My Lords, I beg to move that the Bill be now further considered on Report.
My Lords, in moving Amendment No. 128 and speaking to Amendment No. 129, perhaps I shall be allowed to go back a little. Clause 44 gives various enforcement powers to the new pesticide inspectors who are charged with enforcing the new pesticides offence under Clause 43. In Committee, the Government accepted that their initial idea of giving these new pesticide inspectors the power to enter premises to ascertain whether an offence had been committed was disproportionate. Accordingly, the Minister introduced an amendment requiring pesticide inspectors to have reasonable grounds to suspect that he may find evidence of the offence before entering. Clause 51 and Schedule 5 significantly extend the powers of wildlife inspectors, in the same way as Clause 44 gave powers to the new pesticide inspectors, so I see no logical reason why wildlife inspectors should not be subjected to the same constraints as the Government have put on pesticide inspectors.
I moved an amendment in Committee to that effect and, although the wording was slightly different, the intention was precisely the same. The Minister objected to that amendment on the grounds that the criminal investigation function and the licence monitoring function, which are both the responsibility of wildlife inspectors, are so closely linked that they cannot be separated. I find that hard to believe, so I am looking for an assurance that wildlife inspectors will not go on what are known as "fishing trips" when dealing with wildlife crimes, as opposed to carrying out their duties under the licensing enforcement—which I appreciate is a totally different matter. Furthermore, I would be grateful if the Minister could indicate clearly how the wildlife inspector's role will work in relation to the police when dealing with wildlife crimes. I beg to move.
My Lords, we support my noble friend in these amendments. The Minister in his letter of
My Lords, the noble Earl's amendments are similar, so I shall deal with them together.
Amendments Nos. 128 and 129 seek to introduce a requirement for a wildlife inspector to have grounds for suspecting that he may find there evidence that an offence is being, or has been, committed on premises before exercising powers to enter and inspect those premises. The noble Earl has made it clear, on this occasion and previously, that he has no desire to restrict wildlife inspectors when exercising their powers in relation to licences and registrations. However, it is not a simple case of separating out the powers of wildlife inspectors into those which deal specifically with licences and those which do not. That is because all the powers under Sections 18B(1) and 18D(1) have relevance to an inspector's ability effectively to monitor licences.
For example, if we look at the powers in relation to group 1 offences, Section 18B(1)(a) is needed to ensure that we can monitor situations where no licence has been applied for, where activities may be outside the scope of a licence—for example, where they are outside the licence purpose—or where we need to monitor whether licence conditions are being complied with.
It is important to remember that the breach of a licence condition is not in itself an offence under the 1981 Act; rather, the breach may mean that the person concerned cannot rely on the licence that he has obtained because he is not within its terms. Therefore, when wildlife inspectors are entering land for the purpose of checking compliance with licences, the relevant offence which may have been committed will be that in the substantive provisions—for example, an offence under Section 1, which deals with killing wild birds. This is one of the reasons why Section 18B(1)(a) has been so drafted. Section 18B(1)(b)(i) is needed so that we can verify licence applications, and Section 18B(1)(b)(ii) is needed so that we can check licensed activities where the licence itself has expired to ensure that any licence condition has been complied with.
It will not always be the case that breach of a licence condition after the licence has expired will be a breach of the substantive provision to which the licence relates. Entry could therefore not always be obtained in these circumstances under Section 18B(1)(a)—hence the need for this separate power.
Let me give an example in practice, where a licence has been obtained to destroy a sand martin habitat. One of the conditions of that licence may be to replace the restored habitat. It is important that the replacement habitat is maintained and not simply destroyed just a few months after the licence has expired. Under Section 18B(1)(b)(ii), wildlife inspectors would be able to gain entry to land after the expiry of the original licence to ensure that the replacement habitat condition to which the licence was subject has been complied with.
The same reasoning applies in relation to group 2 offences and the powers set out in Section 18D. In all these cases, an offence may not have been committed and one may not be suspected. The inspector is therefore not expecting to find evidence of an offence. He is, in effect, randomly inspecting to see that the conditions of licences are being fulfilled.
I should also mention that the proposed powers in Schedule 5 are consistent with the wording of the current powers of wildlife inspectors, which are set out in Section 19ZA of the Wildlife and Countryside Act 1981, and which were introduced by the CROW Act 2000. Perhaps I can illustrate this by a specific example. Under Section 19ZA(3)(a) of the 1981 Act, a wildlife inspector can enter and inspect any premises for the purpose of ascertaining whether an offence under Section 6, Section 9(5) or Section 13(2) is being, or has been, committed on those premises. Although under the Bill these become group 2 offences and the power will be found in the new Section 18D(1)(a) of the 1981 Act, the power itself remains unchanged. It is this power that Amendment No. 129 seeks to restrict. I remind the House that the power has existed for five years and there is no evidence that it is being abused.
The powers of the wildlife inspectors under the Bill depend on whether the offence is group 1 or group 2. Group 1 offences deal mainly with animals, birds and plants that are found in the wild and of which it is rare for any person to have possession or control. These offences relate to Sections 1, 5, 9(1), 9(2), 9(4), 11, 13(1) and 14ZA of the 1981 Act. Wildlife inspectors currently have no enforcement powers for these offences. Group 2 offences may relate to licensing of captive, ringed and registered birds and the sale of certain animals and plants, and are found in other sections of the 1981 Act. Wildlife inspectors already have enforcement powers in relation to those offences under the 1981 Act. These powers remain largely unchanged by the Bill.
We fully recognise that the Bill seeks to extend the powers of wildlife inspectors to deal with group 1 offences and four other Acts. However, as I have explained, we believe that such powers are needed to allow a wildlife inspector to effectively monitor licences. I want to make it abundantly clear on the record that the role of a wildlife inspector is not the general enforcement of wildlife laws. That role is performed quite rightly by the police, so if there is suspicion of an offence per se, in the normal circumstances it would be for the police to investigate, not a wildlife inspector. Wildlife inspectors are involved in the enforcement of activities in connection with licences and registration.
If, during a routine inspection, a wildlife inspector found evidence of an offence, the matter would be referred to the police or Defra investigation services, who are fully trained to carry out criminal investigations. I can give the noble Earl the assurance that he seeks in the strongest possible terms: wildlife inspectors will not engage in fishing trips, but will undertake visits for legitimate reasons in connection with licensing and registration. On that basis, I ask him to withdraw his amendment.
My Lords, we need to change the powers of wildlife inspectors so far as group 1 offences are concerned because they have insufficient power at the moment to monitor whether licence conditions are properly met.
My Lords, I am extremely grateful to the Minister for giving such a comprehensive reply to my amendment. Given that he has made it abundantly clear that fishing trips will not be on the agenda for wildlife inspectors and that responsibility for dealing with matters of wildlife crime will lie firmly with the police, I have great pleasure in withdrawing the amendment. I beg leave to withdraw the amendment.
moved Amendment No. 130:
Page 67, line 20, at end insert—
CODES OF PRACTICE
11A (1) The Secretary of State may—
(a) issue a code of practice in connection with any of the provisions of sections 18A to 18F of the 1981 Act (including any of those provisions as applied by Part 2 of this Schedule), and
(b) revise or replace such a code.
(2) An inspector must have regard to any relevant provision of a code when discharging any function under any of the provisions mentioned in sub-paragraph (1)(a).
(3) But an inspector's failure to have regard to any provision of a code does not make him liable to criminal or civil proceedings.
(4) A code—
(a) is admissible in evidence in any proceedings, and
(b) must be taken into account by a court in any case in which it appears to the court to be relevant."
On Question, amendment agreed to.
moved Amendment No. 130A:
Page 22, line 8, at end insert—
"( ) This section shall apply to existing sites."
My Lords, in Committee the noble Lord helped to resolve the missed owner/occupier issue with regard to SSSIs. However, that will come into force only once the NERC Bill is enacted and will assist only with the new sites that are notified. It is very welcome but will not address the historic issue of missed owners and occupiers within the 4,000 plus existing sites. At Hansard cols. 74 and 75 on
My Lords, I am grateful to the noble Baroness, Lady Miller, for having tabled this amendment. We are sympathetic towards the principle behind it, but we see a problem with the wording. We will return with a government amendment at Third Reading which we hope will meet the point that she rightly made.
