§ Baroness Farrington of Ribbleton rose to move, That the draft code of guidance laid before the House on 5th February be approved.
§ The noble Baroness said: My Lords, the Government have a long-standing commitment to protecting biodiversity. A coherent network of designated sites remains vital to nature conservation and a core element of our wider biodiversity strategy. Sites of special scientific interest are at the heart of the system of designated conservation areas and safeguard the best of England's wildlife and geology.
§ There are over 4,000 sites of special scientific interest in England, covering more than 1 million hectares of land. This is about 7.5 per cent of England's total land area. Over three-quarters of the area is of international importance. The key features of the modern regime for managing and protecting these areas were put in place under the Wildlife and Countryside Act 1981. Far-reaching changes to this regime were introduced by the Countryside and Rights of Way Act 2000 for England and Wales. I am sure many of your Lordships will remember the debates we had in the Chamber during the passage of that legislation. It contained significant new provisions concerning notification, protection and management of SSSIs. The changes were made to secure positive management of sites of special scientific interest and to ensure robust protection responsive to today's threats.
§ The 1981 Act sets out a requirement under Section 33 for a code to be prepared from time to time containing advice, recommendations and information to guide those exercising functions relating to SSSIs and those who are affected by those functions. The revised draft code before your Lordships today seeks to meet this requirement. It reflects the legislative changes and represents a significant enhancement over the previous code, issued in 1982. Although there is a statutory requirement for the code itself, its content is advisory only and does not provide any additional basis for enforcement proceedings or prosecution, or have any bearing upon them.
§ The code applies to England only; it is aimed at English Nature, local authorities, land agents, public bodies, all those exercising functions that could impact on SSSIs and corporate and individual owners and occupiers of SSSI land. A separate code is being prepared for Wales.1582
§ The draft code summarises and explains the regime now protecting SSSIs, taking into account the effect of the new legislation. It explains in more accessible terms than the legislation how the provisions for site notification, management and protection should operate. It sets out the Government's expectations of English Nature and explains to interested parties their rights and what they can expect of their dealings with English Nature. It also highlights the obligations on owners and occupiers as well as public bodies. The new positive statutory duty that local authorities have to protect and enhance SSSIs when they exercise their functions is highlighted along with the consultative obligations this requires.
§ We consulted widely on the draft code in August 2000 and again with key bodies in 2001. The code does not introduce any new burdens in respect of SSSIs but provides guidance within the context of the existing legislation. The Government have set a public service agreement target that 95 per cent of SSSIs should be in favourable condition by 2010. I believe the code will help to make a contribution towards that target by raising awareness among public bodies, landowners and other groups and by explaining in a clear way the powers and procedures associated with them. Of course, achievement of the target will require a sustained level of commitment and action from many people and organisations within government and beyond. Nevertheless, the setting of the target shows we are serious in our commitment to biodiversity. The code will significantly help in establishing a clear understanding of the basic legislative regime for protecting and enhancing our SSSIs.
§ The code has received a broad welcome from the various groups that have seen it, such as landowners and occupiers, NGOs, and statutory agencies and bodies. It sets out very clearly the partnership approach that is essential in managing SSSIs to get the maximum benefit from them, and our commitment to working with all interested players in this area. I am sure that everyone here today shares the objectives of protecting our valuable sites and enhancing the biodiversity of our country. I commend the code to the House.
§ Moved, That the draft code of guidance laid before the House on 5th February be approved.—(Baroness Farrington of Ribbleton.)
§ Baroness Byford
My Lords, I thank the Minister for putting this code before us. The noble Baroness said, slightly wryly, that many of us would remember the hours we spent on the Countryside and Rights of Way Bill. Indeed, I think it is imprinted on our hearts. There were many agonising times, and before return to the code, I should like to reflect on the difficulty we had in trying to balance the protection of wildlife with the proper management of land, because sometimes they are in conflict.
I accept that the code is advisory and sets out very clearly the expectations that the Government and all of us have of English Nature and the way in which the 1583 rights and dealings will take place between landowners and those who work the land. I have one or two specific questions.
The code is for guidance only. It refers to the 1981 Act to emphasise the importance of positive management of SSSIs, something we all welcome. It recognises the need to develop further the constructive relationship between landowners, managers, officers of conservation agencies, English Nature and, in regard to Wales—although the code does not refer to Wales—the Countryside Council for Wales.
