Lords Sitting of 20 March 1995

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by
the Lord Bishop of Chelmsford.

Ministerial Salaries
Lord McCarthy Lord McCarthy asked Her Majesty's Government:
What criteria they employ to decide the appropriate levels of pay for Ministers and the differentials between the pay of the Prime Minister and other members of the Cabinet.
The Minister of State, Department of Social Security (Lord Mackay of Ardbrecknish): My Lords, pay levels and differentials reflect the Government's response to recommendations made from time to time by the Top Salaries Review Body (now the Senior Salaries Review Body) and the additional cumulative effective of pay increases, Under the present arrangements pay increases for Ministers reflect pay awards in the Civil Service.
Lord McCarthy: My Lords, I thank the Minister for that Answer. Can he tell me how the Government explain the enormous differences in the pay differentials between Ministers since 1979? If the noble Lord consults the salary tables in the Civil Service Year Book, for example, he will find that there are some Ministers who have had increases of 500 per cent., others 400 per cent, or 300 per cent. and the Prime Minister about 150 per cent. Is the Minister aware that there are six Ministers of State who now have higher pay (a 350 per cent. increase) than their bosses in the Cabinet who are Secretaries of State? Furthermore, the Solicitor General for Scotland—
Noble Lords: Speech!
Lord McCarthy: My Lords, I am asking the Minister to explain all this. In 1979 the Solicitor General for Scotland had 25 per cent. less than the Solicitor General in England, but he now has 25 per cent. more. Can the Minister say whether that is because the cost of living is higher in Scotland? Or is the rise given to the Prime Minister in reflection of the fact that it is easy to get Prime Ministers? Can the Minister say whether it is a question of changes in responsibilities? What are the reasons for these differences?
Lord Mackay of Ardbrecknish: My Lords, I indicated in my original Answer that the Top Salaries Review Body plays its part. I suspect that the examples quoted by the noble Lord are taken from situations where, at a certain stage, the holder of the office is a Member of the House of Commons where he is entitled to part of his parliamentary salary and, at another stage,
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a Member of this House where he is not entitled to a parliamentary salary. Therefore, the total pay of Ministers differs.
Lord Boyd-Carpenter: My Lords, is my noble friend aware that, on the whole, Ministers are grossly underpaid and, if he will allow me to say so, particularly the junior Ministers in this House?
Lord Mackay of Ardbrecknish: My Lords, I am delighted to be able to agree with my noble friend on that. As I seem to repeatedly come to the Dispatch Box I feel that personally a little more than most.
Lord Avebury: My Lords, when Ministers devolve part of their responsibility onto agencies, or privatise sections of their department, why does their pay remain the same? In particular, can the Minister explain why the Minister in charge of prisons did not have a reduction in his salary when all his responsibilities were transferred to Mr. Lewis?
Lord Mackay of Ardbrecknish: My Lords, I almost feel like saying to the noble Lord that I refer him to the reply I gave him on the last occasion he raised this question. The situation is quite simply that Ministers are responsible for the policy arrangements of the department and that remains with them. They are also responsible for the overall way in which the policy is carried out; and they are answerable to Parliament. That is the situation and it remains so. That is why my right honourable friend the Home Secretary is well worth the money he is paid.
Lord Peyton of Yeovil: My Lords, does my noble friend believe it appropriate to thank the noble Lord, Lord McCarthy, for the immense amount of information which he has communicated to your Lordships? Perhaps my noble friend will also make it clear that he does not share the noble Lord's conclusions and that, in fact, Ministers are very meanly paid. Does he agree that there may be disastrous results in the long run?
Lord Mackay of Ardbrecknish: My Lords, I agree with my noble friend that the noble Lord, Lord McCarthy, gave us some interesting information. He makes a very valid point in that both Houses of Parliament have to be careful as regards the inter-relation between what they pay Ministers and what fetters are put on Ministers' ability to make a living after they cease to be Ministers.
Lord Jenkins of Putney: My Lords, is it not the case that some elements of productivity may be involved in this matter? Can the Minister say what it is that Ministers are required to produce which will safeguard the element of productivity'? In the event of negative productivity, would it not be possible to introduce some degree of negative increase into the arrangements so that the Minister whose production is nil perhaps receives a negative rise?
Lord Mackay of Ardbrecknish: My Lords, the last time this matter was raised by the noble Lord, Lord McCarthy, we discussed this particular aspect. I say to the noble Lord—as I believe I said during that exchange—that it depends how the matter is judged.

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Some people judge a Minister as having succeeded if he passes less legislation, but others believe in more legislation. I suspect that in this case beauty lies in the eye of the beholder.
Lord Pearson of Rannoch: My Lords, does my noble friend have any idea whether Mr. Neil Kinnock is better off financially since he failed to become Prime Minister and became instead a Euro Commissioner, and if so, by how much? Does my noble friend believe that he is more usefully employed there than he would have been here?
Lord Mackay of Ardbrecknish: My Lords, I certainly believe that the country is probably better off that Mr. Kinnock is not Prime Minister. As regards the question, Mr. Kinnock's bank manager must be very thankful that he is not Prime Minister but a European Commissioner because my right honourable friend the Prime Minister is paid £82,000, including his parliamentary salary. Mr. Kinnock, as an EC Commissioner, and depending on the Belgian franc and sterling exchange rate, is paid about £140,000 according to the last calculation I made. Therefore, Mr. Kinnock is clearly much better off being an EC Commissioner than he would have been as Prime Minister.
Lord Cledwyn of Penrhos: My Lords, against the background of this informative exchange, does the Minister agree that the people who are the worst treated in all this are members of the Opposition Front Bench in this House?
Lord Mackay of Ardbrecknish: My Lords, I suppose that my heart is now expected to bleed. However, having spent days on the Pensions Bill, I am not entirely certain whether I am an independent judge. Of course, members of the Opposition Front Bench work extremely hard—and long may they continue to work hard in their current positions.
Lord Dormand of Easington: My Lords, is the Minister aware that the criteria that he gave to my noble friend Lord McCarthy do not apply to the particular anomaly whereby five Ministers of State who are not in the Cabinet receive higher salaries than their Secretaries of State who are in the Cabinet? Is not that a most peculiar state of affairs, and should not something be done about it?
Lord Mackay of Ardbrecknish: My Lords, I am having some trouble with this. I am looking down the list but I cannot instantly see any Ministers of State who are paid more than their Secretaries of State. As I said, however, one has to take the parliamentary salary component into account. It is undoubtedly the case that Law Officers are paid on a different basis from others. Although I may turn out to be wrong, at a quick glance I cannot see any junior Minister who receives more than the £67,819 that is received by Cabinet Ministers.
Lord McCarthy: My Lords, I shall send the Minister the figures. I am not seeking to say that Ministers are overpaid; I am seeking to ask why they are paid what they are paid. Given that the Government insist that
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everybody else in the public sector and the voluntary sector explains why they are paid what they are paid, is it not reasonable to expect the Government to do a bit better than the statements which the Minister has given us this afternoon?
Lord Mackay of Ardbrecknish: My Lords, I seem to have some difficulty getting through to the noble Lord. The Top Salaries Review Body, and now its successor, looks into these matters. I should have thought that that was a perfectly proper way for such things to be conducted. I have explained how those salaries and differentials have come about. If at any stage in the future the noble Lord thinks that the successor to the Top Salaries Review Body should examine those differentials and increase them or the salaries, I am sure that he would happily be prepared to send a paper to that body.
Lord McCarthy: My Lords, will the Minister take it from me that the report does not mention Ministers' salaries.at all? It never mentions them.
Lord Hailsham of Saint Marylebone: Next Question! That has taken nine minutes.

Life Prisoners
2.46 p.m.
The Earl of Longford The Earl of Longford asked Her Majesty's Government:
Whether the Home Secretary has the legal right to tell a prisoner that he or she will never come out of prison.
The Minister of State, Home Office (Baroness Blatch): My Lords, the detention for life of a person sentenced for murder is sanctioned by the court which imposed the sentence. Section 35(2) of the Criminal Justice Act 1991 allows the Home Secretary to release a mandatory life sentence prisoner if recommended to do so by the Parole Board and having consulted the Lord Chief Justice and, if available, the trial judge. He is not obliged to exercise this power.
The Earl of Longford: My Lords, the noble Baroness is far too intelligent not to be aware that that is a nonsensical Answer. She must be aware of that—
Noble Lords: No!
The Earl of Longford: My Lords, it is no good noble Lords bleating about it. It did not begin to answer the Question. I am asking the Minister whether the present Home Secretary, in defiance of all previous experience, has told some prisoners that they will never come out.
Baroness Blatch: My Lords, my original Answer was factually correct. I have said that the Home Secretary is not obliged in law to tell a prisoner that life means life. However, in view of the recent Doody judgment, of which the noble Earl will be well aware, the Home Secretary has taken it upon himself to put

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procedures in place so that those sentenced to life under the mandatory schemes are told what that will mean in practice.
Lord Hailsham of Saint Marylebone: My Lords, in view of the fact that the unexpected always happens, is it not more a question of predictability or otherwise rather than a question of legal right, as the noble Earl, Lord Longford, nonsensically suggests?
Baroness Blatch: My Lords, I note what my noble and learned friend says. But there is a distinction between what my right honourable friend the Home Secretary is obliged to do under the law and what he has undertaken to do, which is to make known to all prisoners that which was previously done behind closed doors. I refer to the setting of a tariff. The Home Secretary has willingly undertaken to inform all prisoners who are subject to a mandatory life sentence what that tariff is and what it was historically.
Lord Campbell of Alloway: My Lords, surely the Home Secretary has no power to bind his successor, whatever he may say.
Baroness Blatch: My Lords, my noble friend is absolutely right. The Home Secretary has no power to bind his successor.
Lord Monkswell: My Lords, can the Minister advise the House which other countries, apart from the former Soviet Union, insist when a life sentence is given thatit should mean for life?
Baroness Blatch: My Lords, I have no idea. I cannot answer that question. What I can say is that when a life sentence is given by the courts, it means life unless in the intervening period a tariff is set which means that the sentence should be less than life. Even then, it is only subject to advice which is given to my right honourable friend the Secretary of State from the Parole Board and the judiciary that release arrangements can be made.
Lord McIntosh of Haringey: My Lords, the Minister's answers have been factually correct, of course. But does she recognise the thrust behind the Question asked by my noble friend Lord Longford, that in answer to a Written Question that I put down we have been informed that 15 prisoners have been told that their life tariff is whole life; in other words, they will never be released? That is the real issue. Is the Minister satisfied that our prison system requires people to be told that there is no hope whatsoever of their release from prison?
Baroness Blatch: My Lords, those given mandatory life sentences are accused of murder with an intent to cause serious harm. People have died, and that is why those convicted are given mandatory life sentences. My right honourable friend has now undertaken to inform prisoners what that means in practice. Historically, my right honourable friend's predecessors, after considering all the facts, have said that life should mean life. My right honourable friend has undertaken to make all that historical information public to the prisoners. If the prisoners wish, they may make representations to my
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right honourable friend who will take them into account, together with advice from the judiciary. He may come to the same conclusion or he may modify his conclusion in the light of all the evidence presented to him.
Lord Dean of Beswick: My Lords, is the Minister aware that if some of the people who have committed some of the worst and most appalling crimes in our history were released into the community there would be outrage in the community?
Baroness Blatch: My Lords, it comforts me to note that that remark came from the other side of the House. We become close to these matters in this House. The general public would be outraged if those who had committed the worst crimes in history were allowed to go free and if their release were not taken seriously by my right honourable friend the Secretary of State.
The Earl of Longford: My Lords, the Minister is a woman of conscience. Can she reconcile with her conscience the telling to any human being that, however good his or her conduct in prison, he or she will never come out and will die in prison? Can she reconcile that with her Christian conscience?
Baroness Blatch: My Lords, I have no difficulty in reconciling that with my conscience. I have to think of all those people who were given no opportunity to have their release considered because they were murdered in the most dreadful, loathsome way by many of the people who now seek to go free. The public would be outraged if that were done carelessly.
Lord Stoddart of Swindon: My Lords, does the Minister believe that those who advocate the early release of murderers can reconcile with their own consciences any act carried out by the person so released against another person which involves the loss of that other person's life?
Baroness Blatch: My Lords, that is absolutely right. Again, I believe that the whole House would understand the statement made by the noble Lord.
Baroness Farrington of Ribbleton: My Lords, does the Minister agree that occasionally it may be less than wise for such a decision to be taken by an elected Home Secretary rather than by someone who views the matter as a lawyer in a legal context? Does she agree also that there could be circumstances in which the judgment of someone who is elected, as is the holder of the office of Home Secretary, may be influenced by matters that are not strictly relevant to a proper, due legal consideration?
Baroness Blatch: My Lords, I must take issue with the noble Baroness. The criteria by which such decisions are made are laid down, and the judiciary, whose advice will form part of that given to my right honourable friend, has to concern itself with deterrence and retribution. My right honourable friend, who is accountable to Parliament for these matters, has to consider the risk to the public and the public interest.

Culpable Homicide
2.54 p.m.
Lord Campbell of Alloway Lord Campbell of Alloway asked Her Majesty's Government:
Whether they intend to abolish the year and a day rule in relation to homicide, subject to safeguards such as those proposed in Law Commission Paper 230 of 21st February 1995.
Baroness Blatch: My Lords, we welcome in principle the recommendation in the Law Commission report to abolish the year and a day rule. We are considering the safeguards it proposes. The Home Affairs Select Committee is also examining the rule at present, and we shall reach a final view when we see its conclusions.
Lord Campbell of Alloway: My Lords, I thank my noble friend the Minister for her ready acceptance of the abolition of the rule of general application to culpable homicide which, when introduced in 1278 by the Statute of Gloucester, only set a time limit on private prosecutions for murder, and which now, with the advance of medical science, works manifest injustice. In view of the public concern referred to in the report, as expressed by the press, in the writings of the law dons, and in the opinions of the Lord Chief Justice and other members of the judiciary, when will the Government introduce a Homicide Bill, as proposed by the Law Commission, with safeguards against abuse of process?
Baroness Blatch: My Lords, again I can confirm that we are sympathetic to the abolition. We are considering carefully the safeguards suggested by the Law Commission. As I have already said, it would be discourteous of us to say anything in advance of the report of the Home Affairs Select Committee. I cannot say if and when a Bill will be introduced, because that must be a matter for the usual channels.
Lord McIntosh of Haringey: My Lords, in considering when legislation might be introduced, would it help the Minister to learn that we on these Benches would very much welcome such a Bill and would give it our support?
Baroness Blatch: My Lords, I am grateful for those comments. I understand that that is the case.
Earl Russell: My Lords, while I welcome the noble Baroness's first Answer and accept her second about the usual channels, can she say how many Law Commission Bills are awaiting implementation and whether it is an objective of government policy to reduce that number?
Baroness Blatch: My Lords, I am seized of the importance of that question. A great effort is being made now to address that issue. We wish to get on with it, because many Bills are non-contentious and we want them to make progress.
Lord Campbell of Alloway: My Lords, I thank the Opposition parties for their support. In view of what has
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been said, if the Government find it difficult to find time, will they consider with favour the introduction of a Private Member's Bill in your Lordships' House?
Baroness Blatch: My Lords, I note what my noble friend is saying, but I must say first things first. It is important to address the principle of abolition after the report of the Home Affairs Select Committee, and also to decide and determine what safeguards would need to be put in place. Two have been suggested. We regard that point as important, so it must be thought through. We shall have to wait to see whether it should be a matter for a Private Member's Bill or for the Government.

Organophosphorus Sheep Dips
2.57 p.m.
The Countess of Mar The Countess of Mar asked Her Majesty's Government:
When they expect to publish the results of the research conducted by the Institute of Occupational Health at the University of Birmingham, on behalf of the Health and Safety Executive, on organophosphorus sheep dips.
Lord Inglewood: My Lords, the results of the research belong to the Institute of Occupational Health, not to the Health and Safety Executive. That arrangement was made as an additional guarantee of the independence of the research in this very sensitive area.
The institute is currently having the results peer-reviewed to prevent incorrect or unclear information reaching the public domain, with a view to publishing the findings in an independent journal. Once it has done that, the HSE has its agreement to publish the full research report.
The Countess of Mar: My Lords, I am grateful to the noble Lord for that Answer. Is he aware that I am also grateful to him for keeping me as up to date on the subject as he possibly could by writing to me? Does he recall that on 23rd December he wrote to me saying that the Institute of Occupational Health was fast-tracking publication in a scientific journal and hoped to have it published by the end of January? In view of the fact that this research is so important—I entirely agree with the noble Lord on that matter—would not it be a good idea if just for once scientific privilege were forgone and for the Institute of Occupational Health to agree that it should be published? I was told a fortnight ago that, once the HSE received publications such as this on its desk, it expedited publication in its own journal; in other words, within three weeks of receipt. In this case that does not seem to be happening. Will the noble Lord explain why?
Lord Inglewood: My Lords, I thank the noble Countess for her kind remarks, As I explained in my Answer, the intellectual property in this important work rests with the Institute of Occupational Health. However, I am sure that all noble Lords will agree that it is important that the report is treated with the seriousness it deserves. In particular, it is important that

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the report is considered seriously in the scientific community. In order to achieve that, it is essential that the work is peer-reviewed and published in a well respected scientific journal.
If such findings leak out before publication, it is often the case—and I am advised that it is the case in this instance—that the respectable scientific journal will not publish. If such work is not published in this type of journal, its standing in the eyes of the scientific community is considerably eroded. It follows that its contribution to the important debate will be that much diminished.
It may be of interest to your Lordships that the Institute of Occupational Health has stated that it has considered the matter and believes that:
"If the results of a study were such that delay in publication would put at risk the health of those currently exposed, or would impair the chances of recovery from any possible effects of exposure, the institute would make every effort to ensure that those responsible for the control of exposure or the treatment of those individuals were informed as soon as possible. However, under the present circumstances, there is no reason to believe that delay in publication for a matter of weeks has any implications for the health of those previously or currently exposed or under treatment".
Lord Bruce of Donington: My Lords, irrespective of the issue of publication, will the Minister reassure the House that the Government are fully aware of the results of the research?
Lord Inglewood: My Lords, the matter is currently seized by the HSE, but it is not more widely available.
Baroness Turner of Camden: My Lords, how many foreign workers have been notified as suffering from the effects of contact with sheep dips? Will the Minister also say whether there have been any fatalities and what additional steps can be taken to institute further controls? I understand that there is a system of certification but that may be avoided in certain instances.
Lord Inglewood: My Lords, I am not in a position to give the figures for which the noble Baroness asked. However, I shall write to her. There is in place a complicated system for controlling the acquisition and use of the products. The Health and Safety Executive will review matters when it has thoroughly digested the implications of the report concerned.
Lord Pearson of Rannoch: My Lords, is the Minister worried about the delay which appears to have hit the report from the Veterinary Medicines Directorate, which was due to report last summer and which appears to have found a substantial increase in the number of farmers who believe that they have suffered from organophosphates, especially bearing in mind that the Veterinary Medicines Directorate is the body which licenses these products in the first place?
Lord Inglewood: My Lords, the delay to which my noble friend refers has been caused solely by the demand in carrying out the assessment and other work involved in considering the cases and preparing the
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report. Obviously, we want to see these matters made public as soon as possible but at the same time it is important that they are soundly based.
Earl Russell: My Lords, I agree with what the Minister said about peer review and I welcome his reference to a few weeks. However, is he aware that in the academic community there is considerable anxiety about the new research contract introduced in 1988 whereby publication is restricted without the prior consent of the Secretary of State? Does the Minister agree that changing that rule may protect the Government from a suspicion that might perhaps be unjustified?
Lord Inglewood: My Lords, I thank the noble Earl for his comments. We shall certainly bear them in mind.
The Countess of Mar: My Lords, is the Minister aware that every day I receive letters from OP sufferers who write that their doctors and their consultants do not understànd them? Is he further aware that I am anxious that the report should be published in order that credibility is given to such people? I know of a man in prison as a result of the mental effects of OPs and no one understands what the man is suffering. It is most important that the report is published.
Lord Inglewood: My Lords, the noble Countess is right in saying that it is important that the report is published. It will be published and we wish to publish it in a manner that will give it the greatest scientific credibility and that, in turn, will help doctors throughout the country to the greatest extent.

Environment Bill [H.L.]
3.5 p.m.
The Minister of State, Department of the Environment (Viscount Ullswater): My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales to acquaint the House that they, having been informed of the purport of the Environment Bill, have consented to place their prerogative and interest, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
I beg to move that this Bill be now read a third time.
On Question, Bill read a third time.
Clause 2 [Transfer of functions to the Agency]:
Baroness Hamwee Baroness Hamwee moved Amendment No. 1:
Page 3, leave out lines 7 to 15.
The noble Baroness said: My Lords, Amendment No. 1 deals with waste regulation and the transfer of functions to the new agencies. It is not, however, the wrecking amendment that it may appear. I have given the Minister notice of the issue that I wish to raise and the amendment gives me the opportunity to raise it.
On Report, when discussing the transfer of responsibilities, and in particular pollution and the relationship between the agencies and the local communities concerned about potential pollution, the Minister said:
"It has been suggested that under the agency there would be no scope for consideration of the concerns of local people regarding the potential impact on local amenity and possible pollution from a proposed waste management facility".
The Minister said that the conviction was puzzling and continued:
"The local planning authorities will continue to determine whether and where waste facilities are sited".—[Official Report, 2/3/95; col. 1618.]
He referred to the ability of local planning authorities to include appropriate conditions relating to local amenity.
In July last year, the Department of the Environment, in Planning Policy Guidance Note 23 on planning and pollution control, stated:
"The role of the planning system focuses on whether the development itself is an acceptable use of the land rather than the control of the processes or the substances. They should not seek to substitute their own judgment on pollution control issues for that of the bodies with relevant expertise and statutory responsibility for that control".
I therefore seek clarification from the Government. Will the scope for planning authorities be altered from that contained in PPG23, from which I have quoted, to include possible pollution, as the Minister appeared to imply? If that is not the case, how do the Government see local anxieties about pollution being addressed? I beg to move.
Viscount Ullswater: My Lords, Amendment No. 1 would prevent the transfer of the waste regulation functions of local authorities to the environment agency. This is an issue which the House has already considered in Committee and on Report, and your Lordships will therefore be aware of the importance which the Government attach to the inclusion of waste regulation within the functions of both agencies.
If the environment agency is to live up to its name, it needs to be responsible for all the major pollution control regimes. That is the only way that it can establish a multi-media approach to pollution control. The agency will provide better integration of functions. For instance, it will no longer be necessary to consult the NRA on every waste management licence application. The impact of waste facilities on water pollution will be able to be considered within a single integrated organisation. It will also enable waste regulation expertise to be pooled, and allow for specialist advice on, for instance, the hydrology and geology of sites, which some smaller waste regulation authorities may have difficulty in providing. It will ensure that standards are enforced consistently across the country—something which the waste industry is very anxious about.
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The noble Baroness, Lady Hamwee, referred to a comment which I made on Report about the role of planning authorities in determining the location of waste facilities. I said then that:
"It has been suggested that under the agency there would be no scope for consideration of the concerns of local people regarding the potential impact on local amenity and possible pollution from a proposed waste management facility. That conviction is puzzling".—[Official Report, 213/95; col. 1618.]
By contrast, that is entirely in line with Planning Policy Guidance Note (PPG) 23 on planning and pollution control. Although planning authorities should not substitute their judgment about how to control pollution for that of the relevant pollution control authority, it is perfectly proper for them to consider the potential for pollution to affect the use of land in deciding whether to grant planning permission.
Planning authorities should work on the assumption that the pollution control regimes will be properly applied and enforced, but that does not mean that they are unable to consider the land use implications of such pollution. Paragraph 1.33 of the PPG says, for example, that material considerations are likely to include:
"the risk and impact of potential pollution from the development insofar as this might have an effect on the use of other land".
We have no plans to change the basic policies and principles set out in that guidance as a result of transferring waste regulation to the agency, because there is no need to. The boundary which the guidance draws between planning and pollution controls fits in very well with the transfer of the main pollution control functions to the agency. It will ensure that local authorities have control over whether and where waste facilities are located and will be able to consider the impact of those developments on land use and amenity, including the risk and impact of potential pollution on land use. The agency will be responsible for controlling any pollution from the facility and will be accountable for that in the same way as it will be accountable for the other pollution control regimes for which it will be responsible.
I hope that I have explained why we consider it so important that waste regulation is included in the functions to be transferred to the agency and that the noble Baroness will be able to withdraw the amendment.
Baroness Hamwee: My Lords, I am grateful to the Minister for his explanation, or at least I think I am. As it is somewhat technical, it will bear reading carefully in Hansard. I am sure that the Minister will appreciate that the point underlying this is public accountability and reassurance for local people who will feel that they are very directly affected by any development. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 4 [General aims and objectives of the Agency]:
Baroness Hamwee Baroness Hamwee moved Amendment No. 2:
Page 5, line 41, leave out ("give") and insert ("lay before Parliament an order containing").
The noble Baroness said: My Lords, in moving this amendment, I shall speak also to Amendment No. 3 and Government Amendment No. 4. This amendment takes us to Clause 4 which, after three clauses leading us in, sets out the principal aim of the agency.
I tabled my amendment before the Government tabled their amendment as to how the guidance provided in Clause 4(2) is to be dealt with procedurally. I decided not to withdraw my amendment because I felt that it would bear consideration as to whether the negative resolution procedure proposed by the Government was adequate or whether the affirmative resolution procedure proposed by my amendment was a more appropriate way to have the proposed guidance scrutinised.
Having said that, I must place on record my thanks to the Government. Although they have not moved as far as I would like them to, they have moved some way in dealing with the guidance, which will be extremely significant to those who are to implement the various matters which are the subject of the Bill and to those who will be affected by them.
As I said, Clause 4(1) refers to the "principal aim" of the agency, whereas Clause 4(2) refers to the objectives which Ministers consider to be appropriate for the agency to pursue. I have some difficulty in distinguishing between the aim of Clause 4(1) and the objectives in Clause 4(2), not least because the Shorter Oxford English Dictionary defines an aim as being a "object or purpose" and an objective as being the "point aimed at". I am sure that your Lordships will understand my confusion since those words appear to be synonymous.
I do not believe that I need repeat how important the guidance will be. So much of what the new agencies are to do will be contained in that guidance. Therefore, I feel that it is of the utmost importance that Parliament should scrutinise the guidance extremely carefully and should have the fullest opportunity to debate it, as it will not be contained in primary legislation, and, in particular, that those affected will have the fullest opportunity to comment on the proposed guidance and that Parliament can be their mouthpiece. I beg to move.
3.15 p.m.
Lord Renton: My Lords, I believe that the noble Baroness did well to table Amendments Nos. 2 and 3 but, of course, Amendment No. 4 has made those amendments quite unnecessary. The importance of Clause 4 is added to greatly by Amendment No. 4.
Perhaps I may comment briefly on the rather strange and elaborate legislative situation which we shall have reached when we pass that amendment. We have various methods of legislating: primary legislation, Acts of Parliament; statutory instruments, either Orders in Council or other statutory instruments, some of which require the affirmative resolution and some of which require the negative resolution; and we have already, under several statutes, codes of practice, most of which require parliamentary approval before they come into force.
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Now we have a new departure—guidance by Ministers to a public body. I find it very difficult to distinguish in importance or purpose codes of practice from guidance. They are all issued by Ministers and have to be observed by the users of the statutes. All the guidance—and that gives it an advantage over some codes of practice—will require parliamentary approval within 40 days. In other words, it is analogous with the negative resolution procedure for a statutory instrument.
By all means, let us welcome that, but let us see where we are getting to as legislators because it means that we have entered a very elaborate new phase. Having said that, I congratulate my noble friend Lord Ullswater on removing doubts and on doing something very helpful that will be welcomed by all concerned.
Lord Williams of Elvel: My Lords, perhaps I should speak, as did the noble Baroness, Lady Hamwee, and the noble Lord, Lord Renton, to all three amendments. Therefore, I shall speak to the government amendment before the Minister has had an opportunity to explain what are the Government's intentions, but I think that I can more or less guess what they are.
I differ from the noble Lord, Lord Renton, in that I do not believe that the amendment moved by the noble Baroness is unnecessary. In fact, I think that it is desirable. I disagree also with the noble Lord, Lord Renton, as regards his contention that there is very little difference between codes of practice and guidance issued by Ministers. There is a great deal of difference between those two concepts. However, where I agree with him is that we are embarking on a legislative procedure which is as yet untested.
I should like to ask the Minister when he comes to explain his amendment what would happen if your Lordships or another place passed an amendment to a Motion to approve the guidance, in whatever form it was produced, which required the House only to approve the guidance if this, that and thus were entered into the guidance. Would that mean that the Government would withdraw it on the grounds that either subsection (5B) or (5C) would operate; or would they amend the guidance and resubmit it? How does the Minister see this whole procedure working? It would be interesting for your Lordships to know how precisely it would operate.
Lord Boyd-Carpenter: My Lords, before my noble friend replies, I should be most grateful if he would indicate whether the technique of a Minister issuing guidance arises under other statutes or whether this is an innovation?
Viscount Ullswater: My Lords, the Clause 4 guidance has been the subject of a good deal of debate during the proceedings on the Bill. We amended it substantially at Report to take into account many of the concerns which have been expressed. Amendments Nos. 2 and 3, in the name of the noble Baroness, Lady Hamwee, now seek to make such guidance subject to the affirmative resolution procedure. I do not believe that that is appropriate. Guidance of the kind we are discussing here is often not subject to any kind of parliamentary scrutiny—my noble friend Lord Renton is