My Lords, I think it is a question of enforcement as regards existing sites. They will be covered by the Act, but if the wording of the amendment were to be adopted, there is a danger of enforcement being brought against them. That is our objection in broad terms.
moved Amendment No. 131:
Before Clause 58, insert the following new clause—
"CRITERIA FOR DESIGNATING NATIONAL PARKS
(1) In section 5 of the National Parks and Access to the Countryside Act 1949 (c. 97) (criteria for designating National Parks), after subsection (2) insert—
"(2A) Natural England may—
(a) when applying subsection (2)(a) in relation to an area, take into account its wildlife and cultural heritage, and
(b) when applying subsection (2)(b) in relation to that area, take into account the extent to which it is possible to promote opportunities for the understanding and enjoyment of its special qualities by the public."
(2) The amendment made by subsection (1) applies for the purposes of the confirmation or variation on or after the day on which this section comes into force of orders made before that day as it applies for the purposes of the confirmation or variation of orders made on or after that day."
My Lords, this group of amendments arises from a recent High Court judgment that is known as the Meyrick judgment. Government Amendment No. 131 will restore to the legislation the meaning which the Government and others had always understood it to have prior to the judgment being given. Amendment No. 133 is a purely stylistic change consequent on Amendment No. 131. Since Amendment No. 131 will introduce a new clause before Clause 58 which contains the first and full reference to the National Parks and Access to the Countryside Act 1949, subsequent references need do no more than refer to the "1949 Act". We do not need to worry about Amendment No. 133.
Amendments Nos. 132 and 170, tabled by the noble Baroness, Lady Byford, would consolidate the Meyrick interpretation by enshrining it in primary legislation. I can inform the House that my department has just learnt that it has been granted leave to appeal to the Court of Appeal in the Meyrick case. Lord Justice Keene stated:
"The grounds are properly arguable and, in any event, raise issues of importance which ought to be considered by the Court of Appeal".
But let us put that on one side for the moment and deal with the issues in Parliament.
The Meyrick judgment dealt with the criteria in the National Parks and Access to the Countryside Act 1949 that are used when deciding whether land should be designated as a national park. By treating the land in dispute in isolation from the rest of the New Forest in which it lies, the judgment was quite at odds with what the 1949 Act intended and with how it has been applied over the years. For example, on the natural beauty criterion, Meyrick stated in relation to the land in dispute,
"well-maintained historic parkland providing the setting for a grade 1 listed building, and well-ordered dairy fields of dairy farms would seem to be the antithesis of naturalness".
Yet we know that such land features strongly in the existing national parks. One need look no further than the Chatsworth estate for an example of an historic house and parkland forming an integral part of a national park—in that case, the Peak District. The Chatsworth estate does not sit in isolation, but forms part of the extensive tract of diverse countryside, recognised for its natural beauty, that is the Peak District. And one need look no further than the Council for National Parks website to see that farmland of all kinds—not just dairy land—makes up an important part of our existing national parks. Agricultural land makes up 54 per cent of the Peak District National Park, for example.
Without further case law, one cannot be sure how far the ramifications of the Meyrick judgment might extend. But if parkland and dairy farms are not to meet the natural beauty test, what of arable land or woodlands, or indeed any land that has an orderly or managed appearance? If all those elements previously thought to form part of natural beauty—flora, fauna, geology, physiography—are now to be stripped out of the definition, what does that do to our concept of a national park?
I could bring forward evidence in support of our claim that the Meyrick judgment is not consistent with established practice, by which I mean the method used to settle the boundaries of the eight national parks in England and three in Wales that were designated in the years following the 1949 Act. That Act implemented the 1947 report of the National Parks Committee, which recommended the areas that should be considered for designation and the arrangements for their administration. It included eight points, which it introduced with the words,
"The following considerations should in our opinion be taken into account in the precise definition of national park boundaries".
This is the first consideration:
"The first criterion should be the inclusion of areas of high landscape quality".
I pause to point out that there is no reference here to relative naturalness. The second consideration was to be,
"features of scientific historic or architectural value (e.g. nature reserves, important archaeological sites and ancient monuments) which are situated on the margins of a national park should be included where practicable".
Far from being ineligible for designation, we argue that it is more in keeping with the original 1947 intentions to include wildlife and historical sites on the boundary.
Further commentary on the intended operation of the 1949 Act was added by the Sandford committee in 1974 and the Edwards committee in 1991, which was adopted as government policy in circular 12/96. That 1996 circular noted that the Edwards committee had not recommended any change to the statutory criteria for designating land, but went on to endorse the committee's formulation of what it termed "the essence of national parks", which it described as,
"the striking quality and remoteness of much of their scenery, the harmony between man and nature it displays, and the opportunities it offers for suitable forms of recreation".
The conclusion I am asking the House to make is that the criteria for withdrawing national park boundaries have always been based on the combination of the concise words used in the 1949 Act and the commentary on them contained in administrative documents such as the ones I have mentioned. The Meyrick judgment has substituted a new commentary, which, if we do not change it, whether on appeal or within this legislation, will trump a long line of such reports going back to the 1947 report of the National Parks Committee.
Looking at the wider implications of the judgment, our concern is not just about national parks. National parks share the same test, as far as natural beauty is concerned, with areas of outstanding beauty. AONBs were also introduced in 1949 to conserve those landscapes that had the same outstanding qualities of natural beauty but often, because of their more intensively farmed nature, did not offer the same opportunities for public recreation. They cover areas, as the House will know, such as Dedham Vale—Constable country, of course—the Kent Weald and the Cotswolds. The implications of the Meyrick judgment to them are potentially even more significant. The Countryside Agency has no area in the process of being designated as an AONB, but it is regularly asked by local authorities and others to review the boundaries of an AONB. If that were done without the amendments brought today, it would radically change the basis for considering AONB designations, and could reduce sharply the level of protection afforded to our most cherished landscapes.
On a broader point, a requirement in Section 17 of the Agriculture Act 1986 for the Minister in discharging any functions connected with agriculture in relation to any land is to take into account, among other things,
"the conservation and enhancement of the natural beauty of the countryside".
It seems unlikely that it was intended to exclude dairy farms from this requirement.
We do not accept the Meyrick concept of what a national park should be, or the learned High Court judge's definition of "natural beauty" as expressed in that case, which would be applied to AONBs. As I say, we have just received news that we have leave to appeal, but we want to take this opportunity to clarify the 1949 Act as the preferable and clearer route to dispel the uncertainty that has been created. I shall talk about our Amendment No. 131, which will clarify the interpretation of the criteria in Section 5 of the National Parks and Access to the Countryside Act 1949 for a national park, and return its interpretation to how I argue it was generally understood prior to the Meyrick judgment in the challenge to the New Forest national park designation confirmation order. As I have argued, the former understanding can be traced back over the past 56 years.
The amendment addresses the interface between the national park purposes and the criteria that are used for deciding whether land should be designated. We had always understood purposes and criteria to be two sides of the same coin, but the Meyrick judgment said they were not connected, with the purposes coming into play only after designation. The amendment addresses that issue by adjusting the wording of the criteria to include, "for the purposes", to make it clear that national park purposes are behind them.
New Clause 97, which I am afraid I mistakenly moved in Committee, but which I intended to retable with identical wording on Report once further work had been completed on the criteria amendment, addresses the degree of naturalness needed to meet the natural beauty criterion. It does so by providing that certain factors need not preclude a finding of natural beauty, and will apply to areas of outstanding natural beauty as well as the national parks, and in other contexts. It takes into account the fact that no landscape in the United Kingdom has escaped human influence, and I hope Clause 97 will remain part of the Bill.
I remind noble Lords that the Countryside Agency must consult widely before making a national park or AONB designation order, and that any local authority objection would trigger a public inquiry. That inquiry is before an independent inspector who hears evidence on the merits of the designation and scrutinises every length of proposed boundary in detail. This public inquiry is the correct forum in which to consider complex judgments about whether a particular piece of land meets the criteria for designation. Our amendment to Section 5 of the 1949 Act criteria merely ensures that the inquiry can consider the full range of matters that have been considered in previous designations since 1949. It does not prejudge the outcome in any particular case.
