Clause 13 - Incidental powers
Natural Environment and Rural Communities Bill
5:15 pm
James Paice (Shadow Minister (Agriculture), Environment, Food & Rural Affairs; South East Cambridgeshire, Conservative)
I beg to move amendment No. 48, in clause 13, page 5, line 39, leave out from ‘that’ to ‘the’ in line 40 and insert ‘is reasonable for’.
This is an important amendment. Clause 13 has the anodyne heading ‘Incidental powers’, but then goes on to say in subsection (1):
“Natural England may do anything that appears to it conducive or incidental to the discharge of its functions.”
I read that, frankly, as meaning Natural England can do virtually anything. My reason for concern is the qualification, ‘that appears to it’. In other words, as long as Natural England itself—ultimately the board—is content ‘that it appears to it’ that what it is doing is okay, then it must be okay and, therefore, in pursuit of or ‘conducive or incidental’ to the discharge of its functions.
The Minister has referred to independence several times during the debate, and the Select Committee spent a lot of time considering that issue. I support the idea that the organisation should be independent, but there must be some limits on it, because it is a corporate entity, a legal person. The Minister said a few minutes ago that it would be accountable through the Secretary of State, but I believe that it has to be accountable ultimately to the community that it serves.
I refer back to the earlier conversation about rural communities and landowners and others, because my reading of these incidental powers is that they are so wide that as long as it appears to Natural England that what it is doing is right, it can do anything, which may be to the disadvantage of someone else. Among its many functions is, as we have discussed, the enforcement of various wildlife and natural environmental protection legislation. Its functions are also to enter into management agreements and, obviously, to interpret them, to carry out research, to advise, to give grants and to do all manner of other things.
It occurs to me that there could be a situation in which Natural England intended in effect to force an organisation or individual to do something that they did not like and which they genuinely believed to be beyond or irrelevant to the purposes outlined in clause 2. There needs to be an opportunity for ultimate challenge. I am certainly not advocating vexatious challenges or challenges on minor issues, but there needs to be some opportunity for someone who believes that the organisation has gone beyond reality to be able to challenge it in the courts, and I do not believe that that is possible given the phrasing of subsection (1). As I understand it, as long as Natural England could convince the court that it appeared to it that the action was conducive or incidental to the discharge of its functions, that would be all that was necessary. Whether any reasonable person would have believed that does not seem to be relevant.
It would have been easy for me simply to propose deleting subsection (1), but throughout our proceedings I have tabled amendments that are designed to address in a reasonable—I use the word advisedly—way what we are trying to achieve. In reply to an earlier debate this afternoon, the Minister said that we were trying to set up—I think that I wrote this down verbatim—“an independent body with as wide powers as we can reasonably give to it”.
I understand that and do not really disagree with it, but it seems to me that he has gone beyond it in clause 13. That seems to me to go beyond reasonability, which is why I propose deleting the part about anything that appears to Natural England to be conducive or incidental, and simply saying that it may do anything that “is reasonable for” the discharge of its functions. It would then have the opportunity to judge whether something was reasonable. The proposal does not seem to offend that. My understanding—I do not pretend to be a lawyer—is that “reasonable” can be challenged in the courts, so someone who felt really aggrieved and that the organisation was going beyond what most people would think of as reasonable could challenge it. That is all I seek to achieve. I simply want to place a small constraint on what I see as the completely open-ended ability of Natural England to do anything that it likes.