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The Parliamentary Under-Secretary of State for Scotland (Lord James Douglas-Hamilton) : I beg to move, That this House doth agree with the Lords in the said amendment proposed in lieu of the Commons amendment.
The original Commons amendment was, in my view, acceptable in so far as it removed the right of appeal against development schemes or projects. For the reasons that I gave in Committee, such a right of appeal is unnecessary, because a development cannot be affected without the owner's approval. However, after much careful reflection, we considered that, in addition to removing this right of appeal, it was appropriate to take steps to meet the several concerns that have been expressed about the scope of Scottish Natural Heritage's compulsory purchase power under clause 5.
Mr. Tam Dalyell (Linlithgow) : Will the Minister give way?
Lord James Douglas-Hamilton : I wish to develop my point first, but I will give way to the hon. Gentleman later.
As I have stressed throughout the passage of the Bill, it is of the utmost importance that Scottish Natural Heritage should be able to develop positive and co-operative relations with all those involved in land use, and this extra safeguard, which we are applying to the compulsory purchase powers in the clause, will be most helpful in that regard.
Mr. Dalyell : As the Minister has said that much careful thought has been given to these matters, are we to believe Mr. Charles Clover, the well -respected correspondent of The Daily Telegraph? He writes in this morning's edition of that newspaper, among other things, that Professor Sir Fred Holliday, chairman of the standards committee for the United Kingdom, was not consulted. Was Sir Fred consulted or was he not?
Lord James Douglas-Hamilton : On this particular matter?
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Lord James Douglas-Hamilton : I cannot confirm that he was. I can tell the hon. Gentleman that compulsory purchase order powers exist for a range of issues--for example, where SNH is satisfied that it is in the national interest that land should be managed as a nature reserve but is unable to conclude an agreement on reasonable terms. There are various other grounds that I can specify if the hon. Gentleman so wishes.
Lord James Douglas-Hamilton : All right, I shall spell them out. If the hon. Gentleman is anxious to have all the details, I shall give them to him.
Compulsory purchase would be possible where agreement for management of a nature reserve is breached in a way which prevents or impairs the satisfactory management of the land. The other compulsory purchase order that is available to SNH is in relation to public access to open country if it is impracticable to obtain such access by agreement or order.
The amendment provides that compulsory purchase orders made by the Secretary of State under clause 5 should be subject to special parliamentary procedure. Hon. Members may know that, under that procedure, a CPO does not come into effect until it has been laid before Parliament and has been brought into operation in accordance with the special procedure Acts. Petitions may be presented against the CPO and either House may resolve that the order should be annulled.
The most notable use of the procedure at present is to safeguard National Trust land. The definition of "owner" which we have used includes tenants under a lease with more than three years to run. This means that, where such a tenant objects to the compulsory purchase, special parliamentary procedure would come into operation. Hon. Members will appreciate that this provides the same safeguard for a small tenant farmer as for a large landowner. I am sure that the House will be rightly pleased about that.
Overall, the practical effect of the amendment would be that even if the Secretary of State agreed with SNH that a CPO should be made, Parliament's approval would be required via these procedures. I remind those who feel that we may have gone too far with the amendment, and effectively neutralised the compulsory purchase power, of the nature and scope of clause 5. That clause is essentially a re-enactment of a provision that exists in the Countryside (Scotland) Act 1967. In most instances where the Countryside Commission for Scotland has used the power, the agreement of the landowner has been very easy to obtain. That is because the land concerned has generally been of little value and not in gainful use. We expect that pattern to continue. It is unlikely that SNH would wish to pursue a project where the landowner did not consent. It is therefore unlikely that SNH would ever wish to use its compulsory purchase powers, and the Countryside Commission for Scotland has made no use of them for 20 years. Resort to compulsory purchase in such instances would go against the entire basis of co-operation and partnership that we wish to see SNH establish.
The hon. Member for Linlithgow (Mr. Dalyell) asked me earlier whether Professor Sir Fred Holliday was consulted on CPOs. The answer is no. That is because the Joint Committee of the Councils for Mature Conservation has no statutory responsibility for the powers that are set
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out in clause 5. I think that the hon. Gentleman is referring to an amendment that will be dealt with later. I know that he will be especially interested in that amendment.Mr. Gavin Strang (Edinburgh, East) : The Minister said that compulsory purchase powers rest with the Countryside Commission for Scotland. It would seem that the existence of those powers did not prevent a constructive dialogue between the commission and landowners in the community generally. The existence of the powers, although they are never used, surely puts the commission in a position of some strength when discussions take place. Does he not accept that, by weakening the relevant provisions, he is undermining Scottish Natural Heritage?
