its impact on the agricultural or business interest. To do that would be to put nature conservation in direct confrontation with the integrated approach to management and maintenance which land managers try to adopt. That would send a negative message, and must be avoided. My amendment would help to avoid what might turn into an entirely counterproductive response by land managers. It would enable the economic interest (which ultimately provides the resources for hedgerow maintenance) to be demonstrated as relevant. I take the point that was made by the noble Lord, Lord Marlesford, that it may be an appeal stage procedure. However, I feel that it should be built into the whole process and not necessarily attached to a specific element of it.
Amendment No. 240A probes the intended meaning of the word "protection". The amendment seeks to identify the nature of the owner's responsibility. I have
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assumed that the intention behind the whole concept of hedgerow protection is to protect from wilful and unlawful uprooting or destruction. I hope that I have got that right. However, I should like to be clear on that point and should be grateful if the Minister could indicate what is in his mind on that issue.
I want to ensure normal management by cutting and laying. That is something which has to be done and which may produce quite substantial changes in appearance, but it is part of an essential management process. I am hoping that that will not be circumscribed, and that is another aspect on which I should like to have some reassurance.
Those matters go to the heart of my wish to ensure that hedgerow protection orders are not seen as negative obstructions imposed by faceless bureaucrats but are measures that are relevant to land management, as well as other factors. Therefore, I commend the three amendments to the House.
Lord Moran: My Lords, I should like to support Amendment No. 234A. It is very important that we make reasonably rapid progress with this problem. It has been five years since the commitment to bring in legislation about hedgerows was made in 1990 in the White Paper on the Environment. The amendment is entirely right.
Amendment No. 239B concerning the right of appeal is fair and it is one that I support. However, I have some doubts about the other amendments. Amendment No. 239C requires an authority administering the regulations to take into account any planting and restoration of other hedgerows. That amendment comes up against the difficulty, as the Government acknowledged at Committee stage, that a new hedge is not of the same value as an important old hedge and, therefore, it is not compensated for. The real way to secure fairness is to have increased resources for management as is the case in environmentally sensitive areas.
Amendment No. 239D concerns the impact on business. It is right that the question of the economic effects of any decision to prevent the removal of a hedgerow should be taken into account. However, as the noble Lord, Lord Marlesford, said, it should be done on appeal. Again the answer is to provide proper resources for management and not to reduce statutory protection.
In regard to Amendment No. 240A, I should be interested to know what the Government think about defining protection. The wording in the amendment excludes damage which could significantly impair the quality of imported hedgerows. Therefore that amendment appears to be defective.
Lord Renton: My Lords, I shall confine myself to speaking about Amendment No. 234A. It is a very important amendment. Hedgerow protection is now urgently needed in East Anglia and elsewhere. Conditions may be somewhat different in the estate in the West Country of the noble Earl, Lord Lytton, but, as I said at Committee stage, nearly 2,000 miles of hedgerows have disappeared from Huntingdonshire over the last 50 years.

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It has become notorious that enabling powers in statues are often long delayed before they are used, and sometimes they are never used at all; and putting them into the Bill is a piece of eyewash. I hope that this will not turn out to be a piece of eyewash: it would be very regrettable if it did.
My noble friend Lord Ullswater, who has shown such wisdom and tolerance during the piloting of the Bill, should be persuaded to accept the amendment or something like it. That does not mean that the matter has to be rushed: there is plenty of time between now and 1st July 1996 for all concerned to get their negotiations completed and for a perfectly simple regulation to be drafted.
I warmly support the noble Lord, Lord Marlesford, in this very important matter.
Lord Monk Bretton: My Lords, I should like to say a few words in support of the amendment that was moved by the noble Earl, Lord Lytton. I shall begin by declaring an interest, in that I have been involved in farming and have been endeavouring to remove hedges in a sensitive manner for some time. I have done so without too much in the way of protest. I shall not at this stage make a speech about the economic importance of field size, but I should like to mention that matter. I do not have any brief for the creation of the 100 acre-plus prairies that my noble friend Lord Renton mentioned in regard to the eastern counties.
I should like to suggest to noble Lords what my reactions would be if I were faced with taking over a tract of land of perhaps 200 acres. Let us suppose that it is not in the eastern counties. It is pretty dilapidated land. Maybe a dairy herd has just gone and all the quota has been sold off. It has fields of an average size of 10 acres or maybe only seven. The hedges are all too big and gone at the bottom, probably planted originally on banks which are now filled with rabbit-holes. Those rabbit-holes are very difficult to get at and there is probably woodland in the vicinity, also with rabbits—rabbits everywhere. What is to be done? What is this fellow to do when he takes the land over? The land may become unviable in the near future, in which case the hedges will be totally neglected. I do not know whether that is the kind of vision that we want. It is not the sort of thing that I want to see, large areas of totally neglected hedges where nothing is to be done.
The occupant is wondering how he is placed under Clause 79. He has a great fear that there will be a great deal of bureaucracy. He does not know how a historic hedge will be defined, although he may have an idea. He does not know what an important hedge is. He also has fears that local authorities may have different interpretations. He does not know whether or not permission is required for everything that he is going to remove. He hopes that he will be able to do a certain amount with fields of not more than 20 acres, without controls. I do not know what size that should be or what is contemplated. If he cannot do that, how will he maintain more hedges with less labour? That is one of the questions very much at the forefront of his mind. So of course, he wants an appeals procedure. Many people
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would like taken into account their past attitude towards hedge management. Those who have tried to do a good job definitely now need recognition. The implications for the business of the person who is taking over the extra land, or the new young farmer starting, are of great importance.
If my noble friend cannot accept the amendments, I hope that he will indicate that they can be included in regulations. Whatever help is available should be better than that available for listed buildings. Old hedges will not last for ever. Although I understand the views of the proponents of the preservation of old hedges, there comes a time when, like trees, it is not possible to preserve them any longer.
8.30 p.m.
Viscount Ullswater: My Lords, Amendment No. 234A seeks to impose a requirement on Ministers to bring forward hedgerows regulations by 1st July 1996. A similar amendment, with a deadline of 1st January 1996, was tabled in Committee by the noble Baroness, Lady Hilton. It is our intention that we should have the hedgerows regulations in place by July 1996, but we must ensure that they are the subject of proper consultation outside Parliament. Following the outcome of consultation, we must also secure the approval of both Houses of Parliament to the regulations under the affirmative resolution procedure. Those arrangements are given formal status in the amendments I intend to move later. While I foresee no difficulties in bringing forward regulations within the timescale provided by this amendment, I am afraid that I cannot agree with my noble friends Lord Marlesford and Lord Renton that it is desirable to bind Ministers to what is, in effect, a statutory deadline.
Three amendments in this group tabled by the noble Earl, Lord Lytton, seek to ensure that the regulations made under this clause include certain provisions. Amendment No. 239B concerns a right of appeal to Ministers for anyone refused consent to uproot a hedgerow. Under Amendment No. 239C the authority responsible for determining a proposal to uproot a hedgerow would have to take into account any planting, restoration and management of other hedgerows carried out on the land. Amendment No. 239D would require such an authority to consider the business implications of its decision.
When I outlined on Second Reading our proposed framework for a protection scheme, I explained that we would expect to incorporate an appeals mechanism in the regulations. I also made clear that such details should be settled in the light of the consultation exercise which I have already mentioned. However, there appears to be a clear consensus that rights of appeal should be an essential part of the arrangements. In the light of this, I shall reflect further on whether some provision on appeals should be included on the face of the Bill at a later stage.
I turn to Amendments Nos. 239C and 239D. The arguments for and against the proposition that an authority should consider matters other than the quality of the hedgerow are more finely balanced. I have listened carefully to the views expressed by the noble

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Earl, Lord Lytton, and my noble friend Lord Monk Bretton. We shall take those into account when formulating detailed provisions; but on those issues I do not consider it appropriate to pre-empt the outcome of consultation. I hesitate to comment upon the content of the speech of the noble Earl because I believe that the details of his points are those which should be taken into account in consultation; including, of course, the economics of farming or land management spoken to by my noble friend Lord Monk Bretton.
Amendment No. 240A provides a definition of what is meant in Clause 79 by the "protection" of important hedgerows. The amendment limits the activities which will be subject to those controls to "unlawful uprooting or destruction". Again, I do not consider it appropriate to include such a provision at this stage because we must first consult.
For the reasons I have given, I hope that my noble friend will withdraw the amendments.
Lord Marlesford: My Lords, I am grateful to my noble friend for his unequivocal reassurance of intention with regard to my amendment. I can think of no noble Lord whose word I would be more happy to accept on such a matter, especially as it is buttressed by the firm commitment of my right honourable friend the Secretary of State for the Environment to introduce the legislation. I am therefore happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Nicol Baroness Nicol moved Amendment No. 235:
Page 87, line 18, after ("hedgerows") insert ("and existing dry stone walls").
The noble Baroness said: My Lords, in moving the amendment I support also some of the other amendments in the group such as that tabled by my noble friend Lady Hilton relating to the addition of ponds, and in particular the amendment which refers to other types of boundaries. I am a little puzzled by Amendments Nos. 237 and 238 in the name of the noble Lord, Lord Wise, because I am not sure what is the subtle difference between them. No doubt he will enlighten me when the time comes.
My limited amendment is moved in the hope that the minimalist approach might find more favour with the Minister. It differs from my amendment in Committee in that it refers only to "important and existing dry stone walls", rather than the wider approach that I used earlier.
The Countryside Commission describes dry stone walls and ponds as characteristic and valuable features of many parts of the English countryside. I am sure that opinion in Wales supports that view, but of course the Countryside Commission cannot speak for Wales and I have had no representation from Wales other than from those people to whom I have spoken who share our anxieties.
The Countryside Commission gives some alarming statistics. Between 1984 and 1990 England lost 4,000 kilometres of dry stone walls and 10,000 ponds. The figure for remaining walls has to be viewed with
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concern as the amount of deterioration is so great. I should like to quote directly from the briefing that I have had from the Countryside Commission which states:
"Of the estimated 112,500 km of dry stone walls in England in 1994, only 4,500 km could be categorised as 'in excellent condition', 42,700 km have 'major signs of advancing or potential deterioration'; and 36,700 km are 'derelict or in the early stages of dereliction'."
So there is an urgency about including dry stone walls in the protected legislation. I have had considerable support for the amendment from the Dry Stone Wall Association, the CPRE, the Council for National Parks, and the World Wide Fund for Nature, and others. I beg to move.
Baroness Hilton of Eggardon: My Lords, I support all the amendments in this group, but I speak especially to Amendment No. 236. As various noble Lords, including the noble Lord, Lord Renton, have pointed out, this is enabling legislation, and adding the word "ponds" would merely allow a Minister, should he wish, to bring in regulations protecting important ponds.
I am talking about ponds rather than lakes and fens. Although they are small, they are extremely important ecosystems. It is not a question of digging new ponds but of protecting the wide variety of invertebrates and other species which live in fresh water. Some 3,500 British invertebra live in fresh water, half of which can be found in ponds. There are 300 British fresh-water invertebrate species in the British red data book and more than two-thirds of those are found in ponds. All Britain's amphibians, including those which are becoming increasingly rare, such as the great crested newt and the natterjack toad, require ponds as breeding habitats. Both those species are protected under the Wildlife and Countryside (Amendment) Act.
I agree that the decline in the number of ponds is slow—4 per cent. during the past six years—but there has been a decline in these essential breeding places for amphibians. They are also valuable habitats for many birds, in particular waders.
The majority of ponds have suffered from changes in land use practice—for instance, the introduction of intensive farming—as have hedges. A large majority have also been lost as a result of pollution and run-off from agriculture and drainage. Large numbers of ponds have been recreated but it is important to remember that, although that helps, it does not replace old-established ecosystems in traditional ponds. It takes a long time for ecosystems to build up as do the communities of animals, insects and invertebra which are interdependent and dependent on each other.
In Committee, it was suggested that important ponds are already protected by the SSSI designation. However, by tabling a Written Question to the Minister, I established that no ponds are specifically protected as such. They may be protected under SSSIs but there is no specific record of ponds. Whether they are currently protected is entirely haphazard and it would be

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extremely useful if this enabling power were written into the Bill, in particular if there is a further catastrophic decline in this form of habitat.
Lord Wise: My Lords, I shall speak to Amendments Nos. 237, 238 and 242. I am not seeking to complicate the provision to protect important hedgerows. I seek a complementary but distinct provision to enable the Secretary of State to introduce a last resort power to protect other traditional field boundaries. The amendment defines those to include dry stone walls, earth banks, slate fences and ditches. I suggest that that will enable the Government to carry forward an earlier commitment and an important Edwards Report recommendation that there should be a last resort power to protect landscaped features just as there is to protect wildlife.
My amendments are confined to traditional field boundaries because I believe the last resort power to protect these to be a priority and straightforward to implement. Field boundaries other than hedgerows play an important role in creating local distinctiveness. For example, the dry stone walls of the Lake District and Yorkshire Dales and the raised banks of Pembrokeshire are important features within the landscape of those areas.
I appreciate that the management and upkeep of such field boundaries entails financial costs. Goodness knows, having farmed for many years, I know that only too well. It is not always easy to find the necessary wherewithal and one is sometimes tempted to fall back on a cheaper form of filling the gaps. However, as the Minister made clear in Committee, substantial grants are available for the management of such field boundaries. All the national park authorities top up Ministry of Agriculture grants to generous levels for the management of such features. Assistance is available under the countryside stewardship, Tyr Cumen and environmentally sensitive area schemes. I therefore suggest that the positive incentive—that is, the carrot—is in place and my proposal would provide the option of a genuine last resort power to act as a failsafe in the instances where incentives fail.
8.45 p.m.
Lord Moran: My Lords, in Committee I spoke in favour of the protection afforded to hedgerows being extended to dry stone walls and traditional field boundaries. I strongly support what has been said by the noble Baronesses, Lady Nicol and Lady Hilton, and the noble Lord, Lord Wise. I believe that the noble Lord's amendment is the most comprehensive in referring to all field boundaries. The dry stone walls of the Lake District and the Yorkshire Dales, and the raised banks of Pembrokeshire are important features which should certainly be protected.
My noble friend Lord Chorley has unfortunately had to leave the Chamber but I wish to say a few words on his behalf. Had he been able to be present he would have concentrated on the historical importance of some field boundaries, in particular dry stone walls. He points out that in the Lake District—for example, in
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Borrowdale and Wasdale—the National Trust's researches show that the history of enclosures and farming systems can be established from the dry stone walls. They can establish a great deal about the farming system as early as the 13th century. In West Penrith in Cornwall many of the field boundaries are pre-Roman—some are walls and some are not—and they too are of considerable historical importance.
Those in National Trust ownership are, of course, in safe hands but others are not in National Trust ownership and it is important that they should be protected. In some cases, but not in all, my noble friend Lord Chorley believes that scheduling may be appropriate. He pointed out that in Committee the Minister drew attention to the availability of grants and that financial incentives are important and a necessary condition of preservation. However, they are not a sufficient condition. The Minister also said in Committee that the removal of dry stone walls was currently on a downward trend. My noble friend Lord Chorley said that that may be so—he has no up-to-date information—but he believes that it might be short-sighted to base policy on what is thought to have happened in the past three or four years.
As a result of the importance of field boundaries to the landscape and their historical value—field boundaries of all kinds are important to the environment and to our heritage—they are as important as ancient hedgerows and should be protected. I hope that the Minister will look with favour on the amendments put forward in this respect.
Lord Renton: My Lords, we must accept that dry stone walls are not necessarily for the conservation of wildlife. They are sometimes of historical interest and they are part of the landscape as we know it. Sometimes they are of aesthetic value. I know of some dry stone walls which no longer serve any useful purpose. They have been allowed to fall into disrepair and sometimes stones are taken from them in order to rebuild or raise the height of stone walls that are needed. And many stone walls are really needed. If farmers and landowners need them, they will be preserved. It is not necessary for us to write anything about stone walls into the Bill.
As regards ponds, I have quite a lot of experience both in East Anglia and south west Scotland. I do not wish to repeat all that I said at some length in Committee but perhaps I may mention it again to this extent. In days gone by, when there was no piped water supply—most farmers now have a piped water supply—any kind of pond was of value for cattle on the farm. Even though the ponds often dried up in the summer, they became useful again when the rains started in the autumn. In modem farming, farmers have been anxious to level the fields. That has enabled cultivation to be carried out more cheaply. It has meant getting away with dew ponds and smaller ponds.
The larger ponds remain and always will. They have harboured the wildlife which it is our duty to try to preserve, as referred to by the noble Baronesses, Lady Hilton and Lady Nicol. It would be extremely difficult to define in the Bill or in regulations made under it the kinds of ponds which should and will be preserved and

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the kind of ponds which it is not practical for us to keep. Therefore, I do not favour Amendment No. 236 but I support the remarks of my noble friend Lord Wise about Amendments Nos. 237 and 238.
Lord Willoughby de Broke: My Lords, as a farmer—I say "as a farmer", and not a landowner—perhaps I may make a few comments. My noble friend Lord Renton has made a very good point as regards stone walls. After all, agriculture and farming have evolved over the years. Systems change. They have changed rapidly under the CAP and no doubt they will continue to change. The work of farming must be taken into account when framing the rules.
I hope that these amendments will not be accepted. They impose unnecessary constraints on farming business—and farming is a business. My noble friend Lord Monk Bretton confessed to a certain amount of hedgerow uprooting. I believe that most—and I say most but not all—farmers now would accept constraints on hedgerow removal with the safeguards put forward in the amended Clause 79. However, to carry that through to stone walls, ponds and other forms of field boundaries is going too far. Those amendments would be more suited to a clause dealing with national parks and not Clause 79 which is principally to do with hedgerows. I hope that the amendments will be rejected.
Lord Walpole: My Lords, I shall speak briefly in support of the noble Baroness, Lady Hilton. I am a landowner but principally a farmer. I am extremely worried about the preservation of ponds. They are far more fragile than hedges and can disappear far more quickly. I take issue with what the noble Lord, Lord Renton, said about dew ponds disappearing and how it is so much easier to plough through the middle of them. Of course it is, and that is why they are disappearing. That is why, as the noble Baroness pointed out, small ecosystems are disappearing all over the country. If one flies over East Anglia, one can see that almost all the fields have dew ponds. They are disappearing, I believe that they need more protection than hedgerows.
There is considerable confusion about the number of ponds and the number that are disappearing. I own 16 sheets of water, in one way or another. In the past two dry summers, we were down to six. Ten dried out completely. That is no good for the greater crested newts and other species which are trying to survive around us. I believe that the protection of ponds is as important, if not more important, because of their fragility, as the protection of hedgerows and field boundaries which are, after all, a little more robust.
The Earl of Lytton: My Lords, at the risk of overdoing things from these Benches, I wish to add a word of caution and to support what the noble Lord, Lord Renton, and others have said. There is no doubt that certain field features and ponds are important. The difficulty is identifying which are important and which are capable of being maintained in the context of the farming or land ownership enterprise.
I rather liked the example given by the noble Lord, Lord Monk Bretton. I know that my father sold one of the farms from the estate. Going from memory, I believe
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it was 350 acres. There were over 200 fields, more than 300 gateways and several miles of hedge and bank. It was a farm which had a good deal more in common with rural serfdom from the time of the enclosures than anything to do with modern competitive agriculture. I flag that as regards Exmoor at any rate the situation must be looked at with great care. Although I understand the sentiments expressed by the noble Lord, Lord Willoughby de Broke, I am concerned that the fragile economic environment of national parks—I speak with Exmoor in particular in mind—should not be threatened by an overweight scatter-gun effect of more designations.
On my holdings I already have to deal with sites of special scientific interest, the principles of environmental sensitive areas—I apologise to noble Lords who have heard this list before but it bears repeating—and Section 3 of the Wildlife and Countryside (Amendment) Act. That is in addition to listed buildings and scheduled ancient monuments. They all create paperwork. It may be that in due course TPOs will be added and I have no doubt that hedge protection orders will be served upon me. I should be extremely anxious if walls and ponds were to be added to all that without extremely careful consideration.
The question of funding has been mentioned. I am rather concerned that we may be losing sight of the difficulty of targeting a single feature on a holding. For example, I believe that I am right in saying that environmentally sensitive area schemes are whole farm schemes. It is all or nothing. I am not sure to what extent a single feature could be targeted accurately by other environmental schemes. I suspect that most of them require a good deal more commitment than that. Therefore, that will not be suitable for somebody who has an extensive arable operation but who has an important feature which an authority wishes to protect and which needs the incorporation of a larger area long since managed in a manner not according with any of the standard schemes. I am fearful that those one-off situations will drop through the net of financial assistance.
In many respects, I have sympathy with the intention behind the amendments. Such features are important in our landscape. But it is important to make sure that they do not have a wholly negative impact on the holdings where they are situated.
Viscount Ullswater: My Lords, we debated at length in Committee the merits or otherwise of extending the scope of the clause as proposed. I made clear at the time that Clause 79 is intended to honour the Government's long-standing commitment to bring forward legislation to deal with hedgerows.
We are taking action to protect important hedgerows. Those hedgerows will be highly valued by historic landscape or wildlife interests. For example, hedgerows may mark ancient parish or community boundaries. They can make a unique contribution to the landscape. Of course, dry stone walls can have a striking effect on the landscape, especially in the upland areas, but hedgerows can also support an extremely rich range of wildlife. I tend to agree with my noble friend Lord

