HL Deb 16 November 2000 vol 619 cc431-40

.—(1) It is the duty of—

  1. (a) any Minister of the Crown (within the meaning of the Ministers of the Crown Act 1975),
  2. (b) any Government department, and
  3. (c) the National Assembly for Wales,
in carrying out his or its functions, to have regard, so far as is consistent with the proper exercise of those functions, to the purpose of conserving biological diversity in accordance with the Convention.

(2) The Secretary of State, as respects England, and the National Assembly for Wales, as respects Wales, shall each publish a list of, or lists which together comprise, the living organisms and types of habitat which in the opinion of the Secretary of State or the Assembly (as the case may be) are of principal importance for the purpose mentioned in subsection (1).

(3) Without prejudice to subsection (1), it is the duty of a listing authority to take, or to promote the taking by others of, such steps as appear to the authority to be reasonably practicable to further the conservation of the living organisms and types of habitat included in any list published by the authority under this section.

(4) Before publishing the list or lists required by subsection (2) the listing authority shall consult the appropriate conservation body as to the living organisms or types of habitat to be included in the list or lists.

(5) Each listing authority shall, in consultation with the appropriate conservation body—

  1. (a) keep under review any list published by the authority under this section,
  2. (b) make such revisions of any such list as appear to the authority to be appropriate, and
  3. (c) publish any list so revised.

(6) A duty under this section to publish a list is a duty to publish it in such manner as the listing authority thinks fit.

(7) In this section— appropriate conservation body" means—

  1. (a) as respects England, English Nature.
  2. (b) as respects Wales, the Countryside Council for Wales;
biological diversity" has the same meaning as in the Convention; conservation" in relation to a living organism or type of habitat, includes the restoration or enhancement of a population or habitat; the Convention" means the United Nations Environmental Programme Convention on Biological Diversity of 1992; habitat" has the same meaning as in the Convention; listing authority"—
  1. (a) in relation to a list which the Secretary of State is required to publish under this section, means the Secretary of State;
  2. (b) in relation to a list which the National Assembly for Wales is required to publish under this section, means the National Assembly for Wales.").

The noble Lord said: My Lords, in Committee I promised to bring forward a government amendment which would respond to the overwhelming support in the Chamber and in the other place for some statutory entrenchment of our biodiversity policy. We have given considerable thought as to how best to achieve that objective and Amendment No. 199A is our conclusion. I believe it to be a more comprehensive reflection of the implementation of biodiversity policy in England and Wales and also, for reasons which I shall explain, more technically satisfactory than Amendment No. 217 tabled by the noble Baroness, Lady Byford. I therefore hope that I can persuade her to withdraw her amendment in favour of the Government's. I shall deal with the amendments to my amendment once they have been moved.

The debates on this issue made it abundantly clear that there is a widespread concern that the conservation of biodiversity be addressed on a wider scale than solely in protected areas such as SSSIs. The Government totally agree with that. At present, it is undertaken as a matter of policy through the UK Biodiversity Action Plan.

That plan is a major expression of our obligations under the UN Convention on Biological Diversity. But the convention sets a wide and comprehensive framework, of which the Biodiversity Action Plan is only one part. The Government are firmly committed to the conservation of biological diversity and all the obligations which fall to it under the convention. That is why in subsection (1) of the amendment the Government have set their general duties—to have regard to the purpose of conserving biological diversity—in the context of the convention itself. I believe that that provides a firmer basis for the future development of biodiversity policy than the narrower emphasis contained in the alternative Amendment No. 217.

Nevertheless, we also fully recognise the central role that our implementation of the convention must attach to the conservation of those species and types of habitat for which we in this country have special responsibilities. Subsections (2) to (7) of Amendment No. 199A therefore focus on providing a flexible but clear statutory basis to the current process for dealing with species and habitats. While aiming to retain room for manoeuvre in setting future priorities, we are concerned to maintain the course and effectiveness of that current process. We have a very successful partnership approach, drawing in organisations across the statutory and non-statutory sectors. We do not wish this provision to result in the wholesale review of the current Biodiversity Action Plan priorities and processes.