Lord James Douglas-Hamilton : I have never before heard criticism of the involvement of Parliament in such matters. I entirely agree with the hon. Gentleman that the powers have been of assistance to the Countryside Commission for Scotland. Let me give an obvious example. Suppose that nobody knows who is the owner of a piece of land. That person may have emigrated 50 years ago. He may not have any descendants, and he may be impossible to trace. I can envisage a compulsory purchase order being entirely reasonable in such circumstances. But the involvement of Parliament is a safeguard in contentious cases.
10.30 pm
Hon. Members will recall that we had a debate in Committee on the availability of compulsory purchase orders, in response to an amendment moved by my hon. Friend the Member for Dumfries (Sir H. Monro). As I explained on that occasion, I feel that, in many ways, the fact that the equivalent existing power has never been used by the Countryside Commission for Scotland is rather a good reason for retaining the power for Scottish Natural Heritage, as it shows that it is very much a power of last resort, the exercise of which would not be entered into lightly.
Given the concerns of all involved in land use as to the scope of compulsory purchase powers, I am confident that the amendment will allow the clause to strike a proper balance between their interests and the powers of Scottish Natural Heritage in relation to development projects. With that in mind, I trust that the House will support the amendment.
Mr. Dalyell : We want to get on to the new clause 11, but I ask the Minister one question. He referred to the land being "of little value". In whose judgment is it of little value? Who has made the value judgment that it is of little value in this instance?
Lord James Douglas-Hamilton : All land is of particular value to the person who owns it ; that goes without saying. What I meant was that, in monetary terms, it was of relatively little value. Perhaps I should have been more specific in the language that I used.
Mr. Dalyell : My final comment is that I wonder how well thought out the provision is, and why we did not hear much about this in Committee. Frankly, the Government and their advisers might have thought of it a good deal earlier.
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Lord James Douglas-Hamilton : Perhaps the hon. Gentleman does not recall that the criticisms that were made in Committee related to the notion of having compulsory purchase orders in the first place. Those criticisms were made from a very different angle from those being made by the hon. Gentleman tonight. But the involvement of Parliament is a safeguard in contentious cases, and I am surprised that the hon. Gentleman, who is a great parliamentarian, should criticise the fact that we are seeking to involve Parliament in such matters. Question put and agreed to.
The Lords agree to the following amendment made by the Commons : After clause 5, insert the following new clause--
Natural Heritage Areas .--(1) Where it appears to SNH, after consultation with such persons as it thinks fit, that an area is of outstanding value to the natural heritage of Scotland, and that special protection measures are appropriate for it, it may recommend to the Secretary of State that the area be designated as a Natural Heritage Area.
(2) Where the Secretary of State receives a recommendation under subsection (1) above he may designate the area by a direction under this subsection as a Natural Heritage Area.
(3) Where the Secretary of State proposes to make a direction under subsection (2) above he shall publish notice of the proposal in the Edinburgh Gazette and in at least one newspaper circulating in an area which includes the proposed areas.
(4) Before making a direction under subsection (2) above, the Secretary of State shall consider any representations received by him about the proposal within six weeks of the date which is the later of the dates on which the publication under subsection (3) above of notice relating to the proposal occurs.
(5) Where the Secretary of State makes a direction under subsection (2) above he shall publish notice of the designation in the Edinburgh Gazette and in at least one newspaper circulating in an area which includes the Area.
(6) Where is appears to SNH, after consultation with such persons as it thinks fit, that it is no longer appropriate that an area which has been designated as a Natural Heritage Area or any part of it should continue to be so designated it may recommend to the Secretary of State that the designation be cancelled or, as the case may be, varied.
(7) Where the Secretary of State receives a recommendation under subsection (6) above he may, by a direction under this subsection, cancel or, as the case may be, vary the designation of the Natural Heritage Area ; and subsections (3) to (5) above shall apply to a direction proposed to be made under this subsection as they apply to a direction proposed to be made under subsection (2) above, and for the purposes of such application the reference in subsection (3) to the proposed area shall be construed as a reference to the Area. (8) Section 262C of the Town and Country Planning (Scotland) Act 1972 (National Scenic Areas) shall be amended as follows-- (
(a) in subsection (3) for the words "National Scenic Area" there shall be substituted the words "Natural Heritage Area under section [ Natural Heritage Areas ] of the Natural Heritage (Scotland) Act 1991 ; and
(b) in subsection (4) for the words "National Scenic Area" there shall be substituted the words "Natural Heritage Area".
