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Natural Environment and Rural Communities Bill

– in the House of Lords at 3:03 pm on 27th March 2006.

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Votes in this debate

Photo of Baroness Amos Baroness Amos President of the Council, Privy Council Office, Lord President of the Council and Leader of the House of Lords (Privy Council Office) 3:03 pm, 27th March 2006

My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales to acquaint the House that they, having been informed of the purport of the Natural Environment and Rural Communities Bill, have consented to place their Interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.

Bill read a third time.

Clause 2 [General Purpose]:

Photo of Lord Dixon-Smith Lord Dixon-Smith Shadow Minister (the Environment), Environment, Food & Rural Affairs

moved Amendment No. 1:

Page 2, line 7, after "managed" insert ", having regard to the need to contain global warming,"

Photo of Lord Dixon-Smith Lord Dixon-Smith Shadow Minister (the Environment), Environment, Food & Rural Affairs

My Lords, the Prime Minister himself said that the problem of global warming is probably the most important subject that any Government face. Indeed, it is probably even more significant than international terrorism. I make no apologies for tabling a redesigned amendment to try to persuade the Government that it is worth mentioning the subject in the Bill.

I have said before in this House that the news on global warming is consistently bad. I paid some tribute to the Government over the weekend because they made an announcement in the press about micro-generation. That is one of the first optimistic signs I have seen in this country for a very long time, although one has an instinctive reservation. We await the details when the Government make a proper announcement to Parliament so that we can see what that one is all about.

That announcement was, in effect, counter-balanced by research carried out by the National Center for Atmospheric Research in Boulder, Colorado, working with a colleague at the University of Arizona, which was announced at the end of the week and reported in the Times on Friday. It is remarkable that the Americans, who are supposed to be a very negative force on the subject of global warming, host a great deal of extremely helpful and useful research into the matter. This research was predicated on the possibility that existing models that take account of the effect of global warming on the melting of Arctic and Antarctic ice are inadequate and that sea levels may rise at a rate vastly greater than anything suggested at present. Of course, this is yet more research in a very wide field, and its findings may not be realised. If it were to happen, however, the work of Natural England would be dramatically affected, because the research was postulating the possibility in the coming century of a sea rise of 20 feet rather than perhaps a foot or two.

It is worth noting that a study was done by, I believe, the Environment Agency on the impact of a tidal surge on top of a major spring tide in 2030. It is one thing if that takes into account the expected sea rise of a foot or two, but it is entirely another if it has to take into account a sea rise of several feet. More importantly, a number of other policies will be dramatically affected if—I stress the "if"—that research is at all valid, because the whole management of our coastlines will be dramatically affected. If such a sea rise does not dramatically affect the way in which Natural England works in those areas, I am not standing here addressing this House this afternoon. But I am addressing the House this afternoon because the effect will be dramatic.

When I tabled my amendment on Report, the Minister said:

"As a key element of the broader sustainable development agenda, climate change would be an important part in the context in which Natural England operates. There is no doubt that relevant action to mitigate climate change could fall within Natural England's general purpose"—[Hansard, 15/3/06; col. 1273.]

Instead of making the containment of global warming a specific function of Natural England, the amendment would make it part of its general functions. It would provide the context in which the functions mentioned in the Bill would have to be carried out. In my view, the amendment is consistent with the words of the Minister on Report. He will not be surprised therefore if I suggest that he could accept it. I beg to move.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson in the Lords, Environment, Food & Rural Affairs

My Lords, I have added my name to the noble Lord's amendment. For the reasons he has stated, climate change is important. Natural England will be in the forefront, together with the Environment Agency, of facing what that means. It will have to face adaptation and mitigation for land management and best advice on biodiversity and wildlife and the whole swathe of issues with which it will be subsequently tasked under the Bill.

Therefore, reference to climate change is essential. I was disappointed on Report when the Minister indicated that he was not minded to include it in the Bill. When the noble Lord, Lord Dixon-Smith, put down his amendment, I held out some hope that, if the Government did not like the exact wording, they might choose to amend it in such a way as to make them happy with it. I believe that we will have to task particular agencies and bodies to think about climate change at the forefront of what they do. After all, it is the most important issue of our time. This Bill is the place to start that. We support the noble Lord's amendment.

Photo of Baroness Byford Baroness Byford Shadow Minister (Food & Rural Affairs), Environment, Food & Rural Affairs

My Lords, I, too, support my noble friend's amendment. I was as disappointed as my noble friend when on Report the Minister referred to the key element of sustainable development. In fact, I would refer to the previous sentence of the Minister's speech. The Minister said that climate change has a,

"wide-ranging agenda and one in which, frankly, Natural England would not be the lead player".—[Hansard, 15/3/06; col. 1273.]

So who is the lead player? Many departments are covered. With Natural England established, clearly Defra should be not just a key player, but the leading player. If it is not, perhaps the noble Lord will tell us who is. What discussions or arrangements have been made with other government departments? We do not want climate change to be manhandled between one department and another when, clearly, Natural England, with its new responsibilities, will be at the forefront of this.

I obviously support my noble friend Lord Dixon-Smith. He referred to the management of coastline. Even now, Southwold, in East Anglia, which I know quite well, is spending millions of pounds on improving its coastal defence plan. That is the situation now. With estimates of additional hazards of climate change, surely the Government cannot take—I wanted to say "lackadaisical", but that is not quite the right word—such a negative attitude to the very important crisis that is facing us and will continue to face us.

Photo of Lord Chorley Lord Chorley Crossbench

My Lords, for once I find myself not in agreement with the noble Lord, Lord Dixon-Smith, partly because I do not really understand his amendment, which reads,

"having regard to the need to contain global warming", in the context of the "General purpose" of the Bill.

I will give the noble Lord an example. Last year, there was a major wind farm inquiry near Tebay, between the Yorkshire Dales National Park and the English Lake District National Park. The Countryside Agency put in evidence, extremely strongly and extremely effectively, that on landscape grounds there was no case for this wind farm. That was a good, renewable project. I am glad to say that the Minister accepted evidence from others, in particular the Countryside Agency, and the wind farm was rejected. There will be wind farms up and down the country where the landscape question will be extremely important. There will be other questions. A moment ago, the noble Baroness mentioned Southwold and just down the coast there is Sizewell. I am fully behind the noble Lord on global warming; it is the most serious issue the world has to face in the next hundred years; and I believe nuclear power will be one of the main ways of dealing with it. But the siting of nuclear power stations will be a problem and Natural England has to keep its hands free so that it can participate in the wider national debate. For that reason, much though I respect the philosophy of the noble Lord regarding global warming, I cannot support his amendment.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Farming, Food and Sustainable Energy)

My Lords, the noble Lord's amendment would make it clear that in taking action to conserve, enhance or manage the natural environment, Natural England has regard to the need to contain global warming. I appreciate the noble Lord's desire to find a form of words on this important, even crucial, topic that we could accept. However, I have to disappoint him.

As I said at Report, the Government expect Natural England, in common with all other public bodies, to play an active role in combating the effects of global warming, which is a huge issue for our time. Given the serious effects that global warming will have on the natural environment of England, I am absolutely confident that Natural England will have regard to this need, so far as it is able, in the exercise of its functions—the point made by the noble Lord, Lord Chorley—for conserving, enhancing and managing the natural environment. So why can we not accept the amendment?

It comes back to the role of Clause 2(1), where this amendment is now—for the first time, I believe—laid, in defining Natural England's purpose. Clause 2(1) is the general purpose—the core purpose—of Natural England. Far from being a preamble to paragraphs (a) to (e) of Clause (2)(2), it is the touchstone against which all Natural England's actions must be judged. The paragraphs are merely examples of things that are contained within the general purpose.