In the light of that, we have framed the duty in subsection (3) to promote the taking by others of steps to further the conservation of the listed species and habitat types. We believe that this duty best reflects and sustains that partnership approach. The partnership of course includes other government departments and a very wide range of public bodies as well as conservation and land management NGOs and in some cases the private sector. Our amendment deliberately goes wider than Amendment No. 217.

Amendment No. 199A also reflects other valuable elements of the current process, such as the advice of the nature conservation agencies. We have also referred to "living organisms" rather than "species" which we understand to be more taxonomically correct because it can include lower plants and fungi and "habitat types" rather than "habitats" to avoid possible confusion with specific sites.

I therefore believe that our amendment is comprehensive and is to be preferred to the amendment tabled by the noble Baroness. I shall listen to the debate on the amendments to my amendment. In the mean time, I beg to move.

9 p.m.

Baroness Gibson of Market Rasen moved, as an amendment to Amendment No. 199A, Amendment No. 199B: Line 8, leave out ("have regard") and insert ("further and enhance").

The noble Baroness said: My Lords, my noble friend Lord Judd is attending the Council of Europe and is unable to be in his place this evening. My noble friend has asked me on his behalf to move Amendment No. 199B and speak to Amendment No. 199C. We greatly welcome Amendment No. 199A and sincerely thank the Minister for tabling it. The amendment encompasses many of the matters for which we asked when we last debated this issue. We particularly welcome its emphasis on the obligation of the listing authority to ensure the conservation of living organisms and different types of habitat. We also welcome the proposal to consult appropriate bodies accordingly.

However, we believe that in one particular respect the amendment does not go far enough and is rather weak, and for that reason we have tabled Amendment No. 199B. We believe that this amendment strengthens the position and improves the new clause. It emphasises the need for Ministers of the Crown, government departments and the National Assembly for Wales to enhance and further, rather than merely to have regard to, their purpose in relation to conserving biological diversity in accordance with the convention. The amendment demands action and so strengthens the whole clause. I hope that my noble friend will look favourably on these small amendments which are intended to be supportive.

Baroness Mallalieu

My Lords, in Committee I spoke briefly to this aspect of the Bill. I also thank the Minister for the very good amendment which has been tabled by the Government. I know that other noble Lords will also be grateful for it. I urge the Minister, however, to consider carefully the amendment moved by the noble Baroness which is intended to beef up the position. One can envisage a situation, perhaps not under this Government, in which a Minister of the Crown may not carry out his functions and is challenged in the courts. If he is asked to say whether he has had regard to these matters nothing can be simpler than for him to escape what we hope will be his obligations. If the clause read "to further and enhance", it might be rather more difficult for the Minister to escape, if he had failed to carry out his obligation. If the Minister cannot accept the amendment moved by the noble Baroness, I hope that he will at least be able to give some guidance to assist someone who may at some stage wish to test the matter in the courts.

Earl Peel

I also very much welcome the amendment tabled by the Minister. I appreciate the difficulties which the Government faced in producing a balanced response to our debate in Committee on this important subject. The effects of the amendment will be particularly useful to conservation outside the designated areas; indeed, they may go some way to resolve the problems referred to by the noble Lord, Lord Williams of Elvel, concerning nature conservation in designated areas. As I said in Committee, I believe that the amendment will have a profound effect on the way that government ultimately think about management of the countryside. I am also convinced that as Ministers and government departments, who will be responsible for implementing this legislation, come face to face with the realities, the inadequacies of the common agricultural policy will be brought into sharp focus, which can only be good. When we debated this matter in Committee the noble Lord, Lord Hardy of Wath, said that the financial implications of the amendment would not be very great. I suspect that they will be greater than the Government realise. The Government have made a brave move in tabling this amendment, which I and other noble Lords appreciate.

I have great sympathy for the amendment moved by the noble Baroness, Lady Gibson of Market Rasen. However, I am not sure that any government department would be in a position to further and enhance the objectives set out in the Government's amendment. It is perhaps asking too much of every government department statutorily to embrace that commitment. I welcome the Government's amendment and believe that it is a very accomplished response to our debate in Committee.