1021
right on that. None of the guidance issued under Part I of the Environmental Protection Act is subject to parliamentary scrutiny. The affirmative resolution would, in my view, he going too far and would be an inefficient use of parliamentary time.
The noble Lord, Lord Williams, asked me what would happen if an amendment were passed by either House. So far as I understand the position, the Government would have to consider whether they should withdraw the guidance and bring it back in terms of the amendment or whether they would ask the House to pass the guidance as it was.
I have considered very carefully the points made by noble Lords in earlier debates and have accepted that the guidance should be subject to parliamentary scrutiny. The noble Baroness, Lady Hilton, indicated at a previous stage that she would like to see it subject to some form of parliamentary scrutiny. Therefore I have tabled my own amendment, Amendment No. 4, which would ensure that the guidance was laid before each House and was subject to the negative resolution procedure.
I am not able to answer the question of my noble friend Lord Boyd-Carpenter. I am not sure whether the procedure is innovative. However, I believe that I am reflecting very much the wish of your Lordships both in Committee and at Report stage that this is important guidance and should be subject to some form of parliamentary scrutiny. I hope that the noble Baroness will withdraw her amendment, and then in due course I shall move my Amendment No. 4.
Lord Williams of Elvel: My Lords, before the Minister sits down, I recognise that this is Third Reading and I do not want to hold up proceedings but could he just explain subsection (5B) in his amendment. I am unclear about it. It says that if,
"either House resolves that the guidance, the draft of which was laid before it, should not be given, the Minister shall not give that guidance".
The House may resolve that the guidance can be given but in a form slightly different from the Minister's suggestion. What will happen at that point?
Viscount Ullswater: My Lords, if the guidance was not according to the draft which was laid before the House—if it were amended in some way—the Minister should not give that guidance.
Lord Boyd-Carpenter: My Lords, I wonder whether my noble friend can answer the question I put to him. Is the provision of guidance which has to he approved by the House an innovative procedure or are there precedents for it? I am not saying that if it is new we should necessarily object to it, but before we introduce a new procedure—if that is what we are doing—we really ought to know what we are doing.
Lord Elton: My Lords, I know that we are not in Committee but perhaps I may join this rather substantial interruption just to say to my noble friend that, although the procedure may have implications for the parliamentary timetable, if it is an innovation, it is an extremely welcome one. I remember fighting endless
1022
battles over guidance which had not yet been formulated in police and criminal evidence legislation in the 1980s. Matters would have been made very much easier had I been able to assure noble Lords that they would have been able to reject the guidance in the form in which it was presented and ask for it to be brought back—changed by how little or how much would depend on the debate. Therein lies the answer to the noble Lord, Lord Williams of Elvel.
Viscount Ullswater: My Lords, I shall try again to answer the question posed by my noble friend Lord Boyd-Carpenter. I am not able to answer it with any degree of certainty. However, I am unaware of another example of guidance being subject to this kind of process, although the process itself is, of course, a well-known one. Having said that, I. was responding—I am glad that my noble friend Lord Elton has given me some comfort in that—to a considerable desire on both sides of the House that the guidance should be subject to some form of parliamentary process. I believe that the negative resolution is the correct process for this guidance.
Baroness Hamwee: My Lords, the comments made on this group of amendments show the continuing concern of your Lordships that the matter should be dealt with in the best possible way. In saying that, I would regard the use of parliamentary time for the guidance to be issued under the Bill when it becomes an Act as being very important. One wants to make the most efficient use of parliamentary time. However, to consider closely guidance which goes to the very heart of the activity of these agencies could scarcely be more important.
Perhaps I may add to that another concern which we encounter in different contexts. I refer to the relationship between the Government and their quangos and how far Parliament has a role in agreeing the scope, the functions and, as it says in Clause 4(2), the objectives of the quangos which are set up and become at any rate semi-detached from the parliamentary process.
I appreciate that the negative resolution procedure is the one the Government favour, I hope that that will provide an adequate course for us to follow. Having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 3 not moved.]
Viscount Ullswatermoved Amendment No. 4:
Page 6, line 6, at end insert:
("(5A) A draft of any guidance proposed to be given under this section shall be laid before each House of Parliament and the guidance shall not be given until after the period of 40 days beginning with the day on which the draft was so laid or, if the draft is laid on different days, the later of the two days.
(5B) If, within the period mentioned in subsection (5A) above, either House resolves that the guidance, the draft of which was laid before it, should not be given, the Ministers shall not give that guidance.
(5C) In reckoning any period of 40 days for the purposes of subsection (5A) or (5B) above, no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.").
The noble Viscount said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Clause 7 [General environmental and recreational duties]:
3.30 p.m.
Lord Norrie Lord Norrie moved Amendment No. 5:
Page 8, line 30, leave out ("other than its pollution control functions").
The noble Lord said: My Lords, I return to the thorny issue of the agency's environmental duties relating to pollution control. We had a long and a rather tortuous debate at Report stage when it was evident that a number of different interpretations about Clause 7 existed both inside and outside the House. I welcomed the support of my noble friends Lord Cranbrook and Lord Crickhowell during the debate. I have been in touch with my noble friend Lord Moran and my noble friend the Minister to try to clarify these issues. My new amendment seeks to address some of the points raised during that debate.
I must first say that I recognise that a duty to "further" conservation will not always be appropriate. I can visualise more instances where it will be appropriate in the field of water pollution than in relation to pollution of air or indeed land. That is perhaps why, when Dr. Slater, the chief executive of HMIP, gave evidence to the House of Commons Environment Select Committee, he did not believe a duty to further conservation would be necessary. This may well be true in relation to many of the pollution functions which HMIP now holds.
However, I think there are instances where such a duty will be necessary, and I do not think it is mere chance that there has been such strong support for the retention of the duty to further conservation, not least in relation to the NRA's water pollution functions. I have used the example of Bassenthwaite in the Lake District before, and I think it illustrates the point so well. The NRA, under its duty to further conservation in relation to pollution control functions, has achieved so marked an improvement in the lake's conservation status that it has been upgraded from an SSSI to a national nature reserve. Surely this is an example of what furthering conservation is all about. I agree that my earlier amendment, which simply provided a duty to further conservation, conditioned, as it must be, by a phrase "so far as this is consistent" with other functions, did not specifically address those circumstances where such a duty is not compatible. I am grateful to the noble Lord, Lord Moran, for pointing that out so clearly.
It seems to me therefore that the issue turns on the legal distinction between a conditioned duty to further conservation, and an unconditioned duty to have regard to it. I suggest that this distinction depends not only on the legal niceties of interpretation but also on the effect on the spirit and confidence with which the agency undertakes its work. Surely the ideal solution is to find a way of applying a duty to further conservation in relation to pollution control functions where this is appropriate, but ensure that there is a fallback requirement to have regard to this where it is not. My
1024
amendment attempts to do exactly that. It provides a belt and braces approach and this, I suggest, tackles the Government's concerns directly. The duty to further conservation would apply only where it was consistent with the criteria set out in Clause 7(1) (a); otherwise, the "have regard to" duty applies. I therefore hope my noble friend the Minister will respond positively to this attempt to meet the important point he made at Report stage. I beg to move.
Lord Williams of Elvel: My Lords, I believe that this is an important amendment. Indeed your Lordships will he aware, as the noble Lord, Lord Norrie, pointed out, that we have had many debates around this particular issue, which is an issue central to the Bill. We fully understand—this was referred to by the noble Lord in introducing his amendment—that HMIP feels that what is in the Bill is adequate for it. We do not believe, just because HMIP on one side thinks it is adequate for it, that it is adequate for the agency in general, because we believe that the Bill, as drafted, represents something of a weakening of the existing mandate of the National Rivers Authority.
During Report stage the noble Viscount said that the,
"environmental NGOs have underestimated and misunderstood the effect and significance of the duty to have regard to the interests of conservation in what is now Clause 7(1) (b)". —[Official Report, 2/3/95; col. 1660.]
I am not sure that the environmental NGOs have underestimated and misunderstood the effect. Therefore I would like to see the Government accepting what is after all, as the noble Lord said, only a belt and braces amendment, to make sure that the pollution control functions of the National Rivers Authority are translated quite directly and specifically into the new Bill.
The Earl of Lytton: My Lords, I wish to make a brief comment. While welcoming the introduction by the noble Lord, Lord Norrie, of this amendment, I must apologise in that I was not in my place when he started to speak on it. However, I said at an earlier stage on a similar amendment of his that there is a basic mismatch as regards the necessity to foster nature conservation in the context of the pollution control duty because, unless the pollution control has been dealt with, it seems to me there can be little chance of installing and servicing the benefits that flow from the fostering of that duty towards nature conservation. I would counsel a little bit of caution in connection with this amendment for that reason.
Lord Elton: My Lords, I find myself in some difficulty with my noble friend's amendment because I am not absolutely certain I am clear in my own mind as to its effects. I am sure about its intended effect, but these two amendments together set out, first, to remove the exemption of pollution control functions at present contained in Clause 7 (1) (a) and, secondly, to put in a second leg, as it were, in subsection (I) (b). My noble friend spoke of the second leg, which is the insertion of the words,
"which are not consistent with paragraphs (a) (i) to (iv) above",

1025
as though the effect of this would simply be to produce a graded list of duties on the Minister and the agency, being, in the first instance, a duty to further conservation etc. and, secondly, to have regard to the desirability of conserving etc.
The criterion for applying the restriction in the second leg is that anything done is done under subparagraphs (i) to (iv) of subsection (1) (a); that is, the areas and purposes within which the Minister or, as the case may be, the agency, acts. That means—does it not?—that anything which does not fall within that restriction is now exempted from the effects of subsection (1) (b). I am not sure whether that is the intention but it is removing a protection in the second grade altogether. That is why I am in a difficulty. However, if my noble friend is resolved to go into the Lobby, I would be persuaded in any case to go with my noble friend because the substantive argument is whether or not it is possible to reconcile the primacy of duty to enhance and protect when one is in an area where one may be controlling substances which are possibly lethally toxic and certainly noxious, and where one may find oneself in the position of having to ensure the spread of the primrose and the wild orchid, when what one ought to be doing is protecting the health of the local population. I believe that is to be avoided and I hope that my noble friend the Minister persists in his course.
Baroness Hamwee: My Lords, from these Benches I rise to support the noble Lord, Lord Norrie. As he said, the distinction appears to be between furthering conservation and enhancement of the matters set out in Clause 7(1) (a) and merely, as the noble Lord, Lord Elton, has said, the second grade duty of having regard to the desirability of doing so in respect of pollution control functions.
At the previous stage the Minister, talking about the duty to issue environmental licences, said that,
"To further conservation in every case would be inconsistent with the agency's role in issuing environmental licences". —[Official Report, 2/3/95; col. 1660.]
I was troubled when I read those words again because I do not regard the two matters as being inconsistent. It appears that far greater emphasis is placed on the agency's commercial activities than on its conservation duties.
I might agree more with the Minister if we were talking only about enhancement, but both "conservation and enhancement" are referred to and must therefore mean different things. If it was simply a matter of status quo, which is implied by "conservation", I would have more sympathy with the argument that what matters is to maintain the status quo and not to jeopardise it. But when it is a question of licences being granted, enhancement of the environment may not have as important a role as conservation. I would not necessarily go along with such an argument; but I can see a distinction. However, Clause 7(1) (b) refers to enhancement and conservation, and to reduce
1026
conservation as well as enhancement in the league table of issues to which the agency must have regard cannot be right.
Lord Skelmersdale: My Lords, during the discussion, I took the liberty of looking at Clause 52, which refers to environmental licences, which are defined as authorisations, licences and consents. Authorisations, licences and consents, by definition, contain an element of allowed pollution and I agree with what the noble Baroness, Lady Hamwee, has just said.
However little pollution is allowed by the licences, authorisations and consents, that cannot possibly equate with enhancing the environment on all occasions. There comes a point in scientific knowledge where the least environmental damage is accepted for the time being but beyond that point it is impossible to enhance the environment.
3.45 p.m.
Viscount Ullswater: My Lords, Amendment No. 5, taken together with Amendment No. 6, would have the effect of subjecting Ministers and the agency to a double test when formulating or considering any proposals relating to the agency's pollution control functions. First, they would be under a duty to further conservation so far as that was consistent with the purposes of any enactment relating to its functions; for Ministers, the objective of achieving sustainable development; for the agency, guidance given under Clause 4; and, for the Secretary of State, with his duties under Section 2 of the Water Industry Act 1991.
Secondly, where any proposals relating to the agency's pollution control functions were not consistent with its duty to further conservation, it would have to apply the duty to have regard to conservation now contained in Clause 7(1) (b).
The result of the amendments, if accepted, would be highly complex and confusing and probably unworkable in practical terms. It would be very unclear what test had to be applied, in what circumstances, and when one test would end and another begin. I cannot believe that the resulting confusion would advance the cause of conservation.
For example, where the agency considers applications for authorisations under integrated pollution control, it has to consider BATNEEC (best available techniques not entailing excessive costs). Would it be consistent with the purposes of the Environmental Protection Act 1990 to require it at the same time to further conservation? My noble friend Lord Skelmersdale put his finger on that point. At what point would those within the agency responsible for individual decisions have to switch from "furtherance" to "having regard", and what would they need to do to be able to show that they had properly done so? It would surely not advance the work of the agency to leave that confusion unresolved.
Before the Bill was even introduced the Government responded to the anxieties expressed by a number of environmental and conservation groups by amending Clause 7 to draw the distinction now contained between the pollution control functions of

1027
the agency addressed in Clause 7(1) (b) and its other functions, addressed in Clause 7(1) (a). The amendments do not satisfactorily address the fundamental difficulties of applying a duty to further conservation to the new and wider pollution control functions of the agency, where in a number of instances such a duty may well be inconsistent. I do not believe that in bringing forward these amendments my noble friend Lord Norrie fully recognises the important extension to the agency's ability to take proper account of conservation in discharging its pollution control functions which is represented by Clause 7(1) (b) as it stands. However, I do believe that the duties attached to the functions of the agency in this area need so far as possible to avoid the difficulties, ambiguities and inconsistencies which amendments such as these would introduce.
I hope that I have said enough in the course of the Bill's passage through your Lordships' House to reassure your Lordships about the importance which the Government attach to nature conservation and its place in the agency's functions. I recognise that there is a distinct concern among Members of your Lordships' House. We have discussed the matter on numerous occasions and I have sought to reassure your Lordships that the provisions in the Bill will be at least as effective as the current duty on the NRA, that the agency will have all the powers that it needs to contribute effectively to conservation, that the present important conservation gains being achieved through the NRA's pollution control functions are not dependent on the present form of words in Section 16 of the Water Resources Act 1991 (and your Lordships will have noted what my noble friend Lord Crickhowell said about that during the Report stage), and that the new formulation in Clause 7(1) (b) will allow the agency to act on the basis of conservation considerations in a number of cases where the present wording would not. In my speech on Report I referred to the list of enactments at Clause 5(5) of the Bill to which the duty to have regard to conservation will now apply.
As I have said, Clause 7 in its present form represents an important extension to the new agency's ability to take proper account of conservation in discharging its functions, which avoids the difficulties which I have suggested would arise from the amendments. For those reasons, I hope that my noble friend Lord Norrie will withdraw his amendment.
Lord Norrie: My Lords, I am very disappointed by the Minister's reply. He seems to be telling me that the status in law of "further" and "have regard to" are identical and that the progress we have witnessed under the NRA in recent years is not due to its duty to further conservation. I wish that I could be as optimistic. Those who have monitored the progress of the NRA closely will testify to the enormous value of the duty to further conservation whereas the term "have regard to" has been used for nearly 30 years without having anything like the same effect.
1028
My amendment may be unduly cumbersome, but I do not claim to be an expert in drafting. Moreover, I do not share the Minister's concern about the agency's ability to draw up criteria to guide its use of the terms "furtherance" and "have regard to" respectively.
All along the Minister has told us how effective the new agency will be. I cannot believe that a task of the kind proposed could not be achieved. I have taken note of the heartening level of support I received for an appropriate amendment at Committee and Report stages. Bearing in mind the enormous anxiety both inside and outside this House which the issue continues to generate, I wish to test the opinion of the House.
3.48 p.m.
On Question, Whether the said amendment (No. 5) shall be agreed to?
Their Lordships divided: Contents, 91; Not-Contents, 150.

Division No. 1

CONTENTS

Addington, L.

Jenkins of Putney, L.

Ashley of Stoke, L.

Judd, L.

Barber of Tewkesbury, L.

Listowel, E.

Barnett, L.

Longford, E.

Beaumont of Whitley, L.

Lovell-Devis, L.

Birk, B.

Malllieu, B.

Blackstone, B.

Mason of Barnsley, L.

Bottomley, L.

Mayhew, L.

Bridges, L.

McCarthy, L.

Brooks of Tremorfa, L.

McIntosh of Haringey, L.

Bruce of Donington, L.

Milner of Leeds, L.

Carter, L.

Mishcon, L.

Castle of Blackburn, B.

Molloy, L.

Cledwyn of Penrhos, L.

Monkswell, L.

Clinton-Davis, L.

Morris of Castle Morris, L. [Teller.]

Cocks of Hartcliffe, L.

David, B.

Nathan, L.

Dean of Beswick, L.

Nicol, B.

Dean of Thornton-le-Fylde, B

Norrie, L. [Teller.] [Teller.]

Diamond, L.

Northfield, L.

Donaldson of Kingsbridge, L.

Ogmore, L.

Dormand of Easington, L.

Peston, L.

Dubs, L.

Plant of Highfield, L.

Eatwell, L.

Richard, L.

EnnaIs, L.

Rochester, L.

Ezra, L.

Russell, E.

Falkender, B.

Sainsbury, L.

Farrington of Ribbleton, B.

Fitt, L.

Seear, B.

Foot, L.

Serota, B.

Gallacher, L.

Shannon, E.

Glenamara, L.

Shepherd, L.

Grey, E.

Stallard, L.

Halsbury, E.

Steadman, B.

Hamwee, B.

Stoddart of Swindon, L.

Harris of Greenwich, L.

Strabolgi, L.

Harrowby, E.

Taylor of Gryfe, L.

Haskel, L.

Turner of Camden, B.

Hayter, L.

Wallace of Coaslany, L.

Healey, L.

Walpole, L.

Henniker, L.

Wedderburn of Charlton, L.

Hilton of Eggardon, B.

White, B.

Hollis of Heigham, B.

Wigoder, L.

Hughes, L.

Williams of Elvel, L.

Hylton-Foster, B.

Wilson of Tillyorn, L.

Jay of Paddington, B.

Winchilsea and Nottingham, E.

Jeger, B.

1029

NOT-CONTENTS

Aberdare, L.

Headfort, M.

Ailsa, M.

Henley, L.

Aldington, L.

Hives, L.

Alexander of Tunis, E.

Hogg, B.

Ampthill, L.

Hood, V.

Annaly, L.

Inglewood, L. [Teller.]

Astor of Hever, L.

Jenkin of Roding, L.

Astor, V.

Johnston of Rockport, L.

Belhaven and Stenton, L.

Killearn, L.

Blaker, L.

Kinnoull, E.

Blatch, B.

Kintore, E.

Blyth, L.

Knollys, V.

Borthwick, L.

Lauderdale, E.

Boyd-Carpenter, L.

Lindsay, E.

Brabazon of Tara, L.

Liverpool, E.

Brigstocke, B.

Lloyd-George of Dwyfor, E.

Brougham and Vaux, L.

Long, V.

Bruntisfield, L.

Lucas of Chilworth, L.

Burton, L.

Lucas, L.

Butterworth, L.

Lytton, E.

Cadman, L.

Mackay of Ardbrecknish, L.

Campbell of Alloway, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Campbell of Croy, L.

Carnegy of Lour, B.

Macleod of Borve, B.

Carnock, L.

Manchester, D.

Cayzer, L.

Mar, C.

Chalker of Wallasey, B.

Marlesford, L.

Chelmer, L.

McColl of Dulwich, L.

Chelmsford, V.

Merrivale, L.

Chesham, L.

Mersey, V.

Clanwilliam, E.

Miller of Hendon, B.

Coleridge, L.

Milverton, L.

Constantine of Stanmore, L.

Monteagle of Brandon, L.

Courtown, E.

Morris, L.

Cox, B.

Mountevans, L.

Cranborne, V. [Lord Privy Seal]

Mowbray and Stourton, L.

Moyne, L.

Cullen of Ashbourne, L.

Munster, E.

Cumberlege, B.

Murton of Lindisfarne, L.

Davidson, V.

Nelson, E.

De Freyne, L.

Norfolk, D.

De L'Isle, V.

Northesk, E.

Dean of Harptree, L.

O'Cathain, B.

Denham, L.

Onslow, E.

Demon of Wakefield, B.

Orr-Ewing, L.

Derwent, L.

Oxfuird, V.

Digby, L.

Park of Monmouth, B.

Dixon-Smith, L.

Pearson of Rannoch, L.

Downshire, M.

Peyton of Yeovil, L.

Dundonald, E.

Plummer of St. Marylebone, L.

Eden of Winton, L.

Effingham, E.

Rankeillour, L.

Ellenborough, L.

Rawlings, B.

Elles, B.

Renton, L.

Elton, L.

Renwick, L.

Faithfull, B.

Rodger of Earlsferry, L.

Ferrers, E.

Romney, E.

Finsberg, L.

Sandford, L.

Fisher, L.

Seccombe, B.

Flather, B.

Sempill, Ly.

Fraser of Kilmorack, L.

Shaughnessy, L.

Gainford, L.

Shaw of Northstead, L.

Gardner of Parkes, B.

Skelmersdale, L.

Geddes, L.

Slim, V.

Gilmour of Craigraillar, L.

St. Davids V.

Gisborough, L.

Stafford, L.

Glenarthur, L.

Stanley of Alderley, L.

Gray of Contin, L.

Strathcarron, L.

Gridley, L.

Strathclyde, L. [Teller.]

Hailsham of Saint Marylebone, L.

Strathcona and Mount Royal, L.

Harding of Petherton, L.

Sudeley, L.

Harris of High Cross, L.

Terrington, L.

Hayhoe, L.

Teviot, L.

1030

Thomas of Gwydir, L.

Vaux of Harrowden, L.

Tollemache, L.

Vivian, L.

Trumpington, B.

Ullswater, V.

Wharton. B.

Resolved in the negative and amendment disagreed to accordingly.
3.57 p.m.
[Amendment No. 6 not moved.]
Clause 25 [Power of SEPA to purchase land compulsorily]:
Lord Pearson of Rannoch Lord Pearson of Rannoch moved Amendment No. 7
Page 24, line 23, at end insert:
("(3) where the Secretary of State or SEPA has prepared a proposal which involves the compulsory acquisition of land, a compulsory purchase order shall be subject to special parliamentary procedure in any case where an objection has been duly made by the owner of the land and has not been withdrawn.").
The noble Lord said: My Lords, I regret that the amendment appears on the Marshalled List in the name of my noble friend Lord Stanley of Alderley. I trust that that has not conferred an authority upon it which it would not otherwise deserve. I should say in support of that that the amendment is supported by both the Scottish Landowners' Federation and the National Farmers' Union of Scotland.
As we said at Report stage, the purpose of the amendment is to ensure that there will be some mechanism for protecting the rights of an individual whose land is affected by a compulsory purchase order. Those of us who support the amendment take the position that the Secretary of State cannot effectively act as the guardian of the individual's interest because he is effectively in control of everything that SEPA does, both in matters of policy and in matters of detail. I refer your Lordships to Clauses 29 and 38(1) to confirm that.
In our view the Secretary of State therefore has a conflict of interest. I understand—and I should be grateful if my noble friend would confirm it—that SEPA's compulsory purchase powers could be exercised only in relation to its statutory functions. Those are to be found entirely in Clause 21 of the Bill. Their use therefore requires to be authorised by the Secretary of State; if there were any objections, he would be obliged to set up a public local inquiry, as specified in the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947.
The point remains one of principle. If there are to be compulsory purchase powers, they should be adequately framed and there should be adequate protection for the individual whose land is affected. It may be that SEPA, as at present envisaged, will not have any great need to use such compulsory acquisition powers. I would be grateful if, in responding, my noble friend could confirm in some detail the statutory functions for which compulsory purchase powers may be used. For example, can he confirm whether or not those powers could be used in connection with establishing a system of integrated river catchment management? I look forward to his answer. I beg to move.
The Earl of Lindsay: My Lords, I well understand the sentiment behind Amendment No. 7 in the name of

1031
my noble friend Lord Pearson and the reassurances that he seeks. As I explained at Report on 2nd March at col. 1696 of the Official Report, we do not believe that an additional safeguard of this nature is required for SEPA. The power to purchase land compulsorily has the potential to be a powerful tool in the hands of a nature conservation body such as Scottish Natural Heritage — SNH. The purchase of land is not a normal means of preventing or controlling pollution—as can be demonstrated by the fact that river purification boards have never exercised the compulsory purchase powers which they have had for over 40 years.
I can therefore assure my noble friend that SEPA's general and environmental duties relate only to its functions. Similarly, guidance under Clause 29 will he issued with respect to the aims and objectives which SEPA should pursue in the performance of its functions. The functions of SEPA are set out in Clause 21 and are augmented by further provisions in the Bill, such as its function in relation to drainage works in Clause 24.
I should stress that the compulsory purchase powers are for the purpose of SEPA's statutory functions alone. My noble friend asked whether they might be used in pursuit of integrated catchment management. I believe that my noble friend missed the Committee stage when we discussed integrated catchment management. The point is that it is unlikely that in Scotland integrated catchment management will be a primary purpose for the agency because of the very different situation in regard to water in Scotland. I stress to my noble friend that there is no question whatever of SEPA being able to purchase land under Clause 25 on behalf of a third party.
I hope that I have been able to reassure my noble friend that there is no need for the additional safeguard which is proposed by his amendment. My right honourable friend the Secretary of State will authorise SEPA to exercise its compulsory purchase powers only as a last resort. On that basis, I invite my noble friend to withdraw his amendment.
Lord Pearson of Rannoch: My Lords, I do not think that it would he appropriate to waste the time of the House by dividing on the issue, especially as I am somewhat reassured by what my noble friend said. I shall, of course, read it carefully in Hansard, together with the assurances which have been given by my noble friends on the Front Bench at earlier stages. I therefore beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 29 [Guidance on sustainable development and other aims and objectives]:
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 8:
Page 25, line 45, at end insert:
("(4) The power to give guidance to SEPA under this section shall be exercisable only after consultation with SEPA and such other bodies or persons as the Secretary of State considers it appropriate to consult in relation to the guidance in question.
(5) A draft of any guidance proposed to be given under this section shall be laid before each House of Parliament and the guidance shall not he given until after the period of 40 days beginning with the day on which the draft was so laid or, if the draft is laid on different days, the later of the two days.
(6) If, within the period mentioned in subsection (5) above, either House resolves that the guidance, the draft of which was laid before it, should not be given, the Secretary of State shall not give that guidance.
(7) In reckoning any period of 40 days for the purposes of subsection (5) or (6) above, no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.
(8) The Secretary of State shall arrange for any guidance given under this section to be published in such manner as he considers appropriate.").
The noble Earl said: My Lords, this amendment follows from the assurance I gave to the noble Lord, Lord Carmichael of Kelvingrove, during the first day of the Report stage on 2nd March at col. 1689 of the Official Report.
The amendment requires my right honourable friend the Secretary of State to consult SEPA and other appropriate bodies and persons on the terms of the guidance, and to publish that guidance. Both provisions parallel changes to Clause 4 in relation to the environment agency for England and Wales made at Report 'stage. Those issues were of concern to the House and the Government have acknowledged them by bringing forward this amendment.
The amendment also makes the guidance subject to negative resolution. The lack of proper parliamentary scrutiny was another important matter which your Lordships thought should be addressed. The Minister has already spoken to Amendment No. 4 which makes provision for the negative resolution procedure for guidance under Clause 4. We believe that this would also be appropriate for SEPA. I beg to move.
Lord Pearson of Rannoch: My Lords, in welcoming the amendment I ask my noble friend to confirm, in order to save time, when an order may eventually be laid before Parliament, that,
"such other bodies … as the Secretary of State considers it appropriate to consult",
will, when appropriate, include occupiers and owners of land and the bodies which speak for them.
The Earl of Lindsay: My Lords, I can confirm that.
On Question, amendment agreed to.
Clause 30 [General environmental and recreational duties]:
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 9:
Page 26, line 8, leave out ("and").
The noble Earl said: My Lords, Amendments Nos. 9 and 10 would place a further balancing duty on SEPA. They are the result of our consideration of the amendment to Clause 7 by my noble friend Lord Wade at Report stage in relation to the environment agency for England and Wales. In formulating it, we have also taken into account the amendments tabled at Report stage by the noble Earl, Lord Kintore, and my noble friend Lord Pearson of Rannoch.
The amendment would require SEPA and my right honourable friend the Secretary of State to have regard to the economic and social needs of any areas of Scotland and to have particular regard to such needs of rural areas. It is right that that emphasis be placed on rural areas, given their special needs.
The amendment reflects such an approach. It is not identical to the duty on the English and Welsh agency, but we believe that it is a vital balance and it is our duty to introduce it. I beg to move.
Lord Pearson of Rannoch: My Lords, once again I welcome the amendment. It is an improvement on the English amendment. Will my noble friend again confirm that SEPA will take into account the interests of owners and occupiers of the rural land to which the amendment specifically refers, when appropriate?
The Earl of Lindsay: My Lords, once again I can confirm the answer that my noble friend seeks. I also confirm that the way in which the amendment is worded means that,
"any area or description of area",
describes areas such as rural areas, suburban areas and so on; "any area" refers to specific areas which could, for example, include Rannoch Moor.
On Question, amendment agreed to.
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 10:
Page 26, line 11, at end insert ("; and
(d) to have regard to the social and economic needs of any area or description of area of Scotland and, in particular, to such needs of rural areas.").
On Question, amendment agreed to.
Clause 32 [General duties with respect to water]:
The Earl of Dundonald The Earl of Dundonald moved Amendment No. 11:
Page 27, line 23, leave out ("in accordance with any directions under section 38 below").
The noble Earl said: My Lords, I wish to move Amendment No. 11, which is in the names of the noble Lord, Lord Carmichael, and myself. The amendment would remove the present emphasis placed on ministerial directions in connection with SEPA's duties with respect to the cleanliness of waters and the conservation of water resources. During the passage of the Bill the noble Lord, Lord Carmichael, expressed anxiety that, as drafted, Clause 32(1) would involve my right honourable friend the Secretary of State meddling in the day-to-day operations of the agency. I know that that is not the Government's intention, but the clause as drafted at the very least sends out contrary signals. I believe that it requires the removal of the reference to directions under Clause 38. I beg to move.
The Earl of Lindsay: My Lords, Amendment No. 11, moved by my noble friend Lord Dundonald and spoken to at length at an earlier stage of the Bill by the noble Lord, Lord Carmichael of Kelvingrove, would remove the specific reference to ministerial directions in Clause 32 of the Bill.
I explained in Committee on Thursday 26th January (at col. 1211 of the Official Report) that we intended the reference to directions under Clause 38 to be a safety net in the event that the specific duties in Clause 32(1) with respect to water led to an unreasonable emphasis on the work of SEPA in relation to water at the expense of its other regulatory responsibilities for air and land.
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I do, however, understand the fears that have been expressed about undue interference by the Secretary of State—even if no real evidence has been advanced to support them. My right honourable friend the Secretary of State does not intend to meddle in the day-to-day operations of the agency. There is no reason why his relationship with SEPA should be any more interventionist than his relationship with other non-departmental public bodies that are accountable to him.
I am sure that the noble Lord will agree that Scottish Natural Heritage has been able to map out an independent path. There is no reason why SEPA would not be able to do the same. In recognition of our intention to leave day-to-day operational matters to SEPA, the Government are happy to accept the amendment which the noble Lord, Lord Carmichael, assiduously explained to the House. If necessary, we will seek to use the corporate planning mechanism to ensure that the work of the agency strikes a proper balance between the environmental media requiring protection.
The Earl of Dundonald: My Lords, I thank my noble friend for his reply. I am sure that the noble Lord, Lord Carmichael, will welcome another example of a more listening Government.
On Question, amendment agreed to.
Clause 35 [Incidental general functions]:
Lord Coleraine Lord Coleraine moved Amendment No. 12:
Page 29, line 41, after ("criminal") insert ("and civil").
The noble Lord said: My Lords, this amendment returns to concerns that were demonstrated by an amendment in the names of my noble friends Lord Crickhowell and Lord Mills and moved by my noble friend Lord Mills in Committee. I see that my noble friends are not in their seats today.
I spoke to an amendment at Report which reflected the concern of the Law Society also that the drafting of Clause 35 should make it clear that the right of the agencies in paragraph (a) of Clause 35(1) to do anything which they consider to be,
"calculated to facilitate, or is conducive or incidental to, the carrying out of its functions",
extended to the bringing of civil proceedings as well as to the bringing of criminal proceedings.
My noble friend Lord Ullswater told my noble friend Lord Mills in Committee that these words are wide enough to enable the agencies to bring civil proceedings and that therefore no reference to civil proceedings was needed in paragraph (b) to match the specific reference to criminal proceedings. I tabled this amendment today to give my noble friend the opportunity to explain the drafting of this clause in a little more detail and why in effect civil proceedings are, but apparently criminal proceedings are not, to be understood to facilitate the carrying out by the agencies of their functions—for that is what his reply to my amendment at Report implies. I wrote to my noble friend after Report stage and I received a helpful letter from him today.
The reference to the power of the English agency to institute criminal proceedings in England and Wales was, in an amendment moved by my noble friend on Report,