Clause 2(1) also plays a crucial role in communicating Natural England's job to a wide range of its customers and other interested parties. It will certainly be the most quoted clause of the Bill. It will probably appear inside the front cover of every Natural England publication and in exhibitions, videos and university text books, among other places. I understand that that is precisely why the noble Lord wants to get a reference to global warming here. But there are a very large number of things which Natural England must or may have regard to. While the need to contain global warming would be high up anybody's list, we cannot accept that it should be the sole factor that is elevated to a position at the heart of Natural England's core purpose. If this amendment was carried, that would be the result.

Our reservations are heightened by the wording used. "Containing" global warming is the key international challenge—the Kyoto protocol territory. Natural England will be able to make a more than useful contribution through the way it runs its operations, its comments on development plans and so on—the sort of decisions that the noble Lord, Lord Chorley, was talking about—but it will not be a large player in international development and energy policy. Natural England's contribution will lie more in drawing attention to the impact of global warming on the natural environment and facilitating its adaptation.

I was asked who the lead player is. Defra agencies, such as the Environment Agency and Natural England, of course have an important role. Because this topic is so wide-ranging, however, a government department leads. That department is, of course, Defra.

I hope that my brief remarks about the Government's expectations of Natural England—in having regard to the need to contain global warming—offer some reassurance to the noble Lord. He will be, as all of us will, a key monitor of Natural England's performance in this area. I am sure he will take us to task if he feels it falls short of its potential. On that basis I invite the noble Lord to withdraw his amendment.

Photo of Lord Dixon-Smith Lord Dixon-Smith Shadow Minister (the Environment), Environment, Food & Rural Affairs

My Lords, I am grateful to my noble friend and to the noble Baroness, Lady Miller of Chilthorne Domer, for their support. If the noble Lord, Lord Chorley, will forgive me for putting it this way, he could perfectly well support me. There is absolutely no problem in my mind for Natural England to have to make a judgment on the siting of a wind farm in an area of outstanding natural beauty and on the risk of global warming. It is a perfectly proper judgment to make. If Natural England does not feel that it is up to the task, and if the Minister were to deny that it was up to that task, then frankly we have all failed. So I hear what the noble Lord, Lord Chorley, says, but, with the greatest deference, it would be perfectly reasonable for that sort of judgment to be made. Somebody will have to make it. If Natural England is properly to care for the countryside, in its widest context, then it seems to me that it is a proper judgment that it has to make.

The Minister made all sorts of statements about the importance of this subject in the work of Natural England. Of course, I entirely accept that Natural England will not be an international player in this matter, but it will be a serious player in all countryside affairs. There will not be one bit of the countryside in the whole of our United Kingdom that will not be affected in some way—maybe sometimes beneficially, but in other cases adversely—by this subject. The Minister has said so. Curiously enough, I understand his reluctance to see this subject mentioned in this clause, but I do not accept his judgment. I think his judgment is wrong. The amendment should be in. The subject is sufficiently important that we ought to put it there. Therefore we should test the opinion of the House.

On Question, Whether the said amendment (No. 1) shall be agreed to?

*Their Lordships divided: Contents, 99; Not-Contents, 143.

Division number 1 Private Parking: Ports and Trading Estates — Natural Environment and Rural Communities Bill

Aye: 97 Members of the House of Lords

No: 142 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Farming, Food and Sustainable Energy)

My Lords, this amendment is our response to the debate on Report on an amendment which would have made rural communities a focus of Natural England's efforts to promote social and economic well-being through the management of the natural environment. We made it clear on Report that we could not accept sole reference to rural communities because Natural England has an important role in bringing the benefits of a healthy, well managed and accessible natural environment to urban communities as well. However, we agreed to look into it and, if we could find acceptable wording, bring back a government amendment at Third Reading. This is it and I am grateful to the noble Baroness for having raised this issue on previous occasions. The amendment makes it clear that Natural England may work with local communities—both urban and rural—to secure social and economic benefits through management of the natural environment. I beg to move.

Photo of Baroness Byford Baroness Byford Shadow Minister (Food & Rural Affairs), Environment, Food & Rural Affairs

My Lords, I am grateful to the Minister. We have had quite a few discussions on this issue both within and outside the Chamber and I am glad that the Minister and the Government have managed to find a form of words. While obviously the amendment does not refer specifically to rural areas, we appreciate that the Bill also covers urban areas. We welcome the amendment.

On Question, amendment agreed to.

Photo of Baroness Byford Baroness Byford Shadow Minister (Food & Rural Affairs), Environment, Food & Rural Affairs

moved Amendment No. 3:

Page 2, line 17, at end insert—

"( ) In the event of any significant, irreconcilable conflict in the delivery of Natural England's objectives, greater weight shall be given to those relating to the conservation of the natural environment."

Photo of Baroness Byford Baroness Byford Shadow Minister (Food & Rural Affairs), Environment, Food & Rural Affairs

My Lords, here we return to the issue of conflict, which has been very fully debated at various stages of the Bill. However, it still needs to be considered further, which is why I have tabled an amendment. On Report, there was some confusion about the Government's position in response to the amendment that we had tabled. As a result, I reserved the right to take further advice and, if necessary, to return to the subject at Third Reading. As more and more rules, regulations, codes and strictures wind around our lives, it becomes ever more likely that irreconcilable positions will be assumed for the best of motives and in response to genuine interpretations of the law.

We talk of Natural England as though it were a single entity such as a sculpture, but in fact it will be a body comprised of people each of whom will have a slightly different slant on any matter under discussion. They will be paid remuneration and allowances as the Secretary of State may determine, but they will not be employees. They will not be appointed because of their willingness to toe a line—at least I sincerely hope not. It is to be hoped that they will take a very independent stance. I believe that they will be people of independent mind with knowledge and expertise for the positions that they hold, but they will bring to those positions very different experiences and opinions. The purposes assigned to them will be the mainspring of their collective actions.

The Secretary of State will issue directions or guidance that will tend to be fairly non-specific and couched in terms such as "the board may", if it is guidance, or "the board must have regard to", if they are directions. In those circumstances, a conflict resolution provision would give a firmer steer to Natural England. The issue could be viewed in the light, for example, of conserving and enhancing the natural landscape, or securing the provision of facilities for enjoyment of the natural environment. I have deliberately left out the words "study" and "understanding" because Clause 2(2)(c) does not make it clear whether all three requirements—"study, understanding and enjoyment"—have to be present at the same time. But that is a minor issue and presumably the Secretary of State will sort it out in her directions.

I know that I am not alone in being concerned about the danger of conflict arising from these proposals. The EFRA Select Committee, speakers from all parties in another place and several noble Lords in Committee have all spoken in favour of some form of conflict resolution mechanism. None of us has sought to suggest that the process of decision making would be at fault, hence there would be no recourse to judicial review for anyone wishing to challenge a Natural England decision; nor has it been suggested that there should be an automatic prioritisation of the natural environment at all times.

The Oxford English Dictionary defines ideas that are "irreconcilable" as,

"unable to be brought into harmony or made consistent".

We consider that neither the Countryside Commission nor the Nature Conservancy Council was given a brief which allowed for such opinion. English Nature and the Countryside Agency were not troubled by internal inconsistencies; they made recommendations which were either agreed to or ignored. To be a trenchant champion of the natural environment with a duty to contribute to social and economic well-being may nevertheless leave Natural England in a cleft stick, but our amendment would ensure that it could not happen.

I emphasise that we do not anticipate this provision being used very much. We are concerned, however, as "Farming Today" stated this morning, that in instances of major conflict between government departments the argument should be brought clearly into the open. We support that: Natural England should not be called on to arbitrate in such circumstances. The Government should not be able to devolve their own responsibilities to it. We believe that, to be a champion of the natural environment, Natural England must be seen to be so. The most damaging event for its reputation will be an occasion where the board is unreconciled, the press is in hot pursuit, the Government are disclaiming responsibility and the various lobby groups are given tongue.