The code is to assist English Nature in exercising its powers and to give guidance to public bodies and utilities. By January 2006, every owner or occupier should have had a clear statement of the proposed management requirements for the SSSI. A formal appeal system will be in place. Would the Minister clarify for me that if there is an impasse between the owner and English Nature, it is the Secretary of State who will give the final decision?
English Nature will also be required regularly to report to the Secretary of State on the progress of improving the conditions of the SSSIs. Will the Minister define "regularly" for us?
As the Minister said, the Government have set a target of 95 per cent of SSSIs to be in a favourable or unfavourable but recovering condition by 2010. However, when the original White Paper was published, it set a different goal. It stated that the Government had set themselves,an ambitious target of ensuring that 95 per cent of the nationally important sites in England are in a favourable condition by March 2010".Why has the wording been altered? Did the Government feel at that time, or subsequent to their discussions, that they could not achieve their original goal for favourable conditions? The wording has been changed and one might say, in interpretation, that the target has been watered down.
I turn to one section of people who work on SSSIs and to the question of commoners' grazing rights. Having considered the draft code, I do not believe that they are included in it. Many commoners do not have ownership of the land; they have only grazing rights upon it. Will the Minister comment on that?
Finally, I turn to a letter that I was sent only this week, which expresses some of the concerns that are being felt now that the new Act and the codes are coming into being. It is from a Mr Pope from down in Dorset, who has about 1,500 acres of Dorset countryside. He says:So we have an SSSI (plus potentially another) and most is ESA. We work with the RSPB, and with Butterfly Conservation, and we have an extraordinary concentration of flora and fauna from spawning salmon, water voles and egrets, to barn owls and rare orchids"—all the things that we would love to be out there seeing today, rather than debating in this House. Mr Pope goes on to say that,it is precisely this level of care which has exposed us to the full brunt of the right to roam, with no hope of defence. Because the Right will not give access to 'improved grassland', other land I 1584 know well where environmental crime has been committed in the past, is safe from this intrusion. Because investors in the land pay a premium for privacy, one can expect to see values suffer, but so will the wildlife we have protected, and the businesses we try to run".He goes on to say that he has an internationally famous shoot, and that,we take the greatest care that it is positive to wildlife; it pays for the maintenance of woodland to be flora and fauna friendly, crops which encourage songbirds, and generally it enriches the food chain; it makes a most significant financial contribution to the local rural economy. At worst, our right to roam areas will make it impossible to run it profitably, whilst our 'improved grassland' areas, which are closer to populations but irrelevant to the shoot, remain undisturbed".There is more, but I shall not waste your Lordships' time. However, that letter is relevant to our discussions. Here is somebody—and I suspect that there are many others—who is doing his best to preserve and protect wildlife and to look after the countryside as the Government would desire. Unfortunately, some of the implications of the Act make it difficult for those people to do so. I pose only those few questions for the Minister, but I thank her for presenting the code to us this morning.
§ 11.15 a.m.
§ Baroness Miller of Chilthorne Domer
My Lords, we, too, welcome the code and the implementation of the Countryside and Rights of Way Act. I also have fond memories of sitting with other noble Lords through long hours of night to debate that Bill.
Page 7 of the code gives January 2006 as the date when English Nature must have given every owner,a short but clear statement".Is the Minister confident that English Nature has the resources to implement a policy that will require an additional amount of resource?
On page 8, public bodies that carry out work must,minimise and make good any damage caused, where practicable".The guidance is weakened considerably by the words "where practicable". Does the Minister have it in mind to strengthen that guidance? Many public bodies may claim that it is not practicable.
Also on page 8, under "Offences", the code says that English Nature must be both friend and enforcer. That is a difficult dual role, and the Government may want to keep an eye on that, for English Nature and for the Environment Agency, in some other contexts. The Government might like to monitor whether being the landowner's friend and enforcer makes life very much more difficult for English Nature.
On page 9, the code raises a small point, but one to which your Lordships often return. English Nature must give notification in local newspapers, but we are still failing to put websites into requirements, although that is the medium that many people use. I recognise that the issue of identifying new SSSIs, which is addressed on page 13, is developing. However, it does not seem to have been given much weight in the code, no doubt because there is still a great deal of work to be done on existing SSSIs. Perhaps the Minister can 1585 tell us whether the Government would consider reviving the code, at which point the identification of new SSSIs could be given a little more weight.