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removed from paragraph (b) and added at the end of subsection (1). The reference to criminal proceedings now stands very boldly at the end of the subsection. The objections to the drafting that were expressed apply as strongly to the phrase in its present position, for it is a normal rule of construction that, where you have an instance of concepts such as "criminal proceedings" and "civil proceedings", if you take specific steps to refer to one, as is done in this case, the effect is to exclude the other. I know that this is not the intention of the Government, nor would it be the wish of the Law Society that civil proceedings should be excluded. It is very important that it should be quite clear on the face of the Bill that civil proceedings are included for the reason that I just mentioned. I beg to move.
Viscount Ullswater: My Lords, Amendment No. 12, introduced by my noble friend Lord Coleraine, purports to give the agency power to institute civil proceedings in England and Wales. He indicated that I suggested that this amendment is, however, unnecessary. Whereas it is necessary to give the agency express power to take criminal proceedings since it is to be a prosecuting authority under the legislation in respect of which it has functions, so far as civil proceedings are concerned the agency will be able to take any civil proceedings which in its opinion are calculated to facilitate or are conducive or incidental to the carrying out of its functions by virtue of Clause 35(1) (a), as mentioned by my noble friend.
A good example of why the specific reference to criminal proceedings is needed are the agency's functions under the Sludge (Use in Agriculture) Regulations 1989, transferred to the agency by Clause 2(2) (c) of the Bill. The agency's functions under these regulations are limited, for example, to inspecting the sludge producer's register and being provided with information, but it is wished that the agency be the prosecuting authority for any breach in the regulations. It could not be said in this case that prosecuting would facilitate or be conducive or incidental to the specific functions given to the agency by the regulations and thus fall within Clause 35(1) (a); therefore an express provision is required on the face of the Bill.
With that explanation, I hope that my noble friend will feel able to withdraw his amendment.
Lord Coleraine: My Lords, the drafting of this clause needs further thought. I know that those who advise me will read what my noble friend said. I hope that, if they are satisfied with what was said, it will leave the Bill in such a state that those who visit it in later years will understand why there is a reference to "criminal" but not to "civil" proceedings. In my opinion, this is not necessarily the end of the matter. There should be some other way of dealing with this. But my noble friend's remarks will need to he carefully considered. I beg leave now to withdraw my amendment.
Amendment, by leave, withdrawn.
Clause 54 [Contaminated land]:
The Earl of Kintore The Earl of Kintore moved Amendment No. 13:
Page 45, leave out lines 35 to 38 and insert:
("() "Contaminated land" is any land or interest in land, whether comprising of the surface or of any substratum, mine, mineral or underground space, which appears to the local authority in whose area it is situated to be in such a condition, by reason of substances in or on that interest in land, that—").
The noble Earl said: My Lords, in moving this amendment I should like to speak also to consequential Amendments Nos. 14 and 19. Amendment No. 13 would alter the definition of contaminated land and, with consequential Amendments Nos. 14 and 19 to the definition of "owner", would ensure that where contamination is in an underground mineral seam or mine which does not belong to the surface owner, the surface owner or occupier will not be held liable. If owners and occupiers are to be responsible for what they own and occupy, the use of the word "under" is unnecessary. Ownership has no vertical limits unless there are exceptions specified in the titles or by legislation. Coal, oil and gas, for example, are statutory exceptions belonging to the state and are under the land. The Bill could make surface owners and occupiers liable for cleaning up contamination in the underground seams if they become polluted because they are under the land. Most obviously, the definition in the Bill makes a surface owner liable for polluted water in abandoned coal-mines which were formerly worked by the National Coal Board and which belong to the Coal Authority.
The purpose of Clauses 55 and 57 of the Bill is to introduce responsibility for the discharge of polluted water from mines that are closed from the beginning of the next century. But the definition of "contaminated land" in Clause 54 will result in land, including the surface, where there is already contaminated water in old mine shafts underneath being classed as contaminated land and for an immediate responsibility to be placed on owners and occupiers.
There is therefore an inconsistency between Clauses 55 and 57 and the definition in Clause 54. The Minister stated that it was the Government's intention that the owner of the mineral or mine should generally be the person responsible for it. He referred to the Interpretation Act 1978 for the description of land. It may be that the owner of the mineral or mine could be responsible. However, the legal advice that I have received is that in the case of a disused mine there is considerable doubt whether the mine owner would be responsible: what he owns is an underground space rather than soil or rock, and an underground space may not be land. To a lawyer, the obvious interpretation is that unless the Bill is amended the surface owner would be held responsible.
The purpose of consequential Amendment No. 14 is to alter the definition of "owner" for the purpose of Scots law, to make clear that where underground strata are in different ownership from the surface and there is contamination in any of the strata, whether the surface or any underground mine or mineral seam, the person on whom the legal responsibility will be placed will be the owner or occupier of the appropriate stratum or layer of ground.
Amendment No. 19 seeks to achieve the same purpose in English law. It would be wholly inequitable to make an owner or occupier liable for property which he does not own, does not occupy, has not polluted and from which he can receive no benefit. I hope that the Minister will state that he accepts the principle and that the Bill will be amended, either in the terms of my amendment or otherwise, to make it clear that such a possibility could not occur. I beg to move.
Lord Pearson of Rannoch: My Lords, I rise to support very briefly the noble Earl's amendment. I look forward to my noble friend's reply. I should have thought that, if my noble friend did not accept the spirit of the amendment, he would be going against the recent judgment in the Cambridge Water case. I am sure that that is something which the Government would not want to do.
The Earl of Harrowby: My Lords, at Report stage, five noble Lords from all sides of the House grumbled at the lack of guidelines. Therefore, I gather that the guidelines are not unimportant.
I am not a politician. However, I have some experience of boardrooms, as an executive and non-executive, in the chair and out of it, in big companies and small and at home and abroad. If I, as a non-executive, had told my chairman that I proposed to take to the board a proposition such as this one—the whole of Clause 54—which is so incomplete, ill thought out, prone to hostile reception and without any vestige of advance consultation, I would have expected him to say, "Take it away and don't bring it back until you've done your homework or you will come to grief." I am sorry to have to say that to my noble friend the Minister, who is one of the nicest of men. I am well aware too of the pressures on ministerial life. My remarks are aimed rather at the habits and the generality of government business.
In my brief time as a Member of your Lordships' House, I have seen such inefficiency exemplified on a number of occasions. There was, for instance, the Criminal Justice and Public Order Bill. Surely a quiet dinner party given by the Home Secretary to one of the many occupants of this House who have held that post before him would have been of considerable advantage and saved a great deal of time. Another instance that comes to mind was the Coal Bill, where five (or perhaps four) organisations made representations. Time with them would have saved a great deal of trouble. Instead, there was the humiliation which results when a number of amendments are forced on the Government. Parliamentary time would have been saved. We are told that it is always very short. Consultation with your Lordships at Committee stage, Report stage and Third Reading would have made it much more focused.
To be succinct and relevant, I feel that the presentation of half-baked clauses—as this one is—deserves a protest. I leave it to your Lordships to agree
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with me, if they feel so inclined, that the lack of guidelines in this instance should not have been forced upon us.
Viscount Ullswater: My Lords, my noble friend Lord Harrowby spoke ill of the clauses that have now surfaced in the Environment Bill—Clauses 54 to 57. These contaminated land provisions have resulted from an extensive consultation over a period of some two years—consultation with industry, the property side of business, the banks and others. I do not believe that we can accept his criticism that the clauses are half-baked. That may be his opinion. However, I should like to record that we have gone through a very long period of consultation. We believe that we have come up with some very important proposals.
The amendments of the noble Earl, Lord Kintore, seek to address the question of potential liabilities falling on owners as a result of land being identified as contaminated by virtue of substances in substrata or mines.
Before responding to the detail of the amendments, I should state that the Government intend to bring forward their own amendments on the question of water pollution from abandoned mines and how that might be considered under these contaminated land provisions. Certainly we do not intend that those provisions should bypass the defences and exemptions available in respect of such waters under the Water Resources Act. The noble Earl moved similar amendments at Report stage. I repeat what I said in response on that occasion: the definition of "land" in the Interpretation Act 1978, already includes any estate interest, easement, servitude or right in or over land.
Lord Stanley of Alderley: My Lords, perhaps my noble friend will give way for a moment. Did I hear him say that he was going to bring forward amendments over polluted water from abandoned mines?
Viscount Ullswater: My Lords, I did. We do not intend that these provisions should bypass the defences and exemptions available in respect of such waters under the Water Resources Act. Those were the words that I used. It is the overlap between the provisions on contaminated lands and those on abandoned mines that we seek to put straight.
The primary responsibility for remediation of any mines identified as contaminated land would obviously fall on anyone who caused or knowingly permitted the contaminating substances to be there. But any residual responsibility passing to the "owner" of the land would, as a result of the definition of land in the Interpretation Act, fall to the owner of the mine or the mineral rights, and not the owner of the surface land where he is a different person.
My noble friend Lord Pearson brought to the attention of the House the Cambridge water case. That case was brought at common law and therefore has no direct bearing on these statutory provisions. I suggest therefore that the amendments are not needed to achieve the noble Earl's objectives. I go beyond that and say that their inclusion could potentially create other problems. Moving away from the definition of land in the Interpretation Act in this respect could create unintended

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inferences that other differences in meaning should be implied as well. For that reason I ask the noble Earl to withdraw his amendment.
4.30 p.m.
The Earl of Onslow: My Lords, before my noble friend sits down perhaps I can ask him a question because I have been quite slow on this matter. Am I right in saying that if some surface land bubbles through some contaminated mine land—the owner of that land has not caused the contamination; it is accidental—the owner will then be legally and clearly not liable for that contamination? Have I got that right? If not, perhaps my noble friend will kindly explain.
Viscount Ullswater: My Lords, as my noble friend explained it, he has got the interpretation correct.
Lord Harmar-Nicholls: My Lords, I was a little disturbed by my noble friend's reaction to the comments made by my noble friend Lord Harrowby. It is not the first time that we have seen this from the Government Front Bench. The claim that great consultation has taken place with lots of people is supposed to be an answer that is unassailable to anybody who criticises the results as they appear in a clause in a Bill. But who dissected the results of the consultation? Who made the decisions arising out of the consultations?
My protest and my disturbance arises from the fact that consultation does not end until the Bill has passed through this House. That is all part of the consultation. The whole idea of Parliament is that its Members bring their experience and knowledge to bear in order to arrive at the right answer. The record that my noble friend Lord Harrowby gave to the House in relation to his qualifications for stating a view on the matter is quite unassailable. Merely to pass it off because consultation has taken place with lots of other people is not a good way of arriving at what eventually decides whether the Bill is good or bad.
Viscount Ullswater: My Lords, with the leave of the House—if I have the leave of the House to respond to my noble friend—I entirely accept that any legislation going through this House or another place is part of the whole process. I would not in any way indicate that what is put down on the written page in any Bill should not be examined in detail by the two Houses. I was trying to indicate that we arrived at the words in the Bill after extensive consultation. I tried to indicate that there was some reason on my side for saying that those words were not half-baked.
The Earl of Kintore: My Lords, I thank all noble Lords who spoke in this short debate. I thank the Minister for his reply. However, I fear that Clause 54 is still seriously flawed and look forward to seeing the government amendments. Meanwhile, I beg leave to withdraw Amendment No. 13.
Amendment, by leave, withdrawn.
[Amendment No. 14 not moved.]
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 15:
Page 48, line 18, at end insert:
(""creditor" has the same meaning as in the Conveyancing and Feudal Reform (Scotland) Act 1970;").
The noble Earl said: My Lords, I gave an undertaking at Report stage to bring forward an amendment to Clause 54 of the Bill to clarify the position of heritable creditors not in possession of the security subjects. Amendment No. 20 has that effect and Amendments Nos. 15 and 16 are consequential. It has always been our intention that the definitions of "owner" in England and Wales and in Scotland should be similar in effect. The amendments seek to bring that about. I beg to move.
On Question, amendment agreed to.
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 16:
Page 48, line 24, at end insert:
(""heritable security" has the same meaning as in the Conveyancing and Feudal Reform (Scotland) Act 1970;").
On Question, amendment agreed to.
The Deputy Speaker (Lord Skelmersdale): My Lords, in calling Amendment No. 17, I should point out to the House that if it is agreed to, I cannot call Amendment No. 18.
The Earl of Kinnoull The Earl of Kinnoull moved Amendment No. 17:
Page 48, line 40, leave out ("(other than a mortgage not in possession)").
The noble Earl said: My Lords, this is the third discussion on the definition of ownership in this clause, particularly in regard to where it refers to the mortgagees in possession in relation to contaminated land. I raise the matter again because it is clearly a serious issue among those lending mortgages on property.
My noble friend Lord Jenkin of Roding reminded us in Committee of the Government's stated policy under the framework of contaminated land, which was that:
"the act of lending, whether secured or not, does not of itself open the lender to liability for meeting the costs of remedying any damage caused by the actions or omissions of the borrower".—[Official Report, 31/1/95; col. 1445.]
My noble friend Lord Ullswater gave a conciliatory and encouraging reply. He repeated the argument that it was not the Government's intention to apply a "deep pocket" policy with regard to the lending of money. He said:
"The Government are committed to the view that banks and others should not be treated as 'deep pockets' to pay for the restoration of environmental damage for which they bear no real responsibility. The Government accept that any attempt to treat financial institutions in that way would serve only to threaten the supply of normal financial services to many sectors of the economy".
My noble friend went on to say that:
"The Government are willing to consider this question further, and to examine whether changes to the definition of 'owner' are justified to deal with the possibility of mortgagees finding themselves involuntarily in possession of property".—[Cols. 1448–1449.]
That was an encouraging reply but unfortunately my noble friend was not able to come up with any formula. My noble friend Lord Jenkin of Roding, with admirable consistency, moved a further amendment on Report. My noble friend Lord Ullswater stated that he saw no justification for change and offered no protection other than existing remedies open to lenders. He cited other

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liabilities—statutory provisions —concerning mortgagees in possession on highways, public health and building regulations.
My noble friend may not be surprised to know that the Council of Mortgage Lenders still considers this matter to be extremely serious. It feels that there are strong arguments why the justification given so far by my noble friend is unsatisfactory. It cites that the cost of restoration of contamination is often unquantifiable and uninsurable. It causes serious blight in the whole area and could leave properties abandoned. It made a strong general point that it seems wholly unreasonable to inflict such a liability on a modest loan on the security of a property. I must agree because, as the Bill stands, the responsibilities of lenders—banks, building societies and so forth—will, unless they take careful steps, meet the responsibility of mortgagees in possession.
If one looks at the practical side, in 1994 building societies were less lucky in their possessions. Out of those possessions, 35 per cent. were voluntary, where the mortgagee simply handed in the keys or abandoned the property with agreement. If no further changes take place, what should lenders really do in practical terms? Should they just abandon their loans, which is what the Government are suggesting, and leave a host of abandoned properties? They could appoint a receiver who under the Law of Property Act 1925 would have the authority, but I am told that there would be considerable difficulty in persuading the receiver to accept responsibility when there is likely to be no income from which to pay the receiver's fees.
Neither of those choices is satisfactory, particularly in the case of residential loans. I find it very disquieting that no formula has yet been found to meet the Government's original commitment to avoid the very large potential liability for mortgage lenders. If nothing is found to meet such a formula, the consequence will he an obvious worry in that it will interfere with the flow of mortgages to finance property.
The general conclusion is that, if we have to rely on abandoned properties for lenders to avoid the risks of this huge potential liability, it is a disorderly way to proceed. One is somewhat surprised that the Government believe that such a future course of action is in the general good. I have asked my advisers about the definition of taking a property in possession. Perhaps I may quote briefly from a letter which I received just an hour ago. It states:
"There is no hard and fast rule of what a court would constitute as 'possession' as each case has to be decided on its own merits. Typically, the very act of visiting or inspecting the property, or securing it, would constitute possession. The fact that the lender actually has the keys to the property in his possession could also, in eases, constitute possession. Additionally, in the case of contaminated land, the lender may not know that the land was contaminated and required clean-up and he would, therefore, have no reason to try to refuse to take possession!".
There is very serious concern on that point.
I asked my noble friend to say what would happen if a lender took possession, then decided that he should not have done so and applied to the Land Registry to remove his charge on the property. Would he still be deemed to have taken possession for, say, that month?
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This is a minefield of concern and a very serious issue. I hope that my noble friend will understand that the Government's replies so far have not satisfied the lenders on property and will have some encouraging words for us. I beg to move.
The Deputy Speaker: My Lords, there is a misprint in the Marshalled List. The word "mortgagee" has been mistyped as "mortgage". Therefore, the amendment proposed is:
"Page 48, line 40, leave out ("(other than a mortgagee not in possession)")".
4.45 p.m.
Lord Jenkin of Roding: My Lords, my noble friend Lord Kinnoull very kindly referred to the earlier debates we had on this point. Perhaps I may in turn refer with gratitude to my noble friend the Minister, who has written me a long and comprehensive letter as to why the Government feel that nothing more can be done on this matter. The speech from my noble friend which we have just heard must leave the Government with a feeling that all is not yet well with this issue.
How far should a bank or building society be held liable to the whole of the proceedings under the new Clause 54 merely because they have stepped in, as a mortgagee, to secure the land and perhaps reduce the impact of the contamination which is happening? And that by that act alone they will become liable to all the proceedings and procedures which this clause sets out.
I believe that my noble friend is totally sincere in saying that the Government do not expect or want this clause to interfere with the normal process of lending and borrowing. But, as my noble friend Lord Kinnoull has said, if there is to be no protection for these circumstances—and there are many others—which he has in mind and which I have described, that is precisely what will happen; namely, it will become difficult to find lenders for premises and small businesses and so on where there may be a risk of contamination. I have mentioned some of them in the past such as petrol stations, dry cleaners and people of that kind who handle chemicals and other substances which may give rise to contamination.
I cannot believe that it is the Government's intention that that situation should be so. I beg my noble friend to look at this matter again and to go back yet again and discuss it with the lawyers, the mortgage lenders, building societies and banks and the other people who do the great mass of lending in order to find out whether there is some way in which they can build in protection.
In his letter to me my noble friend said:
"In practice, an alternative course of action to taking possession of secured assets may be open to lenders. They may be in a position to send in insolvency practitioners, or other receivers, who would benefit from the protection against personal liability which is provided under the new section 78P(3)".
There must be many cases where a lender is very reluctant to take that step. He may want to find a way forward for saving the business and so perhaps gaining in the longer term the benefit of his security, and therefore get repayment of the loan.

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We have just had the decision of the House of Lords about redundancy payments which is already causing much consternation to insolvency practitioners, as they are described in my noble friend's letter, because of the decision that, if they keep a business going for more than a certain number of weeks, they may become liable for full contractual redundancy. Here we have another example where, if they try to keep a business going for a while, the insolvency practitioners could find themselves subject to all the rigours of Clause 54. The only consequence is that, faced with this situation, the banks are going to rush in and appoint receivers and everyone will be dismissed. The business will be scattered and while it may have been possible to save something from the financial wreck, it will turn into an asset-stripping exercise.
My noble friend must recognise that the Government have not yet found a solution which meets the very justifiable concerns of lenders. I hope that if the Government cannot accept the amendment which my noble friend has moved this afternoon, between now and the Bill coming before another place a further effort will be made with the relevant associations to find a solution.
Viscount Ullswater: My Lords, we have considered this matter very carefully indeed. These amendments moved by my noble friend Lord Kinnoull intend to exclude mortgagees or, in Scotland, creditors in standard security, from the definition of the "owner" who might be liable to receive a remediation notice where the polluter cannot be found. This exclusion would apply whether or not they had taken up their security and were in possession of the land.
During our discussion on a related amendment moved by my noble friend Lord Jenkin of Roding at Report stage, as he has indicated to the House, I explained the Government's thinking in this area. Lenders should not be liable, as deep pockets, merely on the basis that they have lent money. However, they should not expect to be treated any differently from any other owners of land if they take up possession of the land. My noble friend Lord Kinnoull, having taken legal advice, has indicated that there are no hard and fast rules about taking possession. However, I believe that mortgagees have a peculiar experience and should not be treated as if they have no experience at all. There appears to be no good reason for departing from the current position at law where a mortgagee in possession is potentially liable to pay the outgoings of the property and any other liabilities under various statutory provisions. That was the content of my letter to my noble friend Lord Jenkin.
Mortgagees in possession are currently potentially liable for other liabilities arising from their ownership. The occupier's potential liability to abate a statutory nuisance would he an example. It would not he right to allow mortgagees in possession an exemption from liability for what could be a long period before they sell the land when other owners could be liable. Any other conclusion would have the effect of underwriting, at public expense, the investments of lenders.
Lenders have already developed procedures to ensure that, wherever possible, they do not find themselves in this position. I must also stress that lenders will retain
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the right not to go into possession of land over which they hold security if they believe that the land could have a negative net value.
I do not know that I can go any further beyond what I have said both today and on Report. For the reasons that I have set out, the Government do not want to accept the amendment and I therefore ask my noble friend to consider withdrawing it.
The Earl of Kinnoull: My Lords, I thank my noble friend for his reply although, as I am sure that he will understand, I do not accept that this is the end of the picture. I should also like to thank my noble friend Lord Jenkin of Roding for his powerful support throughout the passage of the Bill in your Lordships' House. He has advocated the case with a great deal of logic and practical sense.
The amendments were purely for probing purposes. I regret that there has been no change or advance in my noble friend's thinking. Nevertheless, I hope that there will be room for further discussion between now and further 'debate in another place, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 18 and 19 not moved.]
The Deputy Speaker: My Lords, in calling Amendment No. 20, I should advise the House that if it is agreed to, I cannot call Amendment No. 21.
The Earl of Lindsay The Earl of Lindsay moved Amendment No. 20:
Page 48, line 46, leave out ("the person") and insert ("a person (other than a creditor in a heritable security not in possession of the security subjects)").
The noble Earl said: My Lords, I spoke to Amendment No. 20 with Amendment No. 15. I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 21 and 22 not moved.]
Viscount Ullswater Viscount Ullswater moved Amendment No. 23:
Page 51, line 36, at end insert:
("(3A) If, in a case falling within subsection (1) or (7) of section 59 above, the land in question is contaminated land, or becomes such land by reason of the deposit of the controlled waste in question, a remediation notice shall not be served in respect of that land by reason of that waste or any consequences of its deposit, if and to the extent that it appears to the enforcing authority that the powers of a waste regulation authority or waste collection authority under that section may be exercised in relation to that waste or the consequences of its deposit.").
The noble Viscount said: My Lords, I rise to move Amendment No. 23, and to speak also to Amendment No. 24. During the debate on Report, in response to an amendment that was moved by my noble friend Lord Stanley of Alderley—
Lord Williams of Elvel: My Lords, is the Minister also speaking to Amendment No. 24 or Amendment No. 44?
Viscount Ullswater: My Lords, I am moving Amendment No. 23 and speaking also to Amendment No. 44. If I said that I was speaking also to Amendment No. 24, I beg your Lordships' pardon; I meant Amendment No. 44.

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During the debate at Report stage, in response to an amendment moved by my noble friend Lord Stanley of Alderley, I undertook to reconsider the position of landowners whose land may have become contaminated as a result of fly-tipping. These amendments will have the effect of restoring the existing exemption from liability for the costs of any clean-up currently provided for the innocent victims of fly-tipping under the terms of Section 59 of the Environmental Protection Act 1990.
Amendment No. 23 disapplies the contaminated land provisions where, and to the extent that, the land has been contaminated as a result of illegal waste deposits prohibited under Section 33(1) of the 1990 Act. Amendment No. 44 removes a provision which would have disapplied the powers of waste regulation and collection authorities under Section 59 of the 1990 Act to take action to remove illegally deposited waste.
The amendments effectively restore the status quo. Full responsibility for dealing with illegal deposits of waste is returned to the waste regulation and collection authorities, which will be best placed both to discover fly-tipping promptly and to identify who might be responsible for it, as a result of their other responsibilities in waste regulation. The Government will consider the question of whether any specific guidance to the agency is needed on the priority that it should accord to action under the powers in Section 59 to remove illegal waste deposits.
I hope that your Lordships will accept these amendments, which I believe answer the considerable concerns expressed on this question at Report stage. I beg to move.
Lord Stanley of Alderley: My Lords, I thank my noble friend for moving this amendment which answers the point that I was making. I have, however, one very small query for my noble friend which I should perhaps have picked up earlier. If the rubbish has contaminated the land and the waste authority does not collect it, as is its entitlement, could the occupier then be liable, under the contaminated land provisions, if he does not collect It? Apart from that query, I am most grateful to my noble friend.
Viscount Ullswater: My Lords, I believe that that is what the amendment seeks to obviate. As my noble friend explained, the landowner would not be responsible.
On Question, amendment agreed to.
Lord Northbourne Lord Northbourne moved Amendment No. 24:
Page 52, line 8, at end insert:
("() When an enforcing authority has served a remediation notice in accordance with this section it shall be the duty of the authority to take appropriate steps to satisfy itself that the work specified in that notice have been complied with and, when they have been, to record that fact on the Register.").
The noble Lord said: My Lords, I rise to move Amendment No. 24. Before I speak to it, perhaps I should say that I believe that it contains a slight grammatical error in that the word "work" in line 3 should read "works".
The amendment relates to the Remediation Register. Under the Bill as it stands, the local authority must place on the register any details of contaminated land which it identifies, together with details of the remediation that it requires to be carried out and the person who is liable—the "appropriate person". The Bill makes no provision for the entry ever to be struck off the register or for any record to be kept of whether or not the remediation has been carried out to the local authority's satisfaction.
The blight which will be placed on land by its designation as "contaminated" on the register will therefore hang over it for ever. That effect seems to me to be the precise opposite of the Government's objective which was stated in A Framework for Contaminated Land, as,
"to encourage an efficient market in land 'which may have been contaminated"
and to,
"encourage the development of such land".
At Report stage, I introduced an amendment which would have required local authorities to issue, after the works had been completed, a certificate which would have given prospective purchasers and developers some confidence that the local authority was not simply waiting in the wings to pounce again on a new owner. That amendment was rejected.
I come back now with a much more modest proposal: that the local authority should at least be required to record on the register that the actual things which it, directed should be done have been done, and to a standard that it finds acceptable. That will not impose extra work on the local authority because, having ordered something to be done, surely it must see that it has been done to a standard which it accepts.
In my view, the amendment does not go far enough to promote a lively market in "brown land" but it should at least help —that is, if the Minister accepts it and if your Lordships favour it. I beg to move.
5 p.m.
Lord Renton: My Lords, I support the amendment, which is necessary just in case in some later court proceedings there is a doubt or argument about this matter. By putting this on the record, it would remove any doubt and argument and could save a great deal of trouble. I hope that my noble friend will accept the amendment or at any rate the principle of it.
Viscount Ullswater: My Lords, I am grateful to the noble Lord, Lord Northbourne, for moving his amendment as it gives me an opportunity to flesh out in some more detail what are the Government's intentions in this area before the Bill goes for further debate in another place.
It is clear that the registers created under these provisions should contain, as well as the formal documents issued by the enforcing authorities, information about what assessment, remedial works and further monitoring have been done on any site. The availability of such information will play a major role in securing the Government's overall objective of

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encouraging an efficient market in land which may have been contaminated—the intention identified by the noble Lord, Lord Northbourne. I have already indicated in previous debates on these issues that the Government intend to bring forward their own amendment to correct what is clearly a gap in the existing provisions relating to the registers.
What we intend to do is to provide those served with remediation notices, or the owners of the land, with an opportunity to add their own information to the register recording what they have done to manage the contamination on the land. We do not believe that it should he the enforcing authorities which should provide that information. Although enforcing authorities will, of course, need to satisfy themselves that the terms of any remediation notice have been complied with, the onus for satisfying and meeting the concerns of any potential future purchasers of the land should lie with the owner of the land. One reason for that is that we intend that remediation notices should generally he phrased in terms of objectives to be achieved rather than specific works which have to be undertaken.
In some instances the requirements of a remediation notice may entail long-term measures; in others the circumstances of the site may change over time. As a result, a judgment made by an enforcing authority that the terms of a notice had been complied with could only be made on a contingent basis. If circumstances required it, the same site could be subject to further remediation requirements in the future.
Obviously in very many cases there will not be any need for further regulatory requirements under these provisions to manage any contamination. But the Government's concern is that if the information concerning remedial actions on the register came from the enforcing authority, future purchasers could be led to assume that the site had been given an unconditional clean bill of health.
That is the point that I wish to bring to the attention of my noble friend Lord Renton. If we did as the noble Lord, Lord Northbourne, suggested, the agency would take over from the owner of the contaminated land if there were an acknowledgement that the remediation had taken place. There may be contamination in the long term which would need to be dealt with. It should not be the regulatory authority which should have the responsibility for indicating that the land had a clean bill of health. That would have adverse effects on the efficiency of the property market, which might be working on false information. It could also have implications for the legal position of the enforcing authorities, as purchasers who relied on that information could seek to establish that they had been in dereliction of their duties if further problems arose.
For those reasons, I would ask the noble Lord to withdraw his amendment and await the Government's amendment on this matter.
Lord Northbourne: My Lords, I shall withdraw the amendment, but I should like to take the opportunity to draw two matters to the Minister's attention. The first is that many developers and purchasers will look no further than the register. If they find that the property is
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on the register, they will not go on to spend hours and days looking to see what has happened. Unless they have strong reasons for wanting to buy that property, they will go elsewhere.
The second point I wish to make is that the authority could use this provision as a way of waiting for a "fatter" owner to carry out more work; in other words, if the owner of the land at the time was not very well off, the authority could let the owner do a little work and wait for the property to be sold to someone who was better off. The authority might then pounce and ask for a great deal more work to be done. That is a threat which could put off purchasers. With those two points, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Northbourne Lord Northbourne moved Amendment No. 25:
Page 52, line 18, at end insert ("or the assignee, the executors, the administrators or the heir of such person.").
The noble Lord said: My Lords, I speak also to Amendment No. 26. The amendments relate to transfer of liability for pollution. It will be clearer if I speak first to the second of the amendments, Amendment No. 26, and then to Amendment No. 25.
Amendment No. 26 is concerned with the transfer of the polluter's liability specifically to the occupier or owner of the land, as referred to in Section 78E(3) (b). Such transfer can arise as the result of a transfer of an interest in the land for consideration, as a result of inheritance, gift, termination of a lease by the effluction of time or by implied or explicit transfer of the liability either for value or not; in other words, there are a number of different ways in which it can happen.
For future transfers, I accept fully that it will be up to the parties to get it right and to provide documentation which proves their intention; but for past transfers the section is so vague as to leave wide areas of uncertainty and the potential for unfairness. The National Conditions of Sale and the General Conditions of Sale of the Law Society refer to the transfer of liabilities. The CLA has, at my suggestion, taken senior legal opinion as to whether those standard clauses would effectively transfer liability for remediation from the polluting vendor of the land to a purchaser.
The opinion advises that there is considerable doubt. In particular, it seems probable that latent, as opposed to patent, liabilities which were not disclosed by the vendor at the time of sale could well not have been transferred. The position under the other forms of transfer which may or may not have taken place seems even more obscure.
The amendment would clarify the position. Its wording reflects the criteria of a prudent buyer which inform the terms of the National Conditions of Sale, which is where they have been taken from. I commend the amendment to the Government if for no better reason than because without it there may be some doubt as to whether all the latent liabilities of, say, the Gas Board have been transferred effectively to its privatising successors.
I turn now to Amendment No. 25 which refers to the transfer of a liability for pollution to any other person than the owner or occupier of the land. It is a probing

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amendment. I should like to ask the Minister two sets of questions. The first relates to the situation where the polluter is an individual. This is an important point. Do the Government intend that liability for pollution should die with the polluter and that the liability should not pass to his heirs, who, it is only fair to say, may have benefited from the money he made out of the polluting activities? If so, the liability will, as the Bill is drafted, fall automatically upon the owner or occupier of the land when the polluter dies. That will give the owner or occupier of the land an insurable interest in the life of the polluter.
The second question about the polluter as an individual is: can the polluter transfer his liability to another person inter vivos? In so far as the Bill contemplates him transferring his liability to the landowner, presumably he can. If so, could a polluter transfer his liability to a terminally ill person for consideration and thereby avoid liability and transfer the liability to the landowner or the occupier? If so, there will grow up a flourishing trade in deathbed transactions.
Finally, where the polluter is a limited liability company, do the Government envisage such a company being able to transfer its net assets to another company without transferring the latent liability for remediation of hidden contamination? If so, the polluting company could go into liquidation and thereby once again liability would be washed clean from the polluter and would be transferred to the owner or occupier. If that or some similar device is possible—and, as was pointed out on Report by the noble Lord, Lord Williams, it will be difficult to prevent that—surely, it will become standard practice to do whatever it is that enables the polluter to get off the hook.
I suggest that the Bill leaves wide open many loopholes for the polluter to avoid liability. Therefore, far from creating a framework to ensure that the polluter pays, the Bill appears to be designed to ensure that the occupier or the owner of the land pays. Unless the Bill is modified, it could go down in history as a polluters' charter. I beg to move.
Lord Renton: My Lords, it has only just occurred to me—it should have occurred to me weeks or months ago—that much of the trouble involved in cases relating to land contaminated by abandoned or working mines would have been solved if there had been a land registration system everywhere. Of course, that advantage exists in Scotland but in England and Wales it is a rare condition.
The lack of registration on the land register makes the proposed amendments very important. Otherwise, not only will private sellers and purchasers of land suffer but the public interest may be affected. On many occasions, public authorities or charities need to buy land. It would be most unfortunate if people were deterred from making a desirable and necessary purchase owing to the uncertainty of the obligations—indeed, sometimes of the advantages—that have been obtained where the land has been properly cleared.
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Again, the noble Lord, Lord Northbourne, has raised an important practical point and I hope that he will receive a sympathetic reception from my noble friend.
The Earl of Lytton: My Lords, I support my noble friend Lord Northbourne. He touched on what lies at the heart of some of my misgivings about the operation of the Bill. They relate to the blight of uncertainty which results from the lack of a properly attached form of liability. I shall listen with great interest to the Minister's reply.
If we allow onto the statute book legislation which creates uncertainty it follows that that will create risk, which feeds through into every form of social and economic malaise. I cannot underscore that point too heavily. Certain areas are under threat, and in a previous debate on the Bill we heard the noble Lord, Lord Mason of Barnsley, speak eloquently about the blight that affects old coalmining areas. I too foresee the setting up of an industry to deal with risk management; the shuffling of liabilities to and fro.
In order to avoid the example set in the United States under the super-farm principles, there must be clear lines of demarcation. As I said previously in respect of the Bill, it is inevitable that some of those must fall into the public domain. It is not good enough for the Government, the Treasury or anyone else to say, "No, not us". The way in which the matter will be resolved, and the country's dirty history rectified, will be by people standing up and taking account of past actions, being pro-active and making investment. That means committing time, energy, money, and so forth, which are driven away by unassessable risk.
5.15 p.m.
Viscount Ullswater: My Lords, I must say to the noble Earl, Lord Lytton, that the Government accept a considerable amount of liability—if that is the correct word—because they spend a large amount of public money on cleaning up contaminated land, as does industry. In earlier debates, I mentioned that some £250 million per year was contributed by taxpayers to resolve this difficult question.
The amendments are more specific because they relate to the circumstances in which liabilities might fall to the owners or occupiers of land where they have not themselves caused or knowingly permitted that land to be contaminated. Amendment No. 25 seeks to make it less likely that the circumstances will arise where the polluter cannot be found, by providing for their responsibilities to be passed on if they should cease to exist. In the case of individuals, this would mean that were the polluter to die responsibility would pass to his heirs. In the case of companies which had been liquidated or dissolved, responsibility would pass to those to whom assets had been assigned.
Where any potential liabilities under these provisions have been crystallised through the service of a remediation notice before the polluter "ceases to exist", it would seem reasonable that the costs of compliance with that notice should constitute a call on the estate. We believe that that would be the position at law.