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Renton in that respect. The 1990 Countryside Survey recorded over 300 plant and shrub species in the hedgerows surveyed, many of which are absent or rare in the surrounding landscape. Hedgerows make an important contribution, therefore, to plant diversity. But hedgerows can also be important for animals, birds and insects, some of which are directly dependent upon the plants found in hedgerows. I could continue. But I think that the point is made: it is their collective landscape, wildlife and historic contributions to the countryside that made hedgerows such a key feature, distinguishing them from the other features with which the amendments are concerned.
I believe that the noble Baroness, Lady Hilton, was mostly concerned about ponds. Between 1984 and 1990, England lost 8 per cent. of the total length of walls and about 6 per cent. of ponds. The comparable figures for hedgerow loss are 22 per cent. of total hedgerow length. Therefore, the scale of the problem in relation to hedgerows is that much more severe. Moreover, management grants are available to help land managers restore neglected countryside features. Countryside Stewardship in England and the equivalent scheme in Wales, for example, offer assistance for the restoration of boundary features such as stone walls, earth banks and stone-faced hedge banks as well as hedgerows.
The noble Lord, Lord Moran, mentioned the stone-faced banks in West Penrith in Cornwall. I believe that generous grants are now available up to the rate of 80 per cent. for restoration of the Cornish banks and walls within the West Penrith environmentally sensitive area. Those are just some of a range of initiatives which encourage the creation of new countryside features and the management of existing ones. Environmentally sensitive areas and the farm and conservation grant scheme are others.
In addition, the action that we are taking on hedgerows is underpinned by current scientific evidence. Government research, carried out in 1993 and published last year, indicates that significant numbers of hedges in England and Wales continue to be removed each year. The most recent figures we have on losses of walls and banks come from the 1990 Countryside Survey, which is now somewhat out of date. They were, in any event, and as I said, lower than the comparable figures for hedgerows. As for ponds, my right honourable friend the Minister for the Environment and Countryside announced in December that further research was necessary to consider recent trends. The Government do not, therefore, consider it justified to go beyond their stated commitment to legislate on hedgerows by imposing the burden of new regulations to protect drystone walls, other traditional field boundaries and ponds. We must take into account the remarks made by my noble friend Lord Willoughby de Broke in that respect.
I understand that we are discussing sensitive matters. I hope that I have indicated that we are trying to develop a good scheme for hedgerows. However, it is not justified to broaden it in the way suggested by the
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amendment. On that basis, I hope that the noble Baroness, Lady Nicol, will feel able to withdraw the amendment.
9 p.m.
Baroness Nicol: My Lords, I understand why the Government have brought forward the clause on hedgerows, but I also hope that the Minister will understand that there is little likelihood of them being another opportunity to discuss drystone walls. Unlike the noble Lord, Lord Renton, I believe that stone walls do provide some wild life facilities, although, I admit, not to the same extent as hedgerows. However, in certain parts of the country they are very valuable habitats for certain small mammals, for lichens and also in other respects, quite apart from their sheltering facility for livestock. Of course, they are, beyond doubt, a wonderful archaeological and landscape feature of the countryside. However, I can recognise defeat when I see it: I am a realist. Therefore, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 236 to 238 not moved.]
Viscount Ullswater Viscount Ullswater moved Amendment No. 239:
Page 87, line 22, at end insert:
("() Before making any regulations under this section the appropriate Ministers shall consult—

(a) such bodies appearing to them to be representative of persons whose business interests are likely to be affected by the proposed regulations,

(b) such bodies appearing to them to be representative of the interests of owners or occupiers of land,

(c) such bodies appearing to them to be representative of the interests of local authorities,

(d) such bodies whose statutory functions include the provision to Ministers of the Crown of advice concerning matters relating to environmental conservation, and

(e) such bodies not falling within paragraphs (a) to (d) above,

as the appropriate Ministers may consider appropriate.
() No statutory instrument containing regulations under this section shall be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.").
The noble Viscount said: My Lords, in moving the above amendment, I should like to speak also to Amendments Nos. 240, 241 and 243. The amendments give statutory force to our intentions for a wide-ranging public consultation on the detailed arrangements for hedgerow protection and make the regulations subject to the affirmative resolution procedure. They are brought forward in response to amendments tabled in Committee by my noble friend Lord Wade, the noble Baroness, Lady Hilton, and the noble Earl, Lord Lytton.
Amendment No. 239A, which is tabled in the name of my noble friend Lord Marlesford, seeks to include a specific requirement to consult non-statutory bodies representative of environmental interests. Although not expressly mentioned in my amendments, I can assure my noble friend that organisations representative of environmental interests, such as the Councils for the Protection of Rural England and Rural Wales and the Royal Society for Nature Conservation, as well as organisations representative of more specific interests

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such as the Royal Society for the Protection of Birds, and others, will be included in the consultation. On that basis, I hope that, when my noble friend speaks to his amendment, he will indicate that he does not intend to press it. I beg to move.
Lord Marlesford Lord Marlesford moved, as an amendment to Amendment No. 239, Amendment No. 239A:
Line 13, at end insert:
("(da) such non-statutory bodies appearing to them to be representative of environmental interests;").
The noble Lord said: My Lords, I am afraid that I was not very convinced by my noble friend's response because, quite frankly, while I welcome Amendment No. 239—and totally support what lies behind it—it strikes me as being a little odd to have in paragraphs (a) and (b) of that amendment two specific sub-groups which both represent non-public interests—for example, those,
"whose business interests are likely to be affected by the proposed regulations"—
as well as farmers and landowners. Of course, it is absolutely right that they should be included. But I imagine that it was a moment when Homer was nodding and that it was just a slip of the pen that resulted in non-statutory bodies representing environmental interests not being included. Indeed, it is so obvious that they should be that I hope my noble friend will assure me that, on reflection, he will not have difficulty in meeting the concern of such bodies as he has mentioned to have the right to be consulted under the statute just as, correctly, the farmers and landowners have that right. I beg to move, as an amendment to Amendment No. 239, Amendment No. 239A.
The Earl of Lytton: My Lords, I wish to say how much I appreciate the amendments tabled by the noble Viscount. They are very much a direct response to the concerns of a number of noble Lords. I thank him in particular for the item about the affirmative resolution procedure, which is something that I asked for in Committee. I am very grateful that he has included that provision.
As regards the point made by the noble Lord, Lord Marlesford, in connection with Amendment No. 239A, I would offer the following advice to the Minister, "Try keeping them out!" That is all I can say at this juncture.
Lord Moran: My Lords, I wish to speak briefly in strong support of what the noble Lord, Lord Marlesford, has said. I entirely agree with the inclusion of the bodies listed in Amendment No. 239. However, I believe that the importance of the non-governmental organisations concerned with environmental matters can hardly be exaggerated these days. They do an immense amount of work. I believe they should be consulted as of right and not just at the whim of the Government. What the noble Lord, Lord Marlesford, said about that is entirely right.
Viscount Ullswater: My Lords, I am sorry that my words did not find favour with my noble friend, but I can reassure him that those non-statutory environmental organisations will be consulted. I believe that paragraph (e) in my Amendment No. 239 gives those bodies—as the noble Earl, Lord Lytton, said—every right to come
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banging on our door. Certainly we would want to hear their views. I do not believe that it is necessarily right to specify them because I believe we have covered them on the face of the Bill in paragraph (e) without having to go into any more detail.
Lord Marlesford: My Lords, my noble friend has made a good argument as to why the bodies we are discussing should be in the clause, but he has not given any reason why they should not be included. Obviously I would not expect at this stage of the evening to test the opinion of the House, but I believe that the bodies I have referred to should be included in the Bill. I hope that, either at Third Reading or perhaps in another place, the logic of his position will be followed through in this harmless amendment. If a body asks to be included in the Bill and there is no reason why it should not be included, that seems to me a good reason to include it. I beg leave to withdraw, as an amendment to Amendment No. 239, Amendment No. 239A.
Amendment to the amendment, by leave, withdrawn.
On Question, Amendment No. 239 agreed to.
The Earl of Lytton The Earl of Lytton had given notice of his intention to move Amendment No. 239B:
Page 87, line 22, at end insert:
("() Any regulations which may be made under this section shall provide for a right of appeal to the appropriate Ministers by any person refused consent to uproot or destroy a hedgerow.").
The noble Earl said: My Lords, we have already discussed this matter. I shall read with care what the Minister has said. For the time being I shall not move this amendment or the following two amendments.
[Amendment No. 239B not moved.]
[Amendments No. 239C and 239D not moved.]
The Earl of Lytton The Earl of Lytton moved Amendment No. 239E:
Page 87, line 22, at end insert:
("() The future management of any important hedgerows shall be secured through the provision of a management agreement.").
The noble Earl said: My Lords, I have disaggregated this amendment from the others because I felt it dealt with a quantifiably different matter. It is intended to probe the Government's intentions as to the manner in which important hedgerows are to be protected in practice. I am grateful to the Minister for what he has done in connection with Amendment No. 239 and the others grouped with it. However, Amendment No. 239E is intended to deal with one outstanding issue, and to ask whether those important hedgerows which attract a protection order will also attract the advice and assistance, including financial assistance, which will enable positive and good management to take place.
The noble Viscount has said that stewardship, environmentally sensitive areas and other such provisions will cover important hedgerows. I posed a question earlier as to whether those schemes could be accurately targeted on hedgerows alone. I am not sure that they can be. In Committee, and indeed today, we have heard a great deal about hedgerow loss. Poor management and the neglect of hedgerows are a major cause of a shift from full hedgerow status to relict hedgerow or other categories. I am informed that a mature, well-managed hedgerow is the best and most

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diverse habitat of all which declines—towards youth or towards age—where it is converted to woodland or rows of single trees. My whole purpose is to motivate people to take appropriate management action. I feel that the only way in which Clause 79 can operate in practice is by achieving this. Protection orders generate paperwork, but not a single hedgerow has ever been planted as a result of regulation alone. It requires people who are prepared to commit their time and resources. That goes well beyond orders issued by local authorities. I feel that management orders should cover both the methodology and financial assistance.
My amendment has industry-wide support from farmers and landowners. If accepted, it would be a signal to them that, far from conveying only disbenefits, hedgerow protection orders will have tangible positive benefits through some of the burdens being shouldered by the public agencies. I beg to move.
9.15 p.m.
Baroness Nicol: My Lords, I should like to put on record my support for the proposal that advice and financial assistance should be available to farmers or landowners who wish to protect important hedges. The noble Earl is quite right that one cannot place this obligation on them without some form of back-up. I hesitate to say that it should be a management agreement because I do not know enough about the various types of finance and advice that might be available. However, I believe that the principle is right.
Lord Monk Bretton: My Lords, I should like to support the noble Earl, Lord Lytton, again. It is no good trying to protect hedges if they cannot be maintained. That is the crux of the problem now. Those people who have done their best for the countryside in relation to hedgerows will not be able to continue without help. For those reasons I support the amendment.
The countryside stewardship scheme has been mentioned. However, it is not available everywhere. I seem to remember inquiring about it and finding that it was not available to me.
Viscount Ullswater: My Lords, I believe that the noble Earl, Lord Lytton, may be under a misapprehension because, not only in this amendment but in relation to previous amendments, he has spoken as if the scheme would take the form of a hedgerow protection order placed on hedgerows. The scheme that we shall bring forward is not on the face of the Bill. It will evolve through the process of consultation. Therefore, the noble Earl is anticipating the result and trying to construct a scheme that would fit in with what he expects.
The Government provide for the management of important hedgerows using a two-pronged approach. On the one hand, we promote the planting and management of hedgerows through a range of incentives, including countryside stewardship, which now incorporates the hedgerow incentive scheme launched by the present Government in 1992, and environmentally sensitive areas. On the other hand, we are committed to
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introducing controls over the removal of the most important hedgerows for which no amount of replanting can substitute.
There is no direct link between the two elements, as my noble friend Lord Marlesford indicated in a debate on a previous amendment. Nor do we believe that there should be such a link. We have no plans to place requirements on land managers to maintain hedgerows which may be protected under the regulations, but in so far as they satisfy the eligibility requirements of available grant schemes land managers will be entitled to seek assistance for management works. Refusal of a proposal to remove a hedgerow will not automatically trigger entitlement to such help.
I understand entirely the motive behind the noble Earl's amendment. However, perhaps he should wait to see what happens in relation to the scheme and what emerges at the end of the consultation process. On that basis, I hope that the noble Earl will feel able to withdraw his amendment.
The Earl of Lytton: My Lords, obviously I do not intend to press the amendment. I should like to thank the noble Baroness, Lady Nicol, and the noble Lord, Lord Monk Bretton, for their support.
I am sorry if the Minister thought that I was on a speculative fishing expedition as to what might come out of the consultation process. That was not my intention. However, I believe that to some extent we need to know what will emerge from that process before we can make a reasoned comment.
All I can do at this juncture is to keep my powder dry, thank the noble Viscount for his comments and indicate that I shall consider the matter further. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 240:
Page 87, line 27, at end insert:
(""environmental conservation" means conservation—

(a) of the natural beauty or amenity, or flora or fauna, of England or Wales; or

(b) of features of archaeological or historic interest in England or Wales;

"local authority"means

(a) the council of a county, county borough, district, London borough, parish or community;

(b) the Common Council of the City of London;

(c) the Council of the Isles of Scilly;").

On Question, amendment agreed to.
[Amendment No. 240A not moved.]
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 241:
Page 87, line 29, at end insert:
(""statutory functions" means functions conferred or imposed by or under any enactment.").
On Question, amendment agreed to.
[Amendment No. 242 not moved.]
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 243:
Page 87, line 30, leave out subsection (4).
The noble Earl said: My Lords, my noble friend spoke to Amendment No. 243 with Amendment No. 239. I beg to move.
On Question, amendment agreed to.
Baroness Nicol Baroness Nicol moved Amendment No. 243A:
Before Clause 80, insert the following new clause:
("Integration of environmental protection requirements into
agriculture policy
.—(1) The appropriate Minister shall integrate requirements for environmental protection into agriculture policy mechanisms.
(2) Requirements for environmental protection can be anything which in the opinion of the Minister is conducive to—

(a) the conservation and enhancement of the natural beauty or amenity of the countryside (including its flora and fauna and geological and physiological features) or of any features of archaeological interest there; or

(b) the promotion of the enjoyment of the countryside by the public; or

(c) the protection of buildings or other objects of archaeological, architectural, cultural or historic interest; or

(d) the fulfilment of any other environmental objective the Minister believes to be appropriate.

(3) The power to make regulations under this section shall be exercisable by statutory instrument; and a statutory instrument containing any such regulations shall be subject to annulment pursuant to a resolution of either House of Parliament.
(4) The powers conferred by this section are in addition to any other powers of the Secretary of State or the Minister of Agriculture, Fisheries and Food.
(5) In this section "the appropriate Minister" means—

(a) as respects England, the Minister of Agriculture, Fisheries and Food;

(b) as respects Wales, the Secretary of State;

(c) as respects Scotland, the Secretary of State.").