Baroness Young of Old Scone

My Lords, although I should love to join the noble Earl, Lord Peel, in a spirited attack on the common agricultural policy, at this time of night I shall avoid doing so. I am delighted that the Government have tabled Amendment No. 199A and provided statutory support not only for the biodiversity action plan but the whole convention on biodiversity. The biodiversity action plan is a unique phenomenon in British public life in that it is an agreed set of priorities to which everyone signs up. I am glad that it will now be given some statutory underpinning.

The expression "to further and enhance" is interesting. I hesitate to agree with the noble Earl, Lord Peel, that no government department can further and enhance conservation. I can think of several departments, not least the Ministry of Defence, which own considerable land and can play a big role. I hope that I can encourage the noble Earl and the Minister to be ambitious. However, I am delighted to see in the Government's amendment not only statutory underpinning but also the statement that this is all about furthering conservation, not just having regard to it, and that the definition of "conservation" includes "restoration or enhancement". I hope that the whole House will support the amendment.

Lord Monro of Langholm

My Lords, I go back to the observations of my noble friend Lord Peel. When the Government are expected to have knowledge of these matters they turn, naturally, to their official advice which comes from English Nature. They will not have problems in that regard. One would wish, however, to make a précis of the two amendments. In a way, Amendment No. 217 is much simpler for the man in the street to understand than Amendment No. 199A, particularly in relation to some of the technical stuff. Biodiversity means different things to many different people. If one looks for an indication of its meaning, one sees that in the new clause "biological diversity" is to have the same meaning as in the convention. If one looks up "the Convention", it means the United Nations Environmental Programme Convention on Biological Diversity of 1992. But none of that is particularly helpful to the man in the street. It would have been to the advantage of the clause if the Government had simplified it and spelt out what they actually meant by "biodiversity", rather than leaving one to look up various Acts and conventions which are not on the face of the Bill.

I dare say that when the Bill has completed its passage through Parliament the Government will produce a document to elucidate and explain many of the issues in the Bill. This is one issue that needs further explanation.

Lord Williamson of Horton

My Lords, from the Cross Benches I welcome the Government's amendment No. 199A. It responds very well to what was discussed in Committee. I believe that the Government's formulation is quite satisfactory. It is important to have the statutory underpinning. It will not undermine the voluntary partnerships which exist already under the habitat and living organism, until tonight described as species action plans. The amendment responds extremely well to what is needed in the Bill.

Baroness Miller of Chithorne Domer

My Lords, we on these Benches welcome the amendment for the reasons noble Lords have stated. We welcome the widening of responsibility to include ordinary species and places, taking Part III beyond the concentration on SSSIs.

We recognise that this is a wider amendment than the one we tabled. When I first saw it, I had the reaction that the noble Lord, Lord Monro, has just expressed; it was so complicated that I did not fully understand and appreciate the degree to which it would be beneficial. Having unwrapped the meaning of it—I hope to an adequate degree—I am content that it meets the requirements we wanted to see met.

Although I understand the reasons behind the amendments of the noble Lord, Lord Judd, I feel quite happy that the spirit—to further and enhance—is already encapsulated in the Government's amendments.

Lord Hardy of Wath

My Lords, I congratulate the Government on bringing forward the amendment. I am delighted that support exists across the House. I have one question: can the Government give an estimate for the period of consultation referred to in this part of the Bill?

Baroness Byford

My Lords, I thank the Government for their amendment. No one has spoken about my Amendment No. 217. I feel very sad, but we shall no doubt discuss that matter in a moment.

Noble Lords should be aware that our amendment was tabled before the government amendment. That is always a problem at the end of one stage and before the next stage starts. I thought that the joy of our amendment was that it was very simple and contained what was needed. However, I bow to the great support that the Government have. I am more than happy to accept the Government's amendment. I do not have difficulty with that.

I thank the noble Baroness, Lady Miller, the noble Lord, Lord Moran, who is not in his seat, and the noble Lord, Lord Judd, who, we knew, would not be able to attend tonight, for adding their names to Amendment No. 217.