I am sure that none of us wishes to see this solution being used at all, but I refer noble Lords to our debate on Report, when the Minister said:

"it would not be appropriate to cover conflict resolution in the statutory guidance".—[Hansard, 15/3/06; col. 1275.]

If your Lordships remember, the Government did a U-turn; we were told one thing on Monday and something else on Thursday with no satisfactory explanation. I hope that the Minister will give us at least some form of explanation, because if it was not possible to do it through guidance then, I wonder what has changed or whether the thinking has changed. I seek clarity from the Minister. I beg to move.

Photo of Lord Chorley Lord Chorley Crossbench

My Lords, I have been a rather wobbly supporter of the Sandford principle in the Bill's context, mainly because the issue is more complex than it is in the case of national parks, where I am firmly behind Sandford. In Committee, the principle was going to apply only to Natural England's first purpose, in the sense that it had precedence over the second purpose. That was a little odd, as at times it would be difficult to apply in such a situation. Under the noble Baroness's amendment, it would apply to both purposes; at least, that is my reading of it.

On Report, the noble Baroness referred to a letter in which the countryside Minister, Mr Jim Knight, had made a proposal. I received a copy of the letter, as did others, and I thought the proposal a sensible solution and a better way of dealing with the matter, because it took a more flexible approach. It turned out to be a red herring, because the Minister withdrew it, as we have just heard. I do not know what the problem was, but it was a pity that that happened. I would prefer to go back to that proposal. However, here we are back to square one, although not quite, because the amendment that we have before us is different from the one in Committee in a significant respect: it is wider.

The amendment has three key features. First, it applies to the first two purposes as against the remaining three, to which I indirectly referred. It therefore deals with my original worry on how in practice we can deal with differences between purpose 1 and purpose 2—or (a) and (b), as it is in the Bill—or whether we would want to or even should. Secondly, the issue has to be significant; that is important. Thirdly, the conflict has to be irreconcilable; whatever is proposed must be incompatible with one of the last three purposes, as I have said before. That is a demanding test. The occasions when such a conflict occurs will be rare or at least fairly infrequent.

The most likely cause will, I guess, be cases of unlimited access across an important SSSI, where irredeemable damage would be done. In most such cases, the issue would be resolved by limiting access—for example, by time of year, time of day or locationally. In other words, most such issues can be resolved by limiting access rather than by instituting a complete ban. The other area of conflict might have to do with economic development masquerading under the banner of the fifth purpose.

I am left with one niggling worry: will it open the flank to the threat of judicial review? I am prepared to put up with that risk, so on balance I will go for the amendment if the noble Baroness divides the House. The guidance of Sandford is useful. Unlike the Minister, I do not think that it will unduly cramp the style of the new board.

Photo of Baroness Young of Old Scone Baroness Young of Old Scone Non-affiliated 3:45 pm, 27th March 2006

My Lords, noble Lords have already recognised the muddle that we seemed to get into at a previous stage of the Bill with the guidance that existed and then did not exist—it came and went. The matter was perhaps inadequately debated at the previous stage and therefore I shall speak for slightly longer than is appropriate at this stage of the proceedings.

In supporting the amendment, I want to hark back to what some noble Lords may regard as ancient history, but which I think is a valid comparison—the position that English Nature found itself in on its establishment in the early 1990s. Noble Lords who recall the axing apart of the Nature Conservancy Council, which had covered the four countries of the UK until then, may recall that that act purported to be about devolution but was actually an act of neat revenge on the NCC, which had been a fairly trenchant champion of nature conservation until then. Indeed, it had "got in the way" of economic development on occasion and was reviled by some sectors of politics at that point. As a result, it suffered the penalty of being divided into four bits.

The NCC was also penalised in a different way, in that it was given a strong political signal at that time that that was the sort of thing which happened to bodies that stood up for nature conservation—they got hacked into pieces and told to sit in a hole and not be particularly championing in their approach. Indeed, for the first five or six years of its existence, English Nature did behave like that. It was frightened of its own shadow and it was not particularly robust in supporting nature conservation. Its staff were, at best, confused about their role and, at worst, demoralised. They were not explicitly told that if they put their head out of the hole it would be shot off, but that was certainly how they perceived the lie of the land. Basically, we had a nature conservation body which, due to an implicit political signal, would not even say "Boo" to a goose, far less to anybody who wanted to damage nature conservation interests. I am not saying that that will be the position as regards Natural England on its establishment, but those events show the power of gentle political signals in one direction or another. They were very much the result of an implicit rather than an explicit signal from the government of the time.

Successive leaderships of English Nature have changed that. They have made it clear that standing up for nature conservation is an okay thing to do. Indeed, we have seen some excellent work on the promotion of sustainable development through the conservation of nature done by English Nature since then. I believe that we run a double risk in not seeing either guidance to Natural England, or something in the Bill if guidance is not forthcoming. Without the right signal from government on the predominance of nature conservation, we run the risk that in some of the very rare, but nevertheless real, moments when there is considerable pressure from socio-economic development interests, harm will be done to nature conservation or the landscape. That is a problem. The double whammy is that, having argued all the way through the Bill that such a signal should not be given, the Government almost send the implicit signal that impacted on English Nature at its birth—that balance at all times is the order of the day and that, even in the rare circumstances where there is significant and irreconcilable conflict, that balance should be maintained. The risk is that during the passage of the Bill we are giving the wrong signal to Natural England at its birth.

On Report, the Minister talked about the risks of guidance. I declare an interest as chief executive of the Environment Agency. The Environment Agency is subject to 57 pages of guidance, which is renewed and reviewed every five years. At the agency's inception, the guidance contained some provisions that I was pretty sure we would be judicially reviewed on. I hesitated long and hard before I raised this issue on the Floor of the House today, because you can bet your bottom dollar that someone out there will read Hansard and come to the conclusion that we should be judicially reviewed on our sustainable development principle, but nevertheless we have not yet in our 10 years—it is our birthday this year—been so reviewed. To worry about guidance leaving an organisation wide open to frequent judicial review is probably not necessary.

I am conscious that it is unlikely that the Minister will have a change of heart at this stage in the proceedings. A gentle signal given through guidance to the new body that biodiversity and landscape must, when push comes to shove and significant and irreconcilable conflict takes place between the purposes, take precedence is not a huge thing to ask for and does not expose the new organisation to risk. I hope that the Minister might delight us all by saying that he has changed his mind.

Photo of Lord Cameron of Dillington Lord Cameron of Dillington Crossbench

My Lords, I spoke against this clause on Report, having been an agnostic in Committee. The whole point of Clause 2 is that it creates an equilibrium whereby Natural England must decide by itself where the right balance lies. Sustainable development is key here. I do not believe that Natural England will be cowed, as the noble Baroness, Lady Young, said about English Nature in its early days, by the economic case. I very firmly do not believe that Parliament should be taking decisions for Natural England in advance of hypothetical cases yet to come up before its board. That is all wrong. To quote my noble friend Lord Chorley, as he stated on the previous amendment, Natural England should be allowed to keep its hands free.

Photo of Lord Greenway Lord Greenway Crossbench

My Lords, I have consistently opposed the inclusion of the Sandford principle in the general purposes of the Bill. At Second Reading the Minister said that the Government had considered this clause very carefully and they thought that they had come up with the right balance. I agree on that; we have the right balance. The Sandford principle, commendable though it is in relation to national parks, is not appropriate to this Bill, because Natural England will have a remit far wider than that of national parks, including urban areas. It is correct that recreational and socio-economic interests should be balanced with conservation interests. It is not beyond the wit of the board of Natural England to come up with solutions when it comes up against conflict.