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However, the amendment would have serious effects on the law of probate and on company and insolvency law. I suggest that any changes to the law in those areas should be dealt with in those contexts. Otherwise, there is a serious risk that we would end up creating anomalous situations and considerable legal uncertainties. We could also inadvertently breach established and accepted legal doctrines which apply in those areas. As currently drafted, the amendments would also have the particular effect of making executors and administrators personally liable for the costs of remediation. For those reasons, I would not wish to accept the amendment.
Amendment No. 26 concerns the provision relating to the transfer of responsibility from the original polluter to a new owner of any land. As I have said on previous occasions, the Government recognise that the new Section 78E(3), as it currently stands in the Bill, is not entirely correct and we shall wish to bring forward our own amendments to it.
Our intention is to permit the statutory system to respect contractual arrangements, particularly through conveyances, which may have been made concerning responsibility for the condition of land. This amendment seeks to protect the rights and position of purchasers of land in any sale but it would potentially cut across the actual contractual arrangements governing that sale.
We believe that the statutory arrangements for the transfer of responsibilities should respect all of the provisions of any contract, including any relating to the treatment of latent defects and liabilities. It is certainly not the Government's intention to deny the purchasers of land any of the protections and rights that they would otherwise have enjoyed under their contracts.
The noble Lord mentioned the potential liabilities of British Gas. I am advised that the legal entity remains the same and therefore the liabilities remain. I hope that in the light of that clarification, the noble Lord will feel able to withdraw his amendment.
Lord Northbourne: My Lords, I believe that the Minister has conjured up many reasons for doing nothing but has not addressed the fundamental problems that I raised in introducing the amendment. Will he agree to look at the matter again and to reconsider it? There was a lot of meat in what I said. I shall not divide the House on this matter and therefore I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 26 not moved.]
Lord Northbourne Lord Northbourne moved Amendment No. 27:
Page 55, line 50, at end insert:
"Defence.
(In any proceedings under sections 78G and 78H it shall be a defence to show either—
(a) that the contamination arises from the activities of others which the owner or occupier was powerless to prevent, or
(b) that the contamination was caused by the movement of contaminating liquids, gases or airborne particles onto the land by natural causes and there were no practical means by which the owner or occupier could prevent such contamination.").
The noble Lord said: My Lords, I am sorry to take up so much of the time of the House. However, these are important issues and this is the last of my amendments. The amendment is about defences to having a remediation notice served upon you. The amendment would give householders, occupiers and owners some minimal defences against the unjust imposition of liability for remediation by an authority. It offers no more protection than is in practice available under current statute and common law.
At Report stage the Minister referred to Section 80 of Part III of the Environmental Protection Act. That section provides the person on whom a notice under that Act is served with a defence which is significantly broader than those proposed in the amendment.
The opinion taken by the CLA from Steven Tromans stated the following:
"Arguments that the provisions of Part II of the Bill are doing no more than existing law can already do may be true to an extent, but are disingenuous in the extreme. If the existing powers are adequate to cover the mischief, then why are the new measures being enacted at all?".
He went on to refer to his instructions which give rather more detail and which again I shall take the liberty of quoting to your Lordships:
"Whilst it is true to say that the common and statutory law does make a current occupier liable in certain instances for a nuisance caused by another, however this is in general only where the occupier can be said to have continued or adopted the nuisance. This applies to a limited number of cases where the occupier is regarded as being under a positive duty to act and implies the following:-
(a) knowledge, actual or imputed of the nuisance; and
(b) a determination by the courts that it was unreasonable for him to have failed to act.
Where a nuisance arises from natural causes or the act of a third party, the liability of an innocent occupier of land is limited by what is reasonable having regard to his means and all the other circumstances of the case.
None of these limitations and defences apply to the Bill which imposes an across the board, fall back liability in respect of all contaminated land. Under the Bill no defences apply save for fly tipping".
I turn briefly to the detail of my amendment. Paragraph (a) draws attention to the fact that there may be a few other cases similar to and as much justifying attention as fly-tipping. These include cases where the contamination arises from the activities of others which the owner or occupier was powerless to prevent. An example might be a privately owned road tanker which runs off the road down an embankment onto land or houses. The owner or driver being dead—the Minister has just told us that if he is dead he no longer is the polluter—the polluter cannot be found and so, as the Bill is currently drafted, the householder would he liable for any chemical leaking onto the backyards. Another example may or may not be pollution caused by licensees who have operated in the past and left contamination in mining shafts. I shall have to read what the Minister has said on that subject before I can be sure whether that falls into this category.
Under paragraph (b) of my amendment a second ground for defence would be that contamination has moved onto the land from other land in the form of migrating liquids, gases or dust particles. I have to say

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immediately that at Report stage the Minister said (at col. 209 of the Official Report) quite a lot of helpful things about the lateral movement of water and suggested that the Government were looking at introducing amendments in that respect. My amendment draws attention to the importance of giving equal status to the migration of contamination in the form of gases or dust particles as well as liquids. The case reported in The Times today, in which the Prudential and its tenants are suing PowerGen for damage caused to crops and soil by fumes from the Richborough Power Station, near which I live, sufficiently emphasises the importance of that kind of pollution. I have to admit that I think it unlikely that PowerGen as a potential polluter will disappear but, as I have already said this afternoon, it is very possible that smaller polluters may disappear and leave the landowner with the liability.
As the Bill is drafted it gives no power to the authority to serve a notice on the owner of an adjacent site from which contamination has migrated—only on the owner of the receiving site. That must be wrong. I believe that the two paragraphs of the amendment give a little wholly justifiable protection to the householder, occupier or owner of land and do not extend the defences which exist under existing law. I beg to move.
Lord Renton: My Lords, in many circumstances in our statutes we make special provision for defences being raised. When that happens the onus of proof changes generally. Here we have rather complicated circumstances. I think that Parliament should make the position clear in the way that the noble Lord, Lord Northbourne, has suggested. If his way of doing it does not appeal to the Government, I hope that my noble friend will say that they acknowledge that there should be defences of this kind and that he will have suitable amendments inserted in another place.
Viscount Chelmsford: My Lords, I wish to raise another concern. I regret that it comes so late in the proceedings but it was only on Friday night that I discovered that the insurance industry is becoming extremely exercised on the change in responsibilities for pollution. The amendment of the noble Lord, Lord Northbourne, at least gives some opportunity to point out that it would protect against some possibly quite difficult insurance consequences. We have had the great word "superfund" mentioned already and I think everyone knows that on the American scene retroactive decisions by the courts over the years have allowed a whole lot of cases which insurers thought were closed to be reopened, raising considerable problems for the Lloyd's market, which accounts in a particular way at the moment, and, if a lot of very well formed opinion is true, considerable difficulties for American insurance companies over the years to come unless they are bailed out by further legislation.
I am not sure whether what is being proposed would work retroactively in this case. It certainly might. Alternatively, we face the possibility—I have not had time to be briefed by the insurance industry—that innocent landowners will find that they can no longer get general liability insurance which includes pollution
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for fear of the fact that unknown to them there is something underneath the ground for which they can be held liable because no one else can be found. I hope that the Government will pick this one up and think about it. There are potentially some difficult and important problems floating around on the insurance side.
5.30 p.m.
Viscount Ullswater: My Lords, Amendment No. 27 seeks to provide specific defences in any legal proceedings relating to remediation notices. The intention is to protect the position of landowners or occupiers who have not themselves caused or knowingly permitted contamination to occur, although the drafting of the amendment does not state that specifically. Effectively, the amendment seeks to exempt landowners from any responsibility for contamination on their land which they were powerless to prevent or which resulted from the movement of contaminants by natural causes.
As I have stated on previous occasions, the Government did not intend to create new categories of liabilities for owners of land by bringing forward these provisions. In general, we believe that we have not done so. We have reflected the existing position under the statutory nuisance provision in Section 80(2) (c) in Part III of the Environmental Protection Act 1990 which, as the noble Lord, Lord Northbourne, indicated, makes the owner or occupier of premises liable to receive an abatement notice where the person responsible for the nuisance cannot be found.
Those contaminated land provisions reflect also the pattern of powers and duties of local authorities which exist in the statutory nuisance provisions. In both, there is a duty to cause their areas to be inspected. In both, there is a duty to serve a notice, where appropriate, with offences of non-compliance with that notice. They also both contain a power for local authorities to act on the default of the recipient of a notice.
The major difference in approach lies, of course, in the differences of definition between statutory nuisances and contaminated land. However, it is clear that the definitions of statutory nuisances set out in Section 79 of the Environmental Protection Act would, inter alia, include much the same range of problems as what is described under the current provisions as "significant harm". Those parts of the definition of contaminated land which relate to the pollution of controlled waters reflect equivalent provisions in the Water Resources Act 1991, particularly Section 161.
It has been suggested that under the statutory nuisance provisions local authorities have more discretion in determining what is a "nuisance" than they would have in identifying land as "contaminated". Obviously local authorities do not have complete discretion to determine what a "nuisance" is. There is a substantial body of case law on the elements of a nuisance, and if a local authority is satisfied that a nuisance exists on the basis of that case law, it is under a duty to serve an abatement notice.
However, it might be suggested that there is more "discretion", in that there is an element of judgment involved in applying the general principles of case law

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on statutory nuisance to the particular problems of contaminated land. There is also no statutory provision for guidance on the application of the statutory nuisance provisions to nuisances arising from contamination, constraining the extent of steps which might be required to abate that nuisance. But any discretion present in the statutory nuisance provisions cuts both ways and could work to the disadvantage of landowners, or indeed anyone else held to be responsible for abating a nuisance or prohibiting its recurrence.
A local authority could potentially seek to impose conditions which were considerably more onerous than could be justified under the contaminated land proposals if it believed these were necessary to abate a nuisance. There is no requirement under statutory nuisance for local authorities to consider guidance from the Secretary of State or the agency—or indeed from anyone—in determining whether or not something is "prejudicial to health".
In practice, the lack of guidance on the application of the provisions to contaminated land leaves considerable potential for uncertainty and inconsistency in the operation of the statutory nuisance provisions. It was one of the Government's major intentions in bringing forward the contaminated land provisions to improve both certainty and consistency.
There have also been suggestions that the apparent absence of a "best practicable means" defence in the contaminated land provisions represents a deterioration in the position of landowners in comparison with the statutory nuisance provisions. A broadly equivalent effect is, however, achieved in the contaminated land provisions by the fact that a remediation notice may only specify steps which are "reasonable" having regard to the costs likely to be involved and to the seriousness of the harm or pollution of controlled waters in question. The regulations governing appeals against remediation notices will provide for the consideration of whether the requirements in any notice are indeed reasonable.
That will potentially have a broader effect than the "best practicable means" test in statutory nuisance. That defence is available only with respect to industrial, trade or business premises, and even then it does not apply with respect to all of the categories of statutory nuisance which might overlap with the definition of contaminated land, The test under the contaminated land provisions that the remediation requirements must be reasonable would apply in all circumstances and would also involve a direct consideration of the costs which would be involved.
Comparisons have also been made between our proposed statutory provisions relating to contaminated land and the position under various common law torts. What is often missed in those comparisons, however, is any acknowledgement that the two fields of law are seeking to achieve different purposes. Our proposed statute seeks to remove current environmental problems. Actions at common law, by contrast, seek to provide compensation to private individuals and companies for specific damage which they have suffered. We believe that those different objectives and purposes justify different legal tests.
1056
One way in which, on reflection, we feel that we may have stepped beyond our overall intention of reflecting existing liabilities is in the special case of victims of fly-tipping. We have just put that right through my Amendment No. 23 and Amendment No. 44, which is yet to be moved.
The noble Lord's amendment alludes to a further issue which the Government intend to address when this Bill is discussed in another place, and that concerns water pollution resulting from the migration of contaminants. The noble Lord, Lord Northbourne, alluded to the remarks which I made on Report. That can be both difficult to detect or prevent, and very expensive to remedy, particularly if groundwaters or aquifers have become polluted.
Looking again at the existing provisions, the Government acknowledge that in this particular area the potential liabilities of landowners, where they have not themselves caused or knowingly permitted the water pollution, would be extended by these provisions in comparison with the existing provisions in Section 161 or the Water Resources Act 1991. The Government therefore intend to bring forward their own amendment in this area to restore the status quo.
But this amendment asks for much more. What it is seeking to do is to remove potential liabilities which would fall to landowners under existing provisions. The Government do not believe that that would be justified.
It is important to remember that the definition of contaminated land, and the procedures for dealing with it, relate only to current environmental problems. The system is not punitive in its effects, nor will it necessarily impose some of the very high costs which have been suggested. Any action required to deal with contamination will have to be "reasonable" in terms of the costs and the seriousness of the harm or water pollution involved. The objectives of any remediation required may be to assess and manage any risks and not necessarily to remove all of the contamination on the site if its effects can be controlled in other ways.
The Government believe that it is reasonable for owners of land to bear the responsibility for what they own and the effect it has on others and on the wider environment in cases where no specific polluter can be found. Owners are always ready to reap unforeseen benefits from their land, whether that results from mineral discoveries, planning permissions or increases in value resulting from new transport infrastructure paid for by the public purse. We believe that they should accept their responsibilities as well.
My noble friend Lord Chelmsford asked me about retrospection. The provisions are not retrospective because they would result only in potential liability for significant harm where that is occurring after the provisions have come into force. They will not result in any liability for harm which had occurred previously, before the provisions came into force, and are not currently occurring. I hope that my noble friend is reassured by the words that I have used.
I thought it right to explain in some detail to the noble Lord, Lord Northbourne, the Government's position in relation to the amendment. I hope that I have been able

1057
to persuade him that the existing pattern of liabilities should not be changed and that, therefore, he will agree to withdraw the amendment.
Lord Northbourne: My Lords, no, I am afraid that the noble Viscount has not entirely convinced me. The position is very different as regards Part III and Clause 80 of the Environmental Protection Act. The best practical means which are referred to in subsection (7) of that Act refer to the landowner using the best possible means to prevent pollution and therefore not falling within the scope of an action under the Act. That is quite different from the whole question of what will be the requirements under the remediation notice.
I take comfort from what the Minister said about the lateral translocation of liquids. I hope that he will see the logic of accepting that the lateral translocation of gases or solid particles is in exactly the same category, or may be in exactly the same category, if it is suitably defined and specified. I cannot see why there should be any difference between the one and the other. If the one principle is accepted, then the other principle should surely be accepted. I take some comfort from the statement that it was not the Government's intention to create new categories of potential liabilities. All I am saying is that I think quite a number of us believe that they have in fact done so. I do not think this is something which can be debated on the Floor of this House because it is a complex legal matter. However, I wonder whether the Minister will agree to meet me and some legal experts on this subject with his legal experts and allow them to try to convince him that a great many of us, including the Royal Institution of Chartered Surveyors, the Country Landowners' Association and the National Farmers' Union, do not agree with his interpretation of the facts.
Viscount Ullswater: My Lords, with the leave of the House, I should say that of course I will always be open to a meeting as suggested by the noble Lord, Lord Northbourne. I have today identified existing liabilities and sometimes people find that uncomfortable.
Lord Northbourne: My Lords, I am grateful to the noble Viscount for his comments. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Ullswater Viscount Ullswater moved Amendment No. 28:
Page 61, line 3, after ("and") insert ("the guidance").
The noble Viscount said: My Lords, this is a technical amendment which clarifies that the definitive guidance should he issued at the end of the negative resolution procedure rather than draft guidance. I beg to move.
On Question, amendment agreed to.
Clause 57 [Amendments to sections 89 and 161 of the Water Resources Act 1991]:
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 29:
Page 65, line 32, after ("apply") insert ("to the owner or operator of any mine").
The noble Lord said: My Lords, your Lordships discussed the problems caused by abandoned mines in a series of amendments initiated by the noble Baroness, Lady Hilton of Eggardon, in columns 230 to 240 of
1058
Hansard on 7th March. However, I fear that my noble friend Lord Ullswater totally failed to convince me why an innocent occupier, who has polluted minewater crossing his land which then enters a controlled water, could be liable for that. My noble friend's actual words were,
"I dare say that he would be liable".—[Official Report, 7/3/95; col. 240.]
I just do not understand or accept why an innocent occupier could be required to take possibly very expensive steps to prevent the pollution, as suggested by my noble friend—again at col. 240—when he said,
"to be liable the 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".
I do not see why the occupier should take any steps to prevent the pollution when he has had absolutely nothing to do with it. The purpose of the amendments is to protect the innocent occupier from being liable for polluted minewater which has come on to his property, perhaps, from a mine many miles away, and which he allows—or, in the words of the Bill, knowingly permits—to enter a controlled water.
These amendments are linked with my Amendments Nos. 30 and 32 because I agree that it should be an offence to pollute watercourses. Those amendments make it an offence to do so from 31st December 1995 instead of allowing that pollution to continue until 31st December 1999. That is a matter on which my noble friend Lord Crickhowell and the noble Lord, Lord Mason, have expressed strong views. The statement by my noble friend Lord Ullswater at col. 240 of Hansard,
"I dare say that he would be liable"
—"he" being the occupier—fills me with dread, as I am sure it does any Member of your Lordships' House who is a member of Lloyd's, or indeed has been studying the sad problems of Barings, for that phrase puts an unquantifiable pollution risk on an innocent bystander which is in contrast to the assurance given by my noble friend Lord Strathclyde in the Coal Industry Bill when he said on 13th June 1994,
"If a liability has been created by someone else, then it is on the other person that the liability falls"—[Official Report, 13/6/94; col. 1480.]
Those two statements do not match up.
I listened as carefully as I could to my noble friend when he addressed Amendments Nos. 13, 14 and 19 moved by the noble Earl, Lord Kintore, when he intimated that the occupier would not be liable. If he did say that—I do not think that he did, actually—I should have thought the easy way to prove it is to put it on the face of the Bill, which these amendments do.
I feel very strongly about protecting the innocent individual, be he a property owner, just a tenant, a householder, or just an ordinary law-abiding and trusting individual, as I am sure does my noble friend the Minister. Therefore I hope that your Lordships and my noble friend will accept this amendment. I beg to move.
The Earl of Onslow: My Lords, I hope I can try to be helpful to my noble friend on the Front Bench. If I understood him right in the first place, he said that if something comes up in the ground from a contaminated

1059
mine and the surface landowner could have no cause to permit that stuff to then go on and pollute another watercourse, that landowner will not be liable for that because he has not caused or permitted that pollution to take place. If that is the case, I do not think we have anything to worry about because the landowner is not causing or knowingly permitting that pollution. If that is the case, I do not think that my noble friend Lord Stanley has anything to worry about. If, however, that is not the case, my noble friend Lord Stanley is right to be very worried.
5.45 p.m.
Viscount Ullswater: My Lords, I was not quite clear whether my noble friend also wished to speak to Amendments Nos. 30 and 32 at the same time, but I shall reply to them. The amendments would maintain the existing statutory protections for discharges from abandoned mines for everyone except the owner or operator of the mine. The amendment of the noble Earl, Lord Kintore, which is grouped with this one, aims to achieve a similar effect, as regards defence against prosecution, in Scotland.
We have already debated the topic of water pollution from abandoned mines at considerable length and noble Lords will know that this is a complex issue, not least because every set of underground workings is different in layout, in extent and in the potential for causing water quality problems. There has been considerable pressure on the Government to address the problem of pollution from abandoned mines, and we have examined the issue carefully. We believe that it is essential that discharges from mines abandoned in the future are regulated in the same way as discharges from other sources.
The Government's proposals are an appropriate response to an issue which has aroused no small measure of public concern. Indeed, as noble Lords know, some noble Lords have been pressing us to go further in the creation of new liabilities than we think advisable. I do, of course, recognise the concern that a landowner could be prosecuted for the pollution of a watercourse, when that pollution originated from an abandoned mine on someone else's land. However, for a number of reasons, I think that the potential problem is far less significant than my noble friend Lord Stanley might fear.
What is at issue here—prosecution for water pollution knowingly permitted to flow from an abandoned mine and liability for cost recovery—could only arise, under the Government's proposals, in respect of mines abandoned after the end of 1999. In the case of coal mines the Coal Authority, as the owner, has made careful separate arrangements aimed at ensuring that mine operators honour their responsibilities before abandoning a mine.
We are introducing changes in a measured way which will help prevent pollution occurring from mines abandoned in the future, rather than simply enabling the regulators to prosecute when it has occurred. My noble friend's amendments would cut across that approach and destroy the careful balance that we have sought to achieve.
1060
Once the agencies are established the statutory requirements for pre-notification of abandonment proposed in the current Bill will come into force immediately, followed at the end of 1999 by the removal of the statutory protections. Anyone responsible for a mine abandoned after that date would not only have to provide the agencies with information on the mine to be abandoned hut, if discharges occur, they would also have to seek a discharge consent for them and ensure that discharges comply with the requirements set down by the agencies.
Although the water pollution offence is defined as "causing or knowingly permitting" pollution, it is a striking fact that there have been remarkably few prosecutions solely for "knowingly permitting" pollution. That is partly because "knowingly permitting" presents a difficult test to prove at law. For a person to be liable it has to be demonstrable that that person not only knows about the discharge but also has it within his power to do something to prevent it, The regulators have almost always, therefore, preferred to act against those causing pollution wherever possible. In the particular circumstance where mines are abandoned in the future it will be clear who the owner or operator is, and the agencies will be well equipped to tackle the problems before abandonment with the aim of establishing what preventive action, if any, is necessary.
I should emphasise that the regulatory powers in such cases will be the same as those which already exist for other types of water pollution. We understand the concern which is natural when there is an extension of liability. However, the Government felt it was right that discharges from mines abandoned in the future should no longer be covered by protection which was out of line with our wider policies on water quality regulation. Inevitably we have had to take account of the costs of any environmental improvement and the benefits to be obtained, but we believe that the measures we have proposed strike the right balance.
Amendments Nos. 30 and 32 would remove the existing statutory protections in respect of discharges from mines abandoned after the end of 1995 instead of 1999 as proposed in Clause 57. The amendment of the noble Earl, Lord Kintore, would maintain the existing defence against prosecution in Scotland.
In proposing the removal of those protections the Government have accepted that there is a need for a period of adjustment for those who could be affected. We do not think it right or sensible that a change such as this, which could affect land values and the way in which mines are managed, should be introduced without giving those concerned the opportunity to adapt to the new circumstances. The amendment of my noble friend Lord Stanley would have an almost immediate effect on the owners of land containing mines, as well as on mine operators, whose future liabilities could be increased, without warning and without a proper period of notice. I am sure that many noble Lords will accept the need for time to adjust and will agree that that would not he the proper way to proceed with the changes we are proposing.

1061
By contrast, the amendment of the noble Earl, Lord Kintore, would maintain the existing protections indefinitely. I believe that most noble Lords have been persuaded of the need for change, although at an appropriate pace.
We see the provisions in Clause 57 and Schedule 13 as part of a package, which also includes the measures which will ensure that the agencies are much better informed about impending mine closures and their anticipated consequences. It is therefore disturbing that the amendment of my noble friend Lord Stanley would remove the protections before the introduction of the provisions for pre-notification of abandonment, rather than their introduction, as we would prefer.
I hope that with those comments I have been able to persuade my noble friend that the amendments are not required.
Lord Stanley of Alderley: No, my Lords. First, my noble friend answered the question put by my noble friend Lord Onslow by saying that the present provision did not have the effect that my noble friend Lord Onslow suggested.
Perhaps I may say a word about the second set of amendments. My noble friend is in effect saying that he wants to delay the introduction of the provision because it will involve considerable change, hardship and problems when it is implemented. He indicted himself by saying that that will happen at some stage. Let us get it over with and stop the pollution straight away.
We have been over this issue so many times in the past. I am sorry to say that I cannot agree with my noble friend. He keeps on saying that it will not happen or that it almost certainly will not happen. Ask any insurer or member of Lloyds for their view. It was said 10 years ago: "It will not happen". It jolly well has happened. I commend the amendment to the House.
5.55 p.m.
On Question, Whether the said amendment (No. 29) shall be agreed to?
Their Lordships divided: Contents, 108; Not-Contents, 100.

Division No. 2

CONTENTS

Airedale, L.

Derwent, L.

Aldenham, L.

Diamond, L.

Ashley of Stoke, L.

Digby, L.

Barber of Tewkesbury, L.

Dormand of Easington, L.

Barnett, L.

Dubs, L.

Beaumont of Whitley, L.

Dundonald, E.

Blackstone, B.

Falkender, B.

Blake, L.

Falkland, V.

Brabazon of Tara, L.

Farrington of Ribbleton, B.

Bruce of Donington, L.

Foot, L.

Burton, L.

Freyberg, L.

Carnarvon, E.

Gallacher, L.

Charteris of Amisfield, L.

Geraint, L.

Cledwyn of Penrhos, L.

Gladwin of Clee, L.

Clinton-Davis, L.

Graham of Edmonton, L.

Cocks of Hartcliffe, L.

Greenway, L.

Dean of Beswick, L.

Grey, E.

Dean of Thornton-le-Fylde, B

Halsbury, E.

1062

Hamwee, B.

Nicol, B.

Harding of Petherton, L.

Norrie, L.

Harris of Greenwich, L.

Northbourne, L.

Harrowby, E.

Ogmore, L.

Haskel, L. [Teller.]

Pearson of Rannoch, L.

Healey, L.

Peston, L.

Henniker, L.

Plant of Highfield, L.

Hertford, M.

Rankeillour, L.

Hilton of Eggardon, B.

Redesdale, L.

Hollis of Heigham, B.

Rennell, L.

Hooson, L.

Richard, L.

Hughes, L.

Rochester, L.

Hylton-Foster, B.

Seear, B.

Jeger, B.

Sefton of Garston, L.

Jenkins of Putney, L.

Serota, B.

Judd, L.

Sharples, B.

Kilbracken, L.

Shepherd, L.

Kinloss, Ly.

Stanley of Alderley, L. [Teller.]

Kinnoull, E.

Kintore, E.

Stedman, B.

Kirkhill, L.

Stoddart of Swindon, L.

Lawrence, L.

Strabolgi, L.

Leigh, L.

Strathcarron, L.

Lester of Herne Hill, L.

Swinfen, L.

Listowel, E.

Thomson of Monifieth, L.

Lovell-Davis, L.

Tollemache, L.

Lytton, E.

Tordoff, L.

Marlesford, L.

Turner of Camden, B.

Mason of Barnsley, L.

Vinson, L.

McCarthy, L.

Walpole, L.

McIntosh of Haringey, L.

Warnock, B.

Milner of Leeds, L.

Wedderburn of Charlton, L.

Monkswell, L.

White, B.

Monson, L.

Williams of Elvel, L.

Morris of Castle Morris, L.

Winchilsea and Nottingham, E.

Morris, L.

Nathan, L.

Wise, L.

NOT-CONTENTS

Aberdare, L.

Goschen, V.

Ailsa, M.

Harmar-Nicholls, L.

Aldington, L.

Hayhoe, L.

Ampthill, L.

Henley, L.

Ashbourne, L.

Hesketh, L.

Astor, V.

Hives, L.

Blaker, L.

Hogg, B.

Blatch, B.

Holderness, L.

Boardman, L.

HolmPatrick, L.

Borthwick, L.

Hothfield, L.

Boyd-Carpenter, L.

Howe, E.

Cadman, L.

Inglewood, L. [Teller.]

Caithness, E.

Ingrow, L.

Carnock, L.

Kimball, L.

Chalker of Wallasey, B.

Lane of Horsell, L.

Chesham, L.

Lauderdale, E.

Courtown, E.

Layton, L.

Cox, B.

Lindsay, E.

Cranborne, V. [Lord Privy Seal.]

Lindsey and Abingdon, E.

Liverpool, E.

Cumberlege, B.

Long, V.

Davidson, V.

Lucas, L.

Dean of Harptree, L.

Mackay of Ardbrecknish, L.

Denham, L.

Mackay of Clashfern, L. [Lord Chancellor.]

Denton of Wakefield, B.

Dixon-Smith, L.

Macleod of Borve, B.

Downshire, M.

Massereene and Ferrard, V.

Eden of Winton, L.

McColl of Dulwich, L.

Ellenborough, L.

Merrivale, L.

Elliott of Morpeth, L.

Mersey, V.

Elton, L.

Miller of Hendon, B.

Ferrers, E.

Milverton, L.

Finsberg, L.

Mottistone, L.

Fraser of Carmyllie, L.

Mountevans, L.

Gardner of Parkes, B.

Moyne, L.

Gilmour of Craigmillar, L.

Murton of Lindisfarne, L.

1063

Newall, L.

Seccombe, B.

Norfolk, D.

Shaw of Northstead, L.

Northesk, E.

Skelmersdale, L.

O'Cathain, B.

St. Davids, L.

Onslow, E.

Stewartby, L.

Oppenheim-Barnes, B.

Strange, B.

Orkney, E.

Strathclyde, L. [Teller.]