In Committee, my original amendment No. 518 had much support from all sides of the House, and indeed from the Government. I am grateful. My amendment at that time was considered not perfect. I am even more grateful that the Minister has returned with something of which we are in favour.

Amendment No. 217 requires that, first, the Secretary of State and the National Assembly for Wales shall establish and keep under review lists of priority species and priority habitats; and, secondly, that the Secretary of State and the National Assembly for Wales shall take such measures where reasonable and practical to further the conservation and enhancement of the priority species and habitats. Thirdly, there is a duty to report on these matters from time to time. Fourthly—and perhaps most importantly at that stage—there is the requirement that every Minister of the Crown shall further the conservation and enhancement of the priority species and priority habitats listed under subsection (1).

I have one or two questions for the Minister. In subsection (1) of the Government's amendment, the words "to have regard" could be considered a little loose. I do not know if that was a deliberate choice of wording by the Government. But "to have regard" is not desperately direct. I should be grateful for the Minster's comments on that matter. My amendment refers to "further conserve and enhance".

In subsection (2), the phrase "of principle importance" is used, rather than the word "priority" which I have in my amendment. Perhaps the Minister will comment on that matter.

In subsection (3), the listing authority is either the Secretary of State for England or the National Assembly for Wales. As regards Wales, that is not a problem because the National Assembly has an overall responsibility for the countryside as well. But in England which Secretary of State will take the lead role? This point has already been referred to by other noble Lords. Will it be someone from MAFF, the DETR or the MoD? Presumably, someone will hold the lead responsibility. That is not clear in the amendment.

Subsection (5) requires the listing authority to consult the appropriate conservation body. While we all know about whom the Government are talking, I hope that farming organisations and non-government organisations, particularly the wildlife groups, will also be included in those discussions. As we said in Committee, for the United Kingdom to work well, it is essential for all of those who care for our countryside—whether the countryside provides their living or they simply wish to preserve and conserve our countryside—to feel that they are included in the new arrangements. Other noble Lords have touched on that point. I wonder whether before Third Reading the Government might wish to consider an addition to the amendment should the Minister think it necessary. The main bulk of the amendment is perfectly all right.

Perhaps I may refer to the comment made by the noble Lord, Lord Hardy, about partnership. It is not just a government responsibility but involves drawing people together; and, of course, a very important matter is the money that goes with it.

Lastly—although I suspect that your Lordships will wonder where on earth Hazel is going when addressing the amendment—have the Government considered their position with regard to GMOs? Subsection (3) of the amendment requires the authority to, further the conservation of living organisms and types of habitat". I know that they are not thinking in terms of GMOs, but has that point slipped through the net; and, if so, is there a view on it? I look forward to hearing the Minister's response.

9.15 p.m.

Lord Whitty

My Lords, I am grateful for the support expressed for Amendment No. 199A. I recognise that the noble Baroness, Lady Byford, and others who supported Amendment No. 217 were trying to achieve the same purpose as the government amendment and went a long way towards it. I just think that my amendment is a little bit better and a little bit wider. But I appreciate that that represented the consensus of the previous discussion on the issue.

Perhaps I may deal, first, with the amendments and then with the questions. I appreciate the intention behind introducing the word "further" in one context and "enhance" in the other. As far as concerns "enhance", as the clause is structured it would be tautologous. Subsection (7) of the amendment specifically defines conservation to include not only enhancement but also restoration. It therefore includes the concept of enhancement and goes beyond it as part of the general definition of conservation. The provision thus achieves what is intended in that respect.

In relation to "have regard" as distinct from "further" when we refer to all government departments and the other bodies referred to in subsection (1), partly for the reasons given by the noble Earl, Lord Peel, it is difficult to see how all public bodies could have as a responsibility "the furthering" in relation to their other prime responsibilities, but in pursuing those prime responsibilities they have to have regard not just to biodiversity—in other words, as a minimising impact—but to the purpose of biodiversity conservation. That is not a weak formulation. There will be lead departments. But all other bodies will have the responsibility to have regard in pursuit of their other objectives to the purpose of biodiversity conservation. In that context, the duty to have regard is more appropriate and should encourage the drawing in of a wider range of functions which can be delivered so that biodiversity is "mainstreamed" into other government policies in that respect.