Photo of The Earl of Erroll The Earl of Erroll Crossbench

My Lords, I support my noble friend Lord Greenway. I am cynical enough to believe that someone could dig their toes in enough to make something irreconcilable and therefore always push it into an environmental decision. I have seen that sort of behaviour before elsewhere. It would be very dangerous to accept the amendment.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson in the Lords, Environment, Food & Rural Affairs

My Lords, on Report I said that we on these Benches were of the opinion that it was impossible to legislate for every single sort of case that Natural England would have to look at. When noble Lords are considering the amendment, it is important to remember that the board will be looking at dozens of cases that will be reconcilable. They will sometimes be extremely difficult to balance and yet they will be able to come to some form of opinion on them. It is not that the board will not have enough experience. In moving the amendment the noble Baroness said that it will be a body of people with different slants—independent people with knowledge and expertise. We will have to trust the board to be able to make judgments. It is possible that once every decade or so it will get that judgment wrong. We will probably be sad about that. However, it will get its judgments right most of the time. In the rare instance that it gets the judgment wrong, this clause would not necessarily get it right either, for all the reasons that other noble Lords have given.

The Bill has also strengthened—for example, in Clause 40, with the duty to conserve biodiversity—the position of wildlife, which is quite different from what it was at the time the noble Baroness, Lady Young, referred to. That was back in the days when you had only Swampy to defend the great crested newts against the roads. Time has moved on, which is part of the point of the CROW Act and, I hope, will be part of the point of this Act. I hope that it is one reason why we do not need this amendment—I believe that it is.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Farming, Food and Sustainable Energy)

My Lords, we return to conflict resolution. Whatever view we take of this, I am grateful that we have had debates on four occasions, including Second Reading, on this important topic. I am grateful, too, for the spirit in which those debates have been conducted. It will not surprise noble Lords to know that the Government remain opposed to including a clause of this type in the Bill.

Natural England's purpose, and the powers it has to research, experiment, advise and fund, have been drafted to be broad and enabling and, in particular, to give it the flexibility and, above all, the independence to be an effective and, indeed, trenchant—a word heard often in this House—champion of the natural environment, taking action on a wide front. However, Natural England will, of course, make its decisions in the context of sustainable development. It will contribute to sustainable development by proactively seeking solutions which, while achieving environmental benefits, also provide long-term economic and social benefits, and avoid untoward economic and social impacts.

With that remit at the forefront of our minds, I invite noble Lords to imagine that they are board members of Natural England. What sort of issues will come up for discussion and decision? I offer a few examples: first, deciding whether to fund a new initiative to improve the quality and accessibility of urban open space; secondly, advising government on their climate change action plan; thirdly, deciding how to target agri-environment funds to get the best value for money; fourthly, advising government on the management of a wild species whose population is out of control; and lastly, deciding whether or not to enter a statutory objection to a road scheme.

Noble Lords will remember the lively debate on Report about the pros and cons of tourist development in the Cairngorms. It is of course unlikely that Natural England will comment on a development in Scotland, but it is not a bad example of the type of complex issue which will come before the board.

Would the clause help members of the board to decide Natural England's position on the breadth of issues I have just listed? In each case, they would need to consider which of their objectives were in conflict. For example, is there a conflict between both social and economic well-being and environmental conservation, or just one of these? Perhaps there is a conflict between the study of the natural environment and conservation, or between the enhancement of the natural environment and its conservation. How might they resolve a conflict between the conservation of landscape and the protection of biodiversity, both of which are aspects of the natural environment? Having identified their conflicts, they must consider whether each one is "significant" and "irreconcilable". Thus, having reached a short list, they must decide exactly how to give "greater weight" to conservation and ensure that their decision is fully documented to show that it has taken into account all relevant considerations to resist challenge—possibly through judicial review. The effect of imposing such a statutory duty within Natural England's general purpose, far from being helpful to their deliberations as board members, would, in practice, be closer to a nightmare. The board would certainly need extremely good and attentive expert and legal advice to help to decide when a matter falls within the category of "significant, irreconcilable conflict".

It is not just the board of Natural England that must jump through those hoops. Every officer making a grant, issuing a licence or offering advice is likely to come under pressure from either the public or the affected customer to decide whether the situation at hand does or does not come within the parameters of this duty. That is likely to result in very detailed reasoning having to be recorded for all decisions that are made, which could add significantly to the workload of the new body.

Perhaps we should ask why no other equivalent body has a conflict resolution clause—not English Nature; not the Countryside Agency; not the Countryside Council for Wales; not Scottish Natural Heritage; not even the Environment Agency itself. None has such a duty. It may not be a surprise but the technical briefing to your Lordships of those bodies that will make up Natural England states that,

"the Bill aims to set up Natural England with a clear purpose but an integrated and measured overview of the natural environment. An independent NDPB should have the freedom to engage in debate with all parties and decide how it achieves its purpose, within a sustainable development context. The agency aims to be a robust champion for the natural environment and to exercise its judgement accordingly—it should not be told how to resolve any particular conflict".

That is the Government's view, too.

The case against a conflict resolution clause seems to be powerful. However, even if we are proved wrong, there remains the option of statutory guidance. As your Lordships know, and I make it abundantly clear again, we do not think that there is a case at the outset to issue guidance on the subject to Natural England. If, in time, it becomes clear, which we do not expect, that Natural England's decisions, or perhaps one subset of decisions, would benefit from such statutory guidance on how to resolve conflicts, we have the option of issuing such guidance, following consultation, as set out in Clause 15(3) of the Bill.

We believe that Clause 2, when read together with the Explanatory Notes, will provide the right framework for the board of Natural England to decide how to address the diverse range of complex issues that fall within its remit. It will be one of the Government's key advisers on managing the natural environment. Our argument is that it would not be right to constrain the judgment of the board in the Bill in the way proposed in the amendment, or to expose it to the threat—however unlikely—of judicial review on this ground for every difficult decision that it and its officers take. It is for those reasons that I invite the noble Baroness to withdraw her amendment.

Photo of Baroness Byford Baroness Byford Shadow Minister (Food & Rural Affairs), Environment, Food & Rural Affairs 4:00 pm, 27th March 2006

My Lords, I thank all noble Lords who have spoken, and I also thank those who do not agree with me. The joy of this House is that we have to make judgments at times. Obviously there are times when we disagree, and this is a very important clause.

I understand where the noble Lords, Lord Chorley, Lord Cameron and Lord Greenway, the noble Earl, Lord Erroll, and the noble Baroness, Lady Miller of Chilthorne Domer, are coming from. I do not agree with their position but I respect their views. I think that some form of inclusion in the Bill, such as we are suggesting, would be of benefit.

I am grateful to the noble Baroness, Lady Young of Old Scone, for her honest reflection of what happened when English Nature came into being. Although it was some years ago, and I accept that the noble Baroness said that times have moved on, it is clear that there may be times when the sort of amendment that we are proposing today would benefit the new board when it is set up.

It is a difficult issue. In my opening remarks I asked the Minister about how the Government would come back with guidance if it were necessary. They considered the issue originally on that Monday, and then changed their minds three days later and decided that guidance was not relevant or that they could not do it. How, even if it were in a delayed period of time—I should like the Minister to clarify that for me—would the Government be able to come forward with some form of guidance?

If it is not possible now, I do not understand how it could be possible in the future. Whatever reasons the Government had thought about at the time must be as relevant in the future. In his response to the amendment, the Minister said that if at some time in the future it were considered necessary, it would be possible to give statutory guidance, but he gave no indication how soon that might be or how it might be achieved. Only a week ago, we were told that it was not possible.

This is Third Reading, so I am in the very difficult position of having to put the amendment to a vote, as the Minister is unable to give me answers to the legitimate questions that I have raised. In the normal course of events, I would have thanked the Minister for his guidance and accepted the fact that it could be reviewed. However, he is unable to tell me how he would achieve that or what the time limit would be. It is not being reviewed in a three-year or a five-year period. We have been given no indication whatever on that.

