Environment Bill [H.L.]

HL Deb 09 March 1995 vol 562 cc478-550

Consideration of amendments on Report resumed. Clause 79 [Hedgerows]:

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 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.

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 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 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.

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 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 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 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 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 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 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 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 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 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 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 moved Amendment No. 239:

Page 87, line 22, at end insert:

("() Before making any regulations under this section the appropriate Ministers shall consult—

1. (a) such bodies appearing to them to be representative of persons whose business interests are likely to be affected by the proposed regulations,
2. (b) such bodies appearing to them to be representative of the interests of owners or occupiers of land,
3. (c) such bodies appearing to them to be representative of the interests of local authorities,
4. (d) such bodies whose statutory functions include the provision to Ministers of the Crown of advice concerning matters relating to environmental conservation, and
5. (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 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 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 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 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 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 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 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 moved Amendment No. 240:

Page 87, line 27, at end insert:

(""environmental conservation" means conservation—

1. (a) of the natural beauty or amenity, or flora or fauna, of England or Wales; or
2. (b) of features of archaeological or historic interest in England or Wales;

local authoritymeans

1. (a) the council of a county, county borough, district, London borough, parish or community;
2. (b) the Common Council of the City of London;
3. (c) the Council of the Isles of Scilly;").

On Question, amendment agreed to.

[Amendment No. 240A not moved.]

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 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 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—

1. (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
2. (b) the promotion of the enjoyment of the countryside by the public; or
3. (c) the protection of buildings or other objects of archaeological, architectural, cultural or historic interest; or
4. (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—

1. (a) as respects England, the Minister of Agriculture, Fisheries and Food;
2. (b) as respects Wales, the Secretary of State;
3. (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 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 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 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 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 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". 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 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 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 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—

1. (a) making any legislation to which this section applies (other than a modification of any such legislation);
2. (b) modifying any such legislation in a way which changes the purpose of the legislation in question; or
3. (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—

1. (a) the Countryside Council for Wales;
2. (b) CADW.

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

1. (a) any order under section 18 of the Agriculture Act 1986 (orders establishing environmentally sensitive areas);
2. (b) any regulations under section 80 above;
3. (c) any statutory instrument which concerns the management of land and whose primary purpose is the promotion of—
1. (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
2. (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 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 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 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 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 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 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 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 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 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 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 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 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—

1. (a) carries out any process or activity in connection with which he holds or is required to hold an environmental licence; and
2. (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—

1. (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

1. (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—

1. (a) the release into any environmental medium of any substances from the process or activity in question; and
2. (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 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 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.

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 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 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 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 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.

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 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 moved Amendment No. 253A:

After Clause 95, insert the following new clause,

("Application for waste management licence: advertisement

.—(1) Subject to subsection (4), below—

1. (a) an application to an enforcing authority for—
1. (i) waste management licence under Part II of the Environmental Protection Act 1990; or
2. (ii) an authorisation under the Radioactive Substances Act 1993; or
3. (iii) a variation of an existing waste management licence or authorisation; and
2. (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—

1. (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

1. (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—

1. (a) when the advertisement is to be placed;
2. (b) for what period or periods;
3. (c) in what publication or publications circulating in—
1. (i) the location where the licensed or authorised activity would occur; and
2. (ii) the location which is likely to be affected by the activity;
4. (d) what information the advertisement shall contain regarding—
1. (i) the application;
2. (ii) the applicant;
3. (iii) the enforcing authority or the party considering the appeal;
4. (iv) the availability of further information;
5. (v) the matters referred to in subsection (2) above; and
6. (vi) the timetable for dealing with the application or appeal and in particular the period allowed for making representations; and
5. (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 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 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 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 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—

1. (a) in the case of a body corporate, be served on the secretary or clerk of that body;
2. (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—

1. (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;

1. (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—

1. (a) if the name or address of such a person cannot after reasonable inquiry be ascertained, or
2. (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 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 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)—

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

1. (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—

1. (a) it would be contrary to the interests of national security; or
2. (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

1. (a) on summary conviction, to imprisonment for a term not exceeding three months or to a fine not exceeding £20,000 or to both;
2. (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—

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

1. (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
2. (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—

1. (i) that the holder of the licence gave details of the person whose consent is required in accordance with subsection (4B) (b) below,
2. (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,
3. (iii) that the applicant has sought to negotiate with the person whose consent is required and that person has been unreasonable, and
4. (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—

1. (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
2. (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 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 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 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, 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.

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, 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 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.

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, 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 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)—

1. (a) after the words "In this section", there shall be inserted "(a)";
2. (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.

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 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 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 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 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—

1. (a) which contains an order under section 78H(3) above, or
2. (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 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)—

1. (i) for the words "a river purification authority" there shall be substituted the words "SEPA"; and
2. (ii) in paragraph (a), after the word "on" there shall be inserted the words "SEPA or"; and

(b) in subsection (9)—

1. (i) for the words "a river purification authority or" there shall be substituted the words "SEPA or a"; and
2. (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 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—

1. (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
2. (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 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 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.

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 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—

1. (a) the description of the consented activity in question;
2. (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 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 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.

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 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—

1. (a) in relation to England and Wales, the Agency;
2. (b) in relation to Scotland, SEPA;

local statutory provision" means—

1. (a) a provision of a local Act (including an Act confirming a provisional order);
2. (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;
3. (c) a provision of an instrument made under any provision falling within paragraph (a) or (b) above;
4. (d) a provision of any other instrument which is in the nature of a local enactment;

relevant inspector" means—

1. (i) the chief inspector for England and Wales constituted under section 16(3) of the Environmental Protection Act 1990;
2. (ii) the chief inspector for Scotland constituted under section 16(3) of that Act;
3. (iii) the chief inspector for England and Wales appointed under section 4(2) (a) of the Radioactive Substances Act 1993;
4. (iv) the chief inspector for Scotland appointed under section 4(2) (b) of that Act;
5. (v) the chief, or any other, inspector, within the meaning of the Alkali, &c., Works Regulation Act 1906;
6. (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 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—

1. (a) which relates to any transferred functions,
2. (b) which was made before the transfer date, and
3. (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 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) —

1. (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
2. (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 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 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 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 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.