(9) Notwithstanding the repeal by section 26 of and Schedule 11 to this Act of subsections (1) and (2) of the said section 262C or the amendment by this section of subsections (3) and (4) of that section, any area which, at the date of such repeal, was designated as a National Scenic Area shall continue to be so designated and, until such designation is cancelled by a direction under the said section 262C, the provisions of that section shall continue to have effect in relation to the area as if they had not been repealed or, as the case may be, amended.'.
but propose the following amendment thereto :
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Lords amendment : in subsection (4), leave out "six weeks" and insert "three months".Lord James Douglas-Hamilton : I beg to move, That this House doth agree with the Lords in the said amendment to the Commons amendment. The amendment provides for a longer period for the receipt of representations in dealing with the establishment of a natural heritage area. Six weeks is a standard period for representations in planning legislation, but the longer period is perfectly reasonable here, as allowing a substantial time for commenting on a NHA proposal is, of course, entirely in keeping with the Government's view of NHAs as promoting a co-operative approach between all relevant interests. Such an approach is in tune with the fundamental philosophy of Scottish Natural Heritage.
The extension of the period to three months should ensure that anyone who is absent on holiday or the like at the time of the proposal being published is properly able to be involved in the process. I trust that the House will share that view of what is a simple, but important, amendment.
Mr. Robert Maclennan (Caithness and Sutherland) : Can the Minister give us any information about the
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consequences of designation ? If he cannot, can he explain why we should accept that three months would be a suitable time ?Lord James Douglas-Hamilton : On the consequences of designation, there is a detailed procedure, and I should be happy to send the hon. Gentleman a summary of what it would mean. The management of an area would be set out in a management statement and that would eventually have to go to the Secretary of State for approval at the time of designation. He could approve it in whole or in part or not approve it, depending on how good the case was. One of the effects of designation would be that priority would be given by Scottish Natural Heritage with regard to management and access agreements. Certainly, priority would be given to the areas of research and of course the flow country, in the hon. Gentleman's constituency, might be a prime candidate for consideration in this category. I shall be happy to send the hon. Gentleman further information should he wish me to do so.
Question put and agreed to.
The Lords disagree to the Amendment made by the Commons to leave out clause 11, but propose the following amendment in lieu thereof : Lords amendment : No. 3, to leave out clause 11 and insert the following new clause--
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" .--(1) The Secretary of State shall appoint a committee (in thissection referred to as "the Committee") which shall have the function ofgiving advice to SNH on such matters concerning areas of specialscientific interest as are specified in this section. (2) The chairman and members of the Committee shall be appointedby the Secretary of State from among persons who are not members ofSNH or of any committee appointed by it having scientificqualificationsand experience in relation to flora or fauna or the geological orphysiographical features of land.
(3) The chairman and members of the Committee shall be appointedupon such terms and for such periods as the Secretary of State maydetermine and they shall be paid by SNH such remuneration andallowances as the Secretary of State may, with the consent of theTreasury, determine.
(4) The Secretary of State may, from time to time, give directions to theCommittee as to its procedure.
(5) Where SNH has given notification to the owner or occupier of anyland under subsection (1) of section 28 of the Wildlife and CountrysideAct 1981 (areas of special scientific interest) that the land is or forms partof an area of special interest and has received from the owner or occupierof the land, within the time specified in subsection (2) of that section,representations or objections relating to any reason specified in thenotification in pursuance of subsection (4)(a) of that section and theowner or occupier does not agree to withdraw such representations orobjections, it shall refer the matter to the Committee.
|Cash terms |Real Terms
|£ 000 |(1990 Prices)
|£000
--------------------------------------------------------
1979-80 |25,800 |51,771
1980-81 |27,333 |46,349
1981-82 |26,474 |40,940
1982-83 |29,358 |42,389
1983-84 |32,588 |44,973
1984-85 |33,861 |44,471
1985-86 |32,875 |40,950
1986-87 |36,056 |43,409
1987-88 |48,906 |55,897
1988-89 |53,058 |56,439
1989-90 |58,486 |58,486
Source: Statistics of the British Aid Programme
|In |Outside
|London |London
-------------------------------------------------------------
(a) a Crown Prosecutor |£36,868|£29,404
(b) a Senior Crown Prosecutor |£42,225|£34,306
(c) a Grade 4 Chief Crown Prosecutor |£67,424|£59,281
a Grade 5 Chief Crown Prosecutor |- |£53,056
Mr. Deputy Speaker (Sir Paul Dean) : With this we may take the following amendments : (d), in line 3, at end insert
(a
(giving advice to SNH in relation to objections or representations made in respect of an application for a sea bed lease for aquaculture within or affecting an SSSI as specified in subsections (4A) and (4B) below ; and)
(b) '.