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip

My Lords, I am put in a very difficult position. Questions should be put to the Minister while he is on its feet and before he sits down. With the leave of the House, if I correctly sense the good will of the House, the Minister could reply. Questions at Third Reading must be put to the Minister while he or she is speaking.

Photo of Baroness Byford Baroness Byford Shadow Minister (Food & Rural Affairs), Environment, Food & Rural Affairs

My Lords, I am very grateful. I was a little too slow to do that. I apologise.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Farming, Food and Sustainable Energy)

My Lords, I shall do my best. If I repeat myself, I apologise. At the moment, we are strongly against a clause to the effect of that put forward by the noble Baroness. We do not believe it is necessary; we think we should leave the matter to the independent judgment of Natural England. As I said, if, in the course of time, it becomes clear that the decisions of Natural England, or perhaps one subset of decisions, would benefit from statutory guidance on how to resolve the conflicts, we have the option, at any time, of adding to guidance that is already in place—of course, if Parliament were to agree—and issuing such guidance, following consultation. Our power to do that is set out in Clause 15(3). I make it clear that we do not feel there is any need for guidance at this stage. We think the matter should be left to the independent judgment of this important new body. But if we are wrong about that and if, in the future, that view is taken, we can issue statutory guidance.

Photo of Baroness Byford Baroness Byford Shadow Minister (Food & Rural Affairs), Environment, Food & Rural Affairs

My Lords, I thank the Minister and I thank the House for allowing the Minister to respond. However, he has not answered any of the questions that I asked him. The first was on how to achieve statutory guidance. Earlier we had been told what the situation was in a letter that we received from Alun Michael on the Monday, but by Thursday we were told that it was not possible to have guidance. Secondly, the Minister has given no indication that that may be reviewed at some time in the future. I do not want to get on the wrong side of things, but I am forced to test the opinion of the House.

On Question, Whether the said amendment (No. 3) shall be agreed to?

Their Lordships divided: Contents, 82; Not-Contents, 193.

Division number 2 Private Parking: Ports and Trading Estates — Natural Environment and Rural Communities Bill

Aye: 80 Members of the House of Lords

No: 191 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

Clause 18 [Commission's general purpose]:

[Amendment No. 4 not moved.]

Clause 19 [Representation, advice and monitoring]:

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Farming, Food and Sustainable Energy) 4:20 pm, 27th March 2006

moved Amendment No. 5:

Page 7, line 29, leave out from "which" to "and" in line 30 and insert "relevant persons' policies are developed, adopted and implemented (by rural proofing or otherwise)"

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Farming, Food and Sustainable Energy)

My Lords, Amendment No. 5 revisits the role of the Commission for Rural Communities with respect to rural-proofing. The noble Lord, Lord Cameron, spoke very convincingly to an amendment on this subject at Report. I responded that I was minded to accept the principles of his amendment, but that he and I should agree a slightly different form of words for the Bill.

The noble Lord and I had what I think we would both describe as a very interesting and, I hope, very positive discussion on this issue, and the form of words set out in the amendment is one with which we are, I hope, both content.

Amendment No. 5 makes a revision to Clause 19(c) that further clarifies the role of the Commission for Rural Communities with respect to rural-proofing. It will widen the CRC's monitoring role to include looking at how bodies develop policy as well as implement it. That will enable it to make better judgments about how the rural-proofing process is undertaken by organisations—for example councils or RDAs—as they develop their strategies. It will also enable the CRC to provide government departments and other bodies with an impartial, expert view not only of the way in which their policies are meeting rural needs, but of whether their processes of policy development are taking proper account of the rural angle.

Given the definition of "relevant persons" elsewhere in the Bill, Clause 19(c) empowers the CRC to undertake this role in respect of bodies in both the public sector and the private and voluntary sectors, where such bodies are concerned with any aspect of rural needs. All that will add weight to the CRC's advocacy and watchdog roles, and will make the CRC a body that must be listened to.

The role of the Department for Environment, Food and Rural Affairs in rural proofing will remain unchanged. Defra champions rural-proofing within government, taking the lead on setting rural-proofing policy and promoting rural-proofing to government bodies at all levels and providing advice to other government departments and delivery bodies on how best they can support delivery of the Government's rural agenda.

Clarifying the role of the CRC in the way set out by this amendment will help both Defra and the CRC to work together to help to ensure that polices which affect rural areas are adequately rural-proofed and that the needs of people and business in rural areas are properly considered by policy makers. That will, I am sure, be good news to anyone concerned with the well-being and future of rural areas.

In commending the amendment to the House, I put on record our appreciation of the persuasive support of the noble Lord, Lord Cameron, for the CRC and other sections of the Bill. Rural-proofing has been a successful policy tool since its introduction in 2000, not least, if I may say so, because of the role which the noble Lord played during his time as chairman of the Countryside Agency. I beg to move.

Photo of Lord Carter Lord Carter Labour

My Lords, I added my name to the rural-proofing amendment tabled in Committee, and I am sure that the Minister will remember our short debate on Report on rural housing. Although that debate was on another amendment, it was an excellent example of rural-proofing at work. I would like to think that our debate rural-proofed—if that is the right word—the Government's housing policy in the shared ownership sector. As we know, the Government have decided not to change the policy as they had intended, for which we are extremely grateful. The words are just right if you read them in the context of a practical example of the sort that I have just given of rural housing. That would certainly fit into this and all the other areas. This is good wording, and I shall certainly accept it.

Photo of Lord Cameron of Dillington Lord Cameron of Dillington Crossbench

My Lords, I thank the Minister for his kind words, and for being as good as his word and including the words "rural-proofing" in the Bill. It really is very important to strengthen the CRC in this way, and the fact that it must now examine the way in which other persons and departments develop, adopt and implement policies through a rural-proofing process will be crucial for rural areas in the future. I greatly support the amendment.

Photo of Baroness Byford Baroness Byford Shadow Minister (Food & Rural Affairs), Environment, Food & Rural Affairs

My Lords, I spoke in Committee and on Report on this, and I particularly endorse the comments made by the noble Lord, Lord Carter. I hope that they are a very good example of what the Commission for Rural Communities will do, and I am grateful to the Minister for retabling the amendment.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson in the Lords, Environment, Food & Rural Affairs

My Lords, I certainly believe that the amendment strengthens the Bill greatly, and I am very grateful that the Government have drawn the conclusion that they have under the helpful guidance of the noble Lord, Lord Cameron of Dillington. Before we go too far in our encouragement of rural-proofing, perhaps the first thing that the CRC could scrutinise is the plan of the Department for Work and Pensions to abolish Post Office card accounts.

On Question, amendment agreed to.

Photo of Viscount Allenby of Megiddo Viscount Allenby of Megiddo Crossbench

My Lords, I must inform the House that in the first Division this afternoon, the number voting "Not-Content" was 144 and not 143, as previously announced.

Clause 57 [Effect of failure to serve certain notices in connection with SSSIs]:

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Farming, Food and Sustainable Energy)

My Lords, Clause 57 provides a saving for the validity of SSSI notifications where it appears that the conservation bodies discover a missed party, despite having taken all reasonable steps to discharge the duty to notify every owner and occupier of the site. In Committee, my noble friend Lord Carter raised the important issue of applying this measure retrospectively to protect all existing sites against a legal challenge on this basis. On Report, the noble Baroness, Lady Miller of Chilthorne Domer, tabled an amendment which sought to achieve that. I promised to return on Third Reading with amendments that would do so satisfactorily. I note the support for this in the House, and I am delighted to say that I have been able to do what noble Lords have asked.