I was asked various questions. My noble friend Lord Hardy and the noble Baroness, Lady Byford, referred to the nature of consultation. The primary consultation will be with the nature conservation agencies, but there will be a fuller opportunity through the UK biodiversity group for consultation with other interests. Those would include agriculture. I cannot give details of the precise timing of that consultation because it would depend on the circumstances. However, that sets out how the consultation would be conducted.

In terms of lead responsibilities, as the noble Baroness pointed out, they are clear in relation to Wales. In relation to England, as is the case with all legislation, we have used the term "Secretary of State". In almost all circumstances this would mean that the Secretary of State for the Environment would be the lead Secretary of State but obviously in full consultation with other Ministers.

Nothing sinister should be read into the reference to "principal importance" rather than "principal priorities". The word "priorities" rather suggests that we would have a list to work through, whereas matters of "principal importance" comprise those which should he treated according to their status in terms of conservation needs. That is the only nuance intended here and I believe that the term "principal importance" is more appropriate here.

As regards the issues of money, my noble friend Lord Hardy, the noble Baroness, Lady Byford, and the noble Earl, Lord Peel, all referred to resources and the burdens that would be put on to the statutory bodies. This clause will not of itself impose new burdens because the policy to which we are already committed in relation to our support of the convention ought in any case to be pursued by the bodies. It merely makes explicit their duty to do so under the terms of the clause. Considerable sums of money are already being spent by the department, by MAFF and by other agencies such as English Nature, the Forestry Commission and so forth. The commitment does not of itself create further burdens of expenditure; it merely prioritises the duties that should in any case be carried out.

At the end of her remarks the noble Baroness raised the question of GMOs. I had hoped that we would progress all the way through the Bill without entering into this area. I believe that the notion of being obliged to include GMOs in this clause is a little far-fetched. The clause requires the Secretary of State and the National Assembly for Wales to compile lists in light of the purposes of conservation of biodiversity as interpreted within the terms of the convention, with discretion as to which of those organisms are of principal importance. At this time it is difficult to contemplate how GMOs could fall within that category. For that reason, the concerns expressed as regards GMOs in this context are probably rather misplaced. We have referred to "living organisms" instead of species and that was not intended to incorporate species which are yet to be created I hope that the general understanding of the convention in this area would not include GMOs; indeed, nothing in the wording of the clause suggests that they should be included.

Baroness Byford

My Lords, before the noble Lord sits down, I was not trying to be mischievous. The phraseology suggested that the matter should be raised. Indeed, I was merely seeking clarification rather than the inclusion of GMOs under the clause.

Perhaps I may ask one question. First, as regards costings, has his department given thought to the kind of costings likely to be involved now or which are anticipated in the future or is this a little like a ball of string—unquantifiable?

Lord Whitty

My Lords, the costings involved in carrying out our duties under the convention, which have now been crystallised under the terms of the Bill, are included within the forward plans of the department under various headings, as well as under MAFF and certain other departments. They have been included in the current CSR figures.

Baroness Byford

My Lords, I hope that the noble Lord will forgive me for rising again. We have no idea of the costs involved here. Surely the Minister can provide an estimate of what kind of figures are being contemplated here.

Lord Whitty

My Lords, perhaps I may consult on the question and write to the noble Baroness.

Baroness Gibson of Market Rasen

My Lords, I thank the Minister for his helpful explanation. In the light of that explanation, I beg leave to withdraw the amendment.

[Amendment No. 199B, as an amendment Amendment No. 199A, by leave withdrawn.]

[Amendment No. 199C, as an amendment to Amendment No. 199A, not moved.]

On Question, Amendment No. 199A agreed to.

Baroness Miller of Chilthorne Domer moved Amendment No. 200: After Clause 69, insert the following new clause—