The noble Baroness said: My Lords, the purpose of the amendment is to put a duty on the Government to integrate environmental protection requirements into all agriculture policy measures. I am extremely grateful to the noble Earl, Lord Howe, for the useful and helpful meeting which the noble Lord, Lord Walpole, and I had with him. It helped us to understand a great deal more about the Government's intentions.
The amendment is in line with the Government's stated policy to put environmental thinking into every department. We all know that farming can cause significant environmental damage. The Government's own countryside survey in 1990 showed that. Current agriculture policy does not address that worry.
Most public financial support to farmers is allocated in the form of direct support or compensation payments. I understand that £125 million was paid to farmers last year through the set-aside scheme out of a total of £759 million for the arable area payment scheme. Direct payments to livestock and arable farmers combined last year were estimated by the CPRE to be over £1 billion. So it does not seem unreasonable to expect agreement on certain environmental standards.
I welcome the Government's commitment in their Sustainable Development Strategy to integrate environmental consideration into the CAP, but only about 1 per cent. of CAP expenditure is allocated to green farming schemes. The majority of farmers ate not able to benefit from green farming payments. What is needed is for all agricultural policy mechanisms to be designed with environmental considerations in mind.
Many farmers manage their land in that way and we are all appreciative of that; but many do not. The amendment would give the Government the means of designing a more sustainable approach to farming generally. I beg to move.
Lord Walpole: My Lords, the amendment is very much in line with what your Lordships' Sub-Committee D recommended after its consideration of the common agricultural policy. Money should not just be dished out to the farmer for doing nothing; it should be dished out for helpful activities towards protecting or improving the environment.
The Parliamentary Secretary, Ministry of Agriculture, Fisheries and Food (Earl Howe): My Lords, the purpose of the amendment is to require the Minister of Agriculture, Fisheries and Food and the Secretaries of State for Scotland and Wales to integrate environmental protection requirements into agriculture policy mechanisms. I have a great deal of sympathy with the idea behind the amendment. The need for a better integration of environmental considerations into agriculture policy is something that the Government have accepted and have been promoting for some years. There are a number of ways in which we are working to achieve that.
We are, for example, greatly expanding the range of voluntary incentive schemes to promote environmentally sensitive farming. Many of the new schemes are now getting under way and by next year we shall be spending over £100 million on them in the UK. We also provide advice to farmers on how to make the most of conservation opportunities on their land both as an integral part of our incentive schemes and separately through free advisory visits from ADAS and Farming and Wildlife Advisory Groups.
We have also made progress in integrating environmental aspects into other payments under the common agricultural policy. For example, permanent grassland, moorland and heathland are excluded from eligibility for arable area payments, reducing the incentive to plough up those valuable habitats. We have developed management rules for set-aside land designed to help maximise its environmental potential; and we have attached conditions to the main livestock support schemes to discourage over-grazing.
However, much as I sympathise with the spirit of the amendment, I do have problems with it in practice. The general duty on Ministers in relation to existing powers proposed in subsection (1) is broadly similar to the statutory duty that is already in place under Section 17 of the Agriculture Act 1986 which requires the relevant Ministers to endeavour to achieve a reasonable balance between conservation, public enjoyment of the countryside and other interests in exercising any functions connected with agriculture.
The power to make regulations in subsection (3) would introduce a new element. However, this would not be an effective means of achieving the integration of environmental considerations that we want to see. The overwhelming majority of the relevant policy

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mechanisms form part of the common agricultural policy and are therefore not susceptible to unilateral amendment by statutory instrument.
It is in the Council of Ministers when the relevant Community laws are made that we have to argue the case for integration of environmental concerns. There is already a general duty on the Community institutions under Article 130r of the treaty to integrate environmental protection requirements into the definition and implementation of other Community policies such as the CAP. We need to ensure that this is put into practice. That is not always an easy task, but we are continuing to press the case.
The Government remain committed to working for further improvements in the CAP and, in particular, for further reductions in support levels; a higher proportion of EC expenditure on direct payments to farmers to be applied to encouraging more environmentally sensitive farming; the application wherever appropriate of environmental conditions to support payments; and for the EC to give more attention to environmental considerations in deciding how to implement the various support mechanisms.
Although further progress is needed, we have had some notable successes in recent years, most recently in persuading the European Commission to propose that arable land taken out of production under forestry and environmental schemes should be allowed to count towards farmers' set-aside requirements.
Therefore the noble Baroness and the Government are moving forward very much in the same spirit. I have given a fairly full reply in order to demonstrate the scope of the Government's commitment to the principles underlying this amendment and the goals towards which we are working. I hope that that has been of sufficient reassurance to enable the noble Baroness to withdraw her amendment.
Baroness Nicol: My Lords, I am greatly encouraged by the Minister's reply. I appreciate the constraints that are on a lot of government action. But if one is convinced that the spirit is fair within our own agricultural policies, then I think one can feel more hopeful about the future. I thank the Minister for his full reply and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 81 [Consultation before making or modifying certain subordinate legislation for England]:
Baroness Hamwee Baroness Hamwee moved Amendment No. 244:
Page 88, leave out from beginning of line 32 to ("or") in line 33.
The noble Baroness said: My Lords, this amendment arises from a matter that I mentioned very briefly at the last stage. Subsection (1) (b) of Clause 81 provides for a consultation when the Minister is about to do certain things, including what is set out in paragraph (b). Paragraph (b) refers to his,
"modifying any such legislation in a way which changes the purpose of the legislation".
It occurred to me rather late at Committee stage what a curious notion this was. It is perhaps not as extensive as at first sight it appeared, but I felt that it was necessary
500
to understand what the Government have in mind. Opportunity for the Minister to change the purpose of legislation is slipped in, and I am sure that the Government do not intend it to be as extensive as the wording might suggest. I beg to move.
9.30 p.m.
Earl Howe: My Lords, as the noble Baroness indicated, as currently drafted Clause 81 includes a requirement for the Minister of Agriculture to consult the specified persons and bodies when modifying any environmental land management legislation in a way which changes its purpose.
It might be helpful to the noble Baroness if I illustrate the kind of situations in which that might apply. For example, it might happen where we proposed to add a new option to an existing conservation scheme. That could change the purpose of the scheme in the sense of adding a new purpose to the existing ones. An example occurred last year when we added a new public access tier to all English environmentally sensitive areas, thereby widening the objectives of the scheme.
Many of the schemes covered by this clause have been launched only in the past year. Therefore, we have no plans to alter their purposes at the moment. However, they will all have to be evaluated in due course and we may wish to add new objectives in the light of that evaluation.
We believe it right that the advice of the Secretary of State for the Environment and the three countryside agencies should be sought on a statutory basis under such circumstances. Clause 81(1) (b) provides for that.
I hope that the noble Baroness will be reassured by the explanation of the kinds of circumstances in which we might seek to change the purposes of the relevant legislation. I am sure she is aware that the practical effect of the amendment as it stands would be to restrict significantly the scope of the consultation arrangements, which clearly is not her wish. I hope that what I have said will be sufficiently reassuring to enable her to withdraw the amendment.
Baroness Hamwee: My Lords, clearly, I shall do so. I thank the Minister for that reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 245 had been withdrawn from the Marshalled List.]
Earl Howe Earl Howe moved Amendment No. 246:
Page 88, line 41, at end insert ("for England").
The noble Earl said: My Lords, this a technical amendment to correct an error in Clause 81. The amendment will add "for England" to the reference to,
"the Historic Buildings and Monuments Commission".
It will give the body, which is more popularly known as English Heritage, its correct title. I beg to move.
On Question, amendment agreed to.
Lord Walpole Lord Walpole moved Amendment No. 246A:
Page 88, line 41, at end insert:
(" (e) the Forestry Commission;
(f) such bodies or persons appearing to the Minister to be representative of the interests of local authorities;
(g) such non-statutory bodies or persons appearing to the Minister to be representative of environmental interests;
(h) such bodies or persons appearing to the Minister to be representative of the interests of owners or occupiers of land.").
The noble Lord said: My Lords, like the noble Baroness, Lady Nicol, I should like to thank the Minister for seeing us the other day and for being incredibly helpful.
This amendment is similar in content to the one put forward at Committee stage. It puts a duty on the Minister to develop schemes with expert advice not only from his statutory agencies but also from the relevant non-statutory organisations, such as environmental and farming groups. Those organisations have a wealth of knowledge. They know about schemes that have worked in the past and how schemes could work in the future. In fact, the Minister consults those bodies at the present time on an ad hoc basis. This amendment puts into statute what the Minister in fact does anyway.
The amendment also includes local authorities in the formal consultation process. An increasing number of county and district councils now run countryside management schemes. I believe that it makes them bodies which should be consulted in this particular case.
With regard to the Forestry Commission, I accept that it is not particularly relevant in this case as it comes under either the Scottish Office or the Ministry of Agriculture and therefore would be consulted. But I can assure the Minister that should the Forestry Commission be privatised, quango-ised or restructurised at any time in the near future, the noble Baroness, Lady Nicol, and I, who will be watching the legislation like hawks, will make sure that the Forestry Commission is one of the bodies that is consulted under Clause 81 of the Bill.
We had been promised a ministerial Statement on consultation. Perhaps that will appear now. If the DoE is prepared to be so consultative under Amendment No. 239, which we have just agreed to, will the Ministry of Agriculture also become equally consultative? I wait with interest to hear what the Minister has to say. I beg to move.
Baroness Nicol: My Lords, I wish to support the amendment. I believe that consultation, however time consuming it may be, is the basis for good legislation and for legislation which it is to be hoped will receive a much smoother passage as a result of it. I wish to ask one question. I am sorry to spring it on the Minister but I do so as a result of information I received only today from the Countryside Council for Wales. The council is very concerned that in the consultation parts of the Bill it seems to have been left out. The council quotes at length from the Minister's reply at the Committee stage explaining the purposes of Clause 81 and the consultation process. The council states:
"The Countryside Council for Wales believes that all of these arguments are equally valid for Wales (and Scotland). Experience of recent agri-environment legislation, particularly the Habitat Scheme, has clearly shown the importance of expert conservation advice which is specific to Wales".
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I wonder whether the Countryside Council for Wales has been left out for a particular reason or whether it was an omission. Perhaps the noble Earl can find an answer to that question.
Viscount Mills: My Lords, is there a need for the agency to be specified as a statutory consultee under Clause 81? The reason I ask that question is that I believe that the agency might well need to have an input into some of the statutory instruments outlined in subsection (4); namely, the Habitat (Water Fringe) Regulations and also the Nitrate Sensitive Areas Regulations.
Lord Moran: My Lords, I support very strongly what the noble Baroness, Lady Nicol, said about Wales. The same applies to Scotland. This point was mentioned at an earlier stage by the noble Lord, Lord Crickhowell. He could not understand why Wales had been left out. I do not think any of us can understand why it has been left out. If the Minister in England has a responsibility to consult, there should surely be an equal responsibility for the Secretaries of State for Wales and for Scotland. I hope that the Minister will take steps to correct that.
Baroness Hamwee: My Lords, I support what the noble Baroness, Lady Nicol, said about consultation making for good legislation. As it has been put to me, it is important that the Government should make use of the advice of those who are at the sharp end of countryside management.
Earl Howe: My Lords, as explained by the noble Lord, Lord Walpole, the purpose of the amendment is, first, to extend the list of statutory organisations which the Minister of Agriculture, Fisheries and Food is required to consult to include the Forestry Commission and representatives of local authority interests; and, secondly, to add to that list non-statutory representatives of environmental interests and the interests of land managers.
The consultation arrangements set out in Clause 81 are designed to build on and extend the approach which already operates well in setting up new environmentally sensitive areas. In that case the advice of the Department of the Environment and the countryside agencies must be sought on any plans to designate a new ESA. However, that is not to say that the views of a wide range of other bodies are not sought on proposals for new ESAs. They are. But that is a different order of consultation from seeking the advice of bodies specifically set up by statute to advise the Government on their environmental policies. It is because of that statutory role that it is appropriate to put their advice to us on the development of our environmental schemes on a statutory footing.
The Forestry Commission and local authorities certainly have environmental responsibilities, but those are not their only role, or even their principal role. Not all the schemes covered by Clause 81 are relevant to forestry, and it would not be appropriate to include a statutory requirement to consult the Forestry Commission on all the schemes. There is also a wealth

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of knowledge and experience about the management of land and the countryside among land managers and the voluntary conservation bodies.
I should like to pay tribute to the quality of the advice which the Ministry receives from bodies representing those interests. We consult all of those interests because we value their views and their help. However, we remain of the opinion that public consultation with the large number of bodies with an interest in the environmental schemes which are the subject of this clause is best left on an ad hoc basis so that the level of consultation can be matched to the nature of the proposal in each case rather than being written into the primary legislation.
The Government's view is therefore not in any way opposed to the principle of wide consultation which lies behind this amendment, but only to what seems to us a rather heavy-handed mechanism for triggering it. Indeed, I am anxious to reassure the noble Lord, the noble Baroness, and others with an interest, that we will continue to consult both land managers and voluntary conservation bodies as well as the many other business, professional and local authority bodies whose views we seek. We shall continue to listen carefully to what they say to us and take full account of their views.
In addition to that, I give the noble Lord and the noble Baroness the further assurance that it is our intention that less formal channels of communication will remain open at working level and that the Ministry will continue to work with farming and conservation interests, including local authorities where appropriate, as well as with statutory bodies as we developed our environmental schemes.
The noble Lord, Lord Walpole, asked when the Government will be making their promised statement on consultation arrangements for environmental land management schemes. During the debate on 14th February, in reply to my noble friend Lord Stanley of Alderley, I said that the Ministry of Agriculture, the Department of the Environment and the countryside agencies were considering how existing informal contacts and consultations on non-legislative aspects of our conservation schemes might be developed further. I promised a further statement on that from the Government during the passage of the Bill. The discussions I referred to then are continuing so I cannot make that further statement today. It may be that it will not be made until the Bill reaches another place. However, I can confirm that the Government will make a statement on this matter as soon as possible.
The noble Baroness, Lady Nicol, asked about the situation as it pertains to Wales. I am aware that a group of amendments which has been tabled, and Amendment No. 246B specifically, covers Wales. I am not sure whether the intention is to move them. I understand from sign language from the Benches opposite that that is the case. If the noble Baroness will allow, I shall defer comment until we reach that group of amendments. In
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the light of the reassurances that I have given, I hope that the noble Lord will feel able to withdraw this amendment.
Lord Walpole: My Lords, I thank the Minister for what in fact was a very helpful reply. We shall certainly note it. I am sure that many of the local authorities, advisory people, land managers, local societies, wildlife groups and the rest will read in Hansard what he said. I am sure that they will be delighted with the Minister's reply. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 246B::
After Clause 81, insert the following new clause:
("Consultation before making or modifying certain subordinate legislation of Wales
.—(I) The Secretary of State for Wales shall consult the bodies and persons specified in subsection (2) below before—

(a) making any legislation to which this section applies (other than a modification of any such legislation);

(b) modifying any such legislation in a way which changes the purpose of the legislation in question; or

(c) modifying any such legislation in a way which modifies, in a respect which he considers material, any conditions subject to which grants or other payments are payable under that legislation.

(2) The bodies and persons mentioned in subsection (1) above are—

(a) the Countryside Council for Wales;

(b) CADW.

(3) The legislation to which this section applies is—

(a) any order under section 18 of the Agriculture Act 1986 (orders establishing environmentally sensitive areas);

(b) any regulations under section 80 above;

(c) any statutory instrument which concerns the management of land and whose primary purpose is the promotion of—

(i) the conservation or enhancement of the natural beauty or amenity of the countryside (including its flora and fauna and geological and physiographical features) or of any features of archaeological interest there; or

(ii) the enjoyment of the countryside by the public.

(4) This section applies in relation to any legislation only so far as relating to land in Wales.").
The noble Baroness said: My Lords, I do not intend to go over the arguments again about the importance of consultation which we have been discussing in relation to the previous amendment. This amendment was put forward at Committee stage. As regards what was said at that time, the Minister pointed out that CADW was an executive agency and not a separate statutory body. Therefore, it is perhaps not appropriate that CADW should be part of the consultation mechanism. But that does not apply to the Countryside Council for Wales which is, like English Nature and the Countryside Commission, a separate statutory body. Therefore, it is appropriate that it is consulted.
In view of the recent criticism of the Secretary of State for Wales as regards his response to environmental matters, I should have thought that at least it would be a tactful point to include this provision on the face of the Bill in order to make it clear that in future the

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Countryside Council for Wales at least will be consulted before there are changes to legislation under this particular part of the Bill. I beg to move.
9.45 p.m.
Earl Howe: My Lords, I am grateful to the noble Baroness, Lady Hilton, for moving this amendment which, as she said, seeks to impose upon my right honourable friend the Secretary of State for Wales a requirement to consult the Countryside Council and Cadw before making or modifying certain subordinate legislation. It intends to mirror the consultation requirements imposed on my right honourable friend the Minister of Agriculture, Fisheries and Food under the existing Clause 81.
The subordinate legislation to which the consultation requirements would apply would be orders establishing environmentally sensitive areas; regulations under Clause 80 of the Bill allowing grants to be made for purposes conducive to conservation; and statutory instruments concerning the management of land with the primary purpose of conservation of the countryside or enjoyment of the countryside.
The Government do not consider that consultation arrangements similar to those in Clause 81 need to be extended to Wales, because institutional arrangements are different from those in England. The Countryside Council for Wales is already defined as the statutory adviser to my right honourable friend the Secretary of State for Wales. It is funded by the Welsh Office and, as a consequence, the two organisations work closely together. If the Secretary of State were to fail to consult the Countryside Council for Wales, it would draw that to the department's attention. Whatever the informal arrangements that might be made, CCW will still have the formal right to offer advice to the Secretary of State. There is accordingly no need for a specific statutory provision requiring such consultation to be undertaken.
As the noble Baroness pointed out, Cadw is an executive agency of the Welsh Office and a requirement for my right honourable friend to consult Cadw would not make sense because it would, in effect, mean his having to consult himself. I hope that that explanation is helpful and that the noble Baroness will feel able to withdraw her amendment.
Baroness Hilton of Eggardon: My Lords, before the Minister sits down, he has not fully covered the point that English Nature and the Countryside Commission are exactly on all fours with the Countryside Council for Wales, in that they also have a statutory duty to advise the Minister. However, it is being laid down that the Minister should consult them before changing the legislation. That is exactly on all fours with what is being suggested here for Wales. I do not understand the Minister's explanation as to why Wales should be treated differently from England.
Earl Howe: My Lords, I apologise to the noble Baroness. My advice is that the institutional arrangements between the two departments are different, in that the Secretary of State for Wales is both an
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Agriculture Minister and an Environment Minister at the same time. Therefore, the two situations are not exactly parallel.
Baroness Hilton of Eggardon: My Lords, I thank the Minister for that explanation. We shall have to look carefully at this before Third Reading and consider whether it will be necessary to table another amendment. In the meantime, however, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 247:
After Clause 81, insert the following new clause:
("Deposit of radioactive waste
. Where the Secretary of State varies his directions under section 23 of the Radioactive Substances Act 1993 to allow the Chief Inspector to grant an application to authorise a contractor to deposit radioactive waste at a site licensed under section 36 of the Environmental Protection Act 1990, in granting the application the Chief Inspector shall have regard to the principles underlying section 34 of the Environmental Protection Act 1990 as though the radioactive waste were controlled, and to the effect the deposit would have on determinations made by the licensing authority under section 39(5) of the Environmental Protection Act 1990.").
The noble Baroness said: My Lords, this is intended to be essentially a probing amendment to ascertain how the Secretary of State intends to use his powers under the Radioactive Substances Act in relation to the use of licensed landfill sites for radioactive waste. Radioactive waste is not a controlled waste as defined in the Environmental Protection Act and therefore falls outside the ambit of local authority waste regulation powers. The control is exercised by Her Majesty's Inspectorate of Pollution. That body has, on the whole, a rather poorer record of control than local authority waste regulators, as it has fewer staff, more remote offices and generally does not have such an all-inclusive 24-hour call-out service. Furthermore, it is not locally accountable to directly elected local councillors.
The purpose of the amendment is to ascertain the Government's intentions and in what way the Secretary of State intends to use his powers under the Radioactive Substances Act. I beg to move.
Viscount Ullswater: My Lords, I am most grateful for the considerable thought that has gone into Amendment No. 247, which was moved by the noble Baroness, Lady Hilton. I am very willing to look at the policy in relation to the burial of low-level radioactive waste. I should emphasise to the House that we are talking about low-level waste of limited toxicity. Nevertheless, the amendment reflects the level of interest in a subject about which there is, as I am well aware, much concern.
Disposal of low level radioactive waste to landfill is regulated by means of authorisations granted under the Radioactive Substances Act 1993. These place a legal duty on the person authorised to ensure that disposal takes place in accordance with the limitations and conditions set out in the authorisation.
Any waste producer intending to dispose of radioactive waste to landfill must therefore obtain an authorisation from Her Majesty's Inspectorate of