Amendment No. 6 ensures that the provision applies to SSSI notifications given either before or after its commencement, thereby capturing all existing sites. Amendment No. 7 deals with the important question of liability. We should bear in mind that we are talking about a very small minority of people compared with the many thousands of notified owners and occupiers. Nevertheless, we considered it right, in ensuring the validity of the sites, to provide that liability is not imposed in respect of any action or inaction that occurred before commencement of the provision.

Amendment No. 7 ensures that liability in relation to the two specified offences that concern owners and occupiers will not be imposed until they have come to light and the conservation bodies have served the notification papers on them. I beg to move.

On Question, amendment agreed to.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Farming, Food and Sustainable Energy)

moved Amendment No. 7:

Page 23, line 5, leave out "under section 28P(1)" and insert "—

(a) in relation to anything done or omitted to be done before the commencement of this section, or

(b) under section 28P(1) or 28Q(4)"

On Question, amendment agreed to.

Clause 67 [Ending of certain existing unrecorded public rights of way]:

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Farming, Food and Sustainable Energy)

My Lords, Amendment No. 8 is tabled after consideration of Amendment No. 138A which was moved by the noble Baroness, Lady Byford, on Report. It strengthens new subsection (2)(a) of Clause 67, which will exempt from extinguishment any route where it can be shown that, for five years before commencement, public use had been mainly by motor vehicles. It does that by ensuring that, in determining the balance of use prior to commencement, only lawful use by mechanically propelled vehicles is taken into account.

On Report, I undertook to consider four other amendments. We have looked at them carefully, but have concluded that we cannot table amendments such as these. I will briefly explain why. Amendments Nos. 146 and 150 sought to amend what is now Clause 67(5) and new subsection (7B) of the Highways Act 1980—inserted by Clause 69(1)—so that, to be made "correctly", applications for definitive map modification orders must comply with paragraphs 1 and 2 of Schedule 14 to the 1981 Act.

On a practical level, that sort of amendment would open up uncertainty because it could easily be a matter of dispute whether paragraph 2 had been complied with. More significantly, it would not work because paragraph 2 is not about making an application; it is about whether an application has been made. Nevertheless, as these two provisions stand, for an application to be valid it has to be submitted in the prescribed form with the correct supporting documentary evidence.

We are grateful to the noble Baroness for her assistance in tabling Amendments Nos. 154ZA and 154ZB on Report, but having now had an opportunity to consider those amendments further, we have concluded that the exemption works properly without the amendments. We are satisfied that the government amendment which is now incorporated into Clause 70 closed any potential loophole and that no further amendments to this clause are necessary.

I understand that there are residual concerns about whether it will be possible for people to argue that they are lawful visitors to a RUPP. Under new subsection (2A) of the Road Traffic Act 1988, introduced by Clause 70, the exemption covers only those who have an interest in the land, or, after commencement, are visitors to any land. People using former RUPPs for recreational purposes will not be lawful visitors to land after commencement. RUPPs will be reclassified as restricted byways immediately before commencement, and restricted byways do not carry rights for mechanically propelled vehicles. I beg to move.

Photo of Lord Bradshaw Lord Bradshaw Spokesperson in the Lords, Transport

My Lords, I thank the Minister for what he has said, which has cleared up two outstanding issues from Report stage. Both issues were doubtful. But, from what the Minister has said, first, any claim for a byway which is submitted to a local authority must be a properly made claim on the proper forms—a postcard, as it were, through the door of the local authority would not constitute a proper claim. Secondly, anyone using RUPPs which are converted to restricted byways will not be able to do so as "casual" people. They would be able to do so only with access to someone who enjoys rights of access along that highway. I am grateful to and thank the Minister.

Photo of Baroness Byford Baroness Byford Shadow Minister (Food & Rural Affairs), Environment, Food & Rural Affairs

My Lords, I thank the Minister again for having listened to the weight of debate that we had on Amendments Nos. 138A, 146 and 150. We are very glad of the clarification, particularly on the two items that were still not quite settled. In thanking the Minister for taking on the thoughts behind the amendment, I have a question for him—I think it is a simple one, so I hope he will be able to answer it now. If the land in question were to be sold, how would the seller confirm that a right of way for vehicles was already there and if the lawful use in the five years prior to commencement was not by the public but by a person with an interest in the land, would this clause still apply? This is a minor clarification, but I would be grateful to have it before we accept this amendment.

I am grateful to the Minister because several questions have been raised about access and the proper use of land and I am even more grateful for his clarification that a claim cannot be accepted until it is properly fulfilled and completed in the fullest sense. I await the Minister's response to my question.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Farming, Food and Sustainable Energy)

My Lords, I thank the noble Baroness for taking her time making her points. Her question may have been simple to her, but I am not sure that it was simple to me or to others. We will be debating rights of way in the next amendment, so I shall come back to her on this point then. I can write to the noble Baroness, but it would be nice to clear this matter up today. I hope that that will be acceptable.

On Question, amendment agreed to.

Photo of Lord Carter Lord Carter Labour

moved Amendment No. 9:

Page 27, line 38, leave out "19th May 2005" and insert "the relevant date"

Photo of Lord Carter Lord Carter Labour

My Lords, in moving my amendment, I remind the House that debate has to be relevant to the question before the House. It will be interesting to see how the Minister gets the answer to the noble Baroness's question on the previous amendment into debate on a later amendment.

Amendment No. 9 is a paving amendment for Amendment No. 11, which makes the relevant date in England 20 January 2005 and in Wales 19 May 2005. Your Lordships will know that 20 January 2005 was when the Government published their response to the consultation proposals, their framework for action on which they announced their intention to legislate.

I had intended to go into great detail on this amendment, but I note that the Minister has added his name to it, which leads me to suppose that he intends to support Amendments Nos. 9 and 11. If that is the case, I will leave him to set out the Government's case for the amendment. I beg to move.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Farming, Food and Sustainable Energy)

My Lords, I hope that the House will forgive me for getting up at this stage to confirm our support for the amendment tabled by my noble friend. We had lengthy and useful discussions in Committee and on Report on this aspect of the Bill and there is a great deal of interest in it inside and outside this House. I set out at length—maybe at too much length on one occasion—the sound reasons why we could not accept the earlier amendments setting a cut-off date of 9 December 2003. Having said that, and without wanting to repeat those arguments, the Government recognise the cross-party strength of feeling on this issue. A huge amount of correspondence about this has been received not only by Members of Parliament but also by Members of this House. That correspondence has been reflected in the strength of feeling expressed here and in the other place. In recognition of that strength of feeling, the Government are prepared—reluctantly—to accept a cut-off date of 20 January 2003, which, as my noble friend said, represents the end of the consultation period. We feel that this date could be justified. I am sorry, I am wrong—

Photo of Lord Carter Lord Carter Labour

No, my Lords. It is 2005.

Noble Lords:

Oh!

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Farming, Food and Sustainable Energy)

My Lords, the fault is entirely mine. I will start that sentence again to avoid any misunderstanding.

In recognition of the strength of feeling, the Government are reluctantly prepared to accept a cut-off date of 20 January 2005. This date is justified as it is the date on which the Government published their conclusions on the outcome of the consultation in which they first announced their clear intention to introduce, at the earliest legislative opportunity, these rights of way provisions.

Photo of Baroness Byford Baroness Byford Shadow Minister (Food & Rural Affairs), Environment, Food & Rural Affairs

My Lords, I speak to my amendment, which is linked to these two amendments. I believe we are finally coming to the end of the road—although that is perhaps a bad pun—on this highly contentious issue. My original amendment would have set the exemption date back to 9 December 2003. I will not have a go at the Minister for that slight slip a minute ago. All noble Lords are aware of the substance of that debate and the motives behind it. We on these Benches are still of the opinion that our original date of December 2003 is the preferable option. The issue of figures has been quite confusing. Across the board, the number is widely agreed to be very high. Taking into account multiple applications, I have estimated that there have been 1,000 applications since December 2003.