I know several noble Lords are concerned that our amendments will make it in some sense easier to designate national parks and therefore lead to a new wave of designation. My reply is that our intention is to return the criteria to where we believe they were before the Meyrick judgment. Let us examine briefly what happened pre-Meyrick. In the past 50 years in England, there have been just three areas considered for national park status: the Norfolk and Suffolk broads, the New Forest and the South Downs. All three of those areas were proposed as national parks in the 1940s. No decision has yet been taken on the South Downs. Of course I cannot commit future governments, but on this evidence the application of the pre-Meyrick interpretation did not lead to a steady stream of fresh proposals; indeed, quite the reverse. I think that is where I should sit down and let the noble Baroness speak to her amendment.
My Lords, I am grateful to the Minister for going so carefully through the reasons why the Government have come forward with their amendment and I will try and do the same with ours, because obviously there was a disagreement over where these criteria for national parks should be. I have again listened carefully to what he has said, but we still have serious reservations and oppose his Amendment No. 131 in favour of our Amendment No. 132. At the beginning I would like to put on record—again—that we support national parks. There has been a view that perhaps we are a party that does not believe in or support national parks. The Minister is shaking his head. Quite rightly, he knows that is not true, but, in case anybody following this discussion later on should be in any doubt, I would like to clarify that before I start.
I believe that in 1947 the Hobhouse report came before Parliament. Two years later, the 1949 Act was passed through the House. For whatever reason, the criteria the report contained were not included on the face of the Bill. The Minister may want to comment on that. The fact that farmed and managed land has been included in our national parks without challenge is, in fact, a strength of the present arrangement as this has been done in a voluntary fashion.
I turn now to my Amendments Nos. 132 and 170. Noble Lords will be aware of the substance of my first amendment on criteria for the designation of national parks. Amendment No. 170 goes very well with Amendment No. 132 as it is to do with the terminology "natural beauty" and probes the Government's precise meaning of that phrase. I have to say I was disappointed in Committee that we were not given the proper opportunity to debate the government amendment, which has changed subtly since then. I was also surprised to see that the crucial clause on the definition of natural beauty was moved, as the noble Lord has acknowledged today, by accident, without a proper debate, but is still to be included in the Bill. I believe it is only fair to put on record that the whole process of the debate on national parks has been a disgrace. We asked for a Committee session in lieu of the failure to have a proper debate on this topic in Committee, but I was told that this would not be tenable. This has left us in a most unsatisfactory state of affairs. As a consequence, if Amendment No. 131 is agreed to, Members in another place will not have debated the national park criteria at all.
Our Amendment No. 132 is very clear. It seeks to clarify, once and for all, the criteria for the designation of national parks and to ensure that they are not widened by the latest suggestion from the Government. Amendment No. 170 backs that up by tightening the definition of natural beauty. In Committee, the Minister took care to state that when it comes to the designation of national parks:
"The intention, and the current practice, is that wildlife and cultural heritage considerations are factored into the natural beauty assessment rather than being free-standing tests in their own right".—[Hansard, 27/2/06; col. 79.]
In which case, I wonder why the newly drafted criteria are quite so ambiguous, and further, why, when natural beauty is so central to the designation of national parks, it has a separate definition tucked away at the back of the Bill under miscellaneous provisions.
I am glad that we now have the opportunity to debate these new measures fully. The approach to natural beauty during the debate and via amendments on this Bill has been confusing, to say the very least. The 1949 Act places reasons of "natural beauty", "opportunities . . . for open-air recreation" and the situation regarding "centres of population" on a level playing field. That is what has worked for the past 60 years or so, until the Meyrick case.
Yet proposed new subsection (2A) in the Government's amendment would expand that definition of natural beauty by allowing Natural England to consider "wildlife and cultural heritage" as part of that. The addition of "wildlife" is, at best, nominal. "Natural beauty" has already been extended to include flora and fauna in Section 114 of the Countryside Act 1968. Perhaps the Minister will tell us what he intends to achieve by including "wildlife" in a natural beauty clause. Likewise, "cultural heritage" has no clear meaning in the context of natural beauty. It is not defined anywhere else in this Bill.
Clause 97 ensures that even if land is used for agriculture or woodlands or has an area whose flora, fauna or physiographical features are partly the product of a human intervention in the landscape, it could still be treated as being naturally beautiful. Even if it is not naturally beautiful—if, say, the designators are considering Anglo-Saxon burial grounds in the South Downs—it can still be treated as being an area of natural beauty. That land must simply not fall outside the criteria in Clause 97(a) to (c), and could, under existing proposals, be designated as a national park. If that is so, it is hard to imagine any of our countryside that would not come under any of those criteria.
Our Amendment No. 170 seeks not only to tie in with the suggestion for clearer national park designation criteria, but to follow the legally tried-and-tested opinion of the judge in the Meyrick case, who stated that the current law requires the inclusion in the criteria of,
"a high degree of relative naturalness".
That is quite clear. The judge used the wording of the New Forest landscape assessor, who while acknowledging that none of our landscape was perfectly pristine, stated that the,
"terms of the Act must require a high degree of relative naturalness".
The proposed government amendment to the criteria would rewrite the legal basis for the designation of national parks. It is a change to the 60 year-old legislation, with little or no consultation. Indeed, I understand that the Council for National Parks, the Association of National Park Authorities and the Countryside Agency have been consulted, but surely the Minister and the Government must recognise that consultation must be wider than those three bodies, who stand to benefit most from the widening of the criteria—a question which has not been answered.
A landscape no longer has to afford the differences at the present, as in the 1949 Act, but can be assessed on its future potential for recreation. I quote the Government's amendment that seeks to,
"take into account the extent to which it is possible to promote opportunities", to promote open-air recreation. That is not limited to the present.
To take a case in point, the deadline for public objection to the designation of the South Downs as a national park was
We heard on
There are many other issues I could cover, but I hope I have laid out fairly clearly, for all noble Lords to understand, why we are bringing forward our amendment as opposed to accepting the Government's amendments. I understand that the Minister has said that indeed they have the right to appeal and that has been granted, but I believe it is up to Parliament to make this decision. This subject is complex, both in the way that it comes up in legislation and in the range of interests that are affected by national park land. Let me say as I close that it is our intention to preserve the very best of our landscapes by using both areas of outstanding natural beauty and national park status. That can be done by applying them in a way that gives due consideration to the relative qualities and needs of our landscape.
I believe that the legislation has served us very well since 1949. When we debated the proposals in the Private Member's Bill of the noble Lord, Lord Renton of Mount Harry, and then under the Countryside and Rights of Way Act, I do not recall that we questioned whether the criteria were right. I think we accepted that the criteria were adequate at that point. We debated a great many issues, but the criteria were not among them.
I support the government amendments. My worry with Amendment No. 132, tabled by the noble Baroness, Lady Byford, is the question of where in England we could find,
"a high degree of relative naturalness".
I do not know Wales and Scotland so well, but perhaps it is possible to find areas there that can display,
"a high degree of relative naturalness".
However, I think that it would be the absolute nail in the coffin for the designation of any more national parks or AONBs in England. Looking at the areas I know best, such as the Holnicote estate on Exmoor—I will not take up your Lordships' time by listing them all—I can think of none that displays,
"a high degree of relative naturalness".
They are all very much man-made areas.
The Liberal Democrats will therefore be supporting the government amendments on the basis that the provisions have served us well. As for consultation, I believe that consultation has happened through the updating under the Countryside and Rights of Way Act 2000. It was, of course, the Meyrick judgment which changed the designation issue. When changes are made in that way, absolutely no consultation takes place. Nevertheless these debates have enabled us to air the issues. However, I join the noble Baroness, Lady Byford, in being puzzled that Clause 97 is dealt with under miscellaneous provisions rather than in this part of the Bill. I would be grateful if the Minister could explain why.
Finally, on the funding issue, I say to the noble Baroness, Lady Byford, that it would be tremendous to see always increasing funding for national parks. Realistically, however, the funding levels achieved over the past six years have meant a substantial increase since 1997. While I absolutely accept that several parks have issues about how to deal with all of the pressures with such funding, I do not believe there is a case for asking for greater funding across the board for national parks. Exactly how the common agricultural policy is to work out for less favoured areas—upland areas, in particular—will be a critical matter. That does not apply only to areas in national parks, it applies across the board. On funding, that is the sort of area that concerns me regardless of whether it is in a national park.