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Pollution which stipulates the nature of the waste for disposal, limits on levels of radioactivity, the name of the site and the operator to which it is to be sent, and other conditions placed on its disposal. Those conditions apply, among other things, to the detailed methods of containment and burial that are to be used. Contravention of conditions is a criminal offence. The terms under which authorisations are granted constrain the person responsible for creating the waste, rather than merely the person hired to take it away. That is clearly the right way to ensure that they are effective.
The conditions applied by the authorisations are carefully considered by HMIP in order to ensure that were disposal by each producer to occur at the maximum authorised limits, there would be no adverse impact on man or the environment. However, the physical disposal of the waste is still in the hands of the operator of the landfill site. In response to concerns raised by noble Lords and to make quite sure that there is effective regulation of radioactive waste from creation to disposal I will, therefore, be considering the case for separate authorisation of the landfill operator under the Radioactive Substances Act 1993.
This will also help to meet the concerns expressed in the amendment. The Environment Agency will eventually have to consider whether the condition of the site, and any risk of pollution it may or may not pose, warrants surrender of the site licence. It will, by that time, have on its records the authorisation certificates granted to the operator and the records of disposal of radioactive waste.
The background to this matter is that officials are considering all the responses to the preliminary conclusions of the Government's review of radioactive waste policy, some of them addressing this issue. The Government aim to be in a position to announce any change in policy, together with any new legislation which may be needed, as early as possible in another place. It would be premature to make any change in the legislation until that point is reached.
I am grateful to the noble Baroness for tabling the amendment, but I hope I have managed to reassure her that we are looking at the problem that she has identified and that she will feel able to withdraw it.
Baroness Hilton of Eggardon: My Lords, I am grateful for the detailed response given by the Minister and the attention that has been clearly paid to this important matter. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 82 [Meaning of "drainage" in certain enactments]:
The Earl of Lytton The Earl of Lytton moved Amendment No. 247A:
Page 89, line 32, leave out (", other than spray irrigation").
The noble Earl said: My Lords, I have been asked by the noble Viscount, Lord Addison, to move the amendment on his behalf. He is unable to be here this evening and apologises for the fact that he cannot speak to the amendment.
I moved a similar amendment at Committee stage. This is a subject which is not within my direct personal knowledge but I understand that the purpose of the amendment is to add a further aspect of water level management to the activities of internal drainage boards. We do not have those on Exmoor as far as I know.
The amendment seeks to enable the boards to be able to move water around drainage networks in order to facilitate extraction of water for spray irrigation. Such a power would be subject to the other environmental duties of the boards. The conditions attached to any extraction licence would have to be observed.
At Committee stage the Minister recognised that there might be merit in amending the definition of drainage in this way provided any adverse repercussions on water extraction provisions of the Water Resources Act 1991 could be avoided. Since that time I understand that there have been informal discussions with the Ministry of Agriculture, Fisheries and Food.
The purpose of moving the amendment is merely to inquire whether the Minister has been able to give any further consideration to the issue. I beg to move.
Earl Howe:My Lords, I am grateful to the noble Earl for introducing the amendment. While the Government cannot accept the amendment, mainly because we believe that it could cause problems for the management of water resources by the Environment Agency, we see the force of the underlying objective behind the amendment and are considering ways of addressing the issue.
I hope that it may be possible to bring forward a suitable Government amendment and that the noble Earl will feel able to withdraw the amendment.
The Earl of Lytton: My Lords, I am sure that the noble Viscount, Lord Addison, will be extremely grateful to the Minister for his reply, knowing that the matter is under discussion and that there is some sympathy with what lies behind the amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 86 [Fixed penalty system for certain fisheries offences]:
Viscount Mills Viscount Mills moved Amendment No. 247B:
Page 94, line t9, at end insert:
("() the monetary amount of the fixed cost which shall be paid;").
The noble Viscount said: My Lords, I put forward an almost identical set of amendments in Committee. The purpose is to enable the agency to recover costs—not the fines themselves—under the new fixed penalty scheme for fisheries offences. In his response, my noble friend undertook to look more closely at what was proposed before Report stage. I put down the amendment solely to elicit what my noble friend considers can be done. I shall be most grateful to hear his response. I beg to move.
Lord Moran: My Lords, I strongly support the amendment. It is extremely important that the NRA should be able to recover its costs. If it cannot, those costs would obviously fall on the NRA's fisheries

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account and would be paid by legitimate anglers who already suffer from a substantial reduction in grant-in-aid from the Government. That would have a bad effect on fisheries. I hope that the Government will be able to meet what the noble Viscount said.
Earl Howe: My Lords, I fully recognise the importance which my noble friend and the noble Lord, Lord Moran, attach to amendments which provide for the cost of administering the fixed penalty system, provided for in Clause 86, to be met by a fixed cost, payable by offenders, in addition to the fixed penalty. Your Lordships may recall that when I agreed to consider the amendments in Committee, I made the point that there could be implications for other fixed penalty schemes, which the Government would need to consider with care. I regret to say that we are not yet in a position to take a decision on the issue. However, I can assure the House that the proposal is being pursued actively and that if it is decided that an amendment should be made, we would aim to introduce it in another place. I recognise that that represents a limited reassurance only, but I hope that in the light of it my noble friend will feel able to withdraw the amendment.
Viscount Mills: My Lords, I thank my noble friend for his reply. I think that he recognises the importance of the matter, and I hope that an amendment will be brought forward in another place. With that hope, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 247C to 247F not moved.]
The Earl of Onslow The Earl of Onslow moved Amendment No. 248:
After Clause 87, insert the following new clause:
("Pollution of water: defences
.—(1) After subsection (6) of section 85 of the Water Resources Act 1991 there shall be inserted—
"(7) It shall be a defence for a person charged with an offence under this section to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.
(8) In any proceedings where a person wishes to rely on the defence provided in subsection (7) of this section, it shall be for him to prove that defence.
(9) A person charged with an offence under this section shall not, without leave of the Court, be entitled to rely on the defence provided in subsection (7) of this section unless at least 28 clear days before the hearing he has served on the Prosecutor a notice in writing setting out the evidence he wishes to rely on to establish that defence."
(2) After subsection (3) of section 4 of the Salmon and Freshwater Fisheries Act 1975 there shall be inserted—
"(4) It shall be a defence for a person charged with an offence under this section to prove that he took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.
(5) In any proceedings where a person wishes to rely on the defence provided in subsection (4) of this section, it shall be for him to prove that defence.
(6) A person charged with an offence under this section shall not, without leave of the Court, be entitled to rely on the defence provided in subsection (4) of this section unless at least 28 clear days before the hearing he has served on the Prosecutor a notice in writing setting out the evidence he wishes to rely on to establish that defence.".").
The noble Earl said: My Lords, first, I have been asked by the noble Lord, Lord Dixon-Smith, to give his apologies to the House. He is not here because he has suffered a bereavement, and my noble friend Lord Jenkin of Roding is going to watch some heavily subsidised entertainment of the Royal Ballet.
I return to the point of an innocent man being prosecuted for polluting the water when he has no knowledge or possible ability to stop it. In Committee, my noble friend Lord Ullswater said that that would impose an intolerable burden upon the NRA. So, with the amendment, we have tried to relieve the NRA of that burden. We have said that one can only get off the charge if one proves beyond peradventure that one has made every possible and reasonable effort to ensure that nothing happened or could go wrong, and that one is not at fault; furthermore, such a person would have to give 28 days' advance notice to the NRA that he was going to run that defence. The NRA would have, as in the case of alibis, the duty to ensure that the defence was real or not real, so it could not be sprung upon it. If that were the case, I am sure that almost invariably the defence would be run only in genuine cases. Were the defence rim in non-genuine cases, the defendant would be lumbered with extra costs in addition to the costs already incurred by the pollution offence.
On Tuesday, when talking about seepage from underground mines, my noble friend Lord Ullswater went to considerable effort to point out that:
"To be liable a landowner would have to know about the discharge and it would have to be within his or her power to do something to prevent it".—[Official Report, 7/3/95; col. 238]
I thought that he was going a little down the way towards what I am trying to suggest tonight.
I do not believe that I am going to get anywhere with the amendment; in fact, I have already been told that I am not. Therefore, I hope that no other noble Lord will speak in favour of the amendment because everyone wants to get home to bed. However, I should like the Government to answer one question: why not? Secondly, I warned the Government that they must hope that no one will take the matter to the European Court. If someone does so, the Government will be seriously embarrassed. I beg to move.
10 p.m.
Lord Moran: My Lords, prior to the Committee stage I was approached by the solicitors Clifford Chance, who asked whether I would support this general provision. I told them that I was afraid that I could not do so because it appeared to me to be designed to make life easier for polluters and I was on the other side of the fence. Even as modified, the proposal will seriously weaken the ability of the NRA to prosecute serious polluters. In many cases, it will make it impossible for the authority to produce sufficient evidence to overcome the due diligence defence and to show also that the defendant caused or knowingly permitted the pollution. The NRA's current powers have helped towards halving the number of serious pollution incidents in controlled

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waters. That is most important and it ought to continue while the NRA exists and in the new agency, and it should not be weakened on any account.
Viscount Mills: My Lords, I had prepared a long speech in relation to this amendment because I believe that the issue is crucially important. However, it is clear that the House is not keen to have a long debate on the issue at this time of night. Therefore, I shall keep my speech extremely short and say merely that at the end of the day the function of the environment agency is to protect and enhance the environment. I believe that the addition of a due diligence defence would greatly reduce its ability to do so.
The Earl of Lytton: My Lords, I warmly support the amendment, despite what was said by the noble Earl, Lord Onslow, about no one speaking in its defence. I believe that the test in law should be culpable neglect and there is no substitute for that. I am sorry to disappoint noble Lords who believe that there should be strict liability in every case because I do not think that that is satisfactory. I support the amendment.
Viscount Ullswater: My Lords, we are all at one on the need to protect the environment from pollution. We all welcome the very considerable improvement in the quality of our inland waters that has been secured in recent years following the establishment of the National Rivers Authority and its use of powers available under the Water Act 1989 and the Water Resources Act 1991. There is no doubt that the NRA has done so to good effect. Our presumption is therefore that the same powers should be available to the agency unless there are very strong arguments to the contrary.
The protection of the environment requires strict and effective controls to be exercised. It is a very long-standing principle that those who perform potentially polluting activities must be obliged to meet the high standards that the public expect. The issue is one of public policy. Legislation and regulation must strike a balance between the powers that are necessary to protect the environment from pollution and reasonable safeguards for those undertaking potentially polluting activities.
The offences with which we are concerned are offences of pollution to water. Very often, once such offences have taken place it is too late to act before serious damage has been done to the environment, and that is one reason why both the courts and Parliament have been ready to see strict liability attach to such offences. Our legislation has therefore been drafted to place responsibility for pollution directly on the polluter. I should, however, make clear that offences under Section 85 are not absolute offences; rather they are ones of strict liability. The prosecution is required to demonstrate that the defendant caused or knowingly permitted polluting matter to enter the water.
It is important to stress that this is not some novel proposition thought up for this Bill or for the Water Resources Act 1991. Section 85 of the Water Resources Act 1991 is based on Section 107 of the Water Act 1989. That in turn reflects similar provisions in the
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Control of Pollution Act 1974 and the Rivers (Prevention of Pollution) Acts of 1961, 1951 and 1876. We would, however, also expect the regulators to adopt a sensible prosecution policy, bringing cases to court only where it is in the public interest to do so. A major element of policy is to try to prevent pollution incidents in the first place. But prosecution, and the threat of prosecution, remains an effective and necessary sanction.
In our judgment, the amendment would significantly increase the time and expense of prosecutions, with implications not only for the regulators—who would have to obtain all the necessary evidence—and for the courts. It would also mean that many prosecutions could not be brought or would fail with potentially severe consequences for the protection of the environment.
If our primary aim is to protect the environment, I fear that the availability of a defence of this kind would potentially hobble the ability of the agency to do so. The agency must be able to carry out its functions effectively. Polluters must be under no illusions that the agency, like the NRA, will, where it is appropriate to do so, bring cases to court. If the responsibility of dischargers and other potential polluters to prevent pollution incidents is diluted, and the risk of appearances in court reduced, it seems to me perfectly arguable that potential polluters would in fact not take all the steps that they might currently feel are necessary or prudent to prevent incidents occurring.
The practical effects of all of that should not be underestimated. They were spelled out in Committee by my noble friend Lord Crickhowell, reiterated this evening by my noble friend Lord Mills. I believe that we really should think long and hard before setting real obstacles in the way of practical enforcement of some of the most important provisions in our environmental law. I therefore hope that my noble friend will feel able to withdraw the amendment.
The Earl of Onslow: My Lords, I regret to say that that is one of the most depressing speeches I have heard from the Government Front Bench. To say that pollution control would be hobbled by being able to prove that you had taken every single measure needed to stop that pollution is living in cloud cuckoo land. Your Lordships will consider that the Health and Safety at Work etc. Act 1974 allows that defence if you are maiming or marring human beings. Therefore, it seems very odd that the defence is not allowed when maiming or marring fish.
Having said that, I am obviously going to get nowhere. If and when my noble friend is hauled up before the European Court of Human Rights, I shall have immense pleasure in jumping up and down, saying, "I told you so." Having said that, I have enormous pleasure in withdrawing the amendment.
Amendment, by leave, withdrawn.
Schedule 12 [Minor and consequential amendments relating to fisheries]:
Lord Moran Lord Moran moved Amendment No. 248A:
Page 168, line 24, at end insert:
(" . In section 14 of that Act there shall be added after the word "mill", so often as it appears, the words "or fish farm".").
The noble Lord said: My Lords, I was to have moved this amendment in Committee; in my absence, it was kindly moved by the noble Viscount, Lord Mills. It deals with gratings on fish farms to protect wild salmonids. I have tabled the amendment again because I understand that the Government may have plans to meet the substance of the amendment. It would be helpful if they could tell the House what those plans are. I beg to move.
Viscount Mills: My Lords, as the noble Lord, Lord Moran, said, I moved the amendment on his behalf in Committee. Therefore, I strongly support it. I hope that my noble friend Lord Howe will give us some encouraging news with respect to the amendment.
Earl Howe: My Lords, I am grateful to the noble Lord, Lord Moran, for re-tabling the amendment, which would have the effect of requiring the water intakes and outfalls of fish farms to be fitted with gratings to prevent salmon and migratory trout from becoming trapped. Noble Lords may recall that, when the amendment was originally moved during Committee stage, I expressed some sympathy with its aims and agreed to consider it. Since then we have looked carefully at the implications of what the noble Lord, Lord Moran, proposed and have been discussing these with interested parties, with a view to the possibility of the Government tabling their own amendment. However, I am sorry to say that we are not yet in a position to do so, though I hope that it will be possible to bring forward an amendment in another place. Unfortunately, that is as far as I can go at present. But I hope, nevertheless, that I have said enough to enable the noble Lord to withdraw his amendment.
Lord Moran: My Lords, I am most grateful to the Minister and am encouraged by his response. When the amendment is introduced in another place, I hope that it will solve the problem. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 249 had been withdrawn from the Marshalled List.]
Baroness Hamwee Baroness Hamwee moved Amendment No. 250:
After Clause 89, insert the following new clause:
("Environmental information
.—(I) Subject to the following provisions of this section, any person ("the information holder") who—

(a) carries out any process or activity in connection with which he holds or is required to hold an environmental licence; and

(b) has relevant environmental information,

shall make that information available to any person requesting it ("the applicant") as soon as possible and at the latest within 20 days from the date of the request.
(2) It shall be the duty of the information holder—

(a) to secure that the information requested may be inspected by the applicant free of charge at such time and place as may be reasonable, and to provide facilities for taking copies of such information so inspected on payment of reasonable charges; or

(b) to provide copies of the information requested on payment of reasonable charges,

provided that this subsection shall not entitle any person to enter any premises owned or occupied by the information holder without his consent.
(3) The provisions of this section shall apply whether or not the information requested may be held by any other person whomsoever (including the Agency), whether or not the information holder may be required to furnish such information to any person under the terms of any environmental licence, and whether or not the applicant may be entitled or able to have that information made available to him by any other person.
(4) In subsection (1) above "relevant environmental information" means any information relating to—

(a) the release into any environmental medium of any substances from the process or activity in question; and

(b) the state of the environment in the vicinity of the premises from which the process or activity is carried on, including information on background levels of any substances (whether of a kind released therefrom or not).").

The noble Baroness said: My Lords, the above amendment has been grouped with Amendment No. 253. Both amendments deal with the question of environmental information. My starting point is an item in the preamble to the relevant European Community directive—Directive 90/313/EEC—which says that,
"access to information on the environment held by public authorities will improve environmental protection".
I agree with that. My stance is that all information should be freely available unless there is a good reason for that not being the case.
Before I speak to the detail of the two amendments, I should like to thank the Minister for providing today the new Government publication Environment Facts—A Guide to Using Public Registers and Environmental Information. I welcome the collation, although I do not believe that it takes public rights further forward. However, it is certainly an important starting point to know what rights exist.
I was struck by two particular items when I looked briefly through the document earlier today. I refer to the numerous references to the ability to inspect things during normal office hours—that is, 9.30 a.m. to 4.30 p.m.—on Monday to Friday. I look forward to seeing the extension of those arrangements by public bodies which I hope may begin to meet the needs of members of the public who do not always find it convenient to take days off from work to go and inspect such documents. I also note that most of the charges are referred to as being "small". I believe that the impression is given that they are perhaps lower than may always be the case, as we discussed on a previous occasion.
I turn now to my two amendments. Amendment No. 250 seeks more fully to implement the EC directive than I believe is the case in the environment protection regulations which have been published by the Government. The directive and the regulations require that information should be supplied as soon as possible with a longstop date of two months. In practice, that deadline is often used and becomes the time that is allowed rather than the limit of the time available. A two-month or, indeed, a longer lapse can considerably affect the usefulness of information obtained. Therefore, part of the amendment seeks to ensure that information

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would be made available at the latest within 20 days from the date of the request; in other words, within a shorter time period.
Secondly, I turn to the matter of charges. Article 5 of the directive states that the charge may not exceed a reasonable cost; in other words, the reasonableness relates to the overall cost. In Regulation 34A this provision has been transposed and the provision refers to the costs reasonably attributable to the supply of information. I think that goes further than was intended by the directive. In other words, some leeway has been used. As we have already discussed, there is a trend for the level of charges which some organisations levy for the supply of information to go up. Clearly, the charges are important because high prices effectively mean that information is not accessible.
As regards those to whom the provisions should apply, there is currently no general direct access right to environmental information from the polluter. To take one example, residents of a housing estate near a waste incineration plant have no right to see information which the operator may have about emissions from the plant or indeed about the general state of the environment around the plant affecting the estate. The provision in this amendment is based on a recommendation from the Royal Commission on Environmental Pollution in its 17th report on the incineration of waste. That makes a recommendation very much along the lines picked up in this amendment.
As regards the appeals tribunal—the subject of Amendment No. 253—the directive states that it must be possible for someone applying for environmental information to appeal against a decision. That must be so in all common sense. Our information regulations of 1992 make no provision for an appeal. The White Paper on open government, Cmnd. 2290 of 1993, discusses a right of access to other information—health and safety information. It states:
"For an access right to be meaningful, a member of the public must have a clear and effective means of challenging the refusal of an organisation to disclose information".
It raised the possibility—because of the similarities between the two matters—of one tribunal to deal both with health and safety and with environmental legislation. A body along the lines of an industrial tribunal is what is proposed in this amendment. I beg to move.
10.15 p.m.
Viscount Ullswater: My Lords, Amendment No. 250 would insert a new clause after Clause 89 placing a duty on any person holding an environmental licence to make available environmental information on request. I am afraid that this provision would place an unnecessary and unfair burden on the many private sector bodies holding such licences.
It would place an unnecessary burden on such bodies because information about the details of licences, consents and authorisations and monitoring data is already available on many statutory registers to which the public have a right of access. My department has this week published a booklet—the noble Baroness
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confirmed it by quoting from the document —giving details of the registers in England and Wales. Copies are being placed in the Library.
I suggest that the amendment is unfair. It would duplicate existing arrangements and would require many companies to set up special arrangements—a place where documents could be inspected and facilities for photocopying—for dealing with requests. These arrangements would be required despite the fact that much information is available from the regulatory authorities and will be available direct from the new agencies, either as keepers of registers or under the Environmental Information Regulations 1992 which implement in Great Britain Directive 90/313 on the freedom of access to information on the environment. There also appears to be no possibility for companies to protect commercially sensitive information, The public have a right to check facts for themselves. Equally, I believe companies need to protect commercially sensitive information.
Amendment No. 253 would insert a new clause after Clause 95 to provide a power by regulations to establish a tribunal to hear appeals from any person dissatisfied with the way his request for environmental information had been dealt with under the Environmental Information Regulations 1992. I fully agree with the wish of the noble Baroness to make sure that people have adequate rights of redress under the regulations. Indeed, that is specifically required of member states by the directive.
We have implemented that requirement in our regulations by including provision in Regulation 3(6) to the effect that failure of any body subject to the regulations to comply with the requirements of the regulations will be a breach of statutory duty owed to the person making the request. That is quite apart from the possibility of aggrieved persons applying for judicial review and any internal review procedures which bodies may have.
We do not, however, reject the idea of a tribunal broadly along the lines suggested by the amendment. In our July 1993 White Paper Open Government (Cm 2290) we said that there was a case for an independent tribunal to hear disputes not only under the proposed new access right to health and safety information but under the environmental information regulations as well.
Powers to create such a dual purpose tribunal would be included in legislation to create the health and safety access right, when parliamentary time is available. I appreciate that the purpose of the amendment is to create a short cut to introduce half the measure, but this is not an instance in which a bird in the hand is worth two in the bush. Setting up a new body and then doubling its functions after what might be a very short interval is not likely to be the most effective way of proceeding.
I hope that, with that reassurance, the noble Baroness will be able to withdraw her amendment.
Baroness Hamwee: My Lords, it is a pity that we have reached this amendment so late because there is a lot of meat in the subject.