The issue, however, is not necessarily the number of applications affected. We all heard on Report—because I spoke on it—about the story of Dr Karen Hinckley and the damage done to the green lanes of her parish by motorised vehicles. There are now no protected green lanes left in her parish. There have been applications to convert every green lane in the parish into a BOAT. As it will take years to process, the use of green lanes will continue unabated. It is simply too difficult to prosecute those using green lanes that have applications pending.

It came to my attention only last week that the Trail Riders Fellowship has been paying its members a £250 bonus if they manage to make a successful claim. I understand that the Minister in another place knew about that some time ago. I was shocked to receive a flier, in which it promised to,

"pay back your membership over and over again".

That is not the action of a group that has a responsible or thoughtful attitude—either to the applications process or to the land which they will use.

That is the state of affairs in many parts of the country. Our belief is that the more applications that fall under the cut-off provision, the better it is for conservation and for those who use green lanes in the countryside. Many people whose hobby is horse riding have told me that where they may have used those lanes in the past, they now cannot. The lanes are so damaged that they fear they will damage and break the legs of their horses.

We are grateful to the Minister, however, for adding his name to the amendment moved by the noble Lord, Lord Carter, which would take the date back from 19 May 2005, to January 2005. The GLPG has estimated that that will save another 500 pending applications—that is, of applications that we know about. The other 500 or so applications made between December 2003 and January 2005 will still stand and will have to be processed.

We recognise, however, that this is a very positive move from the Government. In spite of the amendment that we had tabled prior to hearing of this concession, we on these Benches support it. I thank the Minister for his constructive response to our case for protecting green lanes. I urge other noble Lords who spoke in support of my amendment in Committee and on Report to support the amendment moved by the noble Lord, Lord Carter, to which the Minister's name has been added.

Photo of Viscount Tenby Viscount Tenby Crossbench 4:45 pm, 27th March 2006

My Lords, I tender my apologies to the House for not being able to speak at Report last Monday. My name was on the original amendment.

All the relevant arguments have been powerfully made on this point in particular by the noble Baroness, Lady Byford, and by the noble Lord, Lord Bradshaw. They really have stretched it out. I had the impression looking through the debate that the Minister, with his usual thoroughness and courtesy, was not entirely unfriendly to the purpose behind the amendment, and we have since heard that that is the case today. Any increase in the bulging backlog of applications will inevitably result in further deterioration in BOATs, green lanes, RUPPs and the like. While they are being processed, already overburdened parish and county councils will be diverted from repairing the damage which has already taken place very extensively.

Whether half a loaf will be better than none remains to be seen but I feel I must accept, if not gracefully at least realistically. I am grateful to the Minister for offering to reduce the problem so generously, even if it falls short of what we had hoped for at the start of these deliberations.

Photo of Lord Bradshaw Lord Bradshaw Spokesperson in the Lords, Transport

My Lords, I shall listen to one part of the Minister's reply very carefully—when he replies to the point made by the noble Baroness, Lady Byford, on the police's enforcement powers when a right of way is used and a claim has been submitted but not actually determined. I believe that the police have the powers to deal with anyone who uses a right of way for which a claim has been made but which is not recorded on the definitive map, and any feebleness by the police to prosecute those is something on which we should press very hard. There is no doubt at all that the use of many of the rights of way—as the noble Baroness, Lady Byford, said—is quite contrary to the use of the rights of way for horse-riders, walkers and those who wish—and this is what most people want—to enjoy the peace and quiet of the countryside. So I shall be looking in the Minister's reply for a definite statement on what the police are expected to do, and what they can do, about claims which have not been processed and agreed to and the work carried through to a mark on the definitive map.

Photo of Lord Cameron of Dillington Lord Cameron of Dillington Crossbench

My Lords, I thoroughly approve of the Government's intentions in Clauses 66 and 67. I apologise to the House that I was not here to speak on Report. It all seemed to me absurd that the precedent of the passage of a horse and cart should be used to allow motorised traffic to tear up our green lanes. I still cannot understand why we cannot apply the principles involved now. It seems to me to be rather like the Chancellor of the Exchequer introducing capital gains tax and saying that it will not apply to anyone who has notified that they are going to transfer an asset; in other words, it was not going to bite for several years.

Perhaps I may give a local example of the effect of the legislation. In my home county of Somerset, since December 2003 we have gone from an applications backlog of 24 to over 200 in respect of byways open to all traffic. The new cut-off date—and I realise that a deal has been done—of 20 January 2005 means that there will still be a backlog of nearly 100 claims. In other words, the speed of progress is about 16 or 17 claims a year, because of the judicial processes and such, and the new rules will not apply for five or six years in Somerset. I do not think that that is right. So I still believe that 9 December would have been the best cut-off date. That way we could have ensured we had the maximum number of paths, where the pleasures of walking on them remained as they are. So I am rather disappointed and would have preferred the original amendment tabled by the noble Baroness, Lady Byford.

Photo of Lord Brooke of Sutton Mandeville Lord Brooke of Sutton Mandeville Conservative

My Lords, I shall speak very briefly and of course I speak in support of what my noble friend Lady Byford said from the Front Bench. I have only two things to say. The first is that the Minister made much at Report of the principle of fairness and the need to make allowance for when particular things had happened. I cannot help but remark that if the Government had acted earlier, we would not have quite the problem that we have today. Although the Minister is coming well out of today's debate, he is coming well out of a bad situation and one that would have been improved—it is not his fault, as he was not the Minister at the time—if the Government had acted earlier. If they had done, we would not have as much of a backlog as we have. Secondly, the Minister will recall that I asked him on Report whether it was true that there had been a heavy concentration on Cheshire and Wiltshire. He was unable to answer on that occasion and I quite understand why, but I wonder whether he has the information now.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Farming, Food and Sustainable Energy)

My Lords, I am grateful for what the noble Baroness, Lady Byford, and the noble Lord, Lord Bradshaw, have said. Of course, this compromise does not suit everybody. There will be those who are not entirely satisfied with it; very few people will be entirely satisfied with it. I appreciate the point that the noble Lord, Lord Cameron, made, but it is our view that this is a sensible and suitable compromise and that the Government have listened to the representations that have been made so powerfully—in this House, in the other place and in postbags. Of course the postbags have gone both ways, but in particular in one way.

I turn immediately to the last point made by the noble Lord, Lord Brooke. The number of claims in Wiltshire is certainly high—there are 85 outstanding BOAT claims. This does not make it the worst, but the figure is high. That does not seem to be the experience in Cheshire, although I do not have the figures for that county.

I shall deal now with the detailed questions, including one that was raised in our last debate and the query put by the noble Lord, Lord Bradshaw. This may take me a little time but I will be as quick as I can. The exemption from prosecution under new Section 34(2A) of the Road Traffic Act 1988, inserted by Clause 70 of the Bill, moves to the purchaser of the property, provided that the way was in use at the time that the RUPP became a restricted byway. The "private right" in Clause 67(4) is also attached to the land.

The noble Lord, Lord Bradshaw, asked whether, if a person has submitted a claim that is still outstanding and would be preserved by Clause 67(3), that person can continue to use that right of way with a motor vehicle until that claim has been determined and whether the police would be able to prosecute that person. Whether it would be illegal to drive on that right of way would ultimately depend on whether the claim is justified—in other words, where the public motor vehicular rights can be proved to exist. Schedule 7 to the CROW Act strengthens Section 34 of the Road Traffic Act, so that a right of way is taken to carry only those rights that are shown on the definitive map and statement unless the contrary can be proved. In other words, the burden of proof has now been placed squarely on a defendant to prove that public motor vehicular rights exist in order to avoid conviction. So, for example, where a right of way on the definitive map is a presumption, that is correct until proved otherwise.