Orr-Ewing, L.

Sudeley, L.

Park of Monmouth, B.

Thomas of Gwydir, L.

Plummer of St. Marylebone, L.

Trefgarne, L.

Rawlings, B.

Trumpington, B.

Rees, L.

Ullswater, V.

Rodger of Earlsferry, L.

Vivian, L.

Romney, E.

Wolfson, L.

Saint Albans, D.

Young, B.

Resolved in the affirmative, and amendment agreed to accordingly.
6.4 p.m.
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 30:
Page 65, line 33, leave out ("1999") and insert ("1995").
The noble Lord said: My Lords, I beg to move.
6.5 p.m.
On Question, Whether the said amendment (No. 30) shall be agreed to?
Their Lordships divided: Contents, 96; Not-Contents, 105.

Division No. 3

CONTENTS

Airedale, L.

Hughes, L.

Ashley of Stoke, L.

Hylton-Foster, B.

Barber of Tewkesbury, L.

Jeger, B.

Barnett, L.

Jenkins of Putney, L.

Beaumont of Whitley, L.

Judd, L.

Blackstone, B.

Kilbracken, L.

Bruce of Donington, L.

Kinloss, Ly.

Burton, L.

Kinnoull, E.

Cledwyn of Penrhos, L.

Kintore, E.

Clinton-Davis, L.

Kirkhill, L.

Cocks of Hartcliffe, L.

Lawrence, L.

Cox, B.

Leigh, L.

Dean of Beswick, L.

Lester of Herne Hill, L.

Dean of Thornton-le-Fylde, B.

Listowel, E.

Derwent, L.

Lovell-Davis, L.

Diamond, L.

Lytton, E.

Dormand of Easington. L.

Marlesford, L.

Dubs, L.

Mason of Barnsley, L.

Dundonald, E.

McCarthy, L.

Falkender, B.

McIntosh of Haringey, L.

Falkland, V.

Milner of Leeds, L.

Farrington of Ribbleton, B.

Monkswell, L.

Freyberg, L.

Monson, L.

Gladwin of Clee, L.

Moran, L.

Glenamara, L.

Morris of Castle Morris, L.

Graham of Edmonton, L. [Teller.]

Morris, L.

Napier and Ettrick, L.

Grey, E.

Nathan, L.

Halsbury, E.

Nicol, B.

Hamwee, B.

Ogmore, L.

Harris of Greenwich, L.

Pearson of Rannoch, L.

Harrowby, E.

Peston, L.

Haskel, L.

Plant of Highfield, L.

Henniker, L.

Rankeillour, L.

Hertford, M.

Redesdale, L.

Hilton of Eggardon, B.

Richards, L.

Hollis of Heigham, B.

Rochester, L.

Hooson, L.

Seear, B.

1064

Sefton of Garston, L.

Tordoff, L,

Serota, B.

Turner of Camden, B.

Sharples, B.

Walpole, L.

Shepherd, L.

Warnock, B.

Stanley of Alderley, L. [Teller.]

Wedderburn of Charlton, L.

Wharton, B.

Stedman, B.

White, B.

Stoddart of Swindon, L.

Williams of Elvel, L.

Strabolgi, L.

Winchilsea and Nottingham, E.

Strathcarron, L.

Swinfen, L.

Thomson of Monifieth, L.

Wise, L.

NOT-CONTENTS

Aberdare, L.

Kimball, L.

Addison, V.

Lane of Horsell, L.

Ailsa, M.

Layton, L.

Aldenham, L.

Lindsay,E.

Aldington, L.

Lindsey and Abingdon, E.

Ampthill, L.

Liverpool, E.

Astor, V.

Long, V.

Barber, L.

Lucas, L.

Blaker, L.

Mackay of Ardbrecknish, L.

Blatch, B.

Mackay of Clashfern, L. [Lord Chancellor.]

Boardman, L.

Borthwick, L.

Macleod of Borve, B.

Boyd-Carpenter, L.

Massereene and Ferrard, V.

Brabazon of Tara, L.

McColl of Dulwich, L.

Burnham, L.

Merrivale, L.

Cadman, L.

Mersey, V,

Caithness, E.

Miller of Hendon, B.

Carnarvon, E.

Milverton, L.

Carnock, L.

Monteagle of Brandon, L.

Chalker of Wallasey, B.

Mountevans, L.

Chesham, L.

Mowbray and Stourton, L.

Clanwilliam, E.

Moyne, L.

Courtown, E.

Murton of Lindisfarne, L.

Cranbome, V. [Lord Privy Seal.]

Newall, L.

Norfolk, D.

Curaberlege, B.

Norrie, L.

Davidson, V.

Northbourne, L.

Dean of Harptree, L.

Northesk, E.

Denham, L.

O'Cathain, B.

Denton of Wakefield, B.

Onslow, E,

Digby, L.

Oppenheim-Barnes, B.

Dixon-Smith, L.

Orkney, E.

Eden of Winton, L.

Orr-Ewing, L.

Ellenborough, L.

Park of Monmouth, B.

Elliott of Morpeth, L.

Plummer of St. Marylebone, L.

Elton, L

Rawlings, B.

Ferrers, E.

Rees, L.

Finsberg, L.

Renton, L.

Fraser of Carmyllie, L.

Rodger of Earlsferry, L.

Gardner of Parkes, B.

Saint Albans, D.

Gilmour of Craigmillar, L.

Seccombe, B.

Harmar-Nicholls, L.

Shaw of Northstead, L.

Hayhoe, L.

Skelmersdale, L.

Henley, L.

St. Davids, V.

Hesketh, L.

Stewartby, L.

Hives, L.

Strathclyde, L. [Teller]

Hogg, B.

Sudeley, L.

Holderness, L.

Thomas of Gwydir, L.

HolmPatrick, L.

Trumpington, B.

Hothfield, L.

Ullswater, V.

Howe, E.

Vivian, L.

Inglewood, L. [Teller.]

Wolfson, L.

Ingrow, L.

Young, B.

Killearn, L.

Resolved in the negative, and amendment disagreed to accordingly
6.12 p.m.
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 31:
Page 66, line 4, after ("apply") insert ("to the owner or operator of any mine").
The noble Lord said: My Lords, this amendment is consequential on Amendment No. 29. I beg to move.
On Question, amendment agreed to.
[Amendment No. 32 not moved.]
Clause 59 [Duty of certain bodies and persons to have regard to the purposes for which National Parks are designated]:
Viscount Ullswater Viscount Ullswater moved Amendment No. 33:
Page 67, line 17, leave out from ("shall") to end of line 19 and insert ("seek to foster the economic and social well-being of local communities within the National Park, but without incurring significant expenditure in doing so, and shall for that purpose co-operate with local authorities and public bodies whose functions include the promotion of economic or social development within the area of the National Park.").
The noble Viscount said: My Lords, at Report I undertook to introduce an amendment in response to concerns expressed by my noble friend Lord Vinson and other noble Lords, that proper attention should be given to the interests of local people by the national park authorities. I was grateful for the opportunity to look again at wording for an amended Clause 59 to achieve our common purpose. We have very carefully considered the issue, and Amendment No. 33 is our response. Amendments Nos. 35, 36 and 47 are minor amendments, consequential on Amendment No. 33. I address them all.
It was the feeling of my noble friend Lord Vinson and other noble Lords that the interests of local communities and the contribution they make to the continued success of the parks are not always given sufficient weight in the deliberations of the park authorities. They felt that the duty on the national park authorities to
"have regard to the economic and social well-being of local communities"
would not ensure that the new authorities would be seen to be sufficiently positive towards the interests of local people. What noble Lords sought was, I believe, a means of encouraging the national park authorities to recognise their responsibilities towards those who live and work in the parks.
I believe that, in amending the duty introduced in Clause 59 to one which requires the national park authorities to,
"seek to foster the economic and social well-being of local communities within the National Park",
we have paved the way for a more positive attitude on the part of the new authorities which will ensure that they both take these responsibilities seriously and are seen to do so.
We have discussed several alternative words in our debates on the issue of a strengthened duty. We considered these very carefully in drafting this amendment. We concluded that the strongest consensus could be secured for the concept of "fostering". In
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Committee, when we discussed the amendment of my noble friend Lord Derwent there was an impressive array of support for the term "to foster", including my other noble friends Lord Annaly, Lord Gisborough, Lord Lyell, Lord Onslow, Lord Renton, Lord Shuttleworth and Lord Willoughby de Broke; and other noble Lords, Lord Chorley and Lord Elis-Thomas, and the noble Earl, Lord Lytton. I have also been made aware that this phrase has a number of powerful supporters outside your Lordships' House, including the Association of National Parks.
"Foster" is surely a word which most closely expresses that sense of responsibility which I have already suggested must lie at the heart of the relationship between the national park authorities and their local communities. We chose this word in preference to alternatives such as "sustaining" or "promoting". Both of these might be felt to carry too strong an implication of active, financial support for local communities which we continue to believe it would be inappropriate for the national park authorities to take on.
At Report, a number of Peers acknowledged that the national park authorities should not assume the role of promoting economic and social development in the areas of the parks, nor compete with those agencies which already have economic and social development powers, and the associated funding. However, there was, I believe, a universal emphasis that the national park authorities must work in the closest co-operation with those bodies.
The second element of Amendment No. 33 clarifies both issues. The national park authorities should seek to foster the economic and social well-being of local communities,
"but without incurring significant expenditure in doing so, and shall for that purpose co-operate with local authorities and public bodies whose functions include the promotion of economic or social development within the area of the National Park".
The revised wording of this duty thereby encompasses both the concept that the national park authorities should take a positive view of the well-being of their local communities, and that in doing so they should co-operate with local authorities and other agencies whose task it is to promote the social or economic development of rural areas.
Nor does the revised duty in any way undermine these primary purposes for which the parks exist. On the contrary, I believe it enhances and reinforces those purposes, the achievement of which will be impossible without active and wholehearted co-operation between the national park authorities and those who live and work in the parks. I beg to move.
The Deputy Speaker (Lord Ampthill): My Lords, I should remind the House that if Amendment No. 33 is agreed to, I shall be unable to call Amendment No. 34.
The Earl of Lytton: My Lords, I welcome the amendment. Bearing in mind the time that the Minister gave to me and other noble Lords who went to see him, it would be churlish not to thank him for bringing the amendment forward. It does not wholly fulfil my expectations, but no doubt the Minister would say that

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my expectations were not capable of being fulfilled in the terms I would have wished, It is a fair try so far as it goes. I am pleased to see that national park authorities should foster economic and social well-being, although I am concerned about the way in which that duty is hedged around with caveats.
On a general point, I cannot help wondering why there is a degree of paranoia among conservation groups, and perhaps to some extent in the department, which receives their views, as well as those of people like myself, in connection with social and economic activities in national park areas. If all that social and economic activity were to stop overnight, I have to ask whether the resultant abandonment would he an improvement to national parks, from the point of view of their appearance or of their durability in the longer term. I suspect that it would not and that it would, over time, he a source of public outcry. If that supposition is correct, why is there apparently nothing on offer except ever more regulation and prescriptive control? I believe that we are beginning to see the diminishing returns of so much regulation. If we are not careful—and this is one of the reasons why I was so keen to see social and economic purposes included on the face of the Bill—land managers will be asking why on earth they should bother any more. If the interests of those who live and work in national parks are not to be held in equal balance with those other interests that are national park purposes, then I question to what extent we are talking about the durability of the handiwork that they and their predecessors in title have put in to make those areas what they are.
Perhaps therefore the Minister will be kind enough to clarify one matter for me; namely, whether he shares my expectation for the future that national park authorities will take a proactive approach? Perhaps they may not have the direct duty to foster social and economic activities, but they must nonetheless take a proactive approach and build that proactivity into their local plan approach. Secondly, can he say that they will no longer be able to write into their local plan documents that social and economic interests are not primarily their responsibility? I look forward to hearing what the Minister has to say.
Lord Williams of Elvel: My Lords, I am bound to say that I disagree with the noble Earl, particularly on his last point. National park authorities are not economic development agencies and should not be seen as such. To say the least, I find the government amendment rather strange. It goes well beyond the duties laid upon the two agencies that we have discussed at some length throughout the course of the Bill. The two agencies are required to have regard to the economic and social well-being of the local communities. Now, according to the Government, we are imposing on national park authorities, which are, after all, meant to be there, as the purposes of Clause 58 state, for a very particular reason, duties which are greater than those that are imposed on the environment agency and SEPA. That seems to me to be odd.
Secondly, there seems to he a contradiction between the government amendment and the purposes of national parks, as defined in Clause 58. National park authorities
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are to he planning authorities. They are to assess planning applications according to the criteria and purposes that they have and make decisions thereon. If they are required not only to have regard to their own purposes but also to have regard to stipulations in the government amendment—and that includes co-operation with other planning authorities, such as local authorities which have planning jurisdiction outside the national parks, and public bodies whose functions include the promotion of economic or social development within the area of a national park—who wins? Is it the purpose of the national park, or is it the duty to co-operate with those people who promote economic or social development within their area? There seems to be a very serious contradiction here. I am rather surprised that the Government have brought this amendment forward.
I understand that the Government wish to have something to placate those who moved amèndments at earlier stages in the Bill. But I simply do not think that this amendment, as it stands, logically works. It cuts straight across Clause 58 of the Bill.
Viscount Addison: My Lords, we all agree that the economic and social well-being of local communities is vitally important in our national parks. This was recognised in the Edwards Report, which saw national park authorities as playing an important role in supporting the work of others whose prime role was in the socio-economic sphere. Importantly, the Edwards Report also made it explicit that such involvement by park authorities should be in ways that are compatible with park purposes. I remain persuaded that the original drafting provided an acceptable framework for achieving that. However, I appreciate the Government's wish to meet the concerns expressed on Report about the perceived limitations of a duty to have regard to the economic and social well-being of local communities.
The government amendment is complex. It raises new legal questions about the role of national park authorities and their relationships with other bodies. It also appears to make more explicit some, but not all, parts of the Edwards Report's recommendations concerning socio-economic matters. My intention in putting down my amendment is to seek clarification that the government amendment is intended within the spirit of the Edwards Report recommendations.
First, I am concerned that there may be instances where fostering the economic and social well-being of communities involves projects that conflict with national park purposes. I should feel happier if the proposed duty on park authorities specified that it should be applied only in ways that are compatible with, or further, park purposes.
Secondly, the government amendment raises questions regarding national park authorities' relationships with the many bodies that carry out social and economic functions in national park authority areas. For example, if a park authority has a duty to co-operate with a development agency, how does that affect the way in which a park authority considers a planning

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application from such a body? That could be particularly significant if the proposed development did not accord with park purposes.
My amendment would make it clear on the face of the Bill that the new socio-economic duty is to be pursued as the Edwards panel suggested. It makes it explicit that national park authorities should foster social and economic well-being in so far as it is not incompatible with national park purposes. I suggest that it would provide reassurance to many both inside and outside this House if the Minister could make a statement that he intends the socio-economic duty to be pursued in ways that are compatible with park purposes, and also that this will be made clear in the guidance. I commend my Amendment No. 34.
Lord Norrie: My Lords, I rise to support Amendment No. 34 by my noble friend Lord Addison. The Government's amendment in this grouping is of considerable importance, because it places a complex duty on national park authorities. As noble Lords know, national park authorities have two main purposes: the conservation of natural beauty, wildlife and the cultural heritage and the promotion of quiet enjoyment.
The relationship between those two purposes and the proposed new duty which this amendment would place on national park authorities is just not straightforward. I am sure that no one would question the desirability of national park authorities having a socio-economic duty. However, the question that I pose is: will an unqualified duty to further economic and social well-being risk giving the impression that the national park authorities may be expected to play a role that brings them into conflict with their statutory purposes?
My noble friend's amendment seeks to ensure that the national park authorities will not be compromised when seeking to carry out their new socio-economic duties. I hope that the Minister will be able to offer assurances that he intends his amendment to be carried forward in the spirit of the Edwards Report recommendations. This would be a most welcome clarification, a point to which the noble Viscount alluded. Therefore I hope that the Minister will be able to respond constructively to Amendment No. 34. This amendment places beyond doubt the intention that the fostering of socio-economic well-being and national park purposes should go hand-in-hand.
6.30 p.m.
Baroness Nicol: My Lords, unlike the noble Earl, Lord Lytton, I am grateful for what small caveats there are in the Government's amendment, although I am not terribly happy about that amendment. I am very uneasy about the number of complicated discussions that could arise as a result of it. For example, what is "significant expenditure"—significant in whose terms? What is significant in the park authority's terms might be quite insignificant in someone else's. I feel that it is a most unhappy phrase to use.
I hope that the Minister will be able to confirm that the Government intend national park authorities to execute their duty within the spirit of the Edwards
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Report. He has already been asked twice to confirm that and I reiterate it. I should prefer to see that spelt out on the face of the Bill. That is why I prefer the amendment moved by the noble Viscount, Lord Addison. That amendment makes it clear beyond doubt where the priorities of the national parks should lie.
But if national parks are to become examples of good environmental practice—as everyone seems to agree that they should be—it is of the utmost importance to send a clear message that they are environmental designations and that environmental considerations should shape all decisions made by national park authorities. As we have heard so often, there are many other bodies which have economic development as their priority.
The Government's amendment is complex. It leaves the authorities in a position of having to make difficult decisions without sufficient guidance on how to balance the interests of conservation and development. The Government got it right the first time. I am very sorry that they feel that they have to move away from that very satisfactory approach. The Edwards Report made very constructive suggestions on how to get the balance right in the future. I should like to see its advice reflected more fully on the face of the Bill.
I hope that the Government's amendment will not be accepted and that the amendment of the noble Viscount, Lord Addison, will be chosen in preference to it.
Lord Derwent: My Lords, I should like to welcome the Government's amendment. I say to the noble Lord, Lord Williams, that the whole of the amendment is governed by the beginning of this clause, which says that the national park authority should only take this course when it is:
"pursuing … the purposes specified in subsection (1)";
that is to say, when it is pursuing its primary purposes. I believe that that is absolutely correct. That should be so. But I believe that it reduces the danger that it might find itself in conflict with those purposes. I have no objection whatever to the amendment of my noble friend Lord Addison. It merely says the same thing in a different way and underlines it. What is most important is the practical aspect.
The reason that the national park officers, the Association of National Parks and chairmen have welcomed the amendment is because they are conscious that a feeling has grown up in the parks that the park authority is against the inhabitants. Other bodies are working for them but they have no duties whatever toward the inhabitants. The park officers feel that that is not helpful to them in carrying out their primary purposes.
I do not mind at all that the Government's amendment has limitations about "significant expenditure". It was not my intention or that of any other noble Lord suddenly to spend a lot of money in being proactive. That was never the intention. The only intention was to enable the parks to show the inhabitants that they are very conscious of the need to look after them too. I welcome my noble friend's amendment.
Lord Marlesford: My Lords, I put my name to the amendment tabled by my noble friend Lord Addison

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because I was slightly uneasy with the wording of the Government's amendment. But I totally support the need for the communities in national parks to thrive socially and economically. That is why I am totally behind the sentiments of my noble friend Lord Vinson, in the original amendment that he proposed. I very much take on board the point made by my noble friend Lord Derwent that it is necessary that the people who live in the parks should feel that the parks are there to benefit them and not just outsiders. I totally accept that.
However, I feel that we are in some danger of this amendment becoming something of a dog's breakfast. The phrase "without incurring significant expenditure" is thoroughly unsuitable for a statute. Surely statutes are meant to be precise. I can understand how the Treasury, when this matter came in front of them, would say, "We must not give them permission to spend more money. Let us put a little caveat in." But that is not the kind of phrase that one puts in a statute. It does not seem to me at all suitable.
I do not for one moment imagine that this amendment will be pressed to a vote. I hope that the Government will recognise that we probably all agree on the sentiments and probably all agree that the primary purpose of a national park must not be overridden by the economic aspect; but that the economic aspect must have a full part to play within the primary purpose. However, I do not honestly believe that the present drafting of the clause is worthy of this very important Bill.
Lord Boyd-Carpenter: My Lords, I should be very grateful if my noble friend the Minister, when he comes to reply, would say a little more about the phrase "significant expenditure", which several noble Lords have criticised. What does it mean? Is it a figure that varies in accordance with the size and means of the organisation incurring it, or is it an absolute figure?
Indeed, I should be very grateful if my noble friend would remind me whether it is an expression that is used in any other statute and therefore whether it has been construed by the courts.
Lord Renton: My Lords, before my noble friend sits down perhaps he will allow me to say a few words. As a former Chief Secretary to the Treasury, he could perhaps say whether whatever expenditure is incurred by the national parks authority must be limited by the Vote on account which is received from Parliament.
Lord Wise: My Lords, of the two amendments under discussion, I support that of my noble friend Lord Addison. We all agree, and indeed it cannot be disputed, that the economic and social-well being of the local communities is of great importance if national parks are to continue to be successful. The national park authorities can and indeed should play an important role in helping to foster the social and economic well-being of the communities. However, I feel that there is a danger that, if they are given an unqualified duty to do so, there will be a grey area. Where does conservation duty end and the economic duty begin; and which takes precedence?
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In the same way as national park authorities must give priority to conservation over recreation, I feel that a qualification is needed to ensure that national park authorities will not seek to further their socio-economic duty over their conservation duty. The amendment of my noble friend Lord Addison makes that clear. It ensures that the duty on national park authorities will not take precedence over the conservation and recreation purposes of the national park designation.
Lord Renton: My Lords, I supported the amendment of my noble friend Lord Vinson on the previous occasion at Report stage and I welcomed the Government's amendment.
With regard to Amendment No. 34—the amendment of my noble friend Lord Addison—quite frankly, I do not believe that it adds anything to. the situation. It is largely a drafting matter. My noble friend Lord Derwent was quite right when he said that the first line of Amendment No. 34 is not necessary, bearing in mind what will be left in the Bill and the previous legislation of the' 1949 National Parks and Access to the Countryside Act. I hope that my noble friends and other noble Lords who support Amendment No. 34 will be reassured by that and not find it necessary to press it.
With regard to the Government's amendment, I was against the words "have regard to" when they were originally in the Bill. I said that they could have a purely negative effect. But the word "foster" has a positive effect and that is why we should work on it.
The noble Lord, Lord Williams of Elvel, said that it is wrong that environmental agencies should "have regard to" and national parks should be required to foster. With the greatest respect, I do not agree with him; there is a difference. The environment agencies have a general supervisory responsibility of a national character. On the other hand, the national park authorities, in spite of having the word "national" in the name, have more specific responsibilities of a local character in specific areas of the country. They are quite different and therefore the wording should be different. I believe that the Government have it right.
Lord Vinson: My Lords, I waited to rise until just before my noble friend the Minister speaks to say how much I welcome this clause. It is an inelegant clause, as was pointed out, but it goes some way, though perhaps not far enough, to meet the anxieties raised earlier. They are anxieties shared by all of us in this House: that it is necessary to signal that the new park authority must have a duty to care about those who live and work within the national parks. The aim of the amendment is to help to create a sense of common purpose, and for that reason it is good to see it welcomed by park officers. They are clearly people who have their feet on the ground. They recognise that without such a clause the parks simply will not work out.
I hope that Amendment No. 34 will not be pressed. Amendment No. 33 needs the wholehearted support of the campaign for national parks. One sometimes feels that the people behind that campaign are such single-issue people that they sit on their little green cloud nine above it all. I do not doubt their sincerity; but it seems to me that they do not understand, as the

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park officers do, that down below is the real world of wardens and hill farmers—the unpaid custodians—who have to get on together in order to make the system work. Without their co-operation the parks cannot and will not work and relationships become fraught and difficult.
I welcome the clause because it goes some way, though perhaps not far enough, towards building those working relationships. Without it I fear that a sense of common purpose will not be engendered. We can all share the hope that this clause will help to make the position clearer and on it will be built the subsequent success of the parks that we want to see.
6.45 p.m.
Viscount Ullswater: My Lords, I am glad that the government amendment was welcomed by my noble friend Lord Vinson and those who spoke to his amendment at Report stage. I am sorry that the noble Earl, Lord Lytton, did not feel that it fulfilled his expectations, but at least we seem to have travelled in the right direction, for which comments I am grateful.
I want to make quite clear something which I believe to be worrying noble Lords. The duty under Amendment No. 33 is constrained by the requirement to fulfil it in pursuing national park purposes, and for that reason we consider Amendment No. 34 to be unnecessary. The establishment and functions of national park authorities will have effect for the purposes of conserving and enhancing the natural beauty of wildlife and cultural heritage of their areas and promoting their enjoyment.
I must say to the noble Lord, Lord Williams of Elvel, that it will not be possible for the national park authorities to set aside those purposes as they consider the well-being of their local communities. I believe that my noble friend Lord Derwent was quite right in what he said. Also, the guidance which we issued in draft in January will make that clear. I hope therefore that that offers reassurance to the supporters of Amendment No. 34 and I ask my noble friend not to press it.
The noble Baroness, Lady Nicol, and my noble friend Lord Boyd-Carpenter asked what was meant by the phrase, "without incurring significant expenditure". The revised duty does not constrain any other of the national park authorities' powers to aid local interests which they may achieve, for example, through giving grants or entering into management agreements; but it makes clear that in respect of the duty to,
"seek to foster the economic and social well-being of local communities",
they must not offer direct financial support. That restriction is a proper one to ensure that the financial resources of the national park authorities remain focused on those purposes for which the parks were created.
My noble friend Lord Boyd-Carpenter asked for the second time today whether the words used had been precedented in legislation. To my knowledge they have not been used before in statute. However, they identify particularly what the duties of the national park authorities will be in the future.
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I appreciate particularly the need to maintain the prosperity of those local communities on which the conservation of the parks so strongly depends. My noble friend Lord Marlesford, though not liking the amendment, stressed the importance of the people living and working in the parks, about which we heard on every occasion when this matter was debated. That is something we all want to make certain continues.
I understand and sympathise with the feeling that some park committees and boards fail to place sufficient weight on the views and interests of local people in formulating park plans or reaching decisions on park business or take sufficient care to explain why specific decisions are taken. I regret that that may be the case, and we are determined that the Bill should create the conditions to prevent it happening in the future.
I am glad to be able to stress to my noble friend Lord Renton that we note what he said in relation to the words "having regard" perhaps having a negative influence. By this amendment we are trying to turn it round and make it a positive duty, with the caveat I explained earlier.
The noble Earl, Lord Lytton, mentioned the role of the park authorities in planning and in formulating their policies, preparing their structure and local plans and in development control decisions. National park authorities will be required to have regard to social and economic considerations. We shall expect them to recognise the opportunities presented by small businesses and other activities for the continued well-being of their areas. In formulating those policies, the national park authorities will be expected to work closely with those promotional agencies, fully consult them and take their views into account.
It is for those reasons that we tabled Amendment No. 33. It will ensure that the anxieties expressed are properly reflected in the Bill and that from the outset the national park authorities are set on a path of a proper and positive view of the interests of their local communities. I commend the amendment to the House.
Baroness Nicol: My Lords, before the noble Viscount sits down, can he reassure those of us who asked the question that the Government still intend to work within the spirit of the Edwards Report, both here and in another place?
Viscount Ullswater: My Lords, I believe that the spirit of the Edwards Report is captured by the words in the new purposes contained in the Bill. The purpose of bringing forward the legislation is to capture the intention of the Edwards Report.
On Question, amendment agreed to.
The Deputy Speaker: My Lords, I am unable to call Amendment No. 34 as it has been pre-empted.
[Amendment No. 34 not moved.]
Viscount Ullswater Viscount Ullswater moved Amendments Nos. 35 and 36:
Page 68, leave out lines 2 to 7.
Page 68, line 16, at end insert:
("(6) In this section, "local authority"—

(a) in relation to England, means a county council, district council or parish council;

(b) in relation to Wales, means a county council, county borough council, district council or community council.'").

