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Clause 13 - Incidental powers

Natural Environment and Rural Communities Bill – in a Public Bill Committee at 5:15 pm on 21st June 2005.

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Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs) 5:15 pm, 21st June 2005

I beg to move amendment No. 48, in clause 13, page 5, line 39, leave out from ‘that’ to ‘the’ in line 40 and insert ‘is reasonable for’.

This is an important amendment. Clause 13 has the anodyne heading ‘Incidental powers’, but then goes on to say in subsection (1):

Natural England may do anything that appears to it conducive or incidental to the discharge of its functions.”

I read that, frankly, as meaning Natural England can do virtually anything. My reason for concern is the qualification, ‘that appears to it’. In other words, as long as Natural England itself—ultimately the board—is content ‘that it appears to it’ that what it is doing is okay, then it must be okay and, therefore, in pursuit of or ‘conducive or incidental’ to the discharge of its functions.

The Minister has referred to independence several times during the debate, and the Select Committee spent a lot of time considering that issue. I support the idea that the organisation should be independent, but there must be some limits on it, because it is a corporate entity, a legal person. The Minister said a few minutes ago that it would be accountable through the Secretary of State, but I believe that it has to be accountable ultimately to the community that it serves.

I refer back to the earlier conversation about rural communities and landowners and others, because my reading of these incidental powers is that they are so wide that as long as it appears to Natural England that what it is doing is right, it can do anything, which may be to the disadvantage of someone else. Among its many functions is, as we have discussed, the enforcement of various wildlife and natural environmental protection legislation. Its functions are also to enter into management agreements and, obviously, to interpret them, to carry out research, to advise, to give grants and to do all manner of other things.

It occurs to me that there could be a situation in which Natural England intended in effect to force an organisation or individual to do something that they did not like and which they genuinely believed to be beyond or irrelevant to the purposes outlined in clause 2. There needs to be an opportunity for ultimate challenge. I am certainly not advocating vexatious   challenges or challenges on minor issues, but there needs to be some opportunity for someone who believes that the organisation has gone beyond reality to be able to challenge it in the courts, and I do not believe that that is possible given the phrasing of subsection (1). As I understand it, as long as Natural England could convince the court that it appeared to it that the action was conducive or incidental to the discharge of its functions, that would be all that was necessary. Whether any reasonable person would have believed that does not seem to be relevant.

It would have been easy for me simply to propose deleting subsection (1), but throughout our proceedings I have tabled amendments that are designed to address in a reasonable—I use the word advisedly—way what we are trying to achieve. In reply to an earlier debate this afternoon, the Minister said that we were trying to set up—I think that I wrote this down verbatim—“an independent body with as wide powers as we can reasonably give to it”.

I understand that and do not really disagree with it, but it seems to me that he has gone beyond it in clause 13. That seems to me to go beyond reasonability, which is why I propose deleting the part about anything that appears to Natural England to be conducive or incidental, and simply saying that it may do anything that “is reasonable for” the discharge of its functions. It would then have the opportunity to judge whether something was reasonable. The proposal does not seem to offend that. My understanding—I do not pretend to be a lawyer—is that “reasonable” can be challenged in the courts, so someone who felt really aggrieved and that the organisation was going beyond what most people would think of as reasonable could challenge it. That is all I seek to achieve. I simply want to place a small constraint on what I see as the completely open-ended ability of Natural England to do anything that it likes.

Photo of David Kidney David Kidney Labour, Stafford

I thank the hon. Gentleman for giving way. It was the mention of lawyers that caused me to intervene, as a former solicitor. I forget the name of the case of half a century ago, but judges supervising statutory bodies exercising statutory powers have said since that time that those powers have to be exercised reasonably; if they are not, they are subject to judicial review. There is no necessity to say that they must be reasonable, which is why the draftsmen left it out. Nevertheless, the hon. Gentleman is entirely right; they must be reasonable.

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs) 5:30 pm, 21st June 2005

I thank the hon. Gentleman for his intervention. I hope that I do not receive a bill for his advice in the morning. I noted that he said, “As a former solicitor”; I did not think that they ever stopped charging. However, I am grateful for his comments and for his support for my fundamental point that what Natural England does must be reasonable. However, having said that and accepting his advice, I do not understand why that point should not be covered in the Bill.