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On the question of the provision of information being an unnecessary burden on companies because they have to supply the information for registers elsewhere, these matters are very much a question of balance. It seems to me to be only a small additional burden on companies to retain the information and make it available in response to direct requests.
I welcome what the Minister had to say about the appeals tribunal. Pursuing a claim for a breach of a statutory duty is more complicated and no doubt more expensive than going to a specialised tribunal. The mechanism of judicial review is a major issue. It is beginning to clog up the courts unacceptably and making the pursuit of civil claims on matters unrelated to the Executive very much more difficult because claims concerning the Executive are taking up the time of the courts. However, this is not the time to pursue that argument. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 14 [Statutory nuisances: Scotland]:
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 250A:
Page 175, line 2, leave out from ("authority"") to ("in") in line 4 and insert (", before the word "outside" in paragraph (b) there shall be inserted "in England and Wales", the word "and" after paragraph (b) shall cease to have effect, and after paragraph (c) there shall be inserted "and
(d)".").
The noble Earl said: My Lords, Amendment Nos. 250A and 309A are technical amendments. They will ensure that the existing definition of local authorities outside Greater London in Part III of the Environmental Protection Act 1990 will not conflict with the definition of Scottish local authorities to be inserted by the Bill. I beg to move.
On Question, amendment agreed to.
Schedule 15 [Supplemental provisions with respect to powers of entry]:
Viscount Ullswater Viscount Ullswater moved Amendment No. 251:
Page 178, line 8, leave out ("relevant power,") and insert ("power conferred by section 90(2) (a) or (b) or (3) of this Act,").
The noble Viscount said: My Lords, Amendment No. 251 is a technical government amendment. It is intended to correct an unintentional effect of the drafting of paragraph 6 of Schedule 15, which could have made enforcing authorities exercising powers of entry for pollution control and related powers subject to compensation claims far wider than any claims which may currently be made against the existing organisations. I beg to move.
On Question, amendment agreed to.
Clause 93 [Evidence in connection with certain pollution offences]:
The Earl of Lytton The Earl of Lytton moved Amendment No. 251A:
Page 102, line 13, at beginning insert:
("Subject to subsections (1A) to (1C) below,").
The noble Earl said: My Lords, the noble Lord, Lord Stanley, takes a particular interest in Amendments Nos. 251A and 251B and the consequential Amendment No. 309B. Unfortunately he cannot be here this evening. Like his sheep, he is hefted to his hill, but I know that he supports the amendment strongly. This series of
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amendments has industry-wide support. In particular, the Confederation of British Industry and the National Farmers' Union strongly support the amendments.
I moved amendments in Committee which attracted a certain amount of criticism, not least from the noble Lord, Lord Crickhowell. He felt that I was adding to the administrative burdens of the NRA. That was not the intention and in view of the hour I shall cut short the points that I would normally have made more extensively. In these amendments I have attempted to overcome the administrative difficulties that were suggested and to respond to that criticism.
The focus is on effluent. In dealing with it, I have tried to overcome the problems which I acknowledge of dividing samples of material which are difficult, if not impossible, to tripartite. Noble Lords will remember that the principle already exists of dividing samples taken into three parts so that the operator who might be accused of a pollution incident will have one of the samples.
The final words of subsection (IA) of the amendment are critical because they show that the "tripartiting" of the samples relates to prime samples of effluent and not to other samples that are taken upstream or downstream. I hope that that will overcome some of the difficulties.
The issue is whether it is appropriate—as I believe it is—to retain the tripartite sampling requirement, where it is reasonably practical to do so. That is particularly in relation to samples of effluent which will be used in evidence in legal proceedings. Noble Lords will remember that there was a discourse between the noble Lord, Lord Crickhowell, and me at Committee stage. I suggested that he was confusing the monitoring function of sampling and the prosecution function. The prosecution function demanded a reasonable standard of sampling which would satisfy the principles of natural justice and give reasonable safeguards to the accused. I have tried to deal with the problem by reducing it to its essential elements.
The second subsection is to provide for a statutory code of practice to give guidance and promote good practices,
"in relation to the taking, service, preservation, carriage, and analysis of samples".
The courts would obviously have discretion to refuse to admit evidence which had been gathered in contravention of the code. That would be down to the courts on a case-by-case basis.
At an earlier stage we discussed the whole question of whether it would be possible to procure a prosecution if "tripartiting" and the giving of reasonable facilities to the person accused to defend themselves had not been complied with. I believe that those are an important safeguard. I am sorry to cover them with such brevity but the late hour calls for it. I beg to move.
Viscount Mills: My Lords, I do not intend to rehearse once again all the arguments that my noble friend Lord Crickhowell put forward at the Committee stage. However, I know that the NRA still supports the measures to remove the statutory requirement for taking tripartite samples as set out in the Bill.

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I am concerned, however, about subsections (1B) and (1C) of Amendment No. 251B. As drafted, the code of practice would have to be issued as secondary legislation via the Secretary of State. I believe that that would be a cumbersome, lengthy and inflexible process. In addition, it could be a lawyer's paradise. Potentially endless time, effort and money could be spent in trying to prove whether or not the agency had complied with all the details of the code of practice.
Surely voluntary guidelines are needed, certainly developed in consultation with others but which can be modified as necessary in response to changes both in technology and the law. I am convinced that we do not need a statutory code of practice. I therefore cannot support the amendment.
10.30 p.m.
Viscount Ullswater: My Lords, Clause 93 repeals the requirement for tripartite sampling in legislation applying both to England and Wales, and to Scotland. Amendments Nos. 251A and 251B seek to disapply these repeals—thereby retaining the tripartite procedure—in cases where the samples in question are of effluent rather than any other matter. There would be an exception where it was not reasonably practical to comply with existing requirements. Amendment No. 309B would delete repeals, in Schedule 20, of provisions which require a sample taken by the NRA to be tripartite sampled in order to be admissible in legal proceedings—thereby retaining the tripartite procedure for all samples taken by the NRA.
One of the reasons for removing tripartite sampling is the unintended practical difficulties which the NRA has experienced in applying the present procedure. I appreciate that Amendments Nos. 251A and 251B address this point by seeking to retain the tripartite procedure only for samples of effluent.
This was not the only reason for our proposal to remove the tripartite requirement. We are seeking, in setting up the agencies, to achieve a degree of consistency in the measures that will be used to control different kinds of pollution and to remove some existing anomalies. Removal of tripartite sampling will put scientific evidence in water pollution cases on the same footing as evidence brought by HMIP and waste regulation authorities in other pollution cases.
I know that there is some concern that the removal of tripartite sampling will mean that a discharger will not be able to question evidence used in legal proceedings. This is not the case. The general law on the admissibility of evidence is extensive. There will—and this is important—be nothing to prevent dischargers from challenging scientific evidence brought against them. We simply wish to remove an additional layer of procedures which applies only in water pollution cases and which is presently a precondition to the admission of any of the NRA's samples.
Amendment No. 251B also proposes that the Secretary of State should issue a code of practice on the taking, handling and analysis of samples. It has always been our view that the water regulatory bodies should
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have discretion in the way they exercise their powers, and the same should apply for the agencies. It will be for the agencies to develop their own procedures for the collection and handling of samples. If the agency so wished, it could of course take samples on a tripartite basis in cases where it was considered to be appropriate. The overriding consideration is that sample evidence must be of sufficient quality to satisfy the courts.
I hope that with these remarks the noble Earl will feel able to withdraw his amendment.
The Earl of Lytton: My Lords, clearly, this is not an amendment that I propose to press this evening. I must say that I have some reservations. The noble Viscount said that it was open for a person accused of a pollution incident to challenge the evidence given. It is a little difficult to conceive how he could be protected if he does not have the sample or part of the sample. I can only suppose that natural justice and the due process of law—I am afraid that I do not have any direct knowledge in this area—would mean that a court would perhaps look askance if the regulatory authority had not adopted best practice in making information available to the fullest extent to the person accused. I think there is an important point that I shall have to consider further; but for the time being I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 251B not moved.]
Clause 95 [Power of Secretary of State to delegate his functions of determining, or to refer matters involved in, appeals]:
[Amendment No. 252 not moved.]
[Amendment No. 253 not moved.]
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No. 253A:
After Clause 95, insert the following new clause,
("Application for waste management licence: advertisement
.—(1) Subject to subsection (4), below—

(a) an application to an enforcing authority for—

(i) waste management licence under Part II of the Environmental Protection Act 1990; or

(ii) an authorisation under the Radioactive Substances Act 1993; or

(iii) a variation of an existing waste management licence or authorisation; and

(b) an appeal in connection with such an application,

must be advertised, in each case in such manner as may be prescribed in regulations made by the Secretary of State.
(2) The regulations shall provide that—

(a) the advertisement shall explain that any person may make representations in writing to the enforcing authority or party considering the appeal in response to the advertisement; and

(b) any representations so made shall be considered by the enforcing authority or the party considering the appeal in determining the application or appeal.

(3) The regulations shall provide for—

(a) when the advertisement is to be placed;

(b) for what period or periods;

(c) in what publication or publications circulating in—

(i) the location where the licensed or authorised activity would occur; and

(ii) the location which is likely to be affected by the activity;

(d) what information the advertisement shall contain regarding—

(i) the application;

(ii) the applicant;

(iii) the enforcing authority or the party considering the appeal;

(iv) the availability of further information;

(v) the matters referred to in subsection (2) above; and

(vi) the timetable for dealing with the application or appeal and in particular the period allowed for making representations; and

(e) who is to place the advertisement.

(4) In the case of an application for an authorisation referred to in subsection (1) (a) (ii) above the regulations may provide that an enforcing authority shall be entitled to disregard the requirements of the regulations if it proposes to give the authorisation applied for and considers that the action proposed to be authorised will have no appreciable effect on the environment.
(5) In this section "enforcement authority" means those authorities identified in section 90(a), (b) and (c), and "the environment" has the meaning referred to in section 53.").
The noble Baroness said: My Lords, this is the same amendment as that discussed in Committee, but I wanted to explore some of the arguments that were put by the Minister at that stage.
The amendment relates to advertising of waste management licences applications and is, again, about keeping the public involved and informed about environmental matters as the Government have promised to do with their commitment under the Rio conventions.
In Committee the Minister said that the planning stage was the most appropriate one for inviting and considering public representations, and that it would be unnecessarily regulatory to require further advertising. He said that it would be unusual to have this two-stage consultation with the public. But there are numerous other examples in this area which require public awareness, both at the planning and the pollution control consent stage. Thus, for example, it happens in relation to waste incinerators where the plant is designed to incinerate waste at less than 50 kg. an hour. In addition to the planning permission stage, the omission of air pollutants from the process also requires authorisation from the local authority and advertisements to the public. Also, for waste incinerators and landfill sites which make discharges to controlled waters, in addition to the planning stage of inviting public comment, it must be advertised at the stage when the discharge consent is being applied for.
Similarly, in relation to the storing of hazardous substances on site, in addition to the planning stage any further application for storage of hazardous substances
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must also be advertised. For chemical waste incinerators, disposal also requires public consultation both at the planning stage and at the stage when the specific application for the authorisation is made. So this amendment will be on all fours with those controls in that the public should be made aware of what is happening both at the planning stage and when a specific application for a licence is made.
It seems illogical that when pollution control and waste disposal are undertaken by incineration the public is required to be informed by means of advertisement, but when the waste disposal is by means of a landfill—as we discussed earlier, that could include low level radioactive waste—there is apparently no requirement for the public to be made aware of what is about to be undertaken in their neighbourhood.
Therefore, I ask the Minister to consider that what is suggested in this amendment is on all fours with other aspects of pollution control. The public should be made aware of what may be about to happen in their area and should be consulted. I beg to move.
Viscount Ullswater: My Lords, the noble Baroness, Lady Hilton, suggested that the new waste management licensing regime introduced under Part II of the Environmental Protection Act 1990 made no improvement to the waste regulation information available to the public and hence to their opportunity to participate in related environmental decisions. I believe that that was the gist of the discussion at Committee stage.
That is simply not true. The public have every opportunity to comment on the siting of waste facilities at the planning stage, when the land use and amenity impact of the development will be considered. Planning applications must be advertised and anyone likely to be affected by the development must be informed. In addition, many waste facilities will require an environmental assessment, and if they go to appeal they may be subject to a full public inquiry.
If the process of seeking permission to operate a waste facility (say, a landfill site) is considered as a two-stage process—planning permission followed by a waste management licence—then it can be seen that this permitting system is open to proper scrutiny in which the public is able to participate.
In the amendment there was also a focus on the need for the public to be informed about the disposal of low level radioactive waste to landfill sites. On an earlier amendment I indicated that officials are considering carefully all the responses to the preliminary conclusions of my department's review of radioactive waste policy. I indicated that the Government will be in a position to announce any change to policy, together with any new controls required, in another place. I said that I thought that we were moving in the right direction on that particular policy.
The Environmental Protection Act has also greatly improved the range of information which is now required to be made available on public registers. That includes, for instance, documents submitted by applicants in support of licence applications and written representations on applications from statutory

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consultees. That has given the public full access to information about licence applications should they wish to see it. I do not think that in these circumstances it is necessary or desirable to advertise applications for waste management licences.
In the circumstances of that reassurance, I hope that the noble Baroness will see fit to withdraw the amendment.
Baroness Hilton of Eggardon: My Lords, I am not sure that that is a complete answer to what I was suggesting about this perhaps being seen on all fours with other forms of pollution control. However, this is clearly a technical matter and I shall need to seek advice about it. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 17 [Application of certain other enactments to the Crown]:
Earl Howe Earl Howe moved Amendment No. 254:
Page 182, line 17, leave out (""by virtue of subsection (1) (b) above"") and insert (—making provision, by virtue of subsection (I) (b) above, for the modification of section 156 below in relation to fisheries in an area"").
The noble Earl said: My Lords, this amendment is designed to correct a minor defect in the Bill as currently drafted. It will provide that the consent of the appropriate authority—in this case the Crown Estate Commissioners, the Duchy of Lancaster or of Cornwall or a government department—to the making of an order under Section 115 of the Water Resources Act 1991 will be required only where such an order will modify Section 156 of the 1991 Act. I beg to move.
On Question, amendment agreed to.
Clause 103 [Directions]:
[Amendments Nos. 255 and 256 not moved.]
Viscount Ullswater Viscount Ullswater moved Amendment No. 257:
After Clause 103, insert the following new clause:
Service of documents
(" .—(1) Without prejudice to paragraph 15(2) (d) of Schedule 7 to this Act, any notice required or authorised by or under this Act to be served (whether the expression "serve" or the expression "give" or "send" or any other expression is used) on any person may be served by delivering it to him, or by leaving it at his proper address, or by sending it by post to him at that address.
(2) Any such notice may—

(a) in the case of a body corporate, be served on the secretary or clerk of that body;

(b) in the case of a partnership, be served on a partner or a person having the control or management of the partnership business.

(3) For the purposes of this section and of section 7 of the Interpretation Act 1978 (service of documents by post) in its application to this section, the proper address of any person on or to whom any such notice is to be served shall be his last known address, except that—

(a) in the case of a body corporate or their secretary or clerk, it shall be the address of the registered or principal office of that body;

(b) in the case of a partnership or person having the control or the management of the partnership business, it shall be the principal office of the partnership;

and for the purposes of this subsection the principal office of a company registered outside the United Kingdom or of a partnership carrying on business outside the United Kingdom shall be their principal office within the United Kingdom.
(4) If the person to be served with any such notice has specified an address in the United Kingdom other than his proper address within the meaning of subsection (3) above as the one at which he or someone on his behalf will accept notices of the same description as that notice, that address shall also be treated for the purposes of this section and section 7 of the Interpretation Act 1978 as his proper address.
(5) Where under any provision of this Act any notice is required to be served on a person who is, or appears to be, in occupation of any premises then—

(a) if the name or address of such a person cannot after reasonable inquiry be ascertained, or

(b) if the premises appear to be or are unoccupied,

that notice may be served either by leaving it in the hands of a person who is or appears to be resident or employed on the premises or by leaving it conspicuously affixed to some building or object on the premises.
(6) This section shall not apply to any notice in relation to the service of which provision is made by rules of court.
(7) The preceding provisions of this section shall apply to the service of a document as they apply to the service of a notice.
(8) In this section—
"premises" includes any land, vehicle, vessel or mobile plant;
"serve" shall be construed in accordance with subsection (1) above.").
The noble Viscount said: My Lords, with this amendment I should like to address Amendment No. 288. They are minor and technical government amendments. I beg to move.
On Question, amendment agreed to.
Clause 105 [Short title, commencement and extent]:
Viscount Ullswater Viscount Ullswater moved Amendment No. 258:
Page 113, line 10, after ("Act)") insert ("and the repeal of sub-paragraph (1) of paragraph 22 of Schedule 10 to this Act (which comes into force in accordance with sub-paragraph (7) of that paragraph)").
The noble Viscount said: My Lords, I spoke to this amendment with Amendment No. 185. I beg to move.
On Question, amendment agreed to.
Schedule 18 [Minor and consequential amendments]:
The Earl of Lindsay The Earl of Lindsay moved Amendments Nos. 259 to 267:
Page 187, line 40, at end insert ("other than section 2(2) (accounting requirements in relation to local authority agreements entered into in pursuance of section 1)").
Page 192, leave out line 18.
Page 192, line 24, leave out from beginning to ("and").
Page 193, line 14, at end insert:
("() Section 31D (powers of entry in relation to agreements under section 31B) shall cease to have effect.").
Page 193, line 36, at end insert:
("() In section 36 (provisions supplementary to sections 34 and 35)—

(a) in subsection (1), after the word "shall" there shall be inserted the words ", subject to subsections (2A) and (2B) below,"; and

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(b) after subsection (2) there shall be inserted the following subsections—

"(2A) A person who proposes to make, or has made, an application to SEPA for consent in pursuance of section 34 of this Act may apply to the Secretary of State within a prescribed period for a certificate providing that subsection (1) above shall not apply to that application.
(2B) If the Secretary of State is satisfied that—

(a) it would be contrary to the interests of national security; or

(b) it would prejudice to an unreasonable degree the commercial interests of any person,

not to issue a certificate applied for under subsection (2A) above, he may issue the certificate and, if he does so, subsection (I) above shall not apply to the application specified in the certificate.".").
Page 197, line 30, at end insert:
("() Any person who fails to comply with any requirement imposed by an enforcement notice shall be guilty of an offence and liable

(a) on summary conviction, to imprisonment for a term not exceeding three months or to a fine not exceeding £20,000 or to both;

(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.").