(e), in line 17, at end insert--
(4A) Where an application has been made to lease part of the sea bed (including the bed of a sea loch) within or affecting an SSSI for the purposes of establishing a fin-fish or shell-fish farm, or extending an existing fish farm, and objections and representations have been made to the leasing authority and, within six months of such representations having been made, they have not been withdrawn, the matter shall be referred to the Committee.
(4B) Notwithstanding the provisions of subsection (4A) above where any objections or representations made in respect to a sea bed lease granted for the purposes of aquaculture, and where--
(a) not less than 10 years have elapsed since the date of granting such a lease, or
(b) a sea bed lease was granted prior to October 1986, or (
(c) a sea bed lease was granted prior to the coming into effect of the Environmental Assessment (Salmon Farming in Marine Waters) Regulations 1988,
the matter shall be referred to the Committee.'.
(a), in line 27, to leave out subsection (6).
(b), in line 45, to leave out from applies' to without' in line 46.
(c), in line 53, to leave out subsection (8).
I should inform the House that the amendment involves privilege.
Lord James Douglas-Hamilton : I beg to move, That this House doth agree with the Lords in the said amendment proposed in lieu of the Commons amendment.
I think that it will be for the convenience of the House if I take account of the amendments in the name of the hon. Member for Western Isles (Mr. Macdonald).
As the House will know, the former clause 11 of the Bill has had a somewhat turbulent history. There were a number of reasons why we considered it unacceptable. In the first place, it would have placed an onerous burden on SNH. It would also have involved so much time and effort that it is doubtful whether SNH could have devoted much effort to any of its other duties during its first five years of existence. Apart from these practical objections, there was, of course, a matter of principle at stake. That led us to oppose both the former clause 11 and the amendments moved in Committee. The clause and the amendments established a right of appeal to the Secretary of State. That would have been a fundamental departure from the provisions of sections 28
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and 29 of the Wildlife and Countryside Act 1981 and could have resulted in the erosion of the scientific basis of the designation. As that legislation not only embodies the SSSI procedures, but gives effect to our commitment to nature conservation under both international treaties and EC directives, any departure from that legislation on a purely Scottish basis would have called into question our commitment to those obligations and could have led to the risk of challenge in, for example, the European Court of Justice.Mr. Dalyell : Has the Minister seen what was said by Charles Clover in The Daily Telegraph this morning? Was Sir Fred Holliday consulted? Is it or is it not true that the Department of the Environment has said that the procedure will not be imposed in England? What has the Secretary of State for the Environment to say about that?
Lord James Douglas-Hamilton : I cannot say whether my right hon. Friend the Secretary of State for the Environment has been consulted, although I have little doubt that he will be aware of the matter because of public reporting of it. As for the other matter, the criteria for SSSIs will remain exactly the same throughout Britain. It is for the Department of the Environment and the Welsh Office to decide about structures in specific parts of the United Kingdom. Let me remind the House about the way in which SSSI procedures have been operated. The hon. Member for Argyll and Bute (Mrs. Michie) was so concerned about the issue that she raised it in her maiden speech. She said :
"We must seek a proper balance between nature conservation and the interests of the people who live and work in the area. To that end, I hope that the Secretary of State for Scotland will urgently consider the establishment of a Scottish nature conservancy council. The people of Islay are deeply upset and angry. They fear that in the end 65 per cent. of the land area of Islay will become eligible for designation, and, if that happens, depopulation could occur on a scale not seen since the infamous clearances.--[ Official Report, 13 July 1987 ; Vol. 119, c. 717.]
During the passage of the Environmental Protection Bill, the hon. Member for Western Isles made strong representations over the way in which the Nature Conservancy Council had operated the SSSI system in his constituency. He stated :
"Too often, I am sorry to say, the southern-based environmental lobby, including the NCC, has been seen by ordinary highlanders as alien, aloof, insensitive, remote, and sadly devoid of any appreciation of the special history and culture of the Highlands and Islands."--[ Official Report, 15 January 1990 ; Vol. 165, c. 81.] I have a high regard for NCC members and for the work that they do, but both hon. Members have a point in believing that the NCC needed to become more responsive to local circumstances.
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The Scottish Crofters Union, in its representations for the paper, "Scotland's Natural Heritage", stated :"Crofters in general are very dissatisfied with the way these SSSIs are designated, and especially with the wording of the statutes that regulate them. The NCC has done little to address this problem." Similarly, the Borders Farming and Forestry and Wildlife Advisory Group stated :
"In many cases, the way in which the Special Interest of SSSIs have been communicated to farmers and land owners leaves much to be desired. A less abrasive procedure would achieve better co-operation."