As legislators, hon. Members must remember that we are producing legislation that applies to everybody else out there. People watching or reading our proceedings and reading the legislation could, with some justification, look at clause 13(1) with a degree of apprehension—I put it no more strongly than that—that Natural England appears to be able to do whatever it likes. I therefore ask the Minister to consider whether there is a way—perhaps as I described—simply to say that it should act reasonably in the discharge of its functions as a way of mitigating any concerns.

I have made my point and the hon. Member for Stafford (Mr. Kidney) has endorsed my objective, although he said that it is not necessary to put such a provision in the Bill. It might not be necessary—I will not argue that point—but it would be helpful and advisable to do so and I should be grateful if the Minister would consider it.

Photo of Jim Knight Jim Knight Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Rural Affairs, Landscape and Biodiversity)

The conducive and incidental powers in clause 13 are standard powers for any non-departmental public body. However, the powers are also frequently the cause of confusion. Indeed, it has been pointed out to me that we had a similar amendment and a similar debate in the House on the Food Standards Act 1999 when the Opposition spokesman, the hon. Member for Meriden (Mrs. Spelman), deputising for the hon. Member for South-East Cambridgeshire, described the clause we were debating, with some wit, as the Martini clause, “Any time, any place any where.”

This debate will happen regularly and it may therefore be helpful and reassure the Committee if I clarify the standard powers, and spell out what they are all about. Their purpose is to ensure that there is clarification of the flexible powers that are implicit for non-departmental public bodies. They do not give Natural England carte blanche to do anything that it wants; they are secondary powers—a similar point was made on the last clause—that support its main powers and duties set out in clauses 3 to 12 and are informed by clause 2. In all cases, and in common with all public bodies, Natural England would be able to exercise its functions only in a reasonable manner, as my hon. Friend the Member for Stafford said.

The need for public bodies to behave reasonably in the exercise of all their powers is a cornerstone of public law. It is implicit in giving any power to a public body that the power will be exercised reasonably. In some ways, the amendment goes wider than might have been anticipated. It is better to limit it to a power to do things that are conducive and incidental, which is already limited to doing things in a reasonable way. Because it is implicit that it is reasonable, we are limiting it further by adding extra objectives.

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs)

I am interested in what the Minister is saying. He is addressing the issue of conducive or incidental and I accept that those words would be omitted by my amendment. However, my main concern is the phrase “appears to it”, which is the issue of who makes the judgment as to whether something is   conducive or incidental to the discharge of its functions. That was my intention, even if I did not make it clear.

Photo of Jim Knight Jim Knight Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Rural Affairs, Landscape and Biodiversity)

My interpretation of what the hon. Gentleman says is that it becomes very subjective for Natural England to make its own judgment about its actions. I reassure him that this is not a subjective issue. Natural England’s decisions can be legally challenged if those decisions are not reasonable and if they are not considered to be conducive or incidental. That is the reason for the clause, and the reason why it is a standard clause for all the non-departmental public bodies that are set up. I hope that that explanation is sufficient and helpful, and that he will withdraw the amendment.

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs)

I am grateful to the Minister. I have no grounds for not accepting his assurance that a decision taken by Natural England will be challengeable in the courts if someone wants to challenge its reasonableness. He is right that my concern is about subjectivity and that Natural England can do anything as long as its decisions appear reasonable to it. I must accept what he said, but I still do not quite see why the clause could not be slightly constrained, again without necessarily sticking to my phrasing of the amendment, to make it a little less confusing to those who might see that possibility. However, I am happy to accept his words at this stage.

Photo of David Kidney David Kidney Labour, Stafford

I just want to help the hon. Gentleman on the point about reasonableness. By the way, half the name of the case was Wednesbury Corporation; I remember that much.

It is true that an organisation has to decide whether the decision is conducive or incidental, but the objectivity of the reasonableness test is what the judge will apply later on. In other words, the judge will still strike it down if no reasonable person could have said, “I think this is incidental to our powers.” That reasonableness is the overriding test, and the judge has got the organisation if its judgment has not been reasonable or sincere.

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs)

I am grateful for the hon. Gentleman’s advice. The bill is totting up. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 ordered to stand part of the Bill.