I recognise that the target for 2010—on page 17— has been watered down so that it now includes sites which are in an "unfavourable but recovering condition". Would it not be more helpful if the two targets were split? I see no reason why we cannot have sites designated "favourable" and a second batch of sites designated "unfavourable but recovering". Such definition would be very helpful.
Page 25 of the code offers owners and occupiers the choice of submitting a planning application to the local planning authority or, alternatively, to appeal to the Secretary of State when English Nature refused consent for an operation. Who will offer guidance to the owner or occupier on the best route? The code offers none.
I turn to issues affecting public bodies and I must declare an interest as a Somerset county councillor. I welcome the statement as set out in PPG 9 that local authorities should include policies for the protection and enhancement of SSSIs in their area and their local plans. That is quite right. However, local authorities are driven by the Audit Commission's indicators as outlined in its comprehensive performance assessments. Although the indicators are meaningful, as the Government rightly intended them to be, they are also very rigid. They offer no means of taking account of the sort of requirement which the Government are laying down in the code. Sustainability itself is barely mentioned, and litter seems to be the only environmental consideration. I encourage the Minister to talk to the Audit Commission about how the indicators might better reflect the good work that local authorities are doing in this area.
When the code was considered in the Commons, the Minister's reply on the duties of public bodies was not entirely clear. Perhaps the Minister could clear up two points. Elliot Morley said:Under Section 281, any public body is required to take account of advice provided by English Nature. Under current legislation, English Nature can issue a so-called second notice that will include a statement of how the advice has been taken into account, if it is concerned".It would be helpful if the Minister could confirm that public bodies must take account of advice provided by English Nature. It is also unclear whether the Minister in another place was referring to a second notice. I realise that it is a technical point, but I think that I should quote from my brief which states:Under section 28H(5)(b) and 28I(6)(a), a public body which wishes to proceed with an activity against the wishes of English Nature must notify English Nature of how (if at all) the advice has been taken account of".Can the Minister confirm that that is the procedure to which reference was made?
The Minister, Mr Morley, went on to say:In the end, where there is disagreement between English Nature and a public or private developer, English Nature has the power to apply a stop notice to am development to allow it time to present its case and possibly to negotiate with the developer 1586 about, for example, a management agreement".—[Official Report, Fourth Standing Committee on Delegated Legislation, 26/2/03; cols. 18–22.]It is not clear which section of the Act gives English Nature the power to prevent a public body carrying out a damaging activity in pursuit of the public body's statutory functions or duties. I would welcome the Minister's comments on whether English Nature as a government agency has powers over other public bodies.
§ Lord Crickhowell
My Lords, I must first declare an interest. The whole of the River Usk and its tributaries are about to be designated as an SSSI and ESA, and my home is on the banks of one of those tributaries which flows past my garden. However, that is not the point that I wish to address today. The example which I want to give of one concern is taken from Wales. Therefore, I am dealing with correspondence involving the Countryside Council for Wales rather than English Nature. However, the same principles apply.
A number of noble Lords have received correspondence about the Montgomery Canal. I have already discussed the matter with the noble Lord, Lord Hooson, who has a close interest in it. In recent years, very large sums of public money and private money—many millions of pounds—have been spent on the Montgomery Canal in order to reopen it for use. Previously, large sections were closed or were impassable in one way or another. It is in that connection that I wish to draw attention to paragraph 105 of the document before us, which states:SSSIs are capable of accommodating many activities that do not conflict with the special features on them … English Nature should liaise with owners, managers and representative bodies to ensure that a range of recreational and other activities can continue in ways that are compatible with the conservation interest. It will be encouraged to pursue Memoranda of Understanding with representative bodies, and to develop individual management plans, particularly for heavily used sites. It should ensure that the importance of sites, for example as a recreational resource and as part of the nation's wildlife or geological heritage, is properly recognised, and that appropriate management is in place.That seems to emphasise the need not for positive management of SSSIs but for sensible and in some cases flexible management.
When a part of the Montgomery Canal was closed, a great deal of what ignorant people call weed life—but which the Countryside Council for Wales calls "important aquatic plants"—started to grow. The banks became heavily overgrown so that the passage of boats was impossible. Now, the Countryside Council for Wales is taking such a protectionist view of the weeds—or the important aquatic plants—that use of the canal for its original purpose, by boats, is proving almost impossible.