On Question, amendments agreed to.
Lord Williams of Elvelmoved Amendment No. 37:
After Clause 82, insert the following new clause:
("Consultation before making or modifying certain subordinate legislation fur Wales
.—(1) The Secretary of State for Wales shall consult the Countryside Council for Wales before—

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

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

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

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

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

(b) any regulations under section 81 above;

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

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

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

(3) This section applies in relation to any legislation only so far as relating to land in Wales.").
The noble Lord said: My Lords, we have had discussions at previous stages of the Bill about Clause 82, as amended on Report, which gives power to the Countryside Commission to be consulted by the appropriate Minister.
The duty that the Minister shall consult a number of bodies, including the Countryside Commission, is not reflected in an analogous duty on the Secretary of State for Wales in respect of Wales. In Committee and at Report stage the noble Earl, Lord Howe, argued that in some way Wales is different statutorily. I accept the noble Earl's argument in one respect that CADW, which we originally had in our amendment at Report stage, falls into that category. That is why the amendment that I am now putting before your Lordships does not include consultation with CADW, since, as the noble Earl quite properly pointed out, if the Secretary of State for Wales was required to consult CADW he would be consulting himself, and that is not something which we would like to see in legislation.
But the Countryside Council for Wales is a different matter. That body is almost exactly analogous to the Countryside Commission for England. Clause 82 imposes an obligation on the Secretary of State to consult the statutory countryside agencies in England but not in Wales or Scotland. That is wholly inconsistent with the existing statutory obligations on the Secretary of State for Wales to consult CCW before designating Welsh environmentally sensitive areas.
The obligation to consult CCW on ESAs in Wales was imposed in 1990, deriving from 1986 legislation which required the Secretary of State to consult CCW's predecessors in Wales. The relevant institutional arrangements and statutory powers in Wales are exactly the same now as they were in 1990.
The stated purpose of what is now Clause 82 by the noble Earl, Lord Howe, at Report stage was to extend the approach which already operates successfully in setting up new ESAs. The noble Earl told us that that was the whole point of the clause. But it fails to do that in Wales. I agree that the Countryside Council for Wales has the right to offer advice if it wants, but that is far different from saying that the Secretary of State for Wales is obliged to consult that body as the Secretary of State in England is obliged to consult the Countryside Commission, which, as I say, is an analogous body.
I believe that the argument is irrefutable and rests there; namely, that Wales should have what England has. I cannot see why the Government cannot agree to that. I beg to move.
Baroness White: My Lords, it is many years since I was Minister of State at the Welsh Office, but in environmental matters I have maintained a very good group of informants. I can rely on them to tell me the effects of the attitude of the present Government. My noble friend Lord Williams of Elvel is absolutely right. If the situation is left as it is now, that means that the Countryside Council for Wales may offer advice. But it is a matter of timing.
It is frequently the case that the Welsh Office does not consult. When the Welsh Office has told the world what it intends to do, it is then too late for the Countryside Council for Wales to offer its advice. It is very largely a matter of timing. All the information which I have been able to find in the recent past makes it clear to me that the most important word in this proposed amendment comes in line 2; namely, "before". The Countryside Council for Wales should be consulted before and not after the Welsh Office has disclosed what it intends to do.
It is an absurd situation. One is told that one can offer one's advice, but what is the use of that when the Welsh Office, without consulting the Countryside Council for Wales at all, has gone public? I would very much like to know how the Minister will reply, supposing that he himself was possibly partly responsible for the activities of the Countryside Council for Wales. I am quite sure that he would not be happy.
Lord Thomas of Gwydir: My Lords, I shall be very short indeed. I would like to endorse everything that has been said by the noble Lord, Lord Williams of Elvel, and the noble Baroness, Lady White. It is absolutely essential for Wales to have this amendment if Clause 82 is to be in the Bill. It would be almost an affront—certainly to the Countryside Council for Wales—if the amendment was not accepted. Therefore, I ask my noble friend to consider very carefully that it is important for Wales that this amendment is accepted.
Lord Beaumont of Whitley: My Lords, we on these Benches take the same view as all the previous speakers

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and believe that this amendment is part of the importance of taking seriously the Welsh environment and the right of the Welsh people to be consulted through their representative or semi-non-representative bodies. It is an absolutely worthwhile amendment and we hope that the Government will accept it.
Lord Moran: My Lords, I would like to support this amendment very strongly. I have mentioned this problem at earlier stages of the Bill. I still cannot understand how Wales can be discriminated against in the way that it is at present as regards the responsibilities of English Nature in England and the Countryside Council for Wales in Wales. I am sure that the amendment is right and I very much hope that the Government will accept it.
Lord Marlesford: My Lords, I so much agree with the word "irrefutable" used by the noble Lord, Lord Williams of Elvel. I totally support the amendment and, if necessary—and I am sure that it will not be—I shall support him in the Lobby.
I suppose that one must peer behind this paradox which is not there. In one way or another most of your Lordships have had experience of how governments operate—whether as Ministers or civil servants or merely as teenage scribblers writing about politics—and realise that in the jungle of Whitehall people fight for their own personal empires and beliefs. Very often that causes governments great difficulty in coming forward with sensible ideas.
We know that the present Secretary of State for Wales does not believe in this kind of thing. The sad fact is that he pursues his own personal beliefs and dogmas with a lack of humour or humility. It strikes me that it would be very sad if the Bill, which will last a great deal longer, were to be adapted to the personal prejudices of the Minister who at this very instant is occupying that post.
What I suppose I am really saying is that I believe this amendment fulfils a role which Parliament has a perfectly legitimate role in fulfilling—that is to say, to get the Government out of a hole caused by squabbling inside Whitehall. I hope we shall find that the amendment is warmly welcomed by the Government.
Baroness Nicol: My Lords, I too support the amendment. I should like to ask the Minister just one question. Can he assure us that the reason for leaving the Countryside Council for Wales out of the consultation has nothing to do with a possible change in its future status? Some of us are worried about that and would like to be reassured.
Lord Elton: My Lords, I had not intended to intervene on this amendment, but I am so disappointed to hear my noble friend Lord Marlesford couch his support for the amendment in such overtly personal terms that I have to dissociate myself from it. One
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legislates to produce the best results from the machine regardless of office-holders. It is most unfortunate to drag in personalities.
7 p.m.
The Parliamentary Secretary, Ministry of Agriculture, Fisheries and Food (Earl Howe): My Lords, as the noble Lord, Lord Williams, explained, the amendment seeks to impose upon my right honourable friend the Secretary of State for Wales a requirement to consult the Countryside Council for Wales before making or significantly modifying certain subordinate legislation. It intends to mirror the consultation requirements on my right honourable friend the Minister of Agriculture, Fisheries and Food under Clause 82.
As the noble Lord said, the noble Baroness, Lady Hilton, spoke to similar amendments at previous stages of the Bill. I fear my answer today will be little different from those I gave on earlier occasions, although I shall try to amplify my remarks—helpfully, I hope. The Government continue to believe that this amendment is not necessary because the situations in England and in Wales are different. The grounds for including Clause 82 in the Bill were specific to England, relating to the planned transfer of responsibility for the Countryside Stewardship Scheme to the Ministry of Agriculture, Fisheries and Food in 1996. The Countryside Stewardship Scheme is currently funded by the Department of the Environment and run by the Countryside Commission. It was in order to avoid any possible doubt that the department and the commission would continue to have a role to play in advising on the scheme which they have developed during its pilot stage that the statutory consultation provision was included on the face of the Bill in relation to England. Furthermore, as I have indicated on previous occasions, my right honourable friend the Secretary of State for Wales is both agriculture and environment Minister. As the noble Lord, Lord Williams, stressed, he has all the necessary powers to consult the Countryside Council for Wales on this as on other issues and—perhaps the noble Lord did not stress this enough—it equally has the powers to advise him even if he does not ask it. Those powers will continue to be available in the future. It is therefore considered unnecessary for the Bill to provide specifically for that consultation.
The noble Lord referred to the obligation on the Secretary of State for Wales to consult CCW on the designation of environmentally sensitive areas in Wales. The obligation on the Secretary of State for Wales to consult on the designation of ESAs remains unchanged. We are seeking to extend the arrangements in England, following the decision to transfer the Countryside Stewardship Scheme to the Ministry of Agriculture, Fisheries and Food. In the light of that further explanation, I hope that the noble Lord will feel able to withdraw the amendment.
Baroness White: My Lords, before the noble Earl sits down, he has not dealt at all with the point that I raised with him, which is that it is useless for the

1079
Secretary of State for Wales simply to say, "You can talk to me about it afterwards". It is a matter of timing and the Secretary of State for Wales has not been consulting in situations where it would have been desirable for him to do so.
Earl Howe: My Lords, I am clearly not in a position to comment on individual circumstances, but I am informed that it is my right honourable friend's intention to consult the council on all appropriate occasions. There may be special reasons in the cases which the noble Baroness has in mind, such as insufficient time if the matter is of great urgency. If the noble Baroness will give me details of those instances, I shall ask my right honourable friend to look into the matter for her.
Lord Williams of Elvel: My Lords, I am most grateful to the noble Earl for spending time and trouble over his response. I think today is the first occasion on which we have heard about the Countryside Stewardship Scheme in this context. This is the first time that that excuse, if I may put it like that, has been wheeled out. We have heard other excuses before about why the Countryside Council for Wales has not been consulted, but this is the first occasion that we have heard that one. It is no more convincing than previous answers. I must advise the noble Earl that I find it merely an invention.
There is a difference between the right to consult, the right to give advice and the duty or obligation on the Secretary of State to consult. It is very clear. The Countryside Council for Wales has the right to offer advice. Under the terms of the Bill, the Secretary of State for Wales has no duty to consult CCW. That is what we are trying to put into the Bill. The noble Earl said that the Secretary of State for Wales has every intention of consulting CCW, particularly on, I imagine, modifying subordinate legislation where it applies to Wales. The issue goes much wider than the Countryside Stewardship Scheme. I imagine that the Secretary of State will live up to that, but if that is his intention, why on earth can it not be stated on the face of the Bill? That provision is specified for England, although I am sure that the Secretary of State and the noble Earl are full of good intentions about consulting the Countryside Commission, the Nature Conservancy Council and all the rest. That is provided for England on the face of the Bill, so why is it not on the face of the Bill for Wales also?
I see that the noble Earl will not budge on this. I must put my national foot down and say that I seek the opinion of the House. I ask sympathy from English noble Lords. I ask them to allow Wales the same as is provided for England. I commend the amendment to the House.
7.6 p.m.
On Question, Whether the said amendment (No. 37) shall be agreed to?
Their Lordships divided: Contents, 56; Not-Contents, 98.

Division No. 4

CONTENTS

Airedale, L.

Marlesford, L.

Ampthill, L.

McCarthy, L.

Annaly, L.

Monkswell, L.

Barber of Tewkesbury, L.

Moran, L.

Beaumont of Whitley, L.

Morris of Castle Morris, L.

Cocks of Hartcliffe, L.

Napier and Ettrick, L.

Dean of Beswick, L.

Nathan, L.

Dean of Thornton-le-Fylde, B.

Newall, L.

Dormand of Easington, L.

Nicol, B.

Dubs, L.

Norrie, L.

Freyberg, L.

Rea, L.

Geraint, L.

Redesdale, L.

Gladwin of Clee, L. [Teller.]

Rochester, L.

Graham of Edmonton, L. [Teller.]

Russell, E.

Seear, B.

Hamwee, B.

Sefton of Garston, L.

Harris of Greenwich, L.

St. Davis, V.

Harrowby, E.

Stanley of Alderley, L.

Henniker, L.

Stoddart of Swindon, L.

Hilton of Eggardon, B.

Thomas of Gwydir, L.

Houghton of Sowerby, L.

Turner of Camden, B.

Jay of Paddington, B.

Vinson, L.

Jenkins of Putney, L.

Walpole, L.

Judd, L.

Warnock, B.

Kilbracken, L.

Wedderburn of Charlton, L.

Kirkhill, L.

White, B.

Lawrence, L.

Williams of Elvel, L.

Listowel, E.

Winchilsea and Nottingham, E.

Longford, E.

NOT-CONTENTS

Addison, V.

Elton, L.

Aldenham, L.

Ferrets, E.

Aldington, L.

Fraser of Carmyllie, L.

Ashbourne, L.

Gardner of Parkes, B.

Astor, V.

Gisborough, L.

Barber, L.

Goschen, V.

Blake, L.

Greenway, L.

Blaker, L.

Harding of Petherton, L.

Blatch, B.

Harmar-Nicholls, L.

Blyth, L.

Harmsworth, L.

Boardman, L.

Henley, L.

Borthwick, L.

Hertford, M.

Boyd-Carpenter, L.

Holderness, L.

Brahmin of Tara, L.

HolmPatrick, L.

Burnham, L.

Howe, E.

Cadman, L.

Inglewood, L. [Teller.]

Carnegy of Lour, B.

Kimball, L.

Carnock, L.

King of Wartnaby, L.

Chalker of Wallasey, B.

Kinnoull, E.

Chelmsford, V.

Kintore, E.

Chesham, L.

Lane of Horsell, L.

Coleraine, L.

Leigh, L.

Courtown, E.

Lindsay, E.

Cranborne, V. [Lord Privy Seal.]

Lindsey and Abingdon, E.

Liverpool, E.

Cumberlege, B.

Long, V.

Dean of Harptree, L.

Lucas of Chilworth, L.

Denham, L.

Lucas, L.

Demon of Wakefield, B.

McColl of Dulwich, L.

Dixon-Smith, L.

Mackay of Ardbrecknish, L.

Downshire, M.

Mackay of Clashfern, L. [Lord Chancellor.]

Dundonald, E.

Eden of Winton, L.

Massereene and Ferrard, V.

1081

Mersey, V.

Rodger of Earlsferry, L.

Milverton, L.

Rodney, L.

Monteagle of Brandon, L.

Seccombe, B.

Mountevans, L.

Sharpies, B.

Moyne, L.

Shaw of Northstead, L.

Norfolk, D.

Skelmersdale, L.

Northesk, E.

Stewartby, L.

O'Cathain, B.

Strange, B.

Onslow, E.

Strathcarron, L.

Orkney, E.

Strathclyde, L. [Teller.]

Orr-Ewing, L.

Sudeley, L.

Park of Monmouth, B.

Trumpington, B.

Pearson of Rannoch, L.

Ullswater, V.

Rankeillour, L.

Vivian, L.

Rawlings, B.

Wade of Chorlton, L.

Renton, L.

Wise, L.

Renwick, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
The Earl of Lindsay: My Lords, I beg to move that further proceedings after Third Reading be now adjourned. Perhaps I may suggest that the House returns to this business no earlier than 8.15 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Workers' Representatives: Designation Machinery
7.15 p.m.
Lord McCarthy Lord McCarthy rose to ask Her Majesty's Government whether they will take steps to devise satisfactory machinery for the designation of workers' representatives with whom employers are required to consult in the event of collective redundancies and transfers of undertakings.
The noble Lord said: My Lords, the Question arises out of the Government's silence for the past nine months since the decision of the European Court of Justice in June 1994. The ECJ decided that the Government were in breach of two directives: the directive on collective redundancy and the directive on transfer of undertakings.
In fact, the ECJ decided that we were in breach of those two directives in a whole range of ways. The Government accepted that that was the case and took steps, such as they were, to conform with those two directives 12 months or so before the ECJ decided that they were in breach of them. Therefore for the most part we had those matters put into the 1993 Act. But there was one decision of the ECJ which the Government failed to accept. Nine months have gone by and we have not heard from the Government whether they accept the decision that employers cannot evade the effect of those directives merely by failing to recognise, or derecognising, trade unions.
That is what the ECJ said. It said that the effect of the present regulations was that employers could avoid having any worker representatives to carry out consultation and representation in cases of redundancy and transfer of undertakings merely by not recognising trade unions.
I asked the noble Lord, Lord Inglewood, on 9th February, after many months had gone by, whether the Government had any thoughts on this matter. The noble Lord said:
"The Government are presently considering what action needs to be taken".—[Official Report, 9/2/95; col. 301.]
Naturally enough he was asked subsequently to elaborate. He said:
"The important point about the decisions in the two judgments is that it is for the employees to determine who their representatives will be".
That was a most interesting response, because it suggested to me at the time that the Government had, in effect, accepted the judgment, because the judgment says that it is for the employees to determine who their representatives will be. The employer cannot decide.
Then, unfortunately, the noble Lord seemed a bit less sure, because in answer to further questions he went on to say:
"As the noble Lord will know, the judgments and the law in this area are far from straightforward. We are anxious to make sure that we consider the matter properly. Subsequently we shall discuss our ideas before bringing proposals forward."
At that point the noble Earl, Lord Russell, said:
"My Lords, does the Minister agree that the judgments have the force of law because in the European Communities Act 1972 Parliament, in the exercise of its sovereignty, so decided? Will he further agree that the only question can be about how and not whether we implement them?"
I thought the noble Lord, Lord Inglewood, was helpful. He said:
"My Lords, the noble Earl, Lord Russell, is absolutely correct in his analysis of the constitutional position. I can confirm that he is correct that it is not a matter of whether but how these matters are dealt with."—lcol. 302.]
So we asked the noble Lord how he had taken nine months as it was a matter only of how and not whether. We are still asking him. Therefore, I ask this Question. Before this Question could appear upon the Order Paper, I was contacted by the noble Earl who asked me whether I would like to withdraw the Question tonight because the Government were just about to give birth, as I understood it—they were going to issue a statement about this matter on Red Nose Day.
I had to think carefully. My difficulty was that I knew that the Government rarely issued statements that had not been leaked to the Guardian. This statement had not been leaked to the Guardian and I thought that perhaps it would not be published. I thought that, at any rate, if the statement were published it would be interesting for us to debate it tonight because it might not be as we would have wished it. I kept the Question on the Order Paper, and on Red Nose Day the Minister wrote to me informing me that the Government were not yet in a position to issue their legislative proposal.
Therefore, I understand that the Government have a legislative proposal and I hope that the Minister will confirm that. I understand that, after nine months, they will not say, "Talk among yourselves and in another nine months we might tell you what we think", but that they are going to issue a legislative proposal.
Therefore, I wish to ask the Minister several questions. First, when can we have the legislative proposal? Secondly, will it contain a proposal and not state merely, "Talk among yourselves. Get on with it. We shall come hack in 1996."? The Minister will not tell me the contents of the proposal and I do not expect him to do that. However, surely he can tell me whether it is based on the need to produce a designation beyond voluntary recognition. The ECJ stated that we cannot get away with the situation in which we do not designate the way in which the representatives are to be elected, appointed or whatever unless they are there because they are from recognised trade unions, which is voluntary recognition. Are we to face the fact that we cannot hide behind the argument that the laws and practices of this country forbid that kind of designation?
I have tried hard to understand the arguments that the Government put to the ECJ. I believe that they have sought to argue three objections to accepting that logic. First, that once upon a time we all agreed to accept a single channel principle. In other analogous cases, such as health and safety legislation, that the Labour Government accepted the voluntary principle, or the single channel principle, or the principle that the only rights were trade union rights. My answer to that argument is that that was long ago and far away. Such cases arose at a time when a whole range of legislation encouraged the recognition of trade unions and when the regulations were not being used by employers as a mechanism for derecognition, which is now the case.
Secondly, that is not what the ECJ now states. My third point is the EU has a range of ways of compelling us to accept the decisions of the European Court. In the period post-Maastricht, of which the Government were in favour, there are many ways in which that can be made extremely expensive for the Government. I raise in passing the dreadful example, from the point of view of the Government, of the Frankovitch case. That should make the Government think not a second time but a third and a fourth time if they believe that they can evade the consequences of an ECJ decision.
I shall repeat the questions that I want the Government to answer. First, the Government must accept (must they not?) that in the near future it will be necessary to produce an acceptable policy which embodies the principles in the ECJ decision. I do not ask how they intend to do that; it is a matter for them. However, the policy must contain designation of the representatives beyond the area of recognised trade unions. Secondly, they must tell us when they are publishing the policy.
Finally, why have the Government been so remiss in accepting this particular decision? Will the Minister tell the House what is the Government's real objection to representative provision of this kind? They cannot say that they are against trade unions, although they are, because it does not have to be trade unions; it has to be representation.
What is it that the Government, or their employer friends, are afraid of in the directive? All that is involved is that the employees will be allowed freely and independently to choose their representatives. The employer must then inform them of his plans in respect
1084
of redundancy, transfers and takeovers. The representatives will discuss them, consider them and perhaps raise objections. The employer may have to find agreed ways of meeting their points of view. It is not compulsory arbitration nor the infringement of management rights and it will not cost money. We are not discussing minimum wage legislation; we are discussing consulting, talking, considering and trying to reach agreement.
For a long time, most good employers have found that they can learn through such a process and that their employees can tell them how to act. What are the Government and employers afraid of? Why cannot the Minister tell me tonight that the Government accept the principle?
7.25 p.m.
Lord Wedderburn of Charlton: My Lords, my noble friend's timely Question prompts me to declare—although I am not sure that it is strictly necessary—that last year I was professionally instructed to advise on the judgments of the Court of Justice of 8th June 1994, from which this Question arises. Those instructions are now spent.
Those judgments require the United Kingdom Government to observe their obligations under the directives of 1975 and 1977, as interpreted by the court, to guarantee consultation with workers' representatives in the event of transfers of undertakings and collective dismissals. The Government must take account of the fact that they appear to have been in breach for a long time and therefore risk a considerable number of actions under the Frankovitch doctrine, as the court has developed it.
The court rejected the Government's argument, not surprisingly, that in Britain employers were not bound by the directives' obligations to consult where they refused to recognise a trade union for collective bargaining. In 1980 the same colour of government repealed the key procedure for obligatory recognition of appropriate trade unions which was introduced by the Labour Government of 1975. Of course, that factor means that there is no analogy for the position of governments before 1980 and afterwards.
It should be put on record that the two directives are not, as some believe, an extravagant code of worker protection. It is no esoteric privilege that, before one loses one's job and family income, an employer should talk with one's representative about how that has occurred and whether anything should be done about it. In view of tonight's time constraints I shall not elaborate, but I say firmly that some of us believe that the protections in the directives are much too weak, in particular in terms of the sanction. No right is stronger than its sanction.
Secondly, it is worth noting that the court made it clear that worker protection is only one part—some writers have it only a minor part—of the directives. The court stated that the directives are:
"intended both to ensure comparable protection for workers' rights in the different Member States and to harmonize the costs which those protective rules entail for Community undertakings".

1085
Harmonisation of employers' costs in the integrated market is a central purpose of these directives.
The task in Britain, as the court declared, is to take all appropriate measures to ensure that workers' representatives are designated for consultation and no longer allow an employer "to frustrate" the protection provided for workers. The Government's obligations in this matter have been manifest since 8th June 1994. I do not complain that they have not found the perfect scheme since that time, but to say nothing is really quite extraordinary.
In this state of legislative dysphasia, they still cannot rescue from the dark recesses of their labour law unconscious even the dreams of the four-page letter which the Minister told us that we might receive, and never did receive, in the past week. If the Government are not ready this evening to let the whole cat out of the bag, perhaps I may put four questions to the Minister, of which I have given him notice, in relation to specific guarantees, because it is right that we should look to the future rather than re-analyse all the nice points from the past, albeit that they are many.
The first matter is existing relationships. Surely it should be common ground that the new machinery for consultation must not damage existing good relationships between employers and their recognised trade unions or discourage further employers and unions to make such arrangements. Consultation with a union which is already a partner for relationships in that place of work should surely be a primary aim for strengthening and, in a way, achieving that part at least of the judgment which would cause management the fewest complexities.
The second aspect is independence. Workers' representatives must be properly independent both of state control and of control by the employer. That is not a matter where house unions or staff associations which are not independent will do. In order to represent freely the interests of their constituency, there must be guaranteed independence. Certainly, if one looks at the debate in other member states where there has been perhaps rather stronger discussion of those points, if we are to have, as the judgment put it, something which is comparable to other member states, that is a not unimportant heading.
Thirdly, whatever the selection procedures are to be, where workers are to select their representatives on ground where there had been none before perhaps, surely the procedures must be open to appropriate independent organisations of workers. If there are to be elections, for example, then an appropriate independent organisation of workers must have some right to participate—to nominate candidates perhaps, to communicate with the workforce—and not meet with a closed door from the employer. I appreciate that that may be difficult to draft and to get right, but this evening I am asking for agreement as to aspirations.
Fourthly, there is the question of the continuity and resources of the workers' representatives. I do not say this to make any particular ideological point, but it is a matter of fact that where a trade union is carrying out
1086
that process, continuity and resources are not so difficult to find. But it may be that there are representatives who have a less secure place at a particular workplace. I submit that we must ensure that the arrangements provide sufficient continuity and resources.
The directives envisage workers' representatives assimilating a great deal of information and making counter-proposals in the face of the employer's obligation:
"to consult with a view to agreement".
The directives do not lay down bargaining but they lay down the need for a high level of consultation—to consult with a view to agreement. That is rather a new concept for our law and it has been discussed already in the High Court. In that process, the worker representatives must be given the, opportunity, when there are redundancies, to comment on management's plans after it has sent its proposals to the competent public authority, as it is obliged to do.
It would be quite inadequate to allow merely for workers to choose representatives only after redundancies have loomed up over the horizon, still less when they are actually declared. It would be at the choice of management. I do not criticise the management, but redundancies come over the horizon at the initiative of management. The representatives must have more resources and better continuity.
Baroness Seear: My Lords, it would be extremely valuable if the noble Lord would explain how he sees the distinction between "negotiation", as we have understood it over the generations, and "consult with a view to agreement". I find that change very difficult to understand.
Lord Wedderburn of Charlton: My Lords, I am grateful to the noble Baroness for that interruption. I too was not brought up on that concept and it is a foreign concept for at any rate our legal categories. The noble Baroness will know as well as I do the difference between consultation and bargaining. With consultation, normally management takes the decision willy-nilly. But surely "to consult with a view to agreement" requires a little more from management. It may perhaps not be as much as bargaining where the decision is a joint decision and the directives do not require a joint decision.
I appreciate that our drafting of these matters will have to be improved and we shall have to learn new tricks. This evening I am asking that the workers' representatives, as a principle, must not be put in a position in which they come on to the field too late in the game to be effective players in what the directive requires them to do.
The idea that workers might designate representatives ad hoc, to which Advocate General Van Gerven alluded in his opinion of March 1994, which must be taken into account when interpreting European law, cannot mean that the representatives are allowed by the employer to appear only at the point at which they cannot carry out that extremely difficult process, as the noble Baroness said, of consulting to achieve agreement, if that is possible.

1087
Indeed, under such a scheme, by choosing his moment the employer could—I do not say that he would do it intentionally—as a matter of fact render ineffective, in practice, the designation of representatives at a date that he chooses for the redundancies and for which the representatives are either not there or under the implementation scheme cannot do anything effective. That would offend the ratio of the court's judgment; namely, that it must not he open to the employer to:
"frustrate the protection provided for the workers".
Refusing to recognise trade unions is not the only way in which an employer might frustrate the venture.
Therefore, perhaps rather uncharacteristically, with one minute to spare, I conclude by asking the Minister whether he will give us those assurances and delay no longer in accepting those basic rights with regard to workers' representation at work.
7.37 p.m.
Lord Rochester: My Lords, I welcome the opportunity which the noble Lord, Lord McCarthy, has given us to discuss the whole question of the application in the United Kingdom of the acquired rights and collective redundancies directives.
My interest in those matters goes back, as does that of other noble Lords who have spoken, to the debates on the Trade Union Reform and Employment Rights Bill in 1993. At that time, like the noble Lord, Lord Wedderburn, I tabled amendments which questioned and sought to overturn the Government's contention that the relevant clauses of the Bill brought the detailed provisions of UK legislation fully into line with the requirements concerning consultation contained in the two directives.
In reality, the Government's so-called TUPE regulations of 1981 obliged employers to consult only the representatives of recognised trade unions about the prospective transfer of undertakings, whereas the acquired rights directive required consultation with the representatives of employees generally. The European Commission had long argued that restricting the right to consultation and information to recognised trade unions was insufficient; and I agree.
Similarly, the directive on collective redundancies required employers contemplating large-scale redundancies to inform and consult workers' representatives well in advance. The European Commission considered that conducting negotiations only with representatives of trade unions recognised by the employer, as now provided in the Trade Union and Labour Relations (Consolidation) Act 1992, made it possible for the consultation procedure to be completely inapplicable when no trade union was recognised by the employer. The Commission found that also to be unacceptable.
In the 1993 Bill the Government made no concessions on those points. My amendments to the Bill sought to persuade them to extend the right to information and consultation to employee representatives generally. The difficulty for me at that time was that it would have been incredibly complex and indeed wrong to do that
1088
by way of substantive drafting. That would have required prior consultation with representatives of employers and trade unions and was thus a task not for Opposition parties but for the Government. I therefore said that it was up to the Government to be proactive in the matter and positively to promote employee representation outside the trade union structure, not so as to do down trade unions but simply for the benefit of employees who did not choose to be represented by a union.
Accordingly, my amendments invited the Government to lay before Parliament orders which would amend both the TUPE regulations and the relevant sections of the 1992 Act and would have the effect of extending the application of the duty to inform and consult trade union representatives so that UK law applied to employee representatives generally. The amendments proposed that the 1993 Bill should not be enacted until that had been done. I suggested then that the thinking behind the amendments was very much in line with the Government's often-expressed support for the extension of employee involvement and I expressed the hope that they would make a positive response. I further said that, since the Government accepted the principle that recognised trade unions should be consulted about prospective transfers and collective redundancies, they could not very well fail to treat in the same way employees who did not choose to be represented by a union.
The Government's response was that the main problem with my proposal was that it provided no clue as to how an employer would be able to judge who should or should not be an employee representative and that would cause considerable confusion. The Government's clear view was said at that time to be that employee representatives should be trade unions which the employer had freely chosen to recognise for collective bargaining purposes. But now, following the judgments of the European Court of Justice last June which effectively upheld the view of the Commission to which I have referred, the noble Lord, Lord McCarthy, has again challenged the Government themselves to devise machinery which would designate who should be workers' representatives for the purposes we are discussing.
In doing so he has followed closely the words used by the European Court in its judgment of June 1994 on collective redundancies when the Commission succeeded in its claim that the UK failed to fulfil its obligations under Articles 2 and 3 of the directive in not providing a mechanism for the designation of workers' representatives in an undertaking when the employer refused to recognise such representatives. In the same judgment the Court ruled against the UK for laying down in 1993 statutory provisions which were narrower in scope than those in the directive, for not requiring employers to consult workers' representatives with a view to reaching agreement and for failing to provide for effective sanctions against employers who did not so consult.
I think it is a great pity, as do the two noble Lords who have spoken, that the legislative proposal concerning consultation on both collective redundancies

1089
and the transfer of undertakings, which it was said the Government were going to issue at the end of last week, has not become available in time for this discussion. I shall be interested to hear from the Minister when he replies as much as he can tell us about the form that this proposal will take. I trust that in his reply the noble Lord will give us as much information about what the Government have in mind as he can and particularly that he will confirm that there will be consultation on their proposals with representatives of employers, trade unions and other interested parties before legislation is brought forward.
What we do have is a consultation document that the Department of Employment issued last year in which it asked for comments on the Commission's proposal as to how the directive relating to employees' rights in the event of transfers of undertakings should be amended. In that document the Government recognised that the present requirements of UK law would need to be extended beyond trade unions; and that I very much welcome. There are other encouraging signs—for although in the document the Government reiterated their general view that regulation on these matters at Community level is unnecessary and inappropriate, they do at least acknowledge that the proposed revision of the acquired rights directive gives them the opportunity to fulfil their cherished hopes for greater flexibility in this area.
For example, they welcome particularly the Commission's recognition that a distinction needs to be drawn between the contracting out of an activity or a service and the transfer of an undertaking as an economic entity which retains its identity. On the question of the application of the directive to the transfer of insolvent companies, the Government again recognised that the Commission's proposal seeks to provide some of the flexibility that they wish the revised directive to have.
Finally in this document the Government express the view that, subject to further clarification by the Commission and certain drafting points, most other elements of the proposal do not appear to give rise to significant difficulties for the UK. I very much hope that this apparent relaxation in the Government's attitude to the directive is an indication that they are genuinely seeking a consensus, since both the existing directive and the proposed revision are based on Article 100 of the treaty requiring unanimity within the Council. I should be grateful if when he replies the noble Lord, Lord Inglewood, would confirm that that really is the Government's aim.
As I understand the two judgments of the European Court, it will be, as has been said, for employees themselves to determine who for the purposes of consultation their representatives should be. But, as I said two years ago, and as the noble Lord, Lord McCarthy, has again suggested in the way in which he has framed his Question this evening, it is for the Government to devise the machinery needed for this purpose. The noble Lord, Lord McCarthy, has not specified any time limit within which this should be done; and that being so, it is to be hoped that the noble
1090
Lord, Lord Inglewood, speaking for the Government, will find no difficulty in accepting the proposition put forward by the noble Lord, Lord McCarthy. More than that, I hope that the Minister will give us some indication as to the timescale within which the Government hope both to consult and to introduce legislation on these important matters.
7.48 p.m.
Baroness Turner of Camden: My Lords, I am sure that we are all grateful to my noble friend Lord McCarthy for introducing a debate on this important and relevant subject. The newspapers are full of stories about the so-called "feel-good factor" which, unaccountably it seems, is eluding the Government despite allegedly phenomenal economic success. It is alleged that we shall not be feeling good for some time. Personally, I do not expect to feel good until after the next general election, and then I am fairly certain that I shall be feeling very good indeed. However, it is fairly widely acknowledged that the lack of this factor arises from a feeling of insecurity among people generally because, despite falls in the figures of unemployment—some of us have doubts about those figures and the way in which they are calculated—people do not feel secure either in their own employment, if they have jobs, or in the future job prospects for their children.
The Government have promoted the whole idea of job flexibility, which for most people actually means less security. Employers have been encouraged to treat employees as disposable items—a commodity like any other commodity. Job security has been very significantly weakened as a result of conscious government policy and the forms of collective protection built up by employees over many decades have also been weakened through a series of anti-trade union Acts somewhat ludicrously described as trade union reforms.
The idea has been propagated that there is something not quite right, even not quite decent, in expecting a job for life. But without such expectations it is hardly surprising that people feel terribly insecure, more so perhaps than at any time since the war. This is entirely relevant to the Question introduced by my noble friend this evening, for one of the purposes of the acquired rights directive surely was to ensure that in takeovers and mergers employees would have the assurance of some security and some continuation of employment on terms and conditions no less good than they had before. It seems to me that this objective is highly worthy. Similarly, who can possibly object to the notion that there should be consultation in advance of collective redundancies? Employees are not, as I have said before, just another kind of commodity. They are human beings with families, responsibilities and commitments. Without their efforts, the companies concerned would not have existed, and in general they are not to blame when an enterprise is sold over their heads, perhaps to a market predator interested only in asset stripping. They are, moreover, the guarantee, if one is needed, that the new owner will have the expertise readily available to enable the business to continue.