My Lords, while supporting my noble friend's Amendments Nos. 132 and 170, I take this opportunity to oppose as strongly as I can government Amendment No. 131 to the 1949 national park Act. In my opinion—and I am sorry to use these words—this is no more than a crude and brazen attempt by the Government to widen the criteria for national park designation. As my noble friend said, that has been done without any proper national consultation whatever. It has profound implications for future designations of national parks and indeed for extensions to existing park boundaries.
The Minister pointed out when moving his amendment that before any new national park could be designated it would require a public inquiry. I accept that. Yet the public inquiry and the decisions that are made will be based on the legislation. If the legislation is changed, then those given that task will clearly have to take that into consideration. So I simply say how much better would it have been if the Government had simply acknowledged that fact and stopped trying to pretend that this is a mere tidying-up operation to help clarify a rather vague and esoteric misunderstanding that happened to lead to a clear judgment against them. As I said, in my view this is a deliberate attempt to widen the designation criteria for national park status. One consequence of that will undoubtedly be the upgrading of the South Downs AONB, despite the fact that such a move has already failed three times. The Minister said that no decision had been made on the South Downs AONB. A decision was not reached because the proposal was rejected three times. For very good reasons, it did not qualify.
As I said in Committee, I found it deeply unsatisfactory and indeed—and I speak for many others in this respect—discourteous that such a profound change in legislation should be introduced at such a late stage of a Bill in your Lordships' House when the other place has not had the opportunity of giving it the high level of scrutiny that it deserves. The Government continually remind your Lordships that it is our duty to bend to the supremacy of the elected Chamber, yet here we find them bringing in significant legislation that the other place will not have had an effective means of scrutinising.
The fact that the judgment on the Meyrick case came after the Bill had left the Commons is, to my way of thinking, quite irrelevant. Such a fundamental change in law should require it to go out to full consultation to all the stakeholders whom the Government are always so keen to get involved in such matters and then to come back at a later stage—even with a separate Bill, if needs be—when all relevant interests have been fully considered. I am bound to say that this is yet another example of the Government treating the countryside in a pretty shoddy way.
I turn to the amendment itself. Clearly, the amendments that the Government are proposing to the amendment they tabled to the 1949 Act in Committee place the words "wildlife" and "cultural heritage" as being subsidiary to the existing requirement for natural beauty, which has itself been substantially widened by Clause 97. None the less, that overturns the High Court decision in the Meyrick case, when the judge confirmed that these were irrelevant considerations in designating national parks. Furthermore, the fact that cultural heritage is not defined in the Act further confuses the matter.
The amendment under subsection (2A) to the open-air recreation criterion in the 1949 Act now includes the phrase,
"take into account the extent to which it is possible to promote opportunities" for openair recreation. As my noble friend Lady Byford said, that could apply to virtually any land and would certainly embrace all of the existing AONBs. Furthermore, I believe it undermines the special nature of the existing national parks.
From Addison, Dower and Hobhouse to Sandford and Edwards, there remains a common theme—that national parks should be very special areas, wild, beautiful and suitable for public access at the time of designation. The Government clearly want to undermine that principle. To illustrate that further, current government guidance on national parks also emphasises the importance of wildness. It states:
"Particular emphasis should be placed on identifying those qualities associated with their wide open spaces, and the wilderness and tranquillity which are to be found within them".
As I said, however, the Government maintain that they are simply attempting to clarify the law so as to fit in with their interpretation of the existing legislation before the Meyrick judgment. The truth is that, in 2000, the Countryside Agency tried to redefine the law by introducing a new policy on the designation criteria, without any consultation, and it was found wanting. So instead of going quietly, the Government are introducing legislation of national importance to comply with the judgment—and to the best of my knowledge, the only body that has been consulted is the Council for National Parks. Well, there's a surprise.
There seems to be a view that the creation of a national park automatically results in a widespread echo of approval across the land. It is important not to forget that those whose real homes are in the park, and those who work in those areas, do not always share that euphoria. Designation means higher visitor pressure. It means extra constraints. It means a diminution of local democratic accountability. There are extra red tape and burdens on local businesses and communities, and a local house price distortion in favour of outside purchasers clambering for the distinction of having accommodation in a national park. Indeed, experience shows that in national parks starter homes are few and far between because of the inherent nature of restrictive planning policies. We must be under no illusion. Whereas national park status gives credit to the special nature of the landscape—well, it should do—it always delivers additional constraints to those who wish to make their living there, and such a designation is not always as welcome as some might think.
One further point needs addressing. I have tried to stress that the imposition of a national park designation has profound implications for those who live and work in such areas. However, perhaps we should ask, in contrast, what additional benefits will accrue to the general public from any further national park designations. When national parks were first designated, we lived in a very different world from the one that we live in today. Today, the countryside is littered with a variety of new designations. We have SSSIs, SPAs, SACs and the like. There are government grants for an array of land management schemes—we have entry level 1, entry level 2, and the CAP has moved away from production subsidies to support for land management. That is all good stuff—I love it. There are conservation sites and heritage sites, and the CROW Act offers access opportunities to all open country, with provisions for the Government to extend such areas when deemed appropriate. So can the Minister please tell me exactly what benefits will accrue to the general public should an AONB, for example, be upgraded to a national park? It is incumbent on the Government to spell out in some detail just what benefits will accrue to the public given the additional cost that will be incurred and the diminution of democratic accountability suffered by the local community with the Secretary of State appointing so many non-democratically elected members of a national park board.
These are hugely important issues and I do not believe they can be taken lightly. Given the nature of the amendment, a strong body of opinion feels that the Government should withdraw it and come back another day with a clear conscience in the knowledge that the job has been done properly. I know that that is not likely, and in the mean time I have great pleasure in supporting the two amendments tabled by my noble friend Lady Byford. To my way of thinking, they are at least akin to the original designation criteria.
My Lords, I start by declaring that I am a vice-president of the Council for National Parks. It so happens that at the weekend I went back to my original copy of the 1949 Act; that is to say, before Section 5(1), the purposes section, was amended by the 1995 Act. The original Section 5(1) is entirely consistent with the criterion section, Section 5(2). They both refer to "natural beauty". It is obvious to me that what happened in 1995 was that either parliamentary counsel thought it was unnecessary to make the words the same in both Sections 5(1) and 5(2), or, dare one say it, Homer nodded.
Amendment No. 131 puts us back to what we thought we had done 11 years ago in 1995. I therefore find it difficult to follow noble Lords—I have particularly in mind the noble Earl, Lord Peel, but also the noble Baroness—who think this is a fundamental amendment—I think "fundamental enlargement" were the noble Baroness's words—and that we are rewriting in haste fundamental national park criteria, purposes and so on. Nor do I agree with the CLA's briefing material on this. It is not true that the Countryside Agency changed its policy for designating national parks in 2000. The judge did not criticise this new policy. What he did was to criticise the definition, or lack of definition, in the 1949 Act. He simply ignored consistent policy from Dower and Hobhouse—in whom I declare a quasi-interest, as my father was a member of the Hobhouse committee—to Sandford and Edwards. I could go on, but others have spoken in the same vein.
I strongly support the Government on Amendment No. 131 and not the noble Baroness's amendment. As the Minister said, all that Amendment No. 132 does is to enshrine Meyrick in the statute book. I can see that there are some who regard the whole concept of national parks as anathema. I do not accuse the noble Baroness of that. However, if that is one's point of view, then one must regard the judge as something of a saviour, for he effectively torpedoed any new national park. We have already referred to the proposed South Downs national park.
What intrigues me is what would have happened if the Hinton estate, the subject of the Meyrick case, had been in the middle of the New Forest. The Minister put his remarks rather better than I have done here in speculating what our existing national parks would have been like if Meyrick had obtained in those days. The Minister mentioned Chatsworth, which is a good example. I immediately think of my part of the world, the Lake District. First, of course, all the towns and villages would be excluded, as would all the parkland, including Muncaster, Dalemain, Lowther and so on, and many other smaller parks. It would not stop there, because almost every major dale consists largely and importantly of farmland that depends entirely on the hand of man for its appearance and beauty. That is the whole basis of Wordsworth's poetry. One cannot conceivably argue that the typical lakeland dale exhibits a high degree of relative naturalness. How on earth, for example, would you distinguish between the typical parkland at Dalemain and a farm at the head of Langdale?