I am sorry to say that I do not have the letter from the Countryside Council for Wales with me—I apologise to the House for that. I should have liked to quote a most remarkable paragraph which indicates that boating on the canal is very much a secondary use and that it should perhaps be restricted to parts of the 1587 year when it will not damage the weeds. The letter indicates that boats could be quite useful if they came at the right time of year, because aquatic plants need stirring up from time to time, and that canal boats—which travel everywhere else under their own power—may require special motor power, possibly electric or horse power, in that section. In other words, the emphasis is almost entirely on the aquatic plants and the overgrowth and not at all on the recreational use of a canal that was built for boats.
I am not expert on the exact legal requirements of the European directives and the law in this respect. However, it is a most extraordinary position. A canal was closed for a time and something grew in it; it was then made an SSSI and could not be used for boating. The rules have to be interpreted with sensitivity and flexibility.
I give one other example. I live in a home in Wales which was a watermill. I and some friends, while still at Cambridge, reroofed it. I doubt whether I would be allowed to do that today. I confess that there were a few bats in the roof which no longer live there. I am almost certain that today I would be prevented from converting that building and it would now be a pile of stones—a ruin. No doubt the bats would be happy but I doubt whether that would really be the right decision. I know of other old buildings where bats are present and where perfectly sensible restoration work is prevented because the bats are considered more important than other uses.
So my plea is that in interpreting the legislation and the code of guidance there is a sensitive and sensible approach to these issues, a proper balancing of all the requirements and not an over-concentration on just one of them.
§ 11.30 a.m.
§ Earl Peel
My Lords, I join other noble Lords in thanking the noble Baroness for having introduced the guidelines. Clearly, the main thrust behind them is one of co-operation between English Nature and owners and occupiers. That is absolutely essential. As time has evolved, a greater confidence has developed between both sides which I welcome. Indeed, paragraph 4 states:As recent experience shows, good management and a fruitful partnership between English Nature and the land manager needs to be maintained".I am sure that all of us would concur with that.
But as a general point—I declare an interest as an owner of part of a very substantial upland SSSI—there is sometimes a tendency for English Nature to jump to conclusions about certain established management practices without perhaps having the relevant scientific evidence to substantiate such claims. For full co-operation to be effective on both sides we cannot rely on vague assumptions that a certain practice might be damaging. Any allegations that that is the case must be substantiated by proper research.
My main point relates to paragraphs 59 and 103 of the code of guidance. I refer here to English Nature's power to make by-laws under Section 20 of the 1949 1588 Act in relation to nature reserves, which has now been extended to include sites of special scientific interest. In essence I have no problems with that; it is a step in the right direction. The by-laws are designed for dealing with situations that could undermine the reasons for designation of the SSSI by,controlling activities and modifying behaviour".In bold print paragraph 59 further states:The Secretary of State considers that powers to make byelaws are an important and valuable tool, which English Nature can use … to address problems arising from damaging activities".Paragraph 103—I attach a great deal of importance to this—states:Increasing public interest in sustaining these important sites has led to requests for more information to be made available".That is logical because the public will naturally pay greater heed to the by-laws if they are accompanied by some degree of explanation.
I suspect that the Minister will not be surprised when I draw her attention once again to the fact that under the Countryside and Rights of Way Act 2000 there is no statutory obligation on anyone entering an access area to do so via an access point. That being the case, it is inevitable that some visitors will be totally ignorant of any by-laws that English Nature decides are appropriate for a particular SSSI which is subject to open access.
Furthermore, the opportunity for providing more information—to which the Government devote so much attention and as prescribed in the guidelines—will also be lost. That will apply also to any closure orders that may be in place at the time.
I should add that concern is not restricted just to landowners and farmers. I quote from the minutes of the Moorland Access Advisory Group, which consists of representatives from all sides, including English Nature and the Countryside Agency:It is still not clear how access points or access information points will be shown … Land that is subject to regular and predictable exclusions and restrictions will not be distinguished from that with unrestricted access on OS maps".That is a serious problem and one, quite frankly, that the Government have to come to terms with. I have no doubt that the Minister will be aware of the recently published predictions—we discussed the matter in a Starred Question yesterday—by the Countryside Agency on the likely state of the countryside in the year 2020. I shall not quote from that report but one suggestion was that there is likely to be a significant exodus from urban areas to rural areas with all the corresponding pressure that will ensue. Quite frankly, if we are incapable of imposing proper sustainable management structures for designated land now, I suggest that the Government are making a rod for their own back in the future. But, of course, it is not the Government who have to deal with the difficulties. It is the people on the ground, the landowners and the farmers, and, indeed, those representing English Nature and the Countryside Agency.