We produced the new clause to balance the legitimate concerns expressed by owners, crofters, and occupiers of land about the role of Scottish Natural Heritage in SSSI notification with our fundamental commitment to the SSSI system, as set out in sections 28 and 19 of the 1981 Act.
The new clause was approved by an overwhelming majority in another place, where it had the general support of Opposition peers. The Opposition's Front-Bench spokesman for Scotland in another place had a briefing meeting with my noble Friend Lord Strathclyde and with officials on the morning of the debate on our new clause. I am sure that, as a result, he fully understood its purpose and
effect--contrary to reports that appeared in the media.
The new clause places a duty on the Secretary of State to appoint a committee of people of relevant scientific qualifications and expertise, whose independence from SNH is guaranteed by the provision in subsection (2), which excludes the appointment to the committee of any member of SNH, or a member of any committee appointed by SNH. The committee's remit covers only the scientific validity of the notification of new and existing SSSIs. In relation to new SSSIs, subsection (5) provides in effect that if any owner or occupier objects to notification and SNH cannot persuade him to withdraw his objection, SNH has a duty to refer the matter to the committee for advice.
Mr. Maclennan : I read subsection (2) with considerable care, but it is highly ambiguous. I take it that the Minister intends that members of the advisory committee should have scientific experience, but the clause could equally well be interpreted as excluding those who have scientific qualifications and experience. As a matter of statutory construction, I am far from convinced that the Government have got that subsection right. It seems possible that scientists would be excluded from membership of the committee.
Lord James Douglas-Hamilton : The hon. Member asks a question that I asked a short time ago. Advisory committee members must have scientific qualifications, but it is important that they should not also serve as members of boards of Scottish Natural Heritage. However, if a person came off one of those boards, there is no reason why his or her eligibility for the advisory committee should not be considered. However, a person could not serve on both simultaneously.
Mr. Dalyell : It is proper that the Minister, as a lawyer, should have asked that question. May I ask him in turn of whom he asked that question, and what was the reply?
Lord James Douglas-Hamilton : I assure the hon. Gentleman that we have what I regard as extremely good legal advice in the Scottish Office, whose officials act as a team. I assure the House that they would not make
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proposals unless they had been carefully checked by Scottish Office lawyers--and, as the hon. Gentleman knows, Bills are drafted by lawyers.10.45 pm
Subsection (6) deals with existing SSSIs, which in general are subject to a somewhat different procedure. Scottish Natural Heritage is given six months to try to persuade the owner or occupier to withdraw his objection. If the representations have not been withdrawn within six months, SNH must refer the matter to the advisory committee. The subsection distinguishes two different categories of existing SSSI. In cases where objections or representations were made at the time of the original notification, the owner or occupier can ask SNH to refer the case to the committee as soon as the Bill comes into operation. For other cases--that is, where no objections were expressed in the first place--SNH does not need to refer the matter to the committee unless 10 years have elapsed from the date of notification. In relation to both new and existing SSSIs, the objections must relate to the scientific interest of the site.
Subsection (7) makes it clear that SNH cannot reach a decision until it has received and considered the committee's advice. A copy of that advice must also be sent to the objector when SNH notifies its final decision on the case. Subsection (8) introduces a 10-year cycle for objections for all SSSIs, once they have been dealt with under the provisions of subsection (5) or (6).
That is an essential feature of the new clause, as SNH could otherwise be asked to refer the same SSSI to the committee almost continuously. Ten years seems a reasonable period, especially when it is borne in mind that SNH will constantly monitor the scientific interest of the site during that period under the general workings of the 1981 Act.
Mr. Dalyell : Before the Minister leaves the review procedure, can he explain why that socialist newspaper, The Daily Telegraph , quoted Mr. Magnus Magnusson--the chairman-designate of Scottish Natural Heritage--as saying that he was
" deeply unhappy' about the review procedure which he believes could overburden his new-born quango and lead to the reconsideration of any of Scotland's 1,300 SSSIs"?
If it is all such plain sailing, why has SNH's own chairman not been carried with it?
Lord James Douglas-Hamilton : When I saw--
Mr. Dalyell : Answer the question.
Lord James Douglas-Hamilton : I intend to answer the question ; the hon. Gentleman must give me the opportunity to do so.
When I saw Mr. Magnus Magnusson, he made it clear that he would approach the subject in a very positive frame of mind. I have nothing but confidence in his chairmanship. I think that he is outstanding. The hon. Gentleman asks a valid question. He wants to know how much pressure could be put on SNH in, for example, the number of cases that could be generated--
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