The national park, all national parks, would be like a Swiss cheese, with more holes than substance. Any idea of having co-ordinated planning policies involving the totality of the landscape would be blown sky high. I am sure that that is not what the noble Baroness seeks. It is certainly not what Lord Sandford wanted in his report of 1974. He was not only a member of her party, but he was at the time of his report a member of her government.
My Lords, I felt that my noble friend Lord Peel gave valuable evidence to this House of some of the difficulties that arise when a national park is designated. Over the years the 1949 Act has weathered extremely well and the criteria laid down then have been adequate ever since over the 50 years that the Act has been in operation. We tend to forget that if we increase the number of national parks even by three, four or five, it devalues all the national parks. It is important that we try to keep a national park as something very special, to be so designated only if it has exceptional qualities. If one does have a national park designated, one can see and know of the problems that arise. Of course, it encourages a substantial increase in tourism. But that in turn requires facilities, restrooms, cafes and hotels, better roads and so on—and what was a quiet backwater of beauty sometimes becomes a honey pot of hell. We have to be very careful before we go down the route of creating more national parks. We really cannot have it both ways. If we want to have quiet beauty and the opportunity to tour about in one's car to see the countryside, then we cannot expect it to remain that way if it is designated a national park, with all the developments that take place in parks.
I visited all the national parks when I was the Minister responsible. At the same time I was able to feel some of the tensions between the national parks boards or authorities, the local authority and indeed the government. It was never a very happy relationship. In terms of housing and other facilities, many people felt that by living in a national park, they were hard done by—as the noble Earl, Lord Peel, rightly said. We have to try to find a way forward which allows us to retain our present situation. After all, the AONBs do extremely well. They are easily designated, can be understood by all and sundry, and do not need the detailed problems of planning and local authority involvement that they would need if they became a national park.
One does not like to be political about these things, but one tends to feel that the Government designate national parks because they think it will be popular with the public. When the public think about what happens subsequently, however, they may rather wish they were not living in a national park, or that more and more were not designated. In my mind, that goes for Scotland, too, which we are not discussing tonight. I know all the areas under consideration there and the difficulties. Whether we are talking about transmission lines, a windmill, or goodness knows what else, we have to try to concentrate on retaining the beauty of our national parks and not devalue them by making them commercial enterprises so that they can be viable.
Finally, and most importantly, the noble Earl, Lord Peel, rightly put forward the point that we have had no consultation on this very important change. I think the Minister should try to explain why he has not had detailed consultation and why there is no time for it to happen in future. There are, after all, a lot more people in the national parks authorities who want to give their views, including all the wildlife and countryside interests. They have been put to one side and have not been consulted. I believe that the amendment of my noble friend Lady Byford is marginally better than the Minister's and does not make it easier to create national parks.
My Lords, I declare an interest in that I farm in an area within the proposed designated area of the South Downs national park. I am afraid that I do not like either of these amendments. I cannot support my noble friend Lord Peel because the Meyrick definition of a degree of relative naturalness, enshrined into the criteria, would be far too restrictive. The Minister makes a perfectly sound case to say that, however you define such words, the amendments would exclude some of the national parks which we clearly value in England at the moment. I recognise that the Minister, in trying to clear up what he feels is a maverick judgment in the Meyrick case, is quite certainly adding to the criteria. My noble friend Lord Peel makes that point and I accept it. Unlike him, I am sometimes prepared to accept that new national parks might be an advantage. Indeed, I did something that I am sure he thinks totally eccentric: I opted to have more rather than less of my farm included within the designated area of the South Downs national park. I simply took the view that if we were going to have it—expensive though it was likely to be—we had better derive the benefits rather than be excluded. I recognise that once you have changed the criteria, there are issues which extend to all people, whether visiting, working or living in these areas. If, on the back of this judgment, we are to slip new criteria into this Bill, it is very reasonable that there should be a proper period of consultation once more. That includes those who may already have been consulted in such areas as the South Downs designated area. I oppose the Minister and I will be abstaining on the amendment of my noble friend Lord Peel.
My Lords, I have to confess to being even more sceptical than any of those who have already spoken on this group of amendments. For a relatively small country, we probably have about enough parks and areas of outstanding beauty already. It sounds as if we are finding that we cannot afford the degree of facilities, in national parks, to which we have become accustomed. This happens at a time when, apparently, we cannot afford sufficient nurses to run our hospitals, and when the raising of greater amounts of taxation is widely unpopular. For all these kinds of reasons, it is time to have second thoughts on all these amendments, and perhaps to leave things well alone.
My Lords, this has been a passionate and very good debate. Emotions run high on this issue. There is a real difference of opinion here and it is much better to acknowledge that than to pretend there is none. I will try to pick up one or two of the questions before concluding my remarks. Why is Clause 97 in Part 9, headed "Miscellaneous"? Because it covers wider issues than those dealt with in Part 5, headed "National Parks and the Broads". Clause 97 covers the definition of natural beauty for nature reserves, AONBs and SSSIs. That is why it is placed where it is in the Bill.
We believe we are restoring the law to what we and others believed it to be before the Meyrick judgment. We are not trying to change the criteria from what we believed them to be before the Meyrick judgment. That is the basis upon which my amendment, Amendment No. 131, is laid. I know that there is some concern—great concern in some quarters—that this has not been debated in the elected Chamber. That is right, it has not been. As the noble Earl acknowledged himself, however, the Meyrick judgment was post the transfer of the Bill from the Commons to this House. It would have been impossible for that to have happened, if this were to be part of the Bill.
The noble Earl also asked what additional benefits to the public there would be with any new national parks. The South Downs is the last area referred to in Hobhouse that is still outstanding. National parks have two purposes. One is the conservation and enhancement of natural beauty and so on, and the other is the promotion, understanding and enjoyment of natural beauty. AONBs have just one purpose—the conservation and enhancement of natural beauty. In our view, AONBs do not provide the same opportunities for outdoor informal recreation as do national parks.
The noble Baroness properly asked why the Hobhouse criterion was not included in the 1949 Act. The Act needed to be flexible in general and did not need to go into detail. She also asked why the new criteria are ambiguous. The meaning of "natural beauty" is not expanded; it simply clarifies what we already understand it to mean. The word "wildlife" is in our amendment as it helps to determine how landscape is formed. The term "cultural heritage" simply reflects how man has helped to shape landscape through the ages. I would argue that the existing national parks have strongly reflected that in practice, but I remind the House that inquiries have to be held in considering new designations. I was asked whether the objection process would be open to the public over the new terms for the South Downs. This could well result in the reopening of the inquiry, and the inquiry inspector will consider what needs to be asked of interested parties.
I turn to Amendment No. 132 in the name of the noble Baroness, Lady Byford. I do not think that the noble Baroness would disagree that it would have the effect of putting the Meyrick interpretation unambiguously into primary legislation. With regard to natural beauty, it would specify that only the physical beauty of the land would be considered and that it would need to have a high degree of relative naturalness. The noble Baroness suggested that it was clear what that meant, but I disagree with her. I agree that the expression used is too restrictive, but what does,
"a high degree of relative naturalness", mean? That phrase is not defined but I assume that it is intended to remove parkland, dairy farms and any other well maintained farmland from national parks. It would also exclude wildlife and cultural heritage considerations—factors which contribute to the landscapes that we all cherish and which, as I have shown, were certainly considered eligible for inclusion in the 11 national parks designated immediately after the 1949 Act.
Amendment No. 132 would also narrow the second criterion for designation—namely, the opportunities which the land affords for open-air recreation. It seeks to restrict that only to opportunities which the land affords "at the present time"—a phrase which I take to refer to the time that the assessment of a given piece of land is carried out. That could exclude potentially suitable land just because, for example, it did not happen to have a voluntary access agreement in place when the assessment was made and it might preclude the taking into account of the reasonably foreseeable fruits of a national park authority's role in promoting such agreements. What of rights of way that were in very poor condition at the time of the assessment? Would that mean that opportunities were not in evidence "at the present time"? It is inherent in the word "opportunities" that an appropriate degree of looking to the future was intended by the 1949 Act. That point was accepted by both sides—claimants and judge—in the Meyrick judgment. In our opinion, Amendment No. 132 seeks to go well beyond the Meyrick judgment in narrowing the designation criteria for national parks.