1589 I simply say to the Minister and her department that they really must come forward with realistic proposals to deal with a major difficulty that was ducked in the Countryside and Rights of Way Bill.
Finally, I ask the Minister a question that does not relate directly to the guidelines. However, it saves my putting down a Written Question and the Minister having to give me an Answer. When will the regulations relating to Sections 21 and 22 of the CROW Act be published? They were promised last November but, to the best of my knowledge, are still not available. I refer to the implications of the 20-day restriction orders.
§ Viscount Simon
My Lords, having listened carefully to the contributions, I no longer feel somewhat guilty in asking a question which only touches upon this particular code. Within about 15 miles of where I live there is a beautiful SSSI called Hatfield Forest. It has been unchanged for over a thousand years. It is one of the very few remaining unchanged forests of its type in Europe and the only one remaining in England.
If Her Majesty's Government decide to expand Stansted airport, this ancient forest will be totally demolished. What would future generations think if they learnt that an area of such importance was sacrificed for the commercial reasons of those who travel by aircraft? I simply ask my noble friend how robust these notes of guidance and existing legislation are in protecting areas of such importance which are irreplaceable.
§ The Earl of Erroll
My Lords, I have to admit that when I first saw the measure we are discussing I thought, "Here is some more bumf that I forgot to refer to in my speech on environmental regulation and agriculture. Here is more bumf for the poor land managers and farmers, such as my wife, to read, mark, learn and inwardly digest". I had forgotten that she owned a tiny SSSI when I spoke in the House that Friday and when I listed a few of the papers that she had to absorb in the line of duty.
The guidance does not come on its own, of course. It refers to three other documents, the main one of which will come in the future, as English Nature is said to be,also providing further, more detailed, information on the arrangements",but we do not see that yet.
I have three or four worries and then some positive points. My first worry is that good old legal disclaimer in the preface, which makes me wonder how the farmers and land managers will get things right if the Civil Service cannot. Publicity of the SSSIs and why they have been given that status is referred to. I know of an ex-SSSI that used to have lily of the valley. Once the wood was publicised as having lily of the valley, the flowers were promptly picked by various marauding people. They do not exist any more, and the site is no longer an SSSI. Publicity could be disadvantageous and counterproductive sometimes, so that should be looked at carefully.
1590 Paragraphs 63 and 67 intrigue me. Paragraph 63 states that a management agreement should enable the person to meet the costs of whatever works are required. Paragraph 67 states that, if English Nature has to carry out the work, it will recover the excess costs. I suspect that that highlights the original problem—that the amount agreed was insufficient to cover the costs, or the original agreement was for the incorrect amount—so paragraph 67 should not be necessary.
I felt the titles were excellent. The title of the explanatory memorandum uses the words "Building positive partnerships", and the title of the code uses the words "Encouraging positive partnerships". Both are admirable objectives. With the right attitude, such partnerships could be made to work. If English Nature has the right officials with the right ability to handle people and their concerns, and if they really give help and advice, that will work to the benefit of everyone. It is only if they come in as little Hitlers and start telling people what to do that everything will break down.
On that point, there can sometimes be a very difficult conflict of interests. I heard recently of someone who had to dig out their drains in order to maintain the hydrological balance of the area, as has to be done. However, they were promptly penalised for disturbing vole habitats—heads I lose, tails I lose. Such matters must be handled carefully, and we need officials who know how to handle them properly. The legal obligation should not end up on the poor old farmer, but on the person who gives the advice.
As usual, because of the new structures, the implementation is carried out by an agency. I have never really thought that very sensible. It means that Parliament cannot ask questions about the actions carried out in the name of the Government. That has always concerned me. We now have a sort of split. Suddenly English Nature will be making by-laws and its agents taking actions, and we will be able to do nothing about it.
I shall end on a positive note by saying that partnerships can work very well. My wife had an incredible amount of help and support from FWAG when she was working on Countryside Stewardship schemes. If English Nature gives the same level of support and advice on the matters under discussion, everything will certainly work. The key is collaboration, not confrontation.