It has become apparent to us that Schedule 7 to the CROW Act has been widely misunderstood and that many enforcement agencies and rights of way professionals do not appreciate that the strength in Section 34 is already in force and has been since shortly after the CROW Act received Royal Assent. It is for that reason that we have recently published the guidance entitled Regulating the use of motor vehicles on public rights of way and off road: A guide for Local Authorities, Police and Community Safety Partnerships. It provides information to encourage enforcement authorities to make better use of existing legislation.

After commencement of Part 6 of this Bill, where claims are not preserved by Clause 67(3) or where there are no outstanding claims, which is of course the vast majority of cases, those who drive motor vehicles on rights of way that are not already recorded as byways open to all traffic will no longer be able to rely on unrecorded public motor vehicular rights as a defence because those rights will, subject to the exemption in Clause 67(3), have been extinguished by subsection (1). This is a complex area of law and we intend to issue guidance to the police, local authorities and others about the rights of way provisions in this Bill. It will include guidance to assist with enforcement of the law over rights of way which are the subject of outstanding applications for BOATs at the time this part becomes law. When a claim has been submitted but not determined, the prosecuting authorities of course have a discretion whether to prosecute in each case, and the existence of a pending application may be a factor relevant to the exercise of that discretion.

I hope that I have answered all the points raised both in the last debate and today. If not, I shall write to all noble Lords concerned and make available copies of that reply. But so far as the dates are concerned, I am grateful for the attitude taken by noble Lords on the Front Benches and in other parts of the House.

Photo of Lord Williams of Elvel Lord Williams of Elvel Labour

My Lords, does the guidance issued under the CROW Act, which I understand is relevant to both England and Wales, also apply in Wales?

Photo of Lord Bradshaw Lord Bradshaw Spokesperson in the Lords, Transport

My Lords, will the noble Lord confirm that the prosecuting authority to which he referred at the close of his remarks is not the police or the local authority, but in fact the Crown Prosecution Service? Will he make sure that any guidance issued goes to that service? I can see very well that it is likely to advise that no case will be brought to prosecution if a claim is outstanding. That really is the nub of the argument that we are trying to put to the Minister.

On Question, amendment agreed to.

[Amendment No. 10 not moved.]

Photo of Lord Carter Lord Carter Labour

moved Amendment No. 11:

Page 28, line 8, at end insert—

"( ) "The relevant date" means—

(a) in relation to England, 20th January 2005;

(b) in relation to Wales, 19th May 2005."

On Question, amendment agreed to.

Clause 72 [Traffic regulation on byways etc in National Parks]:

Photo of Baroness Byford Baroness Byford Shadow Minister (Food & Rural Affairs), Environment, Food & Rural Affairs

moved Amendment No. 12:

Page 31, line 20, at end insert—

"(A1) No order shall be made under subsection (2) with respect to any road which would have the effect of limiting access to land, with or without mechanically propelled vehicles, or a person with an interest in that land or their invitees.

(A2) In subsection (A1) "interest" shall have the meaning given in section 71(1) of the Natural Environment and Rural Communities Act 2006."

Photo of Baroness Byford Baroness Byford Shadow Minister (Food & Rural Affairs), Environment, Food & Rural Affairs

My Lords, this is a minor matter but I seek clarification from the Minister. We debated the issue at length on Report. The amendment would ensure that safeguards are included in the legislation to prevent the making of traffic regulation orders over access to private land for those who make use of that land primarily for business purposes. If I reflect him correctly, on Report the Minister stated that he simply did not share my fears on this. I may be misrepresenting him, which I certainly do not wish to do, but at a subsequent meeting the possibility arose that regulations might be made to prevent restrictions of access where access was needed for longer than the eight-hour allowance provided under national park traffic regulation orders.

I said at the previous stage that I was not satisfied with the Minister's response to a very real concern for the well-being of businesses in national parks and I would be grateful if he could enlighten me on the presence of those regulations, which I do not believe have yet been clarified sufficiently. I beg to move.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Farming, Food and Sustainable Energy) 5:00 pm, 27th March 2006

My Lords, as the noble Baroness said, Amendment No. 12 is similar to an amendment that she tabled on Report, which sought to place limitations on the new traffic regulation order-making powers given to national park authorities by Clause 72. The aim is to ensure that that these powers could not be used to unreasonably restrict access to land by persons with an interest in that land.

I have explained that we have given the matter careful consideration, but we have not changed our view. I recognise that there is concern that the statutory purposes of national park authorities might at some point lead to those authorities paying less regard to the needs of landowners than local highway authorities would. I do not share that view. National park authorities have a duty when pursuing their statutory purposes to seek to foster the social and economic well-being of local communities. They are used to doing so across the range of their responsibilities, which—after all—include carrying out the functions of the local planning authority.

In any case, local highway authorities, when making decisions about any matter that might affect a national park, are also required to have regard to the national park statutory purposes. Therefore, if we consider it correct to give the national park authorities powers to make traffic regulation orders, we should do so under the same terms as they are applied by local highway authorities, and the existing safeguards will apply. That is the approach that we usually adopt when entrusting powers to the national park authorities and so far it has proved well founded.

I want to reassure the noble Baroness and the House that Clause 72 provides for the modification of the national park authorities' TRO-making power, through regulations under subsection (3) of the new section of the Road Traffic Regulation Act 1984. But I do not envisage that such regulations will be needed to protect access to land by those with an interest in that land. I hope that that is a slightly fuller explanation than was given last time, and I invite the noble Baroness to withdraw her amendment.

Photo of Baroness Byford Baroness Byford Shadow Minister (Food & Rural Affairs), Environment, Food & Rural Affairs

My Lords, I am grateful to the Minister. The issue has been raised with us following the discussions on Report because it was felt that it was not clear enough. I am grateful to the Minister for placing on record further clarification and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Baroness Byford Baroness Byford Shadow Minister (Food & Rural Affairs), Environment, Food & Rural Affairs

My Lords, before the Bill passes, I would like to place on the record the thanks of these Benches to Ministers for the way in which they have dealt with the Bill. There have been some contentious issues to overcome. While I would have liked the whole loaf, half a loaf tonight in the protection of the rights of way is welcome. I would also like to express the disappointment of my noble friend the Duke of Montrose. Sadly, through a family death, he had to be in Canada and so was not able to be with us, but I know that he would like to join me in expressing our thanks to the Ministers and other noble Lords.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson in the Lords, Environment, Food & Rural Affairs

My Lords, I associate these Benches with the thanks to the Minister. We have had disagreements at times, but we now have a Bill that will, I hope, make the next steps in rural England and, indeed, in relation to the environment in urban communities. From our perspective, this is perhaps more a case of a loaf and a half: we would have liked a bit less carbohydrate in the Bill, but I will not go back there. I, too, thank the Ministers for their time and effort in talking to us between the Bill's stages.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Farming, Food and Sustainable Energy)

My Lords, I thank the noble Baronesses on behalf of the Government for those kind comments, which I return in turn. This is an important Bill, shortly—I hope—to become an Act of Parliament. That is something that all sides of the House want to see happen as soon as possible. I am extremely grateful for the help that has been given to the Government by noble Lords from all parts of the House. The Bill has been improved significantly since it came to the House; it is now a better Bill.

I pay tribute to my noble friend Lord Haskins, who in a sense is the author of a great deal of the Bill. I also mention my noble friend Lord Whitty, my predecessor, who was in charge of the Bill when he was a Minister at Defra. Certainly not least, I thank my noble friend Lady Farrington for the important part that she has played in our proceedings. I am grateful to noble Lords in all parts of the House, not least the Cross Benches, where a great deal of the expertise on this subject resides.

On Question, Bill passed, and returned to the Commons with amendments.