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It is a sad fact that modernising and streamlining too often means getting rid of staff. That is why the protection—it is not all that adequate, as has already been indicated by my noble friend Lord Wedderburn—afforded by the acquired rights directive is important. The Government in the first instance—as we have heard this evening—sought to give effect to the directive through TUPE, the Transfer of Undertakings (Protection of Employment) Regulations. As is so typical of this Government, they sought to do it in the most minimal way. The directive required that there should he consultation with employees. That was not provided for adequately the first time round, so we had amending legislation. However, that legislation only required consultation to take place with recognised trade unions. As we know, the Government do not like trade unions and have done their best to persuade employers not to recognise trade unions, or to derecognise them where such agreements exist. It was decided by the ECJ in June last year that that simply will not do. Employers cannot evade their responsibility to consult employees simply by derecognising unions.
The court has ruled that the directives on collective redundancies and transfers of undertakings provide guaranteed universal rights to consultation and that it is not acceptable for UK law to restrict consultation to those workplaces where employers recognise unions. The Government, as we know, must amend UK law to comply with that judgment. In the meantime it seems to me that the Government have been doing their best behind the scenes to water down the acquired rights directive. This was the subject of a Question in this House on 2nd March at col. 1583 of Hansard. I must say that on that occasion I was not particularly impressed by the response of the Minister.
The Government's whole philosophy has been based on constant erosion of employees' rights. They seem to be under the impression that only by driving down standards through, for example, the abolition of wages councils, will it be possible to create jobs. Therefore I am not surprised that the Government have been dragging their feet over implementation of the latest decision of the ECJ. In case it is argued that trade unions might not be in favour of the wider consultation argued for by the directive and the ECJ, I must point out that the TUC has made it abundantly clear that it is in favour of the whole ECJ decision and the directives, and wants to see them implemented fully as soon as possible. It has suggested that there are two ways in which this might be done and I would welcome the Minister's response to that this evening. It says that legislation could require that for the purposes of consultation, under the law the employer is obliged to consult either representatives of an independent trade union recognised for the purposes of collective bargaining to any extent; or, where no such union is recognised, representatives elected by all the employees in elections held under the rules set out in a code or regulations under statute.
It seems to me that this is a simple solution to the issues posed by the ECJ. Certainly it is quite clear that although we may not he facing the merger mania of several years ago, substantial mergers and takeovers are a continuing feature of economic life. In recent days we
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have learnt of the Glaxo/Wellcome proposed merger (with an indication, incidentally, that this could well mean job losses eventually) and of course there has been the Barings collapse. This is not a time for any government to give the impression that they are intent upon watering down protection afforded by the acquired rights directive, or that they are dragging their feet as regards full implementation. We have heard this evening from my two noble friends a detailed exposition of what the directives mean, and ways in which they could be implemented. I await with interest the Minister's response.
7.55 p.m.
Lord Inglewood: My Lords, this evening we have had an interesting debate on the subject of informing and consulting employees' representatives about collective redundancies and business transfers. I should like to thank the noble Lord, Lord McCarthy, for raising this important issue and the other participants for their helpful and notably expert contributions, and for asking some extremely pertinent questions which I shall endeavour to answer as far as I can before concluding.
As I have previously made clear to the House, the Government are giving full and proper consideration to this issue, following the decisions by the European Court of Justice last year. I also stated in this House on 9th February that it is not a question of whether this matter is dealt with by legislation, but how. The Government are now developing a proposal to give effect to the judgments. While I am not in a position to give details of the proposal to the House this evening—as noble Lords know, I had been hoping to be able to do that—the Government expect to make their ideas public shortly, and I anticipate that these proposals will contain clear ideas of what the Government propose for legislation. However, I suppose I should enter a caveat. I was not accurate as regards the timing of the consultation document. Therefore I suppose it is always possible that I may be wrong about what it may contain.
It may be helpful to remind your Lordships of the history of this issue. In 1975, the then Labour Government agreed the Collective Redundancies Directive and transposed it into UK law. The UK legislation required employers to consult only a recognised trade union. That legislation remained substantially unchanged until 1993 and it was some of those arrangements which a Labour Government put in place, which were criticised last year by the European Court of Justice and found to be unlawful.
It was in 1977, that the same Labour Administration also agreed the so called "Acquired Rights" or "Business Transfers" Directive, which also contained information and consultation provisions. Although that directive was transposed into UK law by a Conservative Government by the 1981 TUPE Regulations, the UK regulations' information and consultation provisions followed the pattern of the earlier redundancy legislation, again only requiring the employer to consult a recognised trade union.

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That view of the directives' requirements was not seriously questioned or challenged in the UK or on the Continent at the time, and indeed it was only in 1989—some 14 years after the redundancies directive had been implemented—that it was challenged by the European Commission. As the House knows, in June last year the European Court of Justice ruled inter alia that these arrangements for consultation did not meet the requirements of the directives.
The noble Lord, Lord Rochester, and the noble Baroness, Lady Turner, referred to the possible changes to the Acquired Rights Directive. I do not have any more to add to what I told the House on 2nd March.
I have mentioned the history of this issue simply to highlight that arrangements which were thought, by common accord at the time, to meet the terms of the European legislation, have many years later been found not to do so. It is against that background that the Government are developing their proposals for changes in this area.
Although, as I stated earlier, I am not in a position to discuss a detailed proposal this evening, it may be helpful to your Lordships to summarise some of the core issues at the heart of our employment policy, and which will provide the raison d'etre for our approach to this matter. First, we believe that a flexible labour market is in the long-term best interests of employers, employees, and the country at large, because growth and job creation occur best in these conditions, and that is in the best interests of both those in and out of work.
Secondly, we are equally concerned to ensure that unjustified burdens are not placed on businesses for precisely the same reasons. Our aim is to create an environment in which employers have every incentive to offer employment to others. Hemming in our businesses, and in particular our small businesses, with over-detailed and nit-picking regulations one after another will not, in our view, do that. These are not circumstances which are conducive to employers being able to pay good wages and provide good conditions of employment. They are not the conditions for creating jobs. They become the recipe for increasing national uncompetitiveness in the face of competition from all round the globe in the post-GATT world. They will push our country in the direction of economic decline and it is not this Government's policy that we should or shall move in that direction.
Thirdly, the Government are sometimes quite wrongly said to be opposed to workplace consultation and to employee involvement. That has been said today. That is simply not the case. The Government believe strongly that, irrespective of any statutory requirements, it is good practice for employers to inform and, where appropriate, consult their employees about matters which affect them. That is in the best interests of employers and employees, which is why it makes good business sense. But the Government also believe that companies should be free to develop arrangements appropriate to their own circumstances and the needs of their employees. That, rather than inflexible statutory
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requirements, is the best basis for establishing working relationships which suit best both employer and employee.
That freedom includes the decision whether or not to recognise a trade union, which has always been a feature of British labour law. The Government recognise that trade unions can be a valuable and legitimate source of help for employees in their relations with their employers. Contrary to what is sometimes said in this House and elsewhere, the Government are not opposed to trade unions. Rather, the aim of our step-by-step reform of industrial relations and trade union law has been to ensure a proper balance in the relationship between employers, employees, trade unions and society at large.
I am sure that I do not need to remind your Lordships that, at just over a quarter of a million, the number of working days lost through stoppages in 1994 represented the lowest level of industrial action in over 100 years. That compares very favourably with the average, for the 1970s of some 12 million and has benefited everyone in the country.
I mention that to remind the House of the industrial relations background to the changes we must make. It must be right, therefore, that the Government consider very carefully exactly what steps to take next to make the necessary statutory changes in this country and at the same time improve labour law.
These are important matters and, turning to a point raised by the noble Lord, Lord Rochester, we look forward in due course to considering responses to our consultation exercise when we shall have the views of those representative bodies whose members are affected by our proposal.
I was interested to read the recently published TUC report on representation at work, which I understand owes something to both the noble Lords, Lord McCarthy and Lord Wedderburn, which considers in some detail the implications of the European Court of Justice judgments. It is open enough about its real objective, which is to reverse the steady decline in union influence and power from its zenith in the 1970s, which from the TUC's perspective is an understandable aspiration. I remind the House that union membership fell from over 13 million in 1979 to under 9 million in 1993. It is clear that in many cases employees have been far from persuaded that union membership will help them, while many employers are equally unpersuaded of the benefits of union recognition. While obviously promoting union participation whenever possible, the TUC report accepts that an exclusive role for unions is not consistent with current European law.
The TUC is arguing for a new, strong and well resourced public agency to police these matters, including determining claims for recognition, echoing perhaps the statutory recognition mechanism of the 1970s to which the noble Lord, Lord Wedderburn, alluded, which was widely regarded as unworkable. Of course legal rights must be underpinned by legal redress if they are denied. But is another public agency really the kind of legislative environment people in this country really want? Will it really contribute to Britain's competitiveness, creating jobs and generating wealth for

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individuals and their families and to fund public services? Is it really the kind of proposal which noble Lords opposite actually wish to endorse?
While, as the noble Lord, Lord McCarthy, accurately surmised, I am not in a position this evening to say what will be in the Government's proposal when it is published, I am sure that I shall not be giving away any secrets if I say what it will not contain. It will not contain a requirement on employers compulsorily to recognise a trade union for these or any other purposes. Nor will it contain any provision which would require an employer to establish a works council or similar body. The Government have considered the judgments carefully and they require none of those things.
To answer a point which was raised in one form or another by all speakers, there must be a mechanism for designating employees' representatives, who must clearly have appropriate guarantees of independence and resources for the job for which they have been selected. They must be consulted by employers proposing redundancies or a business transfer. Both parties must engage in a constructive dialogue. That is evident from the judgment. There are a number of ways in which that obligation might be met.
Our aim, consistent with the points I have made tonight, will be to bring forward proposals which, while fully implementing the requirements of the two directives, which have been clarified by the ECJ judgment, provide the maximum flexibility for employers to make arrangements consistent with their business circumstances and the particular needs of their employees. They must recognise the need to minimise the burden on business; they must not interfere with the delicate balance of industrial relations generally and must ensure proper consultation with employees' representatives.
In conclusion, I thank all noble Lords who have taken part for their contributions to tonight's debate because important issues have been canvassed. In particular, I thank the noble Lord, Lord McCarthy, for raising the issue in such a spirited manner. I can assure the House that the views put forward by noble Lords this evening will be considered carefully by those responsible for legislation in this area.
As I mentioned earlier, I very much hope that the proposals I have described will come forward soon. They will contain constructive ideas so that legislation will flow as soon as possible thereafter.
Baroness Trumpington: My Lords, I beg to move that the House do now adjourn during pleasure until 8.15 p.m.
Moved accordingly, and, on Question, Motion agreed to.
The Sitting was suspended from 8.5 to 8.15 p.m.]

Environment Bill [H.L.]
Proceedings after Third Reading resumed.
Schedule 9 [Miscellaneous statutory functions of authorities]:
Lord Derwent Lord Derwent moved Amendment No. 38:
Page 159, line 6, at end insert:
("Public rights of way
.—(1) In a National Park for which a National Park authority is the local planning authority, the authority shall be the highway authority for any public right of way for which the Minister is not the highway authority; and references in the Highways Act 1980 to highway authorities shall be construed accordingly.
(2) In sub-paragraph (1) above, "public rights of way" means any highway which is a right of way to which Part III of the Wildlife and Countryside Act 1981 applies (as defined in section 66 of that Act) or which is a way shown as a road used as a public path in a definitive map and statement prepared under that Part of that Act.
(3) Section 42 of the Highways Act 1980 (power of district councils to maintain certain highways) shall not apply to any highway .for which a National Park authority is, by virtue of sub-paragraph (I) above, the highway authority.").
The noble Lord said: My Lords, I beg to move Amendment No. 38 standing in the names also of my noble friends Lord Wise and Lord Addison and the noble Lord, Lord Beaumont of Whitley. The amendment is identical to that tabled at both Committee and Report stages. Its purpose is very simple. It is to transfer responsibility for managing the public rights of way network within national parks from the highway authorities to the national park authorities.
For the avoidance of doubt, let me make clear once again that the amendment has nothing whatever to do with changing the rights-of-way network. It does not affect trunk roads or metalled roads. It affects only those roads, paths and lanes to which laymen refer as the public rights-of-way network. The amendment addresses itself only to the question of who should manage them and who should keep them up.
I should underline, too, that in opposing the amendment at earlier stages of the Bill the Minister found himself entirely alone. At that time I was able to tell your Lordships that the amendment was supported by all the organisations which had knowledge of the subject and by all those organisations anxious to ensure that the park authorities should be given powers to carry out their second primary duty, namely, to "promote enjoyment of the Parks".
Since Report stage I have felt it right to consult again each and every one of those bodies and have asked them in the light of the points made by the Minister at Report whether they are still in favour of the amendment. Each of those bodies has responded that it found the Minister's arguments unconvincing and has urged me to press the matter.
It is important to remind your Lordships just which those organisations are. They are not just a special interest group. The amendment is supported by the Association of National Parks, which represents the chairmen and chief executives of the parks, the Council for National Parks, the Country Landowners' Association, the Ramblers' Association, the Countryside Commission, the Countryside Council for Wales and the

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Association of County Councils, which represents most of the highway authorities. In addition, since Report I have been contacted by the County Surveyors Society which wished me to know that county surveyors in those national parks where management of rights of way has already been delegated to national parks have,
"found that the system works extremely well. We accept the logic that responsibility for rights of way in all National Parks should pass to the new National Park Authorities".
Where then do the Government stand? The Minister has repeatedly stated that he, too, believes that the rights-of-way network should be managed by the national park authorities. Indeed, it would be surprising if he had said anything else since that has been declared government policy since 1976. In spite of that, let me tell your Lordships what happens in practice. I take the example of the Peak District, where highway authorities have failed, in spite of years of ministerial guidance, to enter into agency agreements with the park. The park's rangers recently surveyed the whole of the network in the park and found over 600 obstructions. If the Peak park had the rights of way responsibilities, would those obstructions be there today?
Your Lordships may wonder, therefore, why the Government have so far opposed the amendment. I say "so far" because we have a listening Minister and I hope that today he might modify his stance. In essence, he says that he wishes the highway authorities to delegate management to the national park authorities, that he intends to write to them in strong terms urging them to do so; but that he will not oblige them to do so in the Bill.
Ever since the so-called "Sandford amendment" in 1976, Ministers have given identical guidance. A significant number of highway authorities have obeyed; significant numbers have ignored it and continue to ignore it. I am advised that, now the national park authorities are to become totally independent of county councils, certain highway authorities will be even less likely to listen to the guidance. Indeed, they may reasonably argue that since the Government have not taken powers in the Bill to require them to do so, they cannot be serious in wishing the powers to be transferred. Unfortunately, at present the Secretary of State—as I elicited in answer to a question—has no reserve powers at present to direct recalcitrant authorities to obey the guidance. That is the nub of the question.
At Report, the Minister put forward four arguments against the amendment. Although he did not press them hard, I must in fairness deal with them. First, he expressed the Government's view (at col. 430 of Hansard for 9th March) that:
"the integrity of the highway network and its management should be maintained and that that should be through the mechanism of a common highway authority".
This is the weakest argument of all. Already responsibility for the network is divided between the Secretary of State for Transport, who is responsible for trunk roads, and the county councils and certain district councils which are responsible for other roads. Furthermore, in most national parks there is not and will
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not be a common highway authority. Brecon Beacons National Park, for example, will be covered by no fewer than seven different highway authorities after local government reorganisation. The Peak District National Park will also have seven different highway authorities, and so on. Your Lordships may well imagine the work involved for a park authority in trying to persuade seven different councils, some of them newly created, to delegate powers to it which the Government have not seen fit to give it in the Bill. So there will be a division of responsibility in any case. Surely the network of metalled vehicular roads is rightly the responsibility of the existing highway authorities, whereas paths, bridleways and BOATs (byways open to all traffic) of recreational importance should pass to the parks.
Secondly, the Minister pleaded a financial argument. He said that the park authorities needed to be confident that the constituent county councils would be standing behind them when unforeseen circumstances arose which required the rapid injection of large sums of money. This, I am afraid, attracted belly laughs all round. As one park officer said to me, "That will be the day!" The message I get from county councils is that inevitably footpath networks will always have a low priority for them. Rightly, they consider that their priority is to keep vehicular roads in good repair. With the cuts in their budgets, they do not even have enough money to do that properly all the time. When it comes to priorities, they will therefore always spend the money on vehicular roads.
Furthermore, it is not always true that the relevant county budgets are bigger than those of the national parks. In some cases, the councils will be relatively small or impoverished or will contain only a small area in a national park. For example, Dyfed County Council currently contributes £5,000 a year to the Brecon Beacons National Park for rights-of-way work. Would it or its even smaller successor, Carmarthenshire, suddenly increase that to £50,000 to mend a footway or bridleway bridge?
The third argument of the Minister was that there are a very small number of cases where there is a tarmacadamed or surfaced footpath in a small town. Neither the national parks nor the county councils see any problem. National parks authorities are already responsible for numerous tarmaced carparks and so on and they could certainly organise the repair of a surfaced footpath in a town. In any case, only a very small proportion of the 11,000 miles of rights of way—I emphasise 11,000 miles—in the national parks come into this category. Is it so large that it justifies risking the parks' ability to carry out one of their two statutory purposes?
The last argument put forward by the Minister was that in some cases we are some way from achieving precisely the definition of "byways open to all traffic", BOATs. The Minister felt that to require highway authorities or national park authorities to define those would deflect resources from more important work. But the Minister seems to have forgotten that Part III of the Wildlife and Countryside Act 1981, which took effect in February 1983, requires byways to be defined. If the task has not yet been completed, it is because resources

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have been deflected away from the task for the past 12 years and some re-deflection is long overdue. The Government are in any event committed —and they have repeated this—to ensuring that the definition of byways is complete by the year 2000. So resources will have to be deflected pretty soon.
The reason the work has not been completed is that it is a low priority for county councils, but it is of considerable importance for the national parks. If they are to manage the parks properly, it is essential that the status of the byways be clarified. The parks are therefore anxious to get on with the work, but, of course, they cannot do so without the necessary powers.
All those points are, however, minor and quite capable of resolution. I accept that the Minister did not himself place huge importance on them. Everyone, including the Government, believes that the new park authorities cannot properly perform their duty to promote enjoyment of the parks without these powers. The Minister intends to urge the highway authorities to delegate to national park authorities. Unfortunately, the experience of the past 20 years shows that guidance will not be effective if not backed up with powers.
Unless, therefore, your Lordships pass the amendment, the national park authorities will find themselves with the statutory duty to promote enjoyment of the parks which they have no power to perform. I hope very much, therefore, that when my noble friend replies he will be able to indicate that he has indeed been listening and that there is a change in the Government's position. I hope that he will either be able to accept the amendment or find some other way of enforcing the Government's own wishes—and the word is "enforcing"—that the parks should manage the network. If the Minister cannot give us undertakings in either of those directions, I shall urge your Lordships to support the amendment in the Lobby in the interests of the parks and of common sense.
Lord Wise: My Lords, once again I strongly support my noble friend Lord Derwent in this important amendment. I spoke at quite considerable length to this amendment at Report stage in the absence of my noble friend, and he has dealt very adequately with the arguments put forward on Report by my noble friend the Minister.
As he says, the principle of giving national park authorities responsibility for rights of way in their areas has received much support from all sides of the House both in Committee and on Report. I believe that that support has been received because the amendments would make control of rights of way far more simple and efficient and make national park authorities more accountable for what is probably their greatest resource. As my noble friend said, in most national parks there is no common highway authority. It is likely that over half of the parks have more than two highway authorities with which to deal; in fact, two of them even have seven. Surely this situation must provide an ideal opportunity for bureaucracy and confusion.
Rights of way are the premier recreational resource in national parks. They do not respect the boundaries of highway authorities and often traverse the length and
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breadth of the whole park. For the full benefit to be obtained from the use of this resource, it must be managed strategically by the national park authority.
A national park authority will find it difficult to influence visitor use of the particular areas if it has no control on how the rights-of-way network is managed in those areas. This amendment would give every national park authority the tools with which to manage the rights-of-way network for the whole of a national park. Surely this would be a major step forward in managing recreational activity. I therefore strongly support my noble friend's amendment. I hope once again that my noble friend the Minister will be able to look favourably upon it.
8.30 p.m.
Viscount Addison: My Lords, I support this important group of amendments tabled by my noble friend Lord Derwent. I spoke on this matter both in Committee and on Report, when the amendments received much support from all sides of the House.
Why would making all national park authorities responsible for rights of way in their areas be an improvement on the present arrangements? There is much evidence that where national park authorities have had certain rights-of-way powers delegated to them through agency agreements, it has worked well. However, in many parks it has not been possible for the parties to enter into such an agreement. The amendment would therefore ensure that all NPAs are able to share the undoubted benefits of responsibility.
Presently, six national park authorities have some responsibility for rights of way under agency agreements. It is much easier for those authorities to manage rights of way than it is for highway authorities, as they can draw on the services of their rangers and wardens for maintenance and surveying. Where national park authorities have had responsibility, they have demonstrated that they are ideally placed to carry out the task.
In Exmoor, delegation of rights-of-way responsibilities has allowed the national park authority to develop a three-year experimental management project in partnership with the National Trust dealing with eroded paths in the Dunkery Beacon area. Furthermore, a countryside recreation and access group (CRAG) is to be set up to promote close working with user groups and members of the public. This integrated approach is an example of how the rights of way in the parks can be managed when park authorities are given responsibility for the network. This amendment will ensure that all national park authorities will be able to carry out such work so that it may become the rule rather than the exception.
Lord Williams of Elvel: My Lords, in moving his amendment, the noble Lord, Lord Derwent, made a very important point which was perhaps missed at earlier stages of the Bill when we discussed this matter; namely, that the national park authorities, as we hope they will be constituted, have to have regard to the purposes set cut in Clause 58 of the Bill—purposes with which we agree.

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It seems to me extremely difficult—this is the point that the noble Lord, Lord Derwent, made—for a national park authority to fulfil the purposes set out in Clause 58 without the amendment that the noble Lord, Lord Derwent, proposes. After all, national park authorities will be the planning authority for that area. Paths, bridleways, or whatever they may be, may be converted and may be subject to various permissions with which the national park authorities will have to deal. I would have thought that Amendment No. 38 was complementary to Clause 58 for the purposes of national parks. I find it very difficult to see, if a national park authority is divorced as a planning authority from the administration of the public rights of way, how that national park authority can properly fulfil the purposes of conserving and enhancing natural beauty and promoting opportunities for the quiet enjoyment and understanding of the parks. For that reason I believe that the noble Lord's amendment is well put and well argued. We will support it.
Baroness Hamwee: My Lords, my noble friend Lord Beaumont of Whitley has his name to this amendment and is sorry not to be able to be here himself to support it. I do so on his behalf and on behalf of these Benches. The point that was put was extremely well argued. What the noble Lord said is a matter of common sense quite apart from anything else. I am particularly struck by the need to marry the planning and the highways functions. I have always felt that highways and planning need to go very much hand in hand to be effective. For that reason, as well as for others, I support the amendment.
Lord Norrie: My Lords, very briefly, I support this amendment. I am sure that the impressive support for it stems from the fact that it will simplify the present system and enable greater efficiency in rights-of-way management. It will also allow national park authorities to plan strategically to maximise the benefit of their rights of way, as well as making the day-to-day management of this important resource more efficient.
The most popular activity in the national parks is walking. It simply does not make sense that those bodies that are set up to promote recreation in national parks (the park authorities) often find themselves without powers or responsibilities for rights of way. This amendment would resolve that problem.
The Earl of Clanwilliam: My Lords, I also support my noble friend Lord Derwent on this subject. It must be obvious that the national parks must have authority to implement their duty to provide enjoyment. You cannot have enjoyment of the paths if they are crowded with four-wheel vehicles which may be allowed by the byways open to all traffic. It is absolutely vital that the national parks should have total authority over the control and maintenance of their paths. They should be open to horses, people, ramblers, visitors, even cyclists. They must have ability to control the vehicles that use those paths. Those vehicles will destroy the paths unless they are controlled, and the cost to the parks of
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maintaining the paths after they have been destroyed will be prohibitive. It is vital that this amendment is passed.
Viscount Ullswater: My Lords, I recognise the support for Amendment No. 38 moved today by my noble friend Lord Derwent and moved by my noble friend Lord Wise at Report stage. As my noble friend Lord Derwent indicated, these are indeed the same amendments which appear for the third time.
My noble friend has secured a great deal of support for his amendment, both inside the Chamber—as has again been demonstrated this evening with nobody speaking against him —and also outside the House. He enumerated eight important organisations which supported his amendment. I also appreciate the strength of feeling among noble Lords that if the Government cannot accept the amendments as drafted, they should accept the principle underlying them.
I made the Government's policy on this issue clear on previous occasions. We recognise the importance of the rights-of-way network to national parks as elements in securing the promotion of enjoyment of the parks. The noble Lord, Lord Williams, talked about this amendment as being complementary to the purposes as set out in Clause 58. The noble Baroness, Lady Hamwee, indicated that she wanted to make certain that the highways and planning were married so that they could deliver those purposes. However, we do not believe that national park authorities should be made into highways authorities. We want to see them given responsibility for rights of way, tailored to the needs of the individual park, for which the most appropriate means are the agency agreements entered into with the relevant highway authorities. We intend to take steps positively to encourage such agreements across all the parks.
We shall give every encouragement to highway authorities to enter into agency agreements with individual national park authorities to facilitate the best management of rights of way. By adopting that approach, the national park authorities will be able to take on the day-to-day management of rights of way, confident in the knowledge that highway authorities, with their more substantial resources, will be standing behind them when the need arises. I believe that that approach is in the best interests of the promotion of a well managed and maintained rights-of-way network for the countryside as a whole, including that outside the national parks.
I recognise—I listened to my noble friend Lord Derwent demolish all my carefully thought-out arguments on previous occasions—that not all highway authorities have been willing to enter into such agreements with the existing national park boards and committee. Having listened to the arguments which have been put to me today, I should like to look again at this issue. We intend to look again at the procedure for making agency agreements between the highway authorities and the national park authorities and to consider whether it would be appropriate to introduce a reserve power which would be available to be brought into play where satisfactory alternative arrangements

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have not been made. I believe that that would be preferable to any move to create a new category of highway authority.
Therefore, I ask my noble friend Lord Derwent to withdraw his amendment on the understanding that we will bring forward proposals when the Bill reaches another place. Having said that, I should perhaps also indicate to my noble friend—because he indicated to me at an earlier stage that he would separate the amendments standing in his name; that is, to take Amendment No. 38 separately and Amendments Nos. 39 and 40 as a separate group—that I would respond in very much the same way as I have responded to this one, should he want to speak to the amendments. Otherwise, I say to him, on the understanding that I have given him, that perhaps he should not seek to move those amendments.
Lord Williams of Elvel: My Lords, before the noble Viscount sits down, I wonder whether he will clarify what he said. He said that he would look again at this. Does this mean that he gives an undertaking that the Government will bring forward some amendment, along the lines he suggested, in another place?
Viscount Ullswater: My Lords, I said that I would bring forward proposals when the Bill reaches another place. I believe that is as far as I can go.
Lord Derwent: My Lords, before the noble Viscount sits down, he said two things which seemed to me to be contradictory. He said that he would consider whether it would be appropriate to bring forward proposals giving reserve powers to the Secretary of State and then he seemed to say, "I will bring forward some proposals". If the Minister is able to undertake that when this Bill reaches the other place the Government will introduce an amendment giving the Secretary of State reserve powers to direct highway authorities in cases where agreement has not been reached, I would be more than content —I feel that it would be only right—to withdraw this amendment.
However, if he is not saying more than that he will consider whether it is appropriate to introduce reserve powers, I am afraid that I must ask the opinion of the House. Before I take a final decision on this matter, I wonder whether the Minister will clarify exactly what he is undertaking to do.
8.45 p.m.
Viscount Ullswater: My Lords, as I indicated to the House a moment ago with regard to the voluntary agreements which I was seeking between the highway authorities and the new national park authorities, there may be a stage where they would not agree to the agency basis which I was anticipating. Therefore, I indicated to the House that I should want to look again at the issue and intend to look at the procedure that we should need to go through for making the agency agreements between the highway authorities and the national park authorities and to consider whether the reserve power that my noble friend asks me for would be the best way of achieving the solution for which I believe both he and I are looking. Having said that, I
1104
have said to the House that my honourable friend will bring forward proposals when the Bill reaches another place.
Lord Derwent: My Lords, I listened with great interest to what the Minister had to say. I feel that all noble Lords would agree that much the best procedure would be that he should give guidance as he proposed, but that everyone should know that if people do not obey the guidance the Minister will have the power—if he judges it right in a particular case —to direct them. To me that would be a perfectly acceptable alternative to the amendments that I propose.
However, I am afraid that the Minister has not gone as far as that. The Minister said that he will look at how it might be done. He is not quite sure how it might be done. But he has gone short of saying that either the Government will bring in amendments like these or they will give reserve powers to the Secretary of State.
Viscount Ullswater: My Lords, with the permission of the House, before my noble friend decides whether or not to press his amendment, perhaps I may encourage him and the House to consider very carefully what I said. We are all agreed—certainly he and I appear to be very much agreed—on the way that we want to move forward, in that we want to create the agency agreements that we are both seeking. I believe that my noble friend and I are at one on that. I suggest that we ought to look at ways in which we can achieve that, especially by bringing forward proposals.
I have to say that, on the other hand, my noble friend's amendments create a new form of highway authority. I urge my noble friend to accede to what I have said this evening and to work towards the creation of the agency agreements, which may need to be strengthened by the Secretary of State if they do not work, rather than creating new highway authorities in the first instance.
Lord Williams of Elvel: My Lords, before the noble Viscount sits down, and with the leave of the House, perhaps I may refer to the very simple question put by the noble Lord, Lord Derwent. Is the noble Viscount saying—I still do not have it clear—that he will bring forward proposals on how to achieve the common aim that he has expressed between himself and the noble Lord, Lord Derwent, in another place; or is he saying, "We will look at it and consider not how to do it but whether it is possible"? If it is a question of pure mechanics, that is one thing; if it is a question of whether the principle is right, that is another thing.
Viscount Ullswater: My Lords, with the permission of the House, I can respond to the noble Lord, Lord Williams, by saying that we are looking again at this matter. We should like to look at the issue carefully. We want to make certain what it is that my noble friend and I are making common cause about, in that these agency agreements should succeed. Then I shall want to bring forward, or my honourable friend will bring forward, proposals to achieve that end in another place. However,

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I should not like to see the amendment, which creates a separate highways authority in the parks, being accepted at this stage.
Lord Derwent: My Lords, I hoped that my noble friend would say that, while he still had to look at the best way of doing it, he would give me an assurance that by the time the Bill left the other place there would be some means of compulsion for recalcitrant authorities, whether by means of an amendment or by the kind of reserved powers to which he referred. I should have been happy with that. Sadly, the Minister was unable to go that far. As I understand it he said that he would try; he will look; he will see whether there is some way of achieving what we all want in a better way. But he did not commit himself to the fact that by the time the Bill leaves the other place there will be reserve powers or something of that sort. Therefore, though I dislike dividing the House at this time of night, I regret that I must seek the opinion of the House.
8.52 p.m.
On Question, Whether the said amendment (No. 38) shall be agreed to?
Their Lordships divided: Contents, 33; Not-Contents, 56.

Division No. 5

CONTENTS

Addison, V.

Lawrence, L.

Airedale, L.

Lytton, E.

Annaly, L.

Marlesford, L.

Barber of Tewkesbury, L.

McCarthy, L.

Blyth, L.

Monkswell, L.

Burton, L.

Morris of Castle Morris, L.

Clanwilliam, E.

Moyne, L.

Derwent, L. [Teller.]

Nathan, L.

Dormand of Easington, L.

Nicol, B.

Dundonald, E.

Norrie, L.

Freyberg, L.

Northbourne, L.

Gladwin of Clee, L.

Stanley of Alderley, L.

Hamwee, B.

Walpole, L.

Hilton of Eggardon, B.

Wedderburn of Charlton, L.

Judd, L.

White, B.

Kinloss, Ly.

Williams of Elvel, L.

Wise, L. [Teller.]

NOT-CONTENTS

Aldington, L.

Goschen, V.

Astor, V.

Harmer-Nicholls, L.

Barber, L.

Harmsworth, L.

Blatch, B.

Henley, L.

Boardman, L.

Howe, E.

Brougham and Vaux, L.

Inglewood, L. [Teller.]

Burnham, L.

Kingsland, L.

Cadman, L.

Kinnoull, E.

Carnegy of Lour, B.

Kintore, E.

Carnock, L.

Lane of Horsell, L.

Chalker of Wallasey, B.

Leigh, L.

Chelmsford, V.

Lindsay, E.

Coleraine, L.

Long, V.

Cross, V.

Lucas of Chilworth, L.

Dean of Harptree, L.

Lucas, L.

Denton of Wakefield, B.

Mackay of Ardbrecknish, L.

Dixon-Smith, L.

Miller of Hendon, B.

Downshire, M.

Mountevans, L.

Elton, L.

Newall, L.

Ferrers, E.

Oxfuird, V.