Page 197, line 36, leave out ("301(4) (a)") and insert ("301(5) (a), 34").
Page 198, line 17, at end insert:
("() Section 91(5) (a) (application of that section to Scotland) shall cease to have effect.").
Page 198, line 19, at end insert:
("() In section 98 (interpretation of Part V), for paragraph (b) of the definition of "relevant authority" there shall be substituted—
"(b) in Scotland—

(i) as respects sections 91 and 92, a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994; and

(ii) as respects this Part other than those sections, the Secretary of State, SEPA or a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994.".").

The noble Earl said: My Lords, these amendments are, on the whole, technical in nature. I beg to move.
On Question, amendments agreed to.
Viscount Ullswater Viscount Ullswater moved Amendment No. 268:
Page 202, line 37, at end insert:
("The Town and Country Planning Act 1990
. In section 2 of the Town and Country Planning Act 1990 (joint planning boards for National Parks and other areas) after subsection (6) there shall be inserted—
"(6A) Section 241 of the Local Government Act 1972 shall be taken to authorise the application to a joint planning board, subject to any necessary modifications, of any provisions of Part III (accounts and audit) of the Local Government Finance Act 1982 (as well as of any provisions of the Local Government Act 1972) by such an order as is mentioned in subsection (6) above.".
The noble Viscount said: My Lords, I spoke to Amendment No. 268 with Amendment No. 183. I beg to move.
On Question, amendment agreed to.
The Earl of Lytton The Earl of Lytton moved Amendment No. 269:
age 208, line 24, at end insert:
("() In subsection (4), after the words "or do the thing and" there shall be added the words "subject to subsections (4A) to (4C) below".
() After subsection (4), there shall be inserted—
"(4A) No person shall be required to grant rights in relation to any land in accordance with subsection (4) above unless—
(a) the person whose consent is required—

(i) has been given notice of the application for a waste management licence and the full details of the proposed condition which will require the grant of the rights, and

(ii) has been given the opportunity to make objections and to have those objections heard by a person appointed on behalf of the waste regulation authority; and

(b) the waste regulation authority is satisfied—

(i) that the holder of the licence gave details of the person whose consent is required in accordance with subsection (4B) (b) below,

(ii) that there is no practical alternative to the imposition or the condition in a form which requires the grant of rights in the land,

(iii) that the applicant has sought to negotiate with the person whose consent is required and that person has been unreasonable, and

(iv) that it is reasonable in all the circumstances, taking full account of the objections made by the person whose consent is required, to impose the condition.

(4B) The waste regulation authority shall require the person who has applied for a licence—

(a) to certify that there is no other person who has an interest in any land to which the proposed licence or any condition relates, at the time the application is made, and at any time thereafter if additional land is to be affected by a proposed condition, or

(b) to specify the names and addresses of each person who has an interest in any relevant land and that he has served notice of the application of the proposed condition on each person in such form as may be prescribed.

(4C) Where a person is required to grant consent, the holder of the licence shall make a payment equal to the amount which would be paid for the grant of the necessary rights in the land after negotiation between a prudent and willing owner with power to grant the rights and a prudent and willing holder of the relevant licence having regard to the burdens and benefits and all other relevant matters.".").
The noble Earl said: My Lords, I apologise to your Lordships for moving this amendment so late at night but it involves an important issue and I feel I must raise the point. The amendment was debated late on the final day of the Committee stage. It is supported by the Association of County Councils. I considered what the Minister said on that occasion, as has the noble Lord, Lord Stanley, and I have to say that we still have very great reservations about the situation.
In his reply, the Minister relied on the argument that the powers of landfill operators to go on to neighbouring land without the consent of the owner or the occupier are justified in the public interest. It always seems to be the case that compulsory powers are justified in the eyes of Ministers as being in the public interest. But that cuts very little ice with me. The Minister will recall the debate on compulsory powers during the proceedings on

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the Coal Industry Bill last year. These powers are subject to confirmation by the Secretary of State. But the Government eventually accepted that the fact that compulsory powers were granted in the public interest should not provide a charter for private sector operators to behave unreasonably in their dealings with individual property owners. By that I mean householders, businesses, farmers and landowners.
So I have question which I should like the Minister to take away and consider, because he probably will not be in a position to give me an answer tonight. Is it right that private sector coal operators should have to contact and negotiate with property owners before assuming that they have powers of access over the land of others? If that is the case, why should not the same approach be applied here? If it was all right for the Coal Industry Bill, it ought to be all right in this Bill.
I am not denying the right of access, if necessary, where owners prove to be unreasonable. There is a perfectly satisfactory reason for overriding the situation there. But the Government seem to have forgotten what they accepted during the proceedings on the Coal Industry Bill.
I do not intend to press the amendment this evening, but I should like to know how the Government justify this departure from the principles agreed last year. If natural justice prevailed then, why should it not now?
Local authorities granting licences must, by all proper standards of conduct, have regard to the interests of third parties. The Bill does not require them to. I have been informed that there is currently a case where a landfill operator is considering resorting to these very powers, where the neighbouring owner affected has reason to believe that the operator can carry out the work necessary on his own land therefore making it unnecessary for access to be gained to somebody else's land. This is an important issue. I beg to move.
10.45 p.m.
Lord Harris of Greenwich: My Lords, I should say one or two words on this amendment. As the noble Viscount, Lord Ullswater, will realise, given the number of noble Lords now sitting in the House, if there were to be a Division on any of these amendments the House would be automatically adjourned. My noble friends and I have no intention of doing that—
A Noble Lord: For the moment.
Lord Harris of Greenwich: For the moment. But I must say to the noble Viscount that there have been constant complaints about late sittings on this and other Bills, The Government so far have indicated no interest in dealing with this problem, despite the Procedure Committee Report. If the Government maintain this position and on this and on other Bills decline to listen to the views of the Procedure Committee, I tell the House quite bluntly that we shall force a Division on some occasion and the House will be adjourned. We have no desire to do that. I hope that the noble Viscount will discuss the matter with the Government Chief Whip
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to ensure that the views of the Procedure Committee are listened to seriously and that the Government take them into account in terms of timetabling their legislation.
Viscount Ullswater: My Lords, of course I take very seriously what the noble Lord, Lord Harris of Greenwich, has just said. I shall indeed bring his remarks to the attention of my noble friend the Chief Whip.
I shall now revert to the amendment. Amendment No. 269 would amend Section 35 of the Environmental Protection Act 1990 to place certain obligations on the holders of waste management licences where conditions of the licence require access and rights over adjacent land. At present, Section 35(4) of that Act gives licence holders such rights in relation to any land as would enable them to comply with the requirements of the licence. The provision of such rights is sometimes necessary in order to enable licence holders to monitor gas and leachate, and, if necessary, take remedial action to prevent pollution. Such monitoring will normally be necessary many years after the disposal of waste has ceased. Without such rights a licence holder may not be able to comply with his licence conditions.
The amendment tabled, as the noble Earl indicated, is identical to one which he tabled in Committee. I said at that time that we had received no evidence that this provision had caused difficulties. Nevertheless, I understand the noble Earl's concern, and I have given further thought to what he said on the matter in Committee.
In those circumstances I should like to take further advice. I understand that it is a matter which the Country Landowners' Association is concerned with, but there are also others who have interests, including the waste regulation authorities and the waste industry. I would like to consult all those who may have an interest in this question.
The Government will consider the need for any further action in the light of these comments and considerations. I am sorry that I am unable to offer the noble Earl any more definite assurance than that. I hope that he will recognise that this is a complex issue and that we need to give further thought to it. With that assurance, I hope that the noble Earl will feel able to withdraw his amendment.
The Earl of Lytton: My Lords, I am very grateful to the noble Viscount for that response. I shall consider his words very carefully. I am particularly glad that he feels that there may now be merit in considering this matter further. It is a crucially important issue and a matter of fundamental legal propriety is at stake. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Lucas of Chilworth Lord Lucas of Chilworth moved Amendment No.269A:
Page 208, line 44, at end insert:
("() In subsection (11), the words "or its surrender is accepted" shall be omitted.").
The noble Lord said: My Lords, in moving Amendment No. 269A, which is a paving amendment, I should like to speak also to Amendments Nos. 270A and 270B.
Following the remarks of the noble Lord, Lord Hams, perhaps I may preface my speech by saying that I was minded earlier this evening to do exactly what he was suggesting because it is unfortunate that this is the third occasion on which I have attempted to move a serious amendment at this time of the night. Indeed, I gave notice to my noble friends on the Front Bench that I was so minded. In view of what the noble Lord, Lord Hams, said in reminding your Lordships of the recommendations of the Procedure Committee—the noble Lord may very well raise the matter not only through the usual channels but through the Procedure Committee—I think that I can best serve your Lordships by desisting from temptation and awaiting the further deliberations of the Procedure Committee. However, having said that, I am not going to be browbeaten by the time of night into curtailing my remarks on what I consider to be a serious matter. I apologise to your Lordships who may have to suffer the burden of my remarks.
The amendments return to a matter that I raised in Committee and relate to the new arrangements for contaminated land in Clause 54. In Committee, I sought to ensure that operators of licensed landfills who had been subject to very prescriptive and stringent control both during the operations and for decades after, and who had eventually been granted—or rather earned—a certificate of completion stating that the site was,
"unlikely to cause further pollution or harm",
should no longer be liable for the cost of remedial works at the site if problems subsequently occurred. Indeed, that is the position that would have obtained if the Government had implemented Section 61 of the Environmental Protection Act. I shall not quote those provisions.
However, at that time my amendments were firmly rejected. My noble friend the Minister stated that there had been a change in government policy since the 1990 Act was brought into force in November 1990. He said then that Section 61 would be repealed and that in future the waste management industry would be treated no differently from any other industry or person who causes contamination. On the face of it, that seems fair and not unreasonable.
But the waste management industry has been treated very differently in this Bill from other industries and persons who may cause contamination. The new system of waste management licensing, which was introduced only in May 1994, placed a long-term responsibility for a site on the operator. That was strongly supported by the industry and by all responsible operators. However, there was another part of the package—the transfer of liability, through Section 61, to which I have referred, to the local authority once the certificate of completion had been obtained.
In view of that—and no doubt because of the potential burden on the public purse—the Government have introduced a "belt and braces" approach to regulation. That is understandable but, I believe,
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unnecessary. In simple terms, that means that the industry can expect to pay perhaps up to £100 million a year for some decades to ensure that its sites are eventually granted certificates of completion but, in addition, (by virtue of this Bill) future certificates of completion, although costly—some cost up to £5,000 notwithstanding the subsistence payments made on the way—would be quite worthless because of the enduring liability which is now imposed in Clause 54.
The twofold approach cannot be justified. I admit that the amendments that I have set down may be inadequately drafted but they would abolish certificates of completion and by virtue of that they would enable an operator to choose which belt or which pair of braces he wished to use to maintain the site as he determined necessary. It would enable him to bring into play new technologies, the fruits of scientific advancement, which may not, in the immediacy, find their way into guidelines.
If the operator chooses wrongly, he will have to pay for his mistake by virtue of the Clause 54 remediation powers that the agency would have. That would be an ongoing situation. In other words the operator pays his money and takes his choice; he has to find the money; he has to put his money where his mouth is. I do not think that that is unreasonable.
This set of amendments does not amount to any kind of deregulation of the waste industry. My noble friend the Minister will know that the industry successfully campaigned against that last year. I am arguing for a sensible level of regulation.
In conclusion, I should like to remind my noble friend that the Government in their policy statement in Circular 11/94 stated that the regulations should be goal based, should not serve as an end in themselves and should not be over prescriptive. I suggest that in this area the legislation and the policy contained in that document are very far apart.
At this time of night perhaps I cannot expect a long debate or a total acceptance of the amendment. I invite my noble friend to consider whether the argument that I have deployed has logic and sense and is practical and fair to everybody at the end of the day: that you pay once and not twice for your sins if sins are going to be committed.
I hope that my noble friend will deal with this matter sympathetically. I look forward to his answer. I beg to move.
Viscount Ullswater: Amendment No. 270A is the principal amendment in this group. It would remove the provisions in Section 39 of the Environmental Protection Act 1990 which allow a licence holder to surrender a waste management licence only if the waste regulation authority is satisfied that the condition of the land is unlikely to cause pollution of the environment or harm to human health. Amendment No. 270A would instead allow the surrender of the licence to be made at the wish of the holder provided that four years have elapsed since the cessation of disposal activities. The other amendments in the group are consequential upon this change.

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These proposals would demolish one of the principal features of the new waste management licensing system introduced by Part II the Environmental Protection Act 1990, which has been in operation for less than a year. The purpose of this system is to ensure that licensed activities do not cause pollution of the environment or harm to human health. I can see no justification whatever for my noble friend's proposals.
The surrender provisions in Section 39 are designed to encourage licence holders to operate their sites responsibly and with due regard for the impact they may have on the environment both now and in the future. Under that system, responsibility for the consequences of depositing waste rests with the person who profited from that business. It exemplifies the principle that the polluter pays. The proposed amendments would allow the holder to avoid responsibility for pollution from the site after the licence is surrendered.
Amendment No. 270A suggests that a licence could in all cases be surrendered as early as four years after the site had ceased to operate. In the case of landfill sites, however, the release of harmful quantities of pollutants in the form of landfill gas or leachate may occur many years after a deposit of waste has taken place. Monitoring and containment measures may be needed for decades in some cases. The present system allows post-closure conditions to be attached to licences, ensuring that they are cared for after the deposit of waste until emissions of gases and leachate are no longer likely to cause pollution or harm to human health. Of course, not all sites used for licensed activities are landfill sites. In fact, the particular conditions at each site will vary, making any universal cut-off point—even for a longer period—inappropriate.
I ask your Lordships to consider who is to become responsible for preventing pollution from landfill sites after the four-year period has expired and the licence has been surrendered, and who would be responsible for cleaning up any pollution that subsequently occurs. We are already having to make provision in Clause 54 to deal with the legacy of contaminated land which has resulted from closed landfill sites from which operators were able to walk away under the old provisions of the Control of Pollution Act. The surrender provisions in Section 39 of the 1990 Act aim to prevent those problems from occurring in the future.
The surrender provisions should not affect an operator's liability under the contaminated land provisions. My noble friend has argued that closed landfills should be treated in the same way as other contaminated land, and I can see no justification for giving special treatment to closed landfills by removing liability because a certificate of completion had been granted.
In May last year we took a major step forward when we introduced the new waste management licensing system. The amendments represent a step backwards,
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and for that reason I cannot accept them. I hope that after considering those words my noble friend will feel able to withdraw the amendment.
Lord Lucas of Chilworth: My Lords, I thank my noble friend for his response which, of course, I find disappointing. He asked who would be responsible. The operator is responsible under the terms of Clause 54. If he is to be bound again by having to maintain a site before he can obtain a certificate of completion, what is the value of such a certificate other than to enable the authority to impose its own directions with regard to post-closure monitoring and the various protocols currently involved, which are set out in guidelines? It gives the operator no incentive to introduce more advanced and technically capable monitoring, and other procedures. Why should he go to that expense when he is paying through the subsistence—I call it "subsistence—payments which derive from the post-closure obligation?
That is where the unfairness lies. If my noble friend and his officials look at the proposals carefully they will see that there is no suggestion that any operator should be able to evade his responsibilities. Indeed, when we discussed Clause 54, to which the Committee agreed in the end, there was no question of releasing landfill operators from their obligations.
I believe that the Government are wrong. They have burdened the industry with unnecessary and unwarranted dual expense, of which I fear the industry will not think too kindly. There is nothing that I can do here. I doubt whether I shall pursue this matter at the next stage, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 270 to 272 not moved.]
Lord Lucas of Chilworth Lord Lucas of Chilworth moved Amendment No. 273:
Page 211, leave out from beginning of line 51 to end of line 17 on page 212.
The noble Lord said: My Lords, I raised this matter at an earlier stage when I opposed the introduction of a sweeping new power for the agency in respect of waste management licences. I remind the House that under the present regulatory system in the EPA 1990, operators of waste facilities who breach the conditions of their licence may be tackled by the enforcing authority in a number of ways. The Government now propose to extend the regulator's powers. The existing powers have been enjoyed for less than 12 months; they came into force in May 1994.
In Committee, I asked my noble friend what new events had taken place which gave rise to the Government believing that additional regulations are necessary. At that time, my noble friend was unable to provide me with an answer. As the Bill stands, we are left with the regulators being allowed to issue enforcement notices to be served when they believe—only when they believe—that a breach of a licence may occur. That is what I previously described as the crystal-ball approach.
I wondered what problems had arisen to necessitate the provision. The misuse of the new crystal-ball-gazing power could have serious consequences for the industry. I shall take the liberty of describing two examples. It is a statutory requirement for enforcement notices to be entered on the public register. Whatever the facts of the matter, there will be a public record which may—only may—give a false picture of a company's performance and which will, without doubt, increase opposition to future activities which are fairly unpopular with the public. I suggest that that unpopularity is largely the result of a misunderstanding and a false perception of the industry's operations with regard to landfill.
In addition, failure to comply with the enforcement notice, no matter how reasonable its requirement, may lead to a licence revocation or a suspension. At worst, that might result in a loss of livelihood. I must ask my noble friend what safeguards there are for an operator when a regulator misreads his crystal ball. I suppose that the operator might seek a judicial review. That will be a long and costly process, a point to which the noble Baroness, Lady Hamwee, referred when discussing Amendment No. 250. I shall not go further than she did.
Even so, that will not prevent matters taking their course in the meantime. The operator might rely on the agency acting reasonably. But if it does not, or if he believes that it does not, the operator might ask the Secretary of State to act swiftly and use his powers of direction under Section 42. Let us be practical about the matter. The Secretary of State will not be able to move that swiftly to offset the effects of a misreading of the crystal bail. It could take some little while. Meanwhile, the operator has no safeguard whatever. Therefore, this amendment seeks to find a solution which might commend itself to the Government.
I note that the new power in respect of waste regulation is paralleled in new Section 90B of the Water Resources Act 1991 and in Section 13(1) and (2) of the Environmental Protection Act 1990.
If one scrutinises the small print of the schedules to the Bill and cross-refers them to other legislation, it appears to me that the parallel is only partial. Whereas the powers in the Water Resources Act and the Environmental Protection Act bring with them a right of appeal for operators, that is not echoed in the amended waste management licensing system that obtains in the Bill before us.
Were a similar appeals procedure introduced, operators would be able to seek redress if the agency failed to discharge properly its responsibilities. Why has it not been thought reasonable to introduce an appeals procedure for an operator whose very livelihood may be threatened by a misreading of the crystal ball? That is what lies behind the amendment. If my noble friend will assure me that he will consider the introduction of an appeals procedure, I could go away happy. I beg to move.
Viscount Ullswater: Of course, I would like nothing better than to make my noble friend go away happy. I hope that in the words which I shall use he will find the comfort which he seeks.
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My noble friend put forward a similar amendment in Committee, but this time he has drafted the amendment in order to eliminate entirely the new enforcement notice procedure which paragraph 61 also provides. I am surprised that my noble friend should prefer the more general provision currently made by Section 42(5) of the 1990 Act, which simply enables the authority to require the licence holder to comply with the licence conditions within a specified time and may take enforcement action such as suspension or revocation of the licence if he does not. The new enforcement notice procedure will require the agency to specify the steps which the licence holder must take to remedy any non-compliance with a licence condition, or to prevent any non-compliance from occurring in the first place. This is a much more precise requirement, and ensures that the operator knows what he is expected to do.
My noble friend referred to it as being "crystal ball gazing". I believe that the agency will be able to work with its technical knowledge so that it will not act in the manner which he suggests.
My noble friend is concerned that the new provisions in the Bill will enable the agencies to take enforcement action before a licence condition has actually been breached—where such a breach is likely to occur. There are two issues here. The first is whether the agency should have to await the breach of a licence condition before taking enforcement action. Where environmental damage is in prospect, I cannot see that there would be any point in waiting for it to occur before taking action.
It is nevertheless reasonable to ask in these circumstances what safeguards there will be to prevent an agency acting prematurely, especially when failure to comply with an enforcement notice could result in the revocation or suspension of the licence. The agency's enforcement powers do indeed need to be used in a way which gives the operator of a licensed site a clear understanding of the remedial action required and a proper opportunity to take it, without the imposition of sanctions disproportionate to the breach. The new provision is designed to meet this concern by requiring the agency to serve an enforcement notice. This will tell the licence holder what he has to do and by when, giving him the opportunity to correct a problem, and so to avert the need for further enforcement action.
I listened carefully to what my noble friend said about the lack of an appeal provision against an enforcement notice. I accept that that is different from the Part I provisions and those which will apply under the Water Resources Act and Part II of the Control of Pollution Act, as my noble friend identified. However, those other provisions also include an offence for not complying with an enforcement notice for which the penalty on conviction on indictment is up to two years' imprisonment or an unlimited fine. In such circumstances, an appeal provision is essential.
In the case of waste management, the penalty against an enforcement licence is suspension or revocation of the licence. It is at that stage that the legislation provides for an appeal to the Secretary of State under Section 43 of the 1990 Act. Further, if the waste regulation authority does not permit the continuation of the licensed activities pending determination of the appeal,