§ 11.45 a.m.
§ Lord Monro of Langholm
My Lords, how right the noble Earl is that much of what is important is a matter of attitude rather than legislation. I declare an involvement rather than an interest as the Minister who guided the 1981 Act through Parliament. I subsequently spent nine years as a member of the Nature Conservancy Council, and was then the Minister in charge of SNH. I feel that I shall have "SSSI" on my gravestone.
In passing, relative to SNH and Scotland, I should say that I was one of those who was very enthusiastic in the 1980s and 1990s to convert NCC Scotland into 1591 having its own responsibility as Scottish National Heritage, and that happened. The principal reason was that Peterborough was a very long way from the highlands of Scotland, where many of the SSSIs were and much of the involvement in nature conservancy was. Last week, the First Minister in Scotland announced that the headquarters of SNH was to be moved from Edinburgh to Inverness. The whole thing will be moved far north, which is most inconvenient and to which the staff object totally. It cannot in any way help conservation in Scotland.
I want the Minister to say whether Scotland will produce a similar code of guidance. So often, in agricultural terms, I have heard Ministers say that Scotland will follow suit, but it never does. Relative to all the legislation and discussion on foot and mouth, Scotland was to produce its own papers, but I am still waiting for them. What relationship and co-operation are we having with SNH, because the borderline does not impact on livestock and nature conservation? We want arrangements to be the same both sides of the Border if at all possible.
The 1981 Act succeeded a Bill introduced by the previous government that fell at the 1979 election after the Porchester report. We felt that that Bill was far too full of compulsion, and wanted to move forward wherever possible by voluntary agreements, backed up by law if required. That was the basis for the Act. The Committee that considered the then Bill was very constructive. The clause that we are debating was put in on Report in July 1981, and called for guidelines to interpret the legislation. Impartially, I would be quite interested if the Minister were to tell me the differences between the guidelines with which we are dealing and the recommendations relative to cattle welfare.
The guidelines are definitely required, as they were in 1981 because the NCC's relationships with farmers and landowners were pretty tense. As has already been mentioned, it failed to be flexible and there was little co-operation. It often led to intimidation and court proceedings. I welcome that we now have commonsense guidelines to procedures, which bring in the social and economic impact of SSSIs on rural areas. The NCC had a reputation for being somewhat heavy-handed, and the guidelines show a positive and more friendly way forward, particularly relative to notification of new SSSIs.
Most owners of SSSIs are proud to have them and want to go along with English Nature, with the appropriate management agreements. One major problem was potentially damaging operations or, in the awful jargon of that world, PDOs. Sometimes simple agricultural operations were banned for, in the views of the farmers or landowners, no good reason. Matters could of course have been resolved amicably, which is what I hope the guidelines set out to do. They are about sympathetic management between English Nature, its area officers and the landowners and farmers.
Much of the success of the code will depend on English Nature and its staff, DEFRA and its staff, and the Ministers responsible. They have to set the tone 1592 and bring harmony rather than strife to the countryside. They must use their influence with NGOs such as the RSPB, the RSPCA and so on, whose large memberships sometimes seem to dictate final decisions. English Nature and DEFRA must keep a fair balance with the guidelines. Some organisations, such as the National Farmers Union, the Game Conservancy Trust and BASC have a wealth of knowledge at least equal to that of English Nature. Sometimes, built-in opposition to country sports by English Nature has brought most unfortunate repercussions. It tends to forget that those interested in country sports perhaps spend more time improving habitats and conservation than anyone else.
For the beautification of the landscape, the prominence of SSSIs is very important. But to have SSSIs and a lovely landscape, we need profitable farming, and the Government seem to be doing their level best to have the reverse.
§ Baroness Farrington of Ribbleton
My Lords, I thank all noble Lords who have taken part in this short debate. Perhaps I may underline the point made by the noble Earl, Lord Peel, about the need to co-operate and to work together to protect that which we all agree should be protected.
I begin by referring to the noble Lord, Lord Monro, who sought to draw me into commenting on matters that have been devolved to the Scottish Parliament. I am sure that it was done in all innocence. We are not aware of any immediate plans for a code to be produced in Scotland. We work closely with other conservation agencies across Border sites on issues that are common. There are common monitoring requirements across England, Scotland and Wales. If the noble Lord is not happy with some of the decisions, I am afraid that he must take them up with his representative from the Scottish Parliament. I compliment the noble Lord on the role that he played in introducing the 1981 Act.