As I have said, the Government's amendment, when read together with our new Clause 47, and those of the loyal Opposition offer two quite different visions of national parks. The Government's amendments offer a continuation of previous policies in which national parks contain a mix of land types offering a range of recreational experiences. The contrary vision offered by the Meyrick judgment and Amendments Nos. 132 and 170 is that, in effect, national parks should be a much more exclusive concept. Indeed, it is difficult to disagree with those who have said that it is hard to see any way in which national parks could now be created and that they would perhaps be difficult to find in the UK, being made up only of land which is wild and relatively untouched by man and where there is already a high level of access for public recreation. I hope that, of the two alternatives which have been set fairly before the House, your Lordships will prefer the Government's version.
moved Amendment No. 134A:
Page 24, line 26, at end insert—
"( ) After paragraph 1, insert—
:TITLE3:"National Park authorities in Wales
1A (1) A National Park authority in Wales shall consist of an appropriate balance of national and local members, consisting of—
(a) a specified number of directly elected members who are to be elected in a poll of all those who, on the day of the poll—
(i) would be entitled to vote as electors at a local government election in an electoral area falling wholly or partly within the National Park, and
(ii) are registered in the register of local government electors at an address within the National Park; and
(2) The total number of elected members must exceed the number of other members having regard to the minimum proportions for the Minister's appointees as described in sub-paragraph (3) below.
(3) The total number of members of a National Park authority in Wales who are appointed by the Minister shall be a minimum proportion of 25 per cent.
(4) The Minister in the National Assembly for Wales shall consult all relevant authorities and interested bodies in specifying the number of local authority members, community council members and other members to be appointed by him in the relevant order."
My Lords, I apologise because I realise that much of this was debated in Committee, but unfortunately I was indisposed and could not speak—literally. I had no voice at all at that time. But I want to make a firm statement on why we need to reform the membership of national parks in Wales and introduce directly elected members.
I declare an interest as a trustee of the Campaign for the Protection of Rural Wales. With that in mind, noble Lords may realise what I am about to say. Nominees are not whiter than white, and elected people are far better. I shall give three examples of what has happened with nominees as members of a national park. First, I refer to a local government nominee. The member resided 60 miles from a national park boundary. He chaired the planning committee and, as chair, he gave a casting vote allowing planning permission to go ahead to permit an open-cast coal site to be developed against much local opposition. He lived 85 miles away from the community directly affected by that environmental degradation. In the following 15 years that continued. He created a precedent as there are more coal reserves beneath the adjoining land. I should point out that 20 per cent of Wales is national park—that is, one fifth.
The second example concerns a Welsh Assembly Government appointee. He became chair of the strategy and policy committee, and chair of the working party within the national park that wrote the unitary development plan. He lived on the edge of a village; he owned land locally and, by stealth, got written into the development plan, a proposal to build 200 houses on his own land. He then "retired" from the park committee. Three adjoining community councils wanted only about six affordable homes in each village, and no more. The locals opposed the 200-house project and had no direct input into its inclusion in the local plan. Needless to say, the development proposed was twice the size of the existing village.
The third example is of the chairman of a national park being on the board of a company—these are all nominated people—located outside the park that is involved in producing and extracting aggregates: sand and gravel. During his tenure, large reserves of gravel in a very sensitive river valley in the national park were earmarked for future extraction. The individual has now retired as chairman of the authority and the decision still stands. In all these cases declarations of interest were not transparent and, in some cases, only declared retrospectively, following public pressure. Indeed, research shows that the interests of national park members do not appear transparently in the case of any national park in England and Wales. I am sure the Minister will agree that all these appointed members have not worked in the best interests of the national park, in terms of the environment, communities or sustainability.
Only democratic accountability, through direct election involving people who reside in the national park, will meet the needs of the people who live there. If the electorate elects a member to represent them, that community will be sensitively represented, and not sidelined, as some communities are when a few favourite centres are promoted to the detriment of others. I speak of one local authority, which is 130 miles long and has six adjoining authorities that have very little land in the park but are all represented to the exclusion of democratically elected people. The present system is subject to lobbying within local authorities and, at quango level, to people very often appointed in their own interests. They pursue agendas not necessarily in the local interest, and frequently ignore places in greatest need. The present situation in Wales, as far as representation is concerned, is not as good as that in England. At least in England parish councils can nominate a member to serve with approval on the national park; Welsh community councils do not have that opportunity. However, directly elected representatives are a much better option and increase accountability to communities in Welsh national parks.
I fully accept the need for nationally appointed members, but many communities are sidelined. Do not forget that parks have planning powers. This means that 20 per cent of planning in Wales is decided by nominees, not by elected people. The Minister, in his response to Amendment No. 307 in Committee, stated:
"The Welsh Assembly Government are preparing to consult on membership arrangements and have expressed the view that they would not want the Bill to pre-empt the decisions that they will take in light of their consultation".—[Official Report, 27/2/06; col. 113.]
Indeed, direct elections are ruled out in that consultation; only decisions on appointed members will be made. Also, the Welsh Assembly, through secondary legislation, has the power to legislate on membership, but the evidence is that non-elected national park authorities are flawed.
The wording of this amendment is derived directly from the National Parks (Scotland) Act 2000, which went through the Scottish Parliament. The Members of the Scottish Parliament have created two national parks: Loch Lomond and the Trossachs, and the Cairngorms. The Act contains provisions for direct elections to national parks in Scotland. Indeed, proposed subsections (1) and (2) of the new clause are derived directly from the National Parks (Scotland) Act 2000. Those representatives in the two national parks in Scotland are directly elected, as is proposed for Wales in this amendment. The same structure should find favour in Wales. The Welsh Assembly has secondary legislative powers, but we could push this through in this House, because the Welsh Assembly does not have the primary legislative powers of the Scottish Parliament. If it had those powers it could introduce a provision such as this in Cardiff.
I hope that the Assembly will take note of what is happening in Scotland and derive benefit from it. I acknowledge what the Minister said in Committee; having read the whole debate and what the Minister said at that time, I suspect that there is little scope for further debate. The Welsh Assembly is consulting on membership, but direct elections are by far the best route. Sadly, they are left out. I beg to move.
My Lords, it is very good of the noble Lord, Lord Livsey, to point out the differences between national parks legislation in different parts of the country. The national parks in Wales are obviously looking for far more local representation. The noble Lord, Lord Livsey, pointed out some of the pitfalls of nationally appointed members, though as far as I could understand, some of the people he described as having substantial interests in the parks did not live there. I happen to live in the Loch Lomond and Trossachs National Park and I know the workings of that. We have a number of elected representatives. They are not noticeably above criticism because they seem to be elected very often for certain local interests. People say that they do not represent other interests that they have. There are pitfalls in various places, but I am very interested in what the noble Lord has said.
My Lords, it is with some trepidation that I stick my nose into Welsh affairs, but I was extremely interested in what the noble Lord, Lord Livsey, said. I was not aware that parish councils were not entitled to sit on national park authorities in Wales. The introduction of parish councillors to the English national parks—the Yorkshire Dales National Park being the one I know best—has brought an extremely welcome local dimension to park proceedings. Anything that does that must be welcomed, so I thoroughly support what the noble Lord has said.
My Lords, I wish to speak to Amendment No. 135 in this group. It is an all-party amendment, in the names of the noble Lord, Lord Judd, the noble Baronesses, Lady Byford and Lady Miller of Chilthorne Domer, and me. The noble Lord, Lord Judd, is abroad on parliamentary business, so he has asked me to lead on it in his absence. I am more than glad to do so. Like the noble Lord, I am a vice-president of the Council for National Parks.
