§ 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 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.1017
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.
1018 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 moved Amendment No. 2:
§ Page 5, line 41, leave out ("give") and insert ("lay before Parliament an order containing").1019
§ 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.
1020 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.]
§ 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.").1023
§ 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 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, 150.1030
|Division No. 1|
|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.|
|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.|
|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.|
|Thomas of Gwydir, L.||Vaux of Harrowden, L.|
|Tollemache, L.||Vivian, L.|
|Trumpington, B.||Ullswater, V.|
§ 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 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 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.1032
§ (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.
§ On Question, amendment agreed to.
§ Clause 30 [General environmental and recreational duties]:
§ 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.1033
§ 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 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 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.
1034 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 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, 1035 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.1036
§ Clause 54 [Contaminated land]:
§ 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.1037
§ 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 1038 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 1039 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 moved Amendment No. 15:
§ Page 48, line 18, at end insert:1040
§ (""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 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 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 1041 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? 1042 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.
1043 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 1044 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 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 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.
1045 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 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".1046
§ 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
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 1047 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 1048 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 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 1049 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. 1050 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.
1051 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 moved Amendment No. 27:
§ Page 55, line 50, at end insert:
§ (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.").1052
§ 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 1053 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.
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 1054 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 1055 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 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.
§ 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
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, 100.1063
|Division No. 2|
|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.|
|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.]|
|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.|
|Nathan, L.||Wise, L.|
|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.|
|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.|
|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 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, 105.1064
|Division No. 3|
|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.|
|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.|
|Stedman, B.||White, B.|
|Stoddart of Swindon, L.||Williams of Elvel, L.|
|Strabolgi, L.||Winchilsea and Nottingham, E.|
|Thomson of Monifieth, L.||Wise, L.|
|Aberdare, L.||Kimball, L.|
|Addison, V.||Lane of Horsell, L.|
|Ailsa, M.||Layton, L.|
|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.]|
|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.|
|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.|
§ Resolved in the negative, and amendment disagreed to accordingly1065
§ 6.12 p.m.
§ 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 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 1066 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 1067 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 1068 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.
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 1069 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 1070 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 1071 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?
1072 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 1073 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.
1074 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.
§ [Amendment No. 34 not moved.]
§ 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"—1075
- (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.
§ 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.1076
§ 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 1077 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 1078 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.
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, 98.1081
|Division No. 4|
|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.|
|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.|
|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.|
|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.]|
|Eden of Winton, L.||Massereene and Ferrard, V.|
|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.