As the noble Earl, Lord Peel, said, co-operation must be the watchword. In usual circumstances, it should be possible to reach a voluntary agreement—referred to by several noble Lords—and the use of English Nature's power to issue a management scheme will not be necessary. But, where it is, English Nature is required to consult owners and occupiers on the scheme and to allow them three months to make representations. The code makes clear that English Nature will be expected to consider carefully any comments, suggestions and representations that owners or occupiers may make during the course of developing the scheme, and the scheme must be confirmed within nine months. But where English Nature issues a management notice to secure the implementation of the scheme, owners and occupiers have the right to appeal against the terms of the notice to the Secretary of State, and they must be informed of that right by English Nature.
Perhaps I may cross the other Border for a moment in responding to the noble Lord, Lord Crickhowell. I am aware of the beauties of the Montgomery Canal. I am also aware of the role played by the late Lady 1593 White in the development and reopening of that canal. I am afraid that the noble Lord seeks to draw me into commenting on the role of the Countryside Council for Wales. While I fear that it is not within my power to do so, I should be grateful if he would send me a copy of the letter that he has received and I shall seek to ensure that it goes through the appropriate route in order to obtain answers to the questions.
I am aware that other people have been up against the problem that the noble Lord avoided by taking very early action in relation to the presence of bats. There will always be conflict—
§ Lord Crickhowell
My Lords, I am grateful to the noble Baroness for that invitation. But I was also making a general point because, although I use the Montgomery Canal, I was emphasising the need to get this balance right in other cases as well.
§ Baroness Farrington of Ribbleton
My Lords, l was about to go on to say that the noble Lord, Lord Crickhowell, made the important point that in particular areas there must be sensitive and careful handling of conflicts of interest and conflicts of use. But it is impossible for me to respond to the specific example that he gave.
My noble friend Lord Simon asked a question about possible Stansted airport expansions affecting the Hatfield Forest SSSI. Under the overarching Section 28G duty, it is important to recognise that there is a duty to conserve and enhance SSSIs. If consent for any proposal is to be considered, it will need first to go through the consultation process to which I have just referred. English Nature would be required to provide advice on the impact of the proposal and the public body would have to show how it had taken account of that advice. Ultimately, if English Nature felt that its advice had not been given due weight, it could request that the matter be called in by the Office of the Deputy Prime Minister.
The noble Baroness, Lady Byford, referred to changes under the Countryside and Rights of Way Act which include provisions that English Nature exercises greater control over activities that may affect SSSIs by refusing, modifying or applying conditions to consents as appropriate. An important duty is to be taken into account within that.
The noble Baroness, Lady Miller of Chilthorne Dourer, asked whether further revision of the code was to take place. We believe that new legislation needs to bed in, but we take heed of the point that she raised.
The allegation of watering down PSA targets is incorrect. Favourable conditions include "favourable maintained", "favourable recovered" and "unfavourable recovering" as three scientific categories in the common standards monitoring system, as technical notes on this target made clear from the start in 2000.
Whether or not owners or occupiers choose to apply for planning consent or to appeal to the Secretary of State is, of course, at the discretion of the owner or occupier. But the code promotes a climate in which we 1594 hope that such disagreement will not arise very often. With regard to enforcement of the statutory duties on public bodies, it is an offence for public bodies to fail to comply with the legislation when carrying out functions that are likely to harm SSSIs.
The noble Baroness also asked whether there was sufficient funding. The code does not place any significant new burdens on English Nature. It advises on the way that English Nature should behave in carrying out its functions required under the legislation. English Nature's funding needs to carry out its duties are considered very fully in the context of annual spending rounds.
The noble Baroness, Lady Byford, raised the issue of the statement of views on management. The statement is advisory and is meant to provide a brief and helpful summary for owners and occupiers. Where specific measures are necessary to manage the land, English Nature can enter into agreements or use more robust powers. The right to roam issues are covered in the code. If noble Lords wish to raise more detailed questions, they may of course write to me.