Fraser of Carmyllie, L.

Renton, L.

Gardner of Parkes, B.

Renwick, L.

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Rodger of Earlsferry, L.

Trumpington, B.

Seccombe, B.

Ullswater, V.

Shaw of Northstead, L.

Vinson, L.

Skelmersdale, L.

Wade of Chorlton, L.

Strathclyde, L. [Teller.]

Wakeham, L.

Sudeley, L.

Young, B.

Resolved in the negative, and amendment disagreed to accordingly.
8.59 p.m.
[Amendments Nos. 39 and 40 not moved.]
Schedule 13 [Pollution of rivers and coastal waters in Scotland: amendment of the Control of Pollution Act 1974]:
The Earl of Kintore The Earl of Kintore moved Amendment No. 41:
Page 182, line 11, after ("person") insert ("who is not the owner or occupier of the mine in question").
The noble Earl said: My Lords, the House has expressed an opinion on Amendment No. 29 in the name of the noble Lord, Lord Stanley of Alderley. Amendment No. 41 seeks to achieve the same result in Scotland. I beg to move.
On Question, amendment agreed to.
[Amendment No. 42 not moved.]
Schedule 18 [Minor and consequential amendments]:
Lord Stanley of Alderley Lord Stanley of Alderley moved Amendment No. 43:
Page 218, line 25, at end insert:
("(3) At the beginning of subsection (8) there shall be inserted the words "Subject to subsection (8A)"
(4) After subsection (8) there shall be inserted—
"(8A) Where the conditions of a licence would require the consent of another person in accordance with subsection (4) of this section the waste regulation authorities shall act in accordance with the guidance issued to them by the Secretary of State.".").
The noble Lord said: My Lords, my noble friend Lord Ullswater said in the Official Report on 9th March at col. 528, that he would like to consider this problem again. I wonder whether this amendment, which alters the words to "shall act in accordance with" the guidance, from the present wording, which is "to have regard to", might appeal to my noble friend. I beg to move.
Viscount Ullswater: My Lords, Amendment No. 43 would require waste regulation authorities to act in accordance with guidance issued by the Secretary of State where the conditions of a waste management licence would require the consent of another person in accordance with Section 35(4) of the Environmental Protection Act.
My noble friend tabled amendments at Committee and Report stages which would have amended Section 35(4) to ensure that the owners of land adjacent to a licensed waste management facility were consulted and received compensation if it was necessary to impose licence conditions which required works to be carried out on their land. My noble friend will recall that I said at Report that we wished to consider the matter further and in particular to consult all those who would have an interest. That is still our intention and we shall be writing shortly to various representative organisations seeking their views. We will then be in a position to

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consider what action, if any, needs to be taken, including, if necessary, amendments to this Bill in another place.
However, the amendment we are considering today takes a slightly different approach and does not attempt to make detailed changes to the way in which Section 35(4) operates. Instead it provides for the Secretary of State to issue guidance and for the waste regulation authority to act in accordance with that guidance. I presume that it is the intention that such guidance should set out requirements which would have the same effect as the earlier amendments.
I appreciate my noble friend's wish to ensure that at least something is on the statute book that would enable his proposals to be brought forward at a later date when we have been able to give further consideration to this issue. I do not think, however, that guidance could achieve all that my noble friend proposed in his earlier amendments, because it could only be directed at waste regulation authorities. It could only require operators to do that which the waste regulation authority was empowered to require.
Furthermore, even in so far as guidance could achieve my noble friend's objectives, the necessary powers already exist. Section 35(8) of the Environmental Protection Act places a duty on waste regulation authorities to have regard to any guidance issued to them by the Secretary of State with respect to the discharge of their functions in relation to licences. If my noble friend considers that "have regard to" is insufficient since he has proposed the term "act in accordance with", then I suggest that his intent would be achieved just as well by means of a direction to the agencies either under Section 35(7) of the 1990 Act or Clause 38 of the Bill.
I have explained that we are considering the issues which my noble friend has raised, but I hope I have shown that this amendment is unnecessary because the Secretary of State already has powers to require waste regulation authorities to have regard to guidance. My right honourable friend will have ample power to direct the agencies. In those circumstances I hope that my noble friend will be able to withdraw his amendment.
Lord Stanley of Alderley: My Lords, yes, of course I shall. Subject to my still being alive and well in October when this Bill comes back, I shall check whether my right honourable friend has in fact done something about this as my noble friend promises that he will. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Viscount Ullswater Viscount Ullswater moved Amendment No. 44:
Page 222, leave out lines 24 to 33.
The noble Viscount said: My Lords, I spoke to this amendment with Amendment No. 23. I beg to move.
On Question, amendment agreed to.
Viscount Ullswater Viscount Ullswater moved Amendment No. 45:
Page 234, line 32, at end insert:
(" 116A.—(1) In section 50 of that Act, in subsection (1) (power to make regulations, in relation to cases to which section 49 applies, for conferring succession rights to abstraction licences where a person becomes the occupier of part of the relevant land) for the
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words "cases to which section 49 above applies" there shall be substituted the words "cases in which the holder of a licence under this Chapter to abstract water ("the prior holder") is the occupier of the whole or part of the land specified in the licence as the land on which water abstracted in pursuance of the licence is to be used ("the relevant land")".
(2) That section shall have effect, and be taken always to have had effect, as if it had originally been enacted with the amendment made by sub-paragraph (1) above.").
The noble Viscount said: My Lords, I shall address Amendments Nos. 45 and 46 together. At Committee stage my noble friends Lord Mills and Lord Crickhowell suggested that we should use this opportunity to deal with a certain point about the management of water resources where the need for legislation was admitted but no suitable vehicle had been found. I agreed to consider the suggestions.
Amendment No. 45 deals with the first of these on succession to water abstraction licences. I should draw the House's attention to the fact that it would be retrospective. That is because the wording of the Water Resources Act 1991, which was a consolidation Act, is accepted not to have reproduced the exact effect of the previous legislation. There was an inadvertent change. This amendment therefore ensures that the law will always have been what was intended.
Amendment No. 46 deals with the second suggestion that there should be a power to make drought orders to deal with problems for the aquatic environment and not just problems of water supply. The Government agree that those are desirable changes. The amendments provide the appropriate wording, which is close, but not identical, to that suggested by my noble friends.
We equally accept that there should be an amendment to deal with their third suggestion, which is to give the environment agency wider powers in the management of droughts rather than always requiring the involvement of the Secretary of State. I regret that there has not been the time to produce such provisions for your Lordships' consideration at this stage, but my honourable friends will ensure that an appropriately worded amendment is introduced in another place. I beg to move.
Lord Lucas of Chilworth: My Lords, my noble friends Lord Crickhowell and Lord Mills regret that they are unable to be present this evening. I know that they would wish to thank my noble friend the Minister for his further consideration of the suggestions that they made at an earlier stage.
On Question, amendment agreed to.
Viscount Ullswater Viscount Ullswater moved Amendment No. 46:
Page 234, line 38, at end insert:
(" .—(1) Section 73 of that Act (power to make ordinary and emergency drought orders) shall be amended in accordance with the following provisions of this paragraph.
(2) In subsection (1) (power to make ordinary drought orders) for the words from the beginning to "then" there shall be substituted the words—
"(1) If the Secretary of State is satisfied that, by reason of an exceptional shortage of rain, there exists or is threatened—

(a) a serious deficiency of supplies of water in any area, or

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(b) such a deficiency in the flow or level of water in any inland waters as to pose a serious threat to any of the flora or fauna which are dependent on those waters, then,".

(3) In subsection (3) (power to make drought order not to be exercisable except where an application is made by the National Rivers Authority or a water undertaker)—

(a) for the words "except where" there shall be substituted the word "unless"; and

(b) at the beginning of paragraph (b) (water undertakers) there shall be inserted the words "except in the case of an ordinary drought order under subsection (1) (b) above,".").

On Question, amendment agreed to.
Schedule 20 [Repeals and revocations]:
Viscount Ullswater Viscount Ullswater moved Amendment No. 47:
Page 265, line 13, column 3, leave out from ("section") to ("the") in line 16 and insert ("11A(6) (b),").
The noble Viscount said: My Lords, I spoke to this amendment with Amendment No. 33. I beg to move.
On Question, amendment agreed to.
An amendment (privilege) made.
9.10 p.m.
Viscount Ullswater: My Lords, I beg to move that this Bill do now pass.
On Second Reading, there was a broad general welcome for the Bill from many noble Lords. I was grateful for that because I believe that this is an important piece of legislation, and a most important subject. Throughout the progress of the Bill through your Lordships' House, there has also been general agreement with the principles brought forward in the Bill, although there have been a number of areas where the specific approaches that we have sought have differed.
I should very much like to thank all noble Lords on all sides of the House for the interest that has been shown in the important topics that have been covered by the Bill, for the time that noble Lords have taken in considering those issues, including the late nights that some of us have spent here in the Chamber; and for the contributions that have been made towards the development, and often the real improvement, of the Bill as a whole.
I believe that the progress of the Bill through your Lordships' House has been productive. We have debated many issues and I hope that the Government have been able to meet many of the concerns which noble Lords have raised. We have attempted to respond in various ways to the questions which your Lordships have brought forward.
The Government have responded to a number of issues that have been raised about the environment agency and Scottish environment protection agency. The establishment of the agencies is a vital part of the Bill and should provide the way ahead for a more integrated approach to environmental protection across all the environmental media. We have provided a strategic purpose for the environment agency under Clause 4 of the Bill. We have considered the points raised by your
1110
Lordships about statutory consultation on, and publication of, the guidance under Clauses 4 and 29. We have brought forward an amendment today in response to the strength of feeling that guidance under those clauses should be subject to parliamentary scrutiny.
We have accepted amendments to Clause 7 to include a socio-economic provision in respect of rural areas, and have amended Clause 30 along similar lines in respect of Scotland. I hope that I have been able to reassure your Lordships that the conservation duties that we are giving the agencies will prove to be strong and effective. We have responded to concerns raised from all sides of the House that the costs which the agencies must assess under Clause 37 include environmental costs by setting that on the face of the Bill. I believe that the provisions that we shall pass on to another place will establish strong and effective bodies which will be able to build on the strengths of their predecessors and provide for integrated and efficient protection and management of the environment.
In the light of comments made by a number of noble Lords, the Government brought forward major amendments at Report stage to the definition of contaminated land, to restrict its scope. It will now apply only in cases of significant harm, or of pollution of controlled waters. This brings the definition clearly into line with the Government's overall "suitable for use" approach.
There is a major role for guidance from the Secretary of State in the determination of whether harm is, in any instance, to be regarded as significant. The Bill now provides both for consultation on that guidance, and, more specifically, for parliamentary scrutiny through the negative resolution procedure before it is issued. We have today also resolved the question of liabilities falling upon the innocent victims of fly-tipping. There is still some work to be done, and I have undertaken to consider a number of other issues in respect of contaminated land, and, where appropriate, the Government will bring forward amendments in another place.
We have also taken account of issues raised by your Lordships on Part III of the Bill relating to national parks. We brought forward an amendment today in response to concerns that proper attention should be given to the interests of local people, which strengthens the duty on national park authorities under Clause 59 with respect to the economic and social well-being of park communities.
The Bill also now requires national park authorities to make arrangements for informing and consulting parish or community councils about the discharge of their functions, and local authorities will have a statutory duty to have regard to the desirability of appointing to the new authorities people who represent wards in the parks. We have also included English Nature as a statutory consultee on national park management plans, and made explicit that the conservation of natural beauty includes flora, fauna and geological and physiographical features.
I appreciate the considerable interest which your Lordships have in our national parks, which has been expressed clearly in our debates on this important

1111
subject. I am grateful to the significant number of noble Lords who have spoken in those debates in reflection of that interest.
The Government have also responded to concerns about the broad nature of the power to introduce a statutory scheme to protect important hedgerows. I have brought forward amendments which give statutory force to our intention to consult widely on the detailed arrangements for hedgerow protection and make the regulations themselves subject to the affirmative resolution procedure. Together, those measures will ensure that all interests are consulted properly and that future regulations are debated fully before they are implemented.
I hope that noble Lords will agree that the Environment Bill, as amended in your Lordships' House, will make a strong contribution to the improvement of environmental protection. The environment is, as I have said, a most important subject and one which, by its very nature, affects all of us and all sectors of society. I commend the Bill to the House.
Moved, That the Bill do now pass.—(Viscount Ullswater.)
9.15 p.m.
Lord Williams of Elvel: My Lords, on Second Reading I said that, while I welcomed the Bill, I thought that it was something of a curate's egg: it was good in parts and not so good in parts. I said also that it was not in our view an overall Environment Bill that was right for the 21st century. It had certain limited aims and did not encompass what we hoped it would. On the other hand, I gave it a welcome in so far as it went, and I reiterate that welcome this evening.
Your Lordships, I am sure, will be aware that the Bill has been discussed fully, and, as the Minister has just pointed out, we have sat late into the night. Many noble Lords have participated in our debates. There have indeed, as the Minister pointed out, been some improvements. We are glad that the Government have conceded the idea of a strategic aim. We should have liked to have seen it in Clause 1, or before Clause 1, but it is in Clause 4, and sometimes one cannot have more than half a loaf, and we welcome that half a loaf.
We welcome the Government's concessions in Clause 7 on guidance and how that should be treated, because that was a worry at the beginning of the Bill. We are content—perhaps a little bit more than content—with the whittling down of the cost benefit analysis in Clause 37 by including environmental costs as a cost, although I am bound to say that I would find it extremely difficult, as someone who has engaged in many cost benefit analyses, to try to put figures on environmental benefits and environmental costs. I wonder what all that will mean in practice.
Specifically on national parks, we are glad to recognise that the Government have moved a certain way towards satisfying your Lordships on a number of matters. In particular, we are happy that the House has endorsed our view that the national parks should follow the recommendations of the Edwards Report by including "quiet enjoyment" in their purposes, and I
1112
hope very much that when the Bill goes to another place, despite any difficulties there may be about the interpretation of "quiet enjoyment", that will not be lost. In addition, we discussed the local authority role, which is important. We are pleased that the Government brought forward what we consider to be more or less the right balance in respect of hedgerows. However, we would have liked to have seen the inclusion of the conservation of areas other than hedgerows.
We must confess, however, that certain problems remain. As was said earlier today, Clause 54, which deals with contaminated land, is still a bit of a mess. I suspect that in another place there will be urgent and continuing debate on Clause 54. I also suspect that at the end of the day the only solution to contaminated land will be to compile a national register. That is a matter with which another place must deal.
As regards minewater pollution, we were sad that we lost today's Division on an important issue. On the other hand, the issues that we have debated are fully in the Government's consciousness. None of the problems is easy and sooner or later we must clear up the mess that previous generations have left not only in coal mines but in metal mines.
I am depressed that your Lordships have not allowed Wales to have its proper consultation on subordinate legislation from the Secretary of State to the Countryside Council for Wales, but no doubt that matter will be brought to the Government's attention in another place and perhaps with more acerbity than in your Lordships' House.
Other matters remain to be decided in another place. There is the issue of air quality on which we shall bring forward amendments. There is also the issue of rights of way in national parks, about which the noble Lord, Lord Derwent, has spoken tonight. Those and other matters must be resolved by the Government in another place. I can speak for my right honourable and honourable friends in another place in saying that they, as we have, will provide a constructive if sometimes fairly aggressive opposition. That is what the Government need in order to get the Bill into as good a shape as possible as it goes through both Houses, given the complications of its diverse nature.
I wish to place two major procedural problems on the record. The first relates to timetabling. As the noble Viscount pointed out, and as I have mentioned, we have sat late into the night on a number of occasions. In your Lordships' House it is normal that the timetabling of Bills—that is, how many days there should be in Committee and on Report—is agreed through the usual channels. In more Bills than I can remember—and I have taken a number of Bills through this House for the Opposition—it has been possible to say that four or five days might be right. I am bound to say that for the first time I have been unable through the usual channels to give any guarantee on the date of delivery either in Committee or on Report. The reason is that amendments have been tabled from all sides of the House.
The Bill has been diffuse and therefore we have had several debates on different issues. Different Members of your Lordships' House have attended on different occasions to put forward different points of view. The

1113
Opposition, including the opposition party on my right—and I shall not repeat this—have from time to time, because of the need to accommodate the timetable that they put forward to the usual channels, felt somewhat constrained in speaking to some of the amendments that we wished to move. As your Lordships will be aware, on some occasions we have not moved amendments which we should have liked to debate because time was taken up by noble Lords in other parts of the House.
As regards the sittings of the House, it was agreed by your Lordships that the House should rise at 10 o'clock and that we should conduct our affairs in a manner which allows that. But I am afraid that on this Bill, that has gone by the board and that is a lesson which the authorities in the House should consider.
The second procedural problem which I believe that we must consider is the question of groupings. On many occasions during the passage of the Bill, groupings appeared to have been agreed but had not been agreed. Again, that is partly because it is such a diffuse Bill and with many noble Lords coming in as they do at perhaps lunchtime, 2 o'clock or 3 o'clock in the afternoon, it has not been possible to agree something which is usually agreed through the usual channels. We cannot blame those noble Lords for that but the job of the Minister and the spokesmen for the Opposition has been made extremely difficult when the groupings are suddenly broken and we are not quite sure where we are. Again, on all sides of the House we must consider the question of groupings in relation to a complicated Bill such as this.
My last task is to thank the noble Viscount, which I do very sincerely, for the courtesy with which he has dealt with all the matters on the Bill. In particular, I thank him for the courtesy which he has extended to the Opposition and I thank him also for the expertise which he has brought to bear on the matters we have debated. I thank also the noble Earl, Lord Lindsay. I understand that it was his first job on the government Front Bench. He has been assiduous, in particular in relation to Scottish affairs. Also, from time to time, we have had the benefit of the interventions of the noble Earl, Lord Howe, not, alas, this evening, to my pleasure, but he has done so always with his usual elegance and courtesy.
I wish to give my deepest thanks to my noble friend Lady Hilton who has helped me enormously and has provided the House with an excellent example of how the Opposition can field a number of good calibre spokesmen. I know that she will wish to intervene in the debate but I wish to express my personal thanks to her. I thank also my noble friend Lord Carmichael of Kelvingrove. He has borne the heat and burden of the Scottish day, if I can put it like that.
To sum up, we wish the Bill well. We hope that it will be further improved in another place. We believe that your Lordships have improved it but it needs to be better. I am sure that it will be improved in another place and I look forward to further discussions on the Bill when the amendments come from the other place. In the
1114
meantime, as I say, I am happy to support the Motion that the Bill do now pass because, in general, we think it is a good Bill.
Baroness Hamwee: My Lords, I echo the words of the noble Lord, Lord Williams of Elvel, in thanking the Minister for his courtesy and patience throughout our discussions on the Bill. In Committee I felt that the Government's ear was not quite as open as they professed it to be, and that turned out not to be so. The Government have brought forward many welcome amendments, although—and it is inevitable—they have not always gone as far as we would have liked or perhaps not in quite the right direction.
It has been a pleasure finding points of contact around the House from all corners, and sometimes a little unexpectedly. I too thank the noble Earl, Lord Lindsay. I believe that the noble Earl and the Minister have maintained their good humour later into the night than any of us had any right to expect.
I share some of the disappointments that have been mentioned. Like the noble Lord, Lord Williams, I welcomed the Bill initially, but having thought about it further during its course, I have become increasingly disappointed in relation to the limitation of its functions, even though that has been improved over the course of the past few weeks.
I shall not at this hour rehearse again all the topics for fear of taking us on to another late night, but I wish to mention in particular my welcome for the Government's acceptance of the need to include within the Bill the matter of air quality. I look forward when the Bill returns here from another place to seeing how that has been dealt with. I also wish to thank very particularly those from outside the House who have helped us to improve the Bill. I hope that we have managed to do justice to the expert and energetic briefings that we have received from so very many agencies and organisations.
Finally, I should like to share with your Lordships both my welcome for the Bill and my sense of irony that in welcoming it what we in this House are doing is creating yet another set of quangos.
9.30 p.m.
Lord Renton: My Lords, I was surprised to hear the noble Baroness say that she regretted the limitations of the new environment agency because, quite frankly, I think that it will have more and wider powers than any other public body within my long recollection. We all welcome the Bill and it is splendid that we do. It is a most complicated, long, far reaching and at times controversial Bill. My noble friend Lord Ullswater has handled it with consummate skill and has shown not only the courtesy and patience to which the noble Baroness referred but has above all been open minded about it. On some very controversial points the Government have tabled acceptable amendments. My noble friend Lord Lindsay showed great skill on his first venture of this kind.
It occurred to me only today, strangely enough, the difference in phraseology. For England and Wales we are to have an environment agency but for Scotland we

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are to have an environment protection agency, as though the Scots are so rapacious that their environment needs more protection than that in England and Wales. However, that is a point for further consideration.
It is a greatly improved Bill but, of course, Members of another place will consider it in the light of their own constituency interests and problems. We can expect to have some further amendments resulting from their initiative. We shall want to see it improved in the various ways which some of your Lordships have suggested. I alight on two points in particular. Speaking as one who years ago had responsibility for health and safety at 300 coal-mines and went down many of them, I remember so well how surprised I was to find not the contamination—one expected that—but that in nearly every mine one went to water that had to be pumped away—sometimes at not very deep levels. That water was going eventually to find its way to the surface and contaminate brooks and rivers. So we need to pay much more attention to Part II of the Bill dealing with contaminated land and abandoned mines. We really have to get it right.
On national parks, the noble Lord, Lord Williams, properly referred to the phrase "quiet enjoyment", which was carried by a majority in the House, in my respectful opinion wrongly. It is a matter which the Government will have to have attended to, no doubt on the advice of Law Officers, in another place. I think this is a very important Bill but we still have a lot to get right and I wish the Government well in all the efforts to do so.
Lord Norrie: My Lords, I cannot let this occasion slip without mentioning Part III of the Bill. This represents a major step forward for national parks. I am delighted it provides for the creation of new national park authorities along the lines of my Private Member's Bill last Session. The Bill also updates national park purposes as recommended by the Edwards Report, and I welcome the inclusion of wildlife and cultural heritage among the qualities that are to be conserved. I also welcome the fact that the Bill makes it explicit that the type of enjoyment national parks should promote should he quiet.
Progress has also been made in making all public bodies more involved in national park purposes. My noble friend Lord Ullswater and the Government should he congratulated on including those provisions in this Bill. Finally, the debate on this Bill has demonstrated yet again that the well-being of national parks is of concern to all political parties. I should like to place on record my personal thanks to the noble Lord, Lord Williams of Elvel, and the noble Lord, Lord Beaumont of Whitley, and those many other Peers on all sides of this House who have worked unstintingly to get the Edwards Report recommendations on to the face of the Bill.
Lord Lucas of Chilworth: My Lords, when we had the Second Reading in December of last year, your Lordships gave a warm general welcome to the Bill which had been some long time in coming. Undoubtedly the creation of the agency will prove to be of
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tremendous importance. Its task is enormous, and how it will complete it by 1996 when the board will become officially constituted I do not know.
I have been very critical over many issues during the passage of the Bill. The criticism has not been levelled at my noble friend the Minister or indeed my noble friend Lord Lindsay and other colleagues. It was more a criticism of that which was put before them to deliver to your Lordships. That the Government have made a number of concessions—and indeed there are a number of outstanding issues upon which the Government have made promises to be effected in another place—to me illustrates how ill thought out many parts of the Bill were, particularly Part I. Here my complaint remains the same. The agency advisory committee, as it currently is, does not, I believe, show strength of knowledge across all those areas that have to be dealt with. I refer to no one particular person, but to me there seems to be a weakness here, although the Government have said that this is a strategic working unit and the expertise will be found in the advisory committees yet to be appointed.
Part II of the Bill deals with contaminated land. From all sides of the House, and in comments representing a number of different views, criticism has been levelled and is still being levelled on this matter. To me that shows that there has been a lack of either knowledge of how some parts of the industry work or a reluctance to accept the practicalities that are contained in the Bill. There remains yet more work to be done. As regards parts of Part IV, again a number of amendments have been put down from various quarters in your Lordships' House demonstrating the concern that still remains as regards the ancillary and supplementary regulations.
The noble Lord, Lord Williams of Elvel, drew attention to some procedural matters. I concur with many of his remarks. It has been almost impossible to draw some of our debates to a meaningful conclusion, whatever that conclusion should have been. Therefore, inevitably, more work will rest with another place. Your Lordships have always prided yourselves on sending Bills to another place in a more complete form than they arrive in this House, from wherever they come. In this instance I do not believe that we have been able to do our job as well as usual. That is regrettable.
Against that somewhat critical background there has been, as other noble Lords have said, the unfailing courtesy and patience of the Government Front Bench. With that in the back of my mind my more severe criticisms can be kept in check. I have been somewhat mollified by their attitude and helpfulness. When the Bill returns to this House in later months we shall have to see how far the Government have been able to address the real concerns that have been raised.
This is an important Bill. The fact that it will undoubtedly become law in the fullness of time is to be welcomed. I hope that in another place some final adjustments will be made to make the Bill even better.
Baroness Hilton of Eggardon: My Lords, it has been a pleasure working on the Bill for many of the reasons already mentioned by your Lordships, including the courtesy of the Minister, the good cheer and helpfulness of the noble Earl, Lord Lindsay, outside the Chamber

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and the support of my noble friend Lord Williams. It is my pleasant task to pay tribute to those people outside this Chamber who have been of such great assistance during the passage of this extremely complex piece of legislation.
I should like to mention first Kay Jenkinson and Barbara Edwards of the Coalfields Communities Campaign, who waged an excellent public campaign which has brought to the attention of the nation the problems of the coalfields communities and of mine water pollution. I regret only that we have not managed to do more for them. Perhaps as they continue their campaign in another place they will be able to achieve a change in bringing forward the date on which the responsibility for mine water pollution will be more clearly allocated.
I should also like to pay a tribute to Karen Bate of the World Wildlife Fund, who suffered a close bereavement during the passage of the Bill but nevertheless managed to continue to provide me with excellent briefings, particularly on ponds. I continue to regret that I have failed to sway your Lordships to my enthusiasm for ponds and that they do not rate equally with hedgerows. However, I shall continue in the years ahead to fight the battle on their behalf.
We are particularly grateful for the many briefings and amendments we have received from Mary Wimbury on behalf of the AMA and ACC. Many of those amendments have found a place in the Bill in a transmuted form in government amendments, although perhaps not going as far as we would wish. However, many of those on consultation and open government have now found a place in the Bill. Without those many excellent briefings on many of the amendments that we have put from this side of the House we would not have coped with this extremely complex piece of legislation.
Finally, I should like to pay a tribute to our researcher, Robert McGeachy, who has managed to remain supportive and cheerful despite the many pressures that have been placed upon him over the past few weeks.
I have greatly enjoyed working on the Bill, despite the late hours we have had to work, and I am grateful to your Lordships.
The Earl of Lytton: My Lords, from these Benches it is not possible to speak on behalf of my noble friends who sit in this part of the House. However, there is one issue on which I feel that I can speak for all on these Benches, and that is to thank the Minister for the courteous and efficient way in which he dealt with inquiries and with the amendments that were tabled, always managing to maintain the highest standards of candour and politeness throughout, even late into the night. I must pay him great tribute for that. Perhaps I may pay tribute also to the noble Earl, Lord Lindsay. We are broadly of similar age. If I may say so, he has brought a youthful appeal to the Front Bench, which is much appreciated. However, by the same token perhaps I may express my thanks to the noble Lord, Lord
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Williams, and his team. We have often not agreed wholeheartedly on matters in the Bill, but we have respected the reasons why we differ in our views.
I have often found myself speaking a slightly different language from that of the noble Lords, Lord Marlesford and Lord Norrie. I hope that the respect for each other's position which has been established during those dialogues will be an enduring feature.
The Bill is an important watershed in legislation. It represents an enormous opportunity. Some difficulties will still have to be sorted out in another place. However, that factor underlines the complexity of the different facets within the Bill rather than denoting that there are intractable problems. I do not know whether the problems are intractable. Ultimately the proof of the pudding will be the manner in which the commercial world considers matters of residual liability, the interaction between BATNEEC and fit for use, and cost benefit. Those are all important factors.
I am grateful to the Minister for the way in which he responded regarding the way in which hedgerows are to be dealt with, and the many other matters which I have raised including socio-economic factors in national parks. Like the noble Lord, Lord Renton, I am not quite so happy on the question of quiet enjoyment. It is not that I fail to understand the intention; I understand it well. It is simply the sheer difficulty of defining the term in a manner which satisfies all legitimate interest.
I wish the Bill well in another place. No doubt it will return to this House with amendments to be considered. However, I wish the Bill well, I hope that it has a safe passage.
The Earl of Kintore: My Lords, perhaps I may join in the thanks for the courtesy and patience with which we have been heard. I thank the noble Earl, Lord Lindsay, for the improvements that we have managed to make for Scotland.
9.45 p.m.
Viscount Ullswater: My Lords, first, I should like to respond to the very kind words which have been uttered around the House on the handling of the Bill both by my noble friend and myself. I do not believe that I could have managed the Bill so adequately (if adequately is the word) without the support of my noble friend. He has been cheerful and supportive throughout.
The noble Lord, Lord Williams, indicated that he had had problems with the timetabling of the Bill, with which I agree. He indicated one or two of the concerns, which I shared, regarding the unbundling at Committee and Report stages of groupings of amendments. I find that quite difficult to cope with. However, noble Lords had difficult problems with which to deal. They wished them spoken to and therefore we had to respond in that way. My noble friends behind me moved many amendments which they wished me to accept. If I have not been able to respond to them with amendments, I hope that I have been able to reassure them and noble Lords opposite on some of the matters.
However, I much appreciate the constructive approach of the noble Lord, Lord Williams, and the noble Baronesses, Lady Hilton of Eggardon and Lady

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Hamwee, to the Bill. It has been an interesting experience for me and I have enjoyed dealing with it. The noble Lord, Lord Williams, indicated that there were areas of anxiety which we needed to address in another place. He mentioned that Clause 54 is still a bit of a mess. As noble Lords will know, there will be certain government amendments to try to sort out the difficulties which the noble Lord has in mind and I hope that we shall improve the Bill in another place before it returns here.
I should like to mention two areas before I conclude. One is air quality. As I indicated to the House in Committee on 9th February, our proposed amendments on air quality will provide for the Government to establish a national strategy for maintaining and improving air quality. That strategy will include clear standards and targets for the important pollutants. The amendments will also establish a new system for managing air quality at the local level under which local authorities will have a duty to assess regularly the air quality in their area. Where it is found to be poor, they will have a further duty to take the necessary remedial action to ensure that standards and targets are met. I know that the noble Lord, Lord Williams, and the noble Baroness, Lady Hamwee, were interested in that.
Finally, I should not let the occasion pass without indicating that at a previous stage we extensively debated the issue of old mineral permissions. The minerals industry is of considerable importance to the economy and is to be commended on the steps which it has taken to improve environmental standards. However, not everyone in the industry works to the
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same high standards. My noble friend Lord Addison raised the issue at Report stage. I then undertook that the Government would bring forward amendments in another place to resolve the problems created by old mineral permissions, which typically have few, if any, modern working and restoration conditions attached to them. Therefore, we shall work on the amendments in another place.
I concede that there is some work still to do and that it will have to be done in another place. The Government have undertaken to bring forward measures as necessary on air quality, as I mentioned, on contaminated land, mineral permissions and also on fisheries, both to implement government policy and to meet further concerns that have been impressed upon me in this House.
Overall, I believe that the measures now included in the Bill, subject to our commitments to bring forward further amendments, provide an excellent approach to environmental protection across the whole range of government policy—an approach which will provide strong measures for the protection and management of the environment. The Bill and the interest in it, as well as the valuable contributions which it has attracted in the House, reflect the importance of environmental protection and the longer term outlook which sustainable development demands. It should enable environmental protection in the UK to continue to improve as we approach the new millennium. I commend the Bill to the House.
On Question, Bill passed, and sent to the Commons.
House adjourned at seven minutes before ten o'clock.