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then, under Section 43(7), if the Secretary of State considers that it acted unreasonably, the authority is required to pay compensation to the licence holder. I hope that my noble friend will agree that those provisions provide adequate safeguards for the licence holder. Having said that, I also hope that my noble friend will feel able to withdraw his amendment.
11.15 p.m.
Lord Lucas of Chilworth: My Lords, oh dear! I am sorry to say that I am not a happy man. Of course, I understand the penalties that will apply if there is non-compliance with the licensing conditions. Indeed, that goes without saying. Moreover, I can accept— just—that there is an argument for the agency or the authority to what I call "crystal-ball gaze" at a situation if it is felt that a breach is likely.
However, any enforcement notice under those conditions will impose directions as to the action to be taken and will also impose a time limit on compliance. That notice is not to be suspended pending an appeal to the Secretary of State, which is open to the operator pending the Secretary of State's decision on whether or not to issue a direction. Therefore, the safeguard to which my noble friend the Minister referred —namely, that of the powers of direction that the Secretary of State has—is really not a sufficiently adequate safeguard. It would be far better if a formal appeals mechanism applied, as provided under other regulatory regimes. I accept that there are conditions which make such an appeals mechanism more necessary, but it seems to me that what is right for Peter is also right for Paul.
I wish to consider most carefully what has been said. I believe that I may well wish to pursue the matter at a later stage of the proceedings in the hope that I may be able to persuade other noble Lords of the rightness of my case. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 273A and 273B not moved.]
Baroness Hamwee Baroness Hamwee moved Amendment No. 274:
Page 214, line 9, at end insert (" "; provided that such places as may be prescribed shall include the local authority of the area to which the particulars on the register relate."
() In subsection (8) (definitions)—

(a) after the words "In this section", there shall be inserted "(a)";

(b) after the paragraph (a) so formed, there shall be added the words—

" 'local authority' shall have the same meaning as that set out in section 78A(11) below".").
The noble Baroness said: My Lords, in moving the amendment, I shall speak also to Amendment No. 275. Amendment No. 274 refers to registers kept by waste regulation authorities and is intended to extend the prescriptions relating to them, as set out in the schedule, so as to ensure that they are kept locally. That is shorthand for the local authority of the area to which the particulars on the register relate. It is intended to be convenient for those who wish to inspect.
Amendment No. 275 deals with registers of special or hazardous waste. I understand that the Government's consultation on waste management licensing under the EPA 1990 included provision for copies of special waste consignment notes to be placed on public registers. That was followed by a response from the waste disposal industry body, the National Association of Waste Disposal Contractors, who said that the inclusion of special waste consignment notes on the register was objectionable on commercial grounds.
As there are public registers for details about emissions to air or controlled waters, the companies that dispose of waste in solid form in fact have an advantage over their competitors as they avoid public scrutiny through not having this requirement for registration. The documentation has to be produced anyway and the waste regulatory authority functions of the agency will require public registers to be kept of other documentation. So I do not believe that there will be anything more than a negligible additional burden to be placed on industry and on the agency. As I have said before, these things are always a matter of balance. I do not believe that the public interest should come second to what I think are not very strong objections. I beg to move.
Viscount Ullswater: My Lords, I am sympathetic to the concerns which lie behind both of these amendments regarding public access to environmental information, but I hope I can show your Lordships that these amendments are unnecessary.
Amendment No. 274 seeks to ensure that when the Secretary of State makes regulations prescribing places where agency waste regulation registers are to be available for public inspection, these include local authority offices. The reason for giving the Secretary of State this power to prescribe where registers are to be located is to ensure that the public have easy access to information about licensed sites and facilities in their area, and do not have to travel long distances; for instance, to a headquarters office in order to find out what is going on locally. However, before decisions are made about precisely where these places will be, we will need to have discussions with the agency, consult interested parties and consider the different possibilities. That is why the details ought to be left to the regulations and are not included on the face of the Bill.
I should, however, point out to your Lordships that Section 64(4) of the Environmental Protection Act 1990 (as amended by this Bill) already requires certain key information about waste management licences to be available at the offices of every waste collection authority in England and Wales. This information must be supplied by the environment agency. We may wish to prescribe in the regulations to which I have referred that other information from registers should be available at local authority offices, but that is not something which needs to be decided now. However, in any case provision is already made for the key information from the register to be available at local authority offices, and I hope that the noble Baroness will consider that this makes adequate provision.

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Amendment No, 275 would require the waste regulation registers maintained by each agency under Section 64 of the Environmental Protection Act 1990 to include copies of the consignment notes which waste producers and disposers furnish under the special waste regulations. The consignment note system enables regulators to exercise supervision over the movements of the most dangerous wastes. One copy of the consignment note is sent to them by the wasteholder before waste can be removed from premises, and another copy is sent when the waste is safely received for disposal or recycling. The detailed requirements for the waste regulation registers under Section 64 are currently set out in regulation 10 of the Waste Management Licensing Regulations 1994. When proposals for these new regulations were issued for public consultation in 1992, they included a suggestion that individual special waste consignment notes would be included on the registers. However, as a result of the consultation and further consideration, it became clear that the registers would be quickly overloaded and unmanageable if every individual consignment note received by the WRA was included, even if a time limit was specified for retention of each note on the register. The environment agency is expected to receive up to 300,000 notes per year.
It was therefore decided to limit the register to any summary prepared by the regulatory authority of special waste produced or disposed of in its area. This is a much more manageable arrangement than placing a copy of every individual consignment note on the register. Anyone who wishes to have access to such material can, of course, exercise his rights under the Environmental Information Regulations 1992. In addition, the register contains full details of all current local waste management licences, which will give a good picture of the range of waste, including any special waste, that any site is able to receive.
The Government fully support the principle of public access to information about local waste management activities, and I hope that in the circumstance, the noble Baroness will agree that these amendments are unnecessary and will see fit to withdraw them.
Baroness Hamwee: My Lords, I thank the Minister for his response to the amendments. I should like to think further about the second amendment in particular. I cannot help feeling that in these days of advanced technology there must be ways of storing bulk information which were not available even a very few years ago. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 275 not moved.]
Baroness Hilton of Eggardon Baroness Hilton of Eggardon moved Amendment No, 275A:
Page 215, line 26, leave out from ("(a)") to ("not") and insert ("above does").
The noble Baroness said: My Lords, I rise to move Amendment No. 275A and to speak to Amendments Nos. 275B and 275C. These are intended to be helpful amendments rather than combative.
Amendment No. 275A seeks to retain the definition of "harm" in relation to contaminated land which is at present applied under the Environmental Protection Act, where it can include offence to man's senses. It can include noxious smells as well as poisonous wastes. It is therefore suggested that this nuisance power should continue in relation to the abatement of fumes and gases from contaminated land where they smell extremely unpleasant as well as being poisonous or dangerous in themselves.
Amendment No. 275B seeks to deal with an increasing nuisance, namely high intensity lighting, which in recent years has been used for such purposes as burglar lights, which flash on and off when cats enter people's front gardens, and various forms of floodlighting, including the floodlighting of the decoration of buildings and structures. If that could be included within the definition of a statutory nuisance under the Environmental Protection Act, it would be possible to restrict the use of such lighting. Local authorities might welcome such a power. They report an increasing number of complaints of disturbance from light intrusion.
Amendment No. 275C is also intended to be helpful to local authorities, in that they would be able to seek injunctions against statutory nuisances in county courts rather than the High Court. At present they need to seek injunctions in the High Court in accordance with the Environmental Protection Act 1990, which can be an extremely expensive and time-consuming matter. Both they and defendants may find access to the High Court difficult. It would be very much simpler for all parties if an injunction was available from the county court. This is a procedure which applies well in relation to planning legislation.
These are intended to be helpful suggestions to the Government. I beg to move.
Viscount Ullswater: My Lords, Amendment No. 275A concerns the potential overlap between the statutory nuisance provisions in Part III of the Environmental Protection Act 1990 and the proposed contaminated land provisions set out in Clause 54 of the Bill, which will form Part IIA of that 1990 Act.
As presently provided in paragraph 75 of Schedule 18, the statutory nuisance provisions would be disapplied in respect of a wide range of the existing definitions of statutory nuisance where the premises concerned were also contaminated land for the purposes of the new Part IIA. The amendment, by contrast, would restrict the categories of possible statutory nuisance where that disapplication occurred.
The Government's intention is to ensure, so far as is possible, that any single environmental problem can be dealt with under only one of these sets of powers and is not subject to dual regulation. Local authorities and those who might be subject to any regulatory action should be clear as to which provisions would apply in any individual case. However, the Government are also concerned that in amending the statutory nuisance powers we do not create the situation where things that are currently subject to control under the statutory nuisance provisions would fall within neither the revised

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definitions of statutory nuisance nor the definition of contaminated land. It appears that this may be the result of the existing drafting of paragraph 75 of Schedule 18. The Government are therefore looking again at this question and intend to bring forward their own amendment at a later stage to resolve this potential problem.
However, we would not wish to accept Amendment No. 275A as it would leave in place a clear overlap between the two sets of powers. For example, a site on which landfill gas was being generated would clearly qualify as contaminated land. But the same problem could also remain within the definitions of statutory nuisance under the terms of Section 79(1) (c) of the Environmental Protection Act 1990, which refers to
"fumes or gases emitted from premises so as to be prejudicial to health or a nuisance".
I hope that with the assurance that the Government are looking further at this detailed issue, the noble Baroness will feel able to withdraw her amendment.
Amendment No. 275B aims to extend the statutory nuisance controls in Section 79 of the Environmental Protection Act 1990 to include light emitted from premises so as to be prejudicial to health or the environment. We have for some time been aware of the potential problems which can be caused by the inappropriate design and use of some lighting schemes and have considered this issue before. Nuisance is a wide-ranging concept defined by the courts and I believe that there is no reason why in an extreme case courts should not judge that excessive light can constitute a nuisance. However, that is very different from saying that every case of excessive lighting from all types of premises should be subject to a legal penalty.
We believe that the most appropriate way to tackle the problems is by education and guidance, such as that which, as I mentioned at Committee stage, is in DoE circular 5/94, Planning out Crime on the planning aspects of security lighting.
We will continue to look for appropriate opportunities to press home the importance of the sensitive location and use of lighting and will keep under review whether other measures might usefully be taken to minimise its excessive use. I therefore ask the noble Baroness not to press that amendment.
We now come to an amendment seeking to change the provision for a local authority to take action in relation to any statutory nuisance in the High Court where in its opinion magistrates' court proceedings for an offence under the statutory nuisance provisions would provide an inadequate remedy. In practical terms, this allows a local authority to obtain injunctive relief to remedy serious statutory nuisances.
Amendment No. 275C would mean that such action would have to be taken in the county court rather than in the High Court. Last October the Government announced the establishment of a working party to review the existing controls over neighbour noise, which is largely regulated under the statutory nuisance provisions. The House will be interested to know that one of the issues under consideration by the working
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group was the possibility of altering the existing provision to allow action to be taken through either the county court or the High Court.
The Government's view was that there was no merit in confining action to the county court alone. There is evidence that cases are dealt with much more quickly in the High Court and this factor will be crucial to the remedy of a serious statutory nuisance. The issue of whether to provide for a choice of court is, however, still under consideration and the Government will shortly consult fully on the conclusions and recommendations of the working group. I hope that with that assurance the noble Baroness will feel able not to press that amendment.
Baroness Hilton of Eggardon: My Lords, I am grateful for a generally encouraging answer to what were intended to be helpful and constructive suggestions. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 275B and 275C not moved.]
Viscount Ullswater Viscount Ullswater moved Amendment No. 276:
Page 215, line 37, at end insert:
(" . In section 161 of that Act (regulations and orders) in subsection (4) (which specifies the orders under that Act which are not subject to negative resolution procedure under subsection (3)) after the words "does not apply to" there shall be inserted the words "a statutory instrument—

(a) which contains an order under section 78H(3) above, or

(b) by reason only that it contains"").

The noble Viscount said: My Lords, I spoke to Amendment No. 276 with Amendment No. 140. I beg to move.
On Question, amendment agreed to.
Viscount Ullswater Viscount Ullswater moved Amendment No. 277:
Page 218, line 37, leave out from beginning to second ("this") in line 38 and insert:
("() In section 24—
(a) in subsection (1)—

(i) for the words "a river purification authority" there shall be substituted the words "SEPA"; and

(ii) in paragraph (a), after the word "on" there shall be inserted the words "SEPA or"; and

(b) in subsection (9)—

(i) for the words "a river purification authority or" there shall be substituted the words "SEPA or a"; and

(ii) in paragraph (a), after the word "by" where it second occurs there shall be inserted the words "SEPA or".

() After section 26 there shall be inserted—
"Meaning of SEPA. 26A. In").
The noble Viscount said: My Lords, my noble friend Lord Lindsay spoke to this amendment with Amendment No. 259. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 278 to 280A not moved.]
Lord Moran Lord Moran moved Amendment No. 281:
Page 224, leave out from beginning of line 46 to end of line 5 on page 225 and insert:
("90A.—(1) Where an application is made in accordance with this section the Agency shall—
(a) publish notice of the application, at least once in each of two successive weeks, in a newspaper or newspapers circulating in—

(i) the locality or localities in which the places are situated at which it is proposed in the application that the discharges should be made; and

(ii) the locality or localities appearing to the Agency to be in the vicinity of any controlled waters which the Agency considers likely to be affected by the proposed discharges;

(b) publish a copy of that notice in an edition of the London Gazette published no earlier than the day after the publication of the last of the notices to be published by virtue of paragraph (a) above.
(c) send a copy of the application to every local authority or water undertaker within whose area any of the proposed discharges is to occur; and
(d) in the case of an application which relates to proposed discharges into coastal waters, relevant territorial waters or waters outside the seaward limits of relevant territorial waters, serve a copy of the application on each of the Ministers.").
The noble Lord said: My Lords, I should like to speak as briefly as I can to Amendment No. 281 and to Amendment No. 287 which is grouped with it. First, I thank the noble Earl, Lord Howe, for meeting me and members of the Salmon & Trout Association and for a very helpful discussion of these two amendments and Amendment No. 283.
The purpose of my Amendment No. 281 is to restore the existing regime for the advertisement of applications made for consents to discharge. At present, subject to the National Rivers Authority's right to waive the requirement for minor applications where it believes that there will be no significant impact on the receiving water, there is an obligation on the authority, at the applicant's expense, to advertise all applications in a local newspaper and in the London Gazette.
Through these advertising provisions, the Salmon & Trout Association at present monitors, for the protection of all riparian interests, all such applications made to the NRA. Copies of these notices go to their 52 branch water resources officers concerned, who cover the whole country, and to the Anglers' Conservation Association, the National Federation of Anglers and the Welsh Salmon & Trout Angling Association among others. These regulations of where and how to advertise are on the face of existing legislation; namely, the Water Resources Act 1991.
It would appear that new Section 90A(1) proposes to abolish the current provisions so far as discharges are concerned and to leave the advertising requirements to the Secretary of State to decide from time to time. I have recently been advised—rather late in the day, I fear—that a further clause, Clause 143, substitutes a new Schedule 10 to the Water Resources Act and similarly places at risk the work of the Salmon & Trout Association in this field. I have it in mind therefore to propose an amendment to that clause at Third Reading.
The Salmon & Trout Association is concerned that, should the obligation to advertise applications in the London Gazette be removed, there will be no practical way in which the association's service to angling and riparian interests can remain effective without
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knowledge of these discharge applications. The regulations for advertising have not yet been published and, even if they contain similar provisions to the existing regime, there is nothing to prevent the Minister at a later date publishing amended regulations that would dilute them.
It is, in my view, extremely important that riparian interests should have the opportunity to object to applications that affect them and the environment generally. I am sure it is right that this important part of the checks and balances on which the protection of the environment depends, and which has worked well up till now, is not lost in the rush to deregulate everything. It is essential that this right is protected in primary legislation.
I turn to the second amendment, Amendment No. 287. Since the Water Act 1989, the National Rivers Authority has had the power to review a consent to discharge effluent not less than two years after it has been granted. This power is a discretionary one, and in the vast majority of cases reviews are not carried out for considerably longer periods.
The Government propose in the Bill that this protected period should be extended from two to four years. There are inevitably cases where consents are granted but, because of a change in prevailing circumstances that might not have been anticipated when the grant was made, result in the discharge having a damaging environmental effect. If that is the case, a four-year period before a review can be carried out seems too long. I am not aware of any prejudice to agriculture or industry, or financial burden that has been placed on them, during the past six years when the two-year rule has applied. At present, the status quo is being changed, seemingly for the worse. That would be put right by this amendment. I beg to move.
Baroness Hilton of Eggardon: My Lords, I speak to Amendments Nos. 285, 286 and 287, which are grouped with the original amendment. The purpose of these three amendments is to retain the existing regime rather than vary it as proposed in the Bill. Amendment No. 285 would retain the present right of established objectors to appear before hearings set up by the Secretary of State in respect of controlled water discharge consents.
Amendment No. 286 would give the agency the duty rather than the power to review discharge consents, in the same way as is currently an obligation upon the National Rivers Authority. Amendment No. 287, to which the noble Lord, Lord Moran, has already spoken, would retain the present two-year cycle for reviews of discharge consents to controlled waters.
Viscount Ullswater: My Lords, Amendment No. 281 moved by the noble Lord, Lord Moran, would introduce on the face of the Bill detailed requirements for the procedures to be followed in respect of advertising applications for consents under Sections 89 and 90 of the Water Resources Act 1991. However, I believe that the noble Lord may have intended to deal with consents under Section 88 of the 1991 Act.
So far as consents under Sections 89 and 90 are concerned, we have not previously laid down any procedures for making applications. New Section 90A