The noble Baroness, Lady Byford, also raised the issue of commoners. We recognise that matters concerning common land are particularly complex. In July last year, following a lengthy review, we published our common land policy statement. It outlines our proposals for changes to the legislation governing common land, including development and better land management agreements and arrangements. At present, there are no plans to issue specific SSSI guidance concerning commoners. However, we shall give this matter further consideration in the light of experience in applying the current regime and the emerging proposals for the future management of commons.
Several noble Lords referred to the progress being made towards meeting the targets set. English Nature publishes annual reports and it has always been clear that those sites classified as in good condition and meeting the target include those sites which are recovering. The target establishes the baseline for the target at the time it was set at 60 per cent. If any of those sites classified as favourably maintained or favourably recovered had been included, that figure would have been much lower.
§ Baroness Byford
I thank the noble Baroness for giving way. One of the questions asked was why the wording was changed from "favourable condition" to "unfavourable condition". It would he helpful to noble Lords if the Minister could tell the House the reason for that.
§ Baroness Farrington of Ribbleton:
My Lords, my understanding is that it was changed in order to be more sensitive to the different categories. The point was raised by the noble Baroness, Lady Miller, who asked whether it would be possible to distinguish between sites which were unfavourable but improving 1595 and those which were not. I believe that that answers the question. If not, I shall be happy to write to the noble Baroness.
A question was raised as to the role of the Audit Commission. I shall look into the question of whether the Audit Commission should be made aware of the importance of good work in this field. The noble Earl, Lord Peel, raised the issues of by-laws and the importance of publishing them. DEFRA is due to produce model by-laws to inform English Nature. Public consultation over models, which will include how those should be published, will take place as part of that. English Nature will have to consider how to publicise any by-laws it makes. It could use its regular Sitelines magazine or its Internet site. The department would also consider whether it could publicise any bylaws, for example on the DEFRA website, which was a point raised.
I am conscious that—
§ Earl Peel
My Lords, publishing the by-laws on a website is all very well, but clearly they will reach only a relatively small number of people. The concern I raised is how on earth the Government will equate the introduction of by-laws on to SSSIs through English Nature. Great attention is paid to the importance of such by-laws and the fact that many of the public who enter access lands simply will not be aware of them because there is no statutory obligation on the public to enter access land via an access point. That is the problem, and it is one with which, frankly, the Government are failing to deal.
§ Baroness Farrington of Ribbleton
My Lords, I recall, perhaps not with quite the same degree of pleasure as the noble Baroness, Lady Byford, the long debates we had on this subject when the Countryside and Rights of Way Bill passed through your Lordships' House. I take on board the fact that the noble Earl is concerned about this issue. I hope that he will respond to the consultation by raising these points with regard to how publicity can best be given to protect these sites.
§ Baroness Byford
My Lords, perhaps I may follow up the point raised by the noble Earl. I was giving the noble Baroness the opportunity to reach the noble Earl's second and, I believe, most important point. That concerns not just people's welfare but the welfare of wildlife. One of the long debates we had in this House concerned the whole question of access points, which my noble friend has raised again. I really must request the Minister—it would not be fair to expect her to respond now—to take this matter away and consider it with a degree of urgency. It is now nearly two years since we took the Bill through this House. Fairly soon these issues will raise their head. So far as I am aware the Government have not addressed the matter. My noble friend is right to say that people will have no idea. There is no one point of information. It is two years down the line and we are no further forward. I shall not press the point further at this stage. 1596 I do not think that that would be fair to the noble Baroness, who perhaps cannot give an answer today. However, it is one of the most crucial points.
Ironically, when we took the Countryside and Rights of Way Bill through this House I was lobbied heavily by a wildlife group, which stated, "You don't want this. You don't understand. We need to have greater protection". Yet, one of the first groups to write to me when it realised the implications of the Bill was one such group. The point has been raised, not just by us but by the groups which realise there will be difficulties. I suggest that the noble Baroness takes the matter away and comes back later with a reply.
§ Baroness Farrington of Ribbleton
My Lords, I am aware that the concern was raised. I was present in your Lordships' House and there was a conflict of interest. It was debated at some length as to whether there should be strictly and narrowly defined access points or whether they should be less strictly controlled. Decisions were taken in the passage of that legislation. My response to the noble Earl, Lord Peel, was that where by-laws are being produced to protect SSSI sites, among other places, the issue of how to publicise them in order to protect and inform the public is one that I think should be taken into account. We are consulting on that.
§ On Question, Motion agreed to.