I have a procedural difficulty: if we were to agree to all three amendments in this group, the amendment of the noble Lord, Lord Livsey, would be left in the air because Clause 59, which he seeks to amend, would have been replaced by the new Clause 59 proposed in our Amendment No. 135. If the amendment of the noble Lord, Lord Livsey failed, but the new Clause 59—as contained in the amendment of the noble Lord, Lord Judd—were agreed to, Wales would be left out in the cold. I am sure that we would all deplore that state of affairs. In the circumstances, it would be better to postpone these three amendments tonight and deal with them at Third Reading. That would allow the various parties to sit down and get an organised amendment to put before the House. I would be happy to go along with something like that. May I ask the Government for a reaction? I suggest that I now give way to the Minister to get a reaction. If the Government want the House to press on with this tonight, I shall go back to my speech.
My Lords, I understand what the noble Lord is saying, but I think that the Minister will confirm that the membership of national parks in Wales is devolved by secondary legislation to the National Assembly so I suspect that if there is no vote on my amendment the membership issue will be dealt with after consultation in the Assembly.
My Lords, we are getting slightly out of kilter. It is not for me to advise the noble Lord, Lord Chorley, whether to press his amendment tonight or to advise the noble Lord, Lord Livsey. When we get to the amendment to which the noble Lord, Lord Chorley, has spoken, if he wishes to press it, he may do so, or he may withdraw it. It is a little out of order to have cross-Chamber negotiation about possible alternatives. I am sorry that I cannot be more helpful.
My Lords, that was most helpful and I shall continue. The main difference between Amendment No. 135, tabled in the name of the noble Lord, Lord Judd, and the similar amendment tabled in Committee by the noble Lord, Lord Dubs, is that the former is restricted to English national parks. The Welsh factor has been removed. We have just been listening to the noble Lord, Lord Livsey of Talgarth, on that. The Welsh factor having been separated, two issues remain: first, the 25 per cent minimum rule for national representation, and, secondly, whether the Government should consult more widely before making appointments.
I shall take the second point first. The Minister said in Committee that the Government already do what the amendment seeks and therefore no change to the legislation is needed. However, one can equally argue that in that case the Government can hardly object to enshrining good practice in the Bill. I shall leave it at that.
The noble Lord made much the same point about the 25 per cent rule: that current practice is for about 25 per cent of national park members to be national appointees. He went on to argue, quite reasonably, that the needs of parks are likely to vary from park to park and that reflecting those variations is best left to secondary legislation. I am sure that we all agree on that, but that is not the main point. It is only part of the point. The point of principle is that there must be a floor, a minimum. We must have regard to the future. Ministers change, attitudes change, and governments change. To the saying,
"Put not your trust in princes", the late Hugh Dalton added,
"still less in Ministers of the Crown".
For that reason, we need to specify a basic rule in the legislation. It may be that 25 per cent is not the right figure, but it is essential that there should be a national representation in each English national park and it must be more than mere tokenism. The essence of national parks is that they are national, and their being reflects national considerations. Is it not rather strange that we specify precisely the relationship between local authority and parish members on one hand and the "other members"—that the former should exceed the latter—but we give no guidance, such as a floor, on the number of other members, the national appointees?
My Lords, I support the principle that the minimum proportion of nationally appointed members on a national park authority should be 25 per cent. National parks are national, and while local democracy, connections and input are vital—I support the figure of 51 per cent representation for local members—there is no doubt that sometimes it is necessary to have an adequate balance coming from the national perspective. The balance is usually unaffected by the sometimes overheated local parochial campaigns that can exist. National members have a larger constituency than some local members. They represent all those who use or visit the national park or who might want to do so in future. Therefore, I believe that the minimum figure for national representatives on a national park authority should be 25 per cent.
My Lords, I support what the noble Lord, Lord Livsey, said. I speak as someone who lives in Wales and I know how much the noble Lord is respected in my part of the country. He speaks with great authority on these matters. The examples he gave us show what is wrong with the present state of affairs. It is important that there should be a proper balance and better representation of local interests in Wales. The case he has put is very strong and I shall support it.
My Lords, I support my noble friend Lord Livsey of Talgarth and hope that the Welsh Assembly takes careful note of his wise and informed words on this issue.
I shall speak briefly to Amendment No. 134B, which is consequential—in reverse—on Amendment No. 135 because if the noble Lord, Lord Chorley, tests the opinion of the House on that amendment and the House agrees to it, it will be necessary for Amendment No. 134B to be agreed. I have nothing to add to what the noble Lord, Lord Chorley, said, except to agree with him. Until now, the Government's position has been to agree that the 25 per cent is important. Our amendment does not interfere with the increased flexibility—it allows local circumstances to be taken into account—it merely ensures that the safeguard is in the Bill.
My Lords, we missed the noble Lord, Lord Livsey. We were sorry that he was ill and not with us in Committee. We recognise his wide knowledge and concern. I endorse the fact that he is widely respected in Wales.
Clause 59 improves the arrangements for appointing members to national park authorities in England and Wales. In response to the noble Baroness, Lady Miller of Chilthorne Domer, it is intended to make the system more efficient, more flexible and more responsive to local needs. Three general principles are raised by Amendments Nos. 134A and 135. The first, raised by Amendment No. 134A, is that national park authorities in Wales—and only Wales—should include members who are directly elected to the authority. The second principle is that the primary legislation should specify that the other members whom the Secretary of State or the Welsh Minister appoints should always make up at least 25 per cent of an authority. The third principle, which is raised in the amendment tabled by the noble Lord, Lord Chorley, is that before laying an order to establish the membership of an authority, the Government should consult not just the local authorities affected but also all relevant authorities and interested bodies.
First, the issue of directly electing members to the Welsh national parks authorities was debated when the existing legislation was being enacted, and was reconsidered in the recent English and Welsh reviews of national parks authorities. The concept has never commanded general support. The duality of NDPB and local authority involvement in national parks reflects their dual responsibilities: they serve the country as a whole, because national parks are national assets, and they have a direct responsibility to those who live in the parks. The current arrangements reflect the unique role of national parks very well. The review of the Welsh national parks authorities found no consensus on the issues raised by the amendment.
I do not propose to comment on whether the policy decisions were rightly taken, tempting though that is, particularly following the remarks made by the noble Duke, the Duke of Montrose. I am pleased that he is happy, although I note that he has some mild reservations about certain aspects of his own personal experience. I must, however, frown slightly at the noble Lord, Lord Livsey of Talgarth, who I think said, "We could push this through here in advance of the Welsh Assembly consulting the people of Wales". However technically correct the noble Lord is about that, that is not how we have approached devolution in Wales. The noble Lord knows very well that we seek the views of the Welsh Assembly and would not want to ride roughshod over its process. He appears to have some very valid points, so I suggest that he directs them to the National Assembly and not to the Westminster Parliament as a means of seeking to influence what is rightly the Welsh Assembly review.
Secondly, on the 25 per cent rule, the other members of national parks authorities, who are appointed by the Secretary of State or the Welsh Minister, are often referred to as national members—the noble Lord, Lord Chorley, among others, mentioned this. We take the view that this is not a question of the 25 per cent figure itself, which, as it so happens, is consistent with current practice. We do not believe that it is sensible for any level to be set in primary legislation; decisions are best left to secondary legislation, where they can be taken on a case-by-case basis and can reflect the context in which particular authorities are working at the time. We do not see any value in replacing one rigid formula with another; flexibility is needed. For that same reason, Amendment No. 134B, which proposes that Clause 59 be withdrawn, cannot be supported. The noble Lord, Lord Cameron of Dillington, indicated that he had some sympathy for the amendment tabled by the noble Lord, Lord Chorley. I assure him that the 25 per cent figure has been fairly constant. I hope that he will agree on reflection that it would be extremely useful to keep the flexibility in this clause.
Finally, the third general principle is about consultation before introducing secondary legislation. Although the existing statutory requirement is to consult only the local authorities, it is already Defra practice to include other consultees who may have an interest. We believe that only the minimum level of consultation should be specified in legislation—that is, with the local authorities. Who else to consult is best considered using discretion according to the needs at the time. This would avoid a disproportionate level of consultation by list.
We believe that Clause 59 improves the arrangements for appointing members of national parks authorities and will make the system more effective and more responsive, particularly to local needs. I therefore ask noble Lords not to press their amendments.