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does so, including provision for advertising of applications in accordance with regulations to be made by the Secretary of State. The Bill, therefore, represents a development on previous legislation.
As regards applications for consents under Section 88, we have replaced the old Schedule 10 of the Water Resources Act 1991 with new provisions. These include a requirement for applications to be advertised in accordance with the provisions of regulations to be made by the Secretary of State. Thus, the provisions relating to consents under Sections 88, 89 and 90 are closely aligned.
I appreciate that the purpose of the amendment is to retain the current provisions specifying certain detailed provisions relating to advertising of applications and that such notification of applications is important. However, I should be reluctant to lose the flexibility in these matters afforded by the power in the Bill to defer them to detailed regulations, which would, of course, be subject to the normal parliamentary scrutiny. That being said, and while I cannot pre-empt the Secretary of State's consideration of the regulations, I should say to the noble Lord that the provisions that have been in force to date would be very much in the forefront of our mind in framing those regulations.
Amendment No. 285, spoken to by the noble Baroness, Lady Hilton, would give objectors to an application the opportunity to appear at any hearing held into that application. The provision which this amendment seeks to reinstate is repealed under the Bill as one of a number of measures to speed up the granting of consents once decisions have been reached. We have recognised the need to notify objectors that a consent has been granted. Objectors also retain the right to make written representations to the Secretary of State at any time. However, we consider that streamlining these procedures will remove unnecessary delays and bring them into line with standard practice in relation to planning applications.
Amendment No. 286, also spoken to by the noble Baroness, would impose on the agency the current duty on the NRA to review discharge consents. We have specifically proposed that this should become a power, so that the agency could perform such reviews when it considers such action to he warranted in the light of its responsibilities for river management and pollution control. We remain of the view that it is preferable for the agency to be able to set its own priorities rather than be required to undertake reviews, which in many cases will be unnecessary.
Amendment No. 287 specifies the minimum period for review of consents as two years. We have proposed a minimum period of four years—which, as regards the majority of consents, has in practice been the minimum—with the aim of enhancing stability for dischargers, allowing them greater security in investment planning and potentially reducing the cost of that investment as well as administrative costs. The Secretary of State does, of course, retain the power to direct the agency to review a discharge consent at any time.
544
With those reassurances, I hope that the noble Lord and the noble Baroness, Lady Hilton, will feel able to withdraw their amendments.
Lord Moran: My Lords, I am grateful to the Minister for his reply. I should like to study carefully what he said about Amendment No. 281, I am sorry that he is not prepared to shift his ground on Amendment No. 287. I shall study carefully in Hansard what he said. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 282 not moved.]
11.45 p.m.
Viscount Mills Viscount Mills moved Amendment No. 282A:
Page 227, line 27, at end insert:
("() In section 110 of that Act (applications for consents and approvals under section 109) there shall be inserted at the end—
"() An Order made by Ministers under subsection (1) above may provide for different fees to be payable according to—

(a) the description of the consented activity in question;

(b) the scale of the consented activity in question;

and may make different provision for different cases, including different provision in relation to different persons, circumstances or localities.".").
The noble Viscount said: My Lords, in Committee I moved an amendment which proposed that the agency would be able to charge for pre-application advice relating to land drainage consents. In his response, the Minister did not accept my amendment but, in relation to the cost of processing land drainage consents, indicated that there is already a provision in both the Land Drainage Act and the Water Resources Act to specify by order sums other than the sum of £50 which is currently charged. I also pointed out that a scale of charges might be appropriate, given the wide variation in the amount of work involved. The example I gave was a comparison between the introduction of a few rocks to provide a habitat for fish and a major barrage scheme. However, I have been advised that the introduction of a scale of charges would not be possible under the existing legislation. Therefore, this amendment seeks to introduce a very basic charging scheme which would get round the problem.
As I explained in Committee, such a scheme would be more consistent with other charging schemes within the Bill as well as being fairer, both to the agency and its customers. I accept that the drafting of the amendment may be technically incorrect but I hope that my noble friend the Minister will at least accept the principle of the amendment. I beg to move.
Earl Howe: My Lords, I am grateful to my noble friend for introducing this amendment. Legal advice is that it would probably not be possible to prescribe a scale of fees for drainage consents under existing provisions in the Water Resources Act 1991 and the Land Drainage Act 1991. The amendment deals only with fees chargeable by the agency under the Water Resources Act, but we believe that further consideration should be given to whether amendments to both Acts could be introduced to provide for scales of fees—as the agency will have powers under both—and the precise form of words. I hope, therefore, that my noble friend

545
will feel comfortable in withdrawing his amendment at this stage. We need to look at the matter further and with due care.
Viscount Mills: My Lords, I thank my noble friend for that response which I find encouraging. I am very happy to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Speaker (Lord Brougham and Vaux): My Lords, in calling Amendment No. 283 I must remind the House that should it be agreed to, I cannot call Amendment No. 284.
Lord Moran Lord Moran moved Amendment No. 283:
Page 230, leave out from beginning of line 44 to end of line 31 on page 232.
The noble Lord said: My Lords, the Government are proposing to add a new Section 191B to the Water Resources Act. The new clause would provide a procedure whereby an individual or business could object to information being placed on public registers set up under the Water Resources Act on the grounds of commercial confidentiality. Public registers were first set up under the Control of Pollution Act 1974, although they did not actually come into existence until 1985. Since that time they have operated as an efficient source of environmental information.
There has, to the best of my knowledge, been no prejudice to any business as a result of inclusion of any information on registers. If that is correct, one might ask what need there is to set up the regime proposed in new Section 191B. I do not believe that the regime is necessary. Moreover, the decision as to whether information should be kept off the register will be in the hands of the agency, subject to regulations issued by the Secretary of State. Those who may be affected by the exclusion of information from the registers have, as I see it, no opportunity to make any representations of their own. I beg to move.
Baroness Hilton of Eggardon: My Lords, I speak to Amendment No. 284, which is grouped with Amendment No. 283, which seeks to cover exactly the same area of concern as the amendment moved by the noble Lord, Lord Moran. Discharges to waters are genuine matters of public concern and should be in the public domain. This amendment seeks to remove the exemption on the grounds of commercial confidentiality and to retain the release or escape of substances into rivers within the public domain so that people know what has happened to water and rivers. There is no excuse for retaining secrecy on a matter of genuine public concern and which should be in the public domain.
Viscount Ullswater: My Lords, as I said in Committee, I fully appreciate the concerns which lie behind these amendments. Of course, I agree that the public should have easy access to environmental information, including that held by the agencies, and that exclusions from environmental registers should be kept to the absolute minimum. But I do not think that it is right to remove the opportunity for exclusion on the grounds of genuine commercial confidentiality.
546
Amendment No. 283 moved by the noble Lord, Lord Moran, seeks to delete from the Water Resources Act 1991 the new Section 191B. The effect of this would be that no information could be excluded from a water discharge register on grounds of commercial confidentiality. I sympathise with the noble Lord's motives in wishing to ensure that all the relevant information about discharges should be available for public scrutiny. But the commercial needs of industry must also be taken into account. There are cases in which a company's business would be prejudiced if certain information were made public. These new provisions are based on similar provisions in other legislation; for example, Section 22 of the Environmental Protection Act 1990. They thus help achieve consistency with other regimes under which the agencies will be operating.
Amendment No. 284, spoken to by the noble Baroness, Lady Hilton, makes another attempt to limit the exclusion for commercial confidentiality in the disclosure of public records. As I said, I can understand her concern. However, if all emissions were required to be declared, a company's business competitors might be able to use these details to obtain complex information about specific processes being carried on. We are setting up the agencies to regulate environmental pollution, not to cause unnecessary damage to legitimate business interests.
The noble Baroness, Lady Hilton, herself accepts that trade secrets must be excluded from public registers. This is, in fact, the effect of the provision as it stands. Information is considered to be commercially confidential only if its being included in the register
"would prejudice to an unreasonable degree"
the relevant commercial interests. The new Section 191B of the Water Resources Act 1991 will thus be brought into line with Section 22 of the Environmental Protection Act 1990. In practice, this should mean that the sort of information which will be excluded is the restricted type which I think the noble Baroness has in mind when she refers to "trade secrets".
It is clear from decisions which have been taken by the Secretary of State on appeals under Section 22(5) of the Environmental Protection Act 1990 that the concept
"prejudice to an unreasonable degree the commercial interests"
is a very rigorous test which is not satisfied by every assertion of commercial confidentiality. I would add that the Secretary of State may direct the agency that certain specific information is, in the public interest, to be included in registers, notwithstanding that the information may be commercially confidential.
I hope that, with these reassurances, the noble Lord and the noble Baroness will feel able to withdraw their amendments.
Lord Moran: My Lords, I am grateful to the Minister for his reply. I quite understand that the Government wish to be fair to the firms concerned who feel that their commercial confidentiality is important, but in doing so they may be unfair to those who may be affected by the fact that the information will not be publicly available. I shall think about what the Minister said. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 284 not moved.]
[Amendments Nos. 285 to 287 not moved.]
Viscount Ullswater Viscount Ullswater moved Amendment No. 288:
Page 247, line 30, at end insert:
("Subordinate legislation and local statutory provisions
.—(1) In any subordinate legislation or local statutory provisions, for any reference (however framed) to the National Rivers Authority, and for any reference which falls to be construed as such a reference, there shall be substituted a reference to the Agency.
(2) In any subordinate legislation, for any reference (however framed) to a relevant inspector, and for any reference which falls to be construed as such a reference, there shall be substituted a reference to the appropriate Agency.
(3) The provisions of this paragraph are subject to the other provisions of this Act and to any provision made under or by virtue of this Act.
(4) In this paragraph—
"the appropriate Agency" means—

(a) in relation to England and Wales, the Agency;

(b) in relation to Scotland, SEPA;

"local statutory provision" means—

(a) a provision of a local Act (including an Act confirming a provisional order);

(b) a provision of so much of any public general Act as has effect with respect to particular persons or works or with respect to particular provisions falling within any paragraph of this definition;

(c) a provision of an instrument made under any provision falling within paragraph (a) or (b) above;

(d) a provision of any other instrument which is in the nature of a local enactment;

"relevant inspector" means—

(i) the chief inspector for England and Wales constituted under section 16(3) of the Environmental Protection Act 1990;

(ii) the chief inspector for Scotland constituted under section 16(3) of that Act;

(iii) the chief inspector for England and Wales appointed under section 4(2) (a) of the Radioactive Substances Act 1993;

(iv) the chief inspector for Scotland appointed under section 4(2) (b) of that Act;

(v) the chief, or any other, inspector, within the meaning of the Alkali, &c., Works Regulation Act 1906;

(vi) an inspector appointed under section 19 of the Health and Safety at Work etc. Act 1974 by the Secretary of State in his capacity as the enforcing authority responsible for the enforcement of the Alkali, &c., Works Regulation Act 1906 or section 5 of the said Act of 1974;

"subordinate legislation" has the same meaning as in the Interpretation Act 1978.").
The noble Viscount said: My Lords, I spoke to this amendment with Amendment No. 257. I beg to move.
On Question, amendment agreed to.
Schedule 19 [Transitional and transitory provisions and savings]:
Viscount Ullswater Viscount Ullswater moved Amendment No. 289:
Page 248, leave out lines 12 to 17 and insert:
("Charging schemes
.—(1) Without prejudice to section 52 of this Act, any charging scheme—

(a) which relates to any transferred functions,

(b) which was made before the transfer date, and

(c) which is in force immediately before that date or would (apart from this Act) have come into force at any time after that date,

shall, subject to the provisions of section 39 of this Act, have effect on and after the transfer date, with any necessary modifications, and for the remainder of the period for which the charging scheme would have been in force apart from any repeal made by this Act, as a scheme made under that section by the transferee in accordance with section 40 of this Act.
(2) Any costs or expenses incurred before the transfer date by any person in carrying out functions transferred to a new Agency by or under this Act may be treated for the purposes of subsections (3) and (4) of section 40 of this Act as costs or expenses incurred by that new Agency in carrying out those functions.
(3) In this paragraph—
"charging scheme" means a scheme specifying, or providing for the determination of, any fees or charges;
"new Agency" means the Agency or SEPA;
"transferred functions" means any functions which, by virtue of any provision made by or under this Act, become functions of a new Agency and "the transferee" means the new Agency whose functions they so become.").
The noble Viscount said: My Lords, I spoke to this amendment with Amendment No. 104. I beg to move.
On Question, amendment agreed to.
Viscount Ullswater Viscount Ullswater moved Amendment No. 289A:
Page 248, line 50, at end insert:
("Membership of Welsh National Park authorities
.—(1) Where a body corporate constituted as a Welsh National Park planning board becomes, or has become, the National Park authority in relation to the National Park in question by virtue of an order under section 60 of this Act made by virtue of section (National Park authorities in Wales)(1) of this Act, paragraph 2 of Schedule 7 to this Act shall, in its application in relation to that National Park authority at any time before 31st March 1997, have effect with the following modifications.
(2) In sub-paragraph (5) —

(a) in paragraph (a), after the word "council" there shall be inserted the words "or, if earlier, until the council which appointed him as a local authority member of that authority is excluded from the councils by whom such members of that authority are to be appointed"; and

(b) in paragraph (b), after the word "cessation" there shall be inserted the words "or exclusion".

(3) In sub-paragraph (6), after the words "Sub-paragraph (5) (a) above" there shall be inserted the words ", so far as relating to cessation of membership of a council,".
(4) In this paragraph, "Welsh National Park planning board" means a National Park planning board, as defined in section (National Park authorities in Wales) of this Act, for the area of a National Park in Wales.").
The noble Viscount said: My Lords, I spoke to this amendment with Amendment No. 183.
On Question, amendment agreed to.
Viscount Ullswater Viscount Ullswater moved Amendments Nos. 290 and 291:
Page 250, line 21, after ("Act") insert (", in its application to England and Wales,").
Page 250, leave out line 30 and insert:
(" . If, at the transfer date, the content of the strategy required by section 44B of that Act has not been finally determined, any plan or modification under section 50 of that Act, in its application to Scotland, whose content has been finally determined before that date shall continue in force until the contents of the strategy are finally determined, notwithstanding the repeal by this Act of that section.").
The noble Viscount said: My Lords, these are technical amendments. I beg to move.
On Question, amendments agreed to.
Schedule 20 [Repeals and revocations]:
Viscount Ullswater Viscount Ullswater moved Amendments Nos. 292 and 293:
Page 256, line 32, column 3, at end insert:
("Section 31D.")
Page 257, line 40, column 3, at end insert:
("Section 91(5) (a).")
The noble Viscount said: My Lords, my noble friend Lord Lindsay spoke to these amendments with Amendment No. 259. I beg to move.
On Question, amendments agreed to.
Viscount Ullswater Viscount Ullswater moved Amendments No. 294 to 309A:
Page 258, line 49, column 3, at end insert ("In section 103(2) (c), the word "and" immediately preceding sub-paragraph (ii).").
Page 259, line 9, column 3, leave out ("17(3)") and insert ("17, in subsection (3),").
Page 259, line 10, column 3, at beginning insert (""the").
Page 259, line 12, column 3, at end insert ("and, in subsection (4), in the definition of "a Welsh planning board", paragraph (b) and the word "or" immediately preceding it").
Page 259, line 13, column 3, leave out ("4(3)") and insert ("4").
Page 259, line 14, column 3, after ("3,") insert ("in sub-paragraph (3),").
Page 259, line 14, column 3, after ("words") insert (""the").
Page 259, line 16, column 3, at end insert ("and, in sub-paragraph (4), in the definition of "a Welsh planning board", paragraph (b) and the word "or" immediately preceding it").
Page 260, line 21, column 3, leave out ("573(1),") and insert ("573, in subsection (1),").
Page 260, line 25, column 3, at end insert ("and, in subsection (IA), paragraph (b) and the word "or" immediately preceding it").
Page 260, line 35, column 3, leave out ("and").
Page 260, line 37, column 3, at end insert ("and a special planning board constituted under paragraph 3A of Schedule 17 to the Local Government Act 1972").
Page 260, line 37, at end insert:

("1988 c. 41.

The Local Government Finance Act 1988.

In section 74(7), paragraph (b) and the word "and" immediately preceding it.").

Page 261, line 5, column 3, after ("1") insert ("in paragraph 2(1) (b), the word "(m)" and").
Page 261, line 7, column 3, leave out ("1(5)") and insert ("1, in subsection (5)").
Page 261, line 13, column 3, at end insert ("and, in subsection (6), the words "section 4(3) and".").
Page 263, line 49, column 3, at end insert:

("In section 79, in subsection (7), in the definition of "local authority", the word "and" following paragraph (b).").

The noble Viscount said: My Lords, I spoke to Amendments Nos. 294 to 309 with Amendment No. 195 and my noble friend Lord Lindsay spoke to Amendment No. 309A with Amendment No. 250A. I beg to move.
On Question, amendments agreed to.
[Amendment No. 309B not moved.]
Viscount Ullswater Viscount Ullswater moved Amendments Nos. 310 to 314:
Page 266, line 16, column 3, at beginning insert ("Section 35(5) (a) and (b).").
Page 267, line 46, column 3, at beginning insert:

("Section 19(2) and (3). Section 59(15). In Schedule 5, in Part III, paragraph 10. In Schedule 6, paragraphs 3 to 12, 18, 23, 24(1), 28 and 29.").

Page 267, line 47, column 3, at end insert:

("In Schedule 15, paragraph 64(b). In Schedule 16, paragraph 65(5) and (9). In Schedule 17, paragraph 13.").

Page 267, line 55, column 3, after ("(4)") insert (",(8)").
Page 268, line 14, column 3, at end insert ("In Schedule 10, paragraph 22(1).").
The noble Viscount said: My Lords, I spoke to Amendments Nos. 310 to 312 with Amendment No. 195, to Amendment No. 313 with Amendment No. 259 and to Amendment No. 314 with Amendment No. 185. I beg to move.
On Question, amendments agreed to.
House adjourned at three minutes before midnight.