My Lords, obviously I respect what the Minister said about devolution, and I agree that the National Assembly will consult on this very issue. However, even before consultation, direct elections are ruled out as a possible solution to the membership in Wales. I made what I hope was a pretty forthright statement on that tonight because I believe that it is wrong that it does not consider that option as well as all the other options. All it will do is consider what kind of nominees it will have, and that sort of thing. I accept the Minister's frown; I understand the reason for it, and I agree with her. However, the National Assembly must take this issue very seriously, because the model that it is using at the moment is not perfect. I totally accept the nomination of 25 per cent of members in the national interest; indeed, I am bound to do so as I am associated with the Campaign for the Protection of Rural Wales, for example. There is, however, a balance to be achieved between communities that are directly affected by planning decisions taken by unelected people. That is a very important principle, which is what I wanted to draw to the House's attention tonight. Therefore, in respecting the devolution settlement, I beg leave to withdraw the amendment.
My Lords, I am advised by the Table that if the House makes its opinion clear on Amendment No. 135, it is up to the Government to take that into account with regard to Amendment No. 134B.
My Lords, I checked with the Table whether I should next move my amendment and test the opinion of the House on it, or whether, as I would prefer, we should first test its opinion on Amendment No. 135, should the noble Lord, Lord Chorley, decide to do so. I was told that if the House agreed to Amendment No. 135, we would be left with two Clause 59s, unless I sought to divide the House on my amendment as well. It would then be for the Government to choose whether to delete their own Clause 59, which would be superfluous.
My Lords, while I consider that, I should point out that proposed new subsection (4) of Amendment No. 135 would apply the 25 per cent to Secretary of State-appointed membership in England but not in Wales. There would be no minimum content in proposed subsection (3) of Amendment No. 134A, which does not apply the 25 per cent. If Amendment No. 135 were agreed to, we would have to come back to Amendment No. 134B at Third Reading. Does that help the noble Baroness?
moved Amendment No. 135A:
Page 26, line 37, at end insert—
"( ) If the use of a road by mechanically propelled vehicles has been removed by a traffic order and there no longer exists a carriageway appropriate for those vehicles, the use shall not be revived by revocation or amendment of that order, and a new carriageway and its use by mechanically propelled vehicles may only be permitted in accordance with the legislation that would apply if the carriageway and a public right of way for that use had never existed."
My Lords, I will now divert your attention to an entirely different subject, which might be to your relief. In Committee, I moved an amendment concerning the "Sloane Square" amendment. It was grouped with many other amendments and did not receive adequate consideration.
I shall address the effect of amending legislation on traffic regulation orders on rights of way issues and why I believe an amendment to the present regulations is necessary. The particular example giving rise to the amendments is in Sloane Square, although it may well not be unique. In the late 1920s, the original crossroads in Sloane Square were converted into a roundabout by means of a traffic regulations order made under the London Traffic Act 1924. Its effect continues under a consolidated traffic regulation order made for the whole of London in 1965. The former Chelsea borough council at first intended to seek a justice's order for the extinguishment of the original highways across what is now the central island. It then realised that that would result in the site of the roads reverting to the freeholder of the adjacent lands; namely the Cadogan Estate.
There were then no planning controls which could have prevented the owner allowing any use that suited it and there was considerable pressure for converting the island into a car park, which the council rightly considered undesirable. It therefore decided to leave the highway rights over the island for pedestrians only and in 1930 laid it out with the previous small adjoining islands as a paved public garden with trees, removing all indication of the original carriageways.
More than 75 years later, this oasis in the middle of the busy but not unattractive square and conservation area is enjoyed by local residents and visitors from all over the world. However, after what is considered by many to be a wholly inadequate non-statutory public consultation, Kensington and Chelsea Borough Council wish to revert to a carriageway on its original line across the island, dividing it into two sections and making other alterations which will provide some improvement for pedestrian traffic but gravely diminish the amenity and recreational value of the island and the character of the whole square. But because the affected land remains a highway, the existing traffic regulation order can be undone by a new order made by the council—delegated to its relevant cabinet member—with no need to use the planning Act procedures except for minor details. The traffic regulation order procedure provides only limited mechanisms for public intervention, which can largely be ignored by the council; there is no right of appeal if that procedure has not been properly carried out.
The amendment seeks to set down grounds under which a traffic regulation order might be the subject of proper consultation and proper democratic procedures, so that people can make their objections and their views felt and that it will not be possible to override a traffic order which has been placed over a particular square, or anywhere else, by the limited intervention of a cabinet member of the local authority involved. I am sorry that this is a complicated matter and I ask that unless the Minister has an answer to it, he takes it away and gives it proper consideration. Although this is a small issue, it raises a rights-of-way matter where a traffic regulation order was placed a long time ago and can now apparently be set aside for relatively minor considerations. I beg to move.
My Lords, the only tiny footnote I will add to what the noble Lord, Lord Bradshaw, has said is that as recently as 1977 when I was elected for the neighbouring constituency of Cities of London and Westminster, the King's Road still ran through Eaton Square. Westminster City Council was clearly extremely far-sighted in not changing the name earlier, but allowing plenty of time for things to settle down. However, it did subsequently change it, and it must by that stage have assumed that the status quo had been established.
My Lords, Amendments Nos. 135A and 154A aim to provide that, where a traffic regulation order prohibits the use of motor vehicles on a route over which public motor vehicular rights exist, on revocation of the order, the public motor vehicular rights will be extinguished in cases where the route is no longer suitable for use by such vehicles. Such a provision would serve no practical purpose; if the local authority considers that the route is unsuitable for use by motor vehicles, it has the option of simply not revoking the traffic regulation order.
Furthermore, traffic regulation orders are primarily formulated for, and for the most part employed on, the ordinary roads network. There is a danger here that amending the legislation relating to traffic regulation orders in order to deal with rights of way issues, could have unforeseen and adverse consequences for the rest of the highways network. For example, the amendment might encourage local authorities to neglect to maintain certain highways, using this provision as a backdoor method of extinguishing rights, rather than going through the proper statutory process for extinguishment.
The noble Lord, Lord Bradshaw, will remember that I put forward those arguments in Committee, but there are some further arguments that I seek to use to persuade him not to press this amendment. I have already explained to the House that the Government have severe reservations about a statutory approach to assessing the suitability of rights of way. A similar approach was taken to the reclassification of roads used as public paths rights in the Countryside Act 1968. Disputes about some of these reclassifications are still going on to this very day. The difficulties would be even greater under these arrangements because we are contemplating statutory extinguishment of rights on the basis of the local authority's assessment of its suitability without any process at all for objection or appeal. Moreover, a TRO only temporarily suspends the public's right to use a highway; it does not extinguish them once and for all as the noble Lord seems to be proposing. Even so, the TRO-making process provides the opportunity for interested parties to object and be heard. This amendment would, we fear, enable once and for all extinguishment on the back of the TRO process, with no further process for those with an interest to have a say. Why create such difficulties when the local authority has the simple option of not revoking an order?
I understand the expertise that the noble Lord brings to this subject, which is one that I cannot compete with in this House. However, for the reasons I have outlined, we believe that it would be wrong to accept these amendments and I hope that he may withdraw them.
My Lords, I thank the Minister for that reply. It appears from what he said that the traffic regulation order that is proposed to be made by the council—in this case, by Kensington and Chelsea—and is delegated to the relevant cabinet member cannot in fact be made as he said without proper public consultation. That is, when a traffic regulation order has been made, if it is varied one way or the other, there must be some public consultation. Therefore, it does not appear from what he has said that it is a matter simply for the appropriate cabinet member to take on behalf of the council. If I have understood him correctly, I shall withdraw the amendment, but it would help me in dealing with this if I could be satisfied that there would be some proper public scrutiny of what is going on. It appears from the briefing that I have received that this matter has been delegated and will be dealt with without that degree of consultation.
My Lords, the specific case that the noble Lord refers to, although quite properly, has little to do with the recreational use of motor vehicles on rights of way, which is what we are concerned with in this part of the Bill—and that would be a matter for the Department for Transport. I shall take away his specific reference.
I am not in a position to answer the noble Lord's question about the cabinet member. I shall write to him with a response.
My Lords, I beg to move that further consideration on Report be now adjourned. In moving the Motion, I suggest that the Report stage continues not before 8.35 pm.