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Mr. Atkins: By Opposition Members as much as anyone else. Bearing in mind the comments that have been made, one might be forgiven for thinking that clause 38 represents a radical attack on environmental protection, including an attempt to replace environmental analysis and the precautionary principle as a basis for setting standards, with cost-benefit analysis to demonstrate that the short-term value, in terms of money, of benefits, will always outweigh the costs before action can be taken.
Ms Ruddock: Will the Minister give way?
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6.45 pmMr. Atkins: I shall always give way to the hon. Lady, but I would like to get a little way into my speech. If the hon. Lady insists, I shall give way.
Ms Ruddock: I do insist. I am extremely grateful to the Minister for giving way. Before he goes any further, I want him to acknowledge that there is no precedent, and that HMIP does not work under the same conditions. Indeed, the National Rivers Authority never worked under the same conditions. English Heritage, English Nature and the Countryside Commission, all of which are key environmental bodies with which the Government have worked, have not worked under the same conditions. The conditions that we are discussing are unique.
Mr. Atkins: We know that, in Committee, the hon. Lady quoted from briefs from various organisations, all respectable ones that had a great part to play in our proceedings, and made great play of their views. I shall deal with as many of the matters that she has raised as I can.
It is suggested that clause 38 is a Pandora's box, in that any action taken by the agencies could be challenged for the first time in the courts if they, the agencies, could not demonstrate in each instance that the most comprehensive cost-benefit analysis showed beyond reasonable doubt that the action was justified in monetary terms. No doubt we could have an interesting debate about the consequences of adopting such an approach, but it would not be relevant to our consideration of the clause. As was repeatedly made clear in another place and in earlier consideration in this place, there is not that form of duty under clause 38.
In essence, what clause 38 requires is simple. First, it imposes a duty on each agency to consider costs and benefits. Secondly, the clause is limited to those cases in which the agency properly has discretion. Thirdly, it requires the agency to use its discretion in a reasonable way.
The clause gives the agencies considerable and necessary discretion in determining how consideration is best undertaken in the prevailing circumstances. It does not require them to undertake cost-benefit analysis in each case, or to demonstrate a particular balance before they act. It does not place cost-benefit analysis above or in place of environmental assessments. The Government recognise the importance of longer-term and difficult-to-quantify environmental effects. In short, far from weakening environmental protection, the new duty is an essential element in helping both the regulator and the regulated to focus on environmental priorities in the context of sustainable development, and to avoid misallocation of resources through inappropriate regulatory action.
Ms Ruddock: Will the Minister clarify for me whether he thinks that what he has just said means that the agencies will set their corporate objectives bearing in mind the cost-benefit requirement?
Mr. Atkins: I see no reason why the agencies should not set their corporate objectives in that way. Why does the hon. Lady think that that should not be the case?
Ms Ruddock: I am seeking clarification from the Minister. It is his proposal that we are discussing. It seems possible that the corporate objectives of the agencies
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could be set with regard to the cost-benefit requirement. In our view, the corporate objectives of the agencies should be about enhancing and serving the environment.Mr. Atkins: We have had long debates on Second Reading and in Committee on this issue. I have made it clear on every possible occasion that at the forefront of the Government's mind, and that of the Department of the Environment and eventually those of the agencies, will be environmental considerations. They cannot do that without taking account of costs and benefits. That is the crucial difference between the Government and the Opposition.
Mr. Michael Jopling (Westmorland and Lonsdale): I have been approached by the Wildlife Trust for Cumbria, which has expressed some concern about this issue. It asked me to obtain assurances from the Minister that, in five, 10 or more years from now, the work of the agencies will bring about a better future for Cumbria's wildlife. My impression is that that will happen, but I should be grateful for the Minister's assurance that that is his view.
Mr. Atkins: I can say yes on two counts, and not only because I would be in dereliction of my duty if I did not accede to my right hon. Friend's request and his continued representations on the lake district, one of the most lovely parts of England. Secondly, I can say yes because, as my right hon. Friend correctly concludes, the Bill sets out just that objective. I have no doubt that, when it becomes an Act, my right hon. Friend's concerns and those of his constituents will not be realised, because the Act will address the matter in strong terms.
Sir Kenneth Carlisle: Perhaps my right hon. Friend can enlighten me further. If, next year or the year after, the agencies start to do a cost- benefit analysis which leaves out conservation issues and does not enhance the environment or follow the line that my right hon. Friend the Member for Westmorland and Lonsdale (Mr. Jopling) has raised, will the Government be able to instruct the agencies to take far greater account of the desirability of conserving and enhancing natural environmental beauty; or will they not be able to influence the agencies at all?
Mr. Atkins: My understanding is that we could accede to that request. The Government could certainly bring some pressure to bear, and would do so if we felt that my hon. Friend's concerns and mine were not being recognised.
Mr. Dafis: I should like some clarification about the way that the cost-benefit process will be undertaken. The guidance mentions cost-benefit analysis. May I take it that, if the process is used at all, a formal analysis will consider matters that are quantifiable in money terms? If that analysis shows that a measure may not be justified in cost-benefit terms, will the less quantifiable or non-quantifiable considerations subsequently be brought to bear, so that they might overturn the consequence of the outcome of the cost-benefit analysis? The point that I am trying to make is that there is a difference between cost-benefit analysis and a consideration of costs and benefits.
Mr. Atkins: I take the hon. Gentleman's point, but I do not agree with it. We consistently and continuously made it clear on Second Reading and in Committee that, while environmental considerations are at the forefront of what the agencies must do and what my Department is doing, we cannot proceed without considering costs and benefits.
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Mrs. Anne Campbell: Will the Minister give way?Mr. Atkins: I should like to make some progress, because I have been stuck on the same paragraph for some time.
Mrs. Campbell: My question is on the specific point that the Minister is dealing with.
Mr. Atkins: I give way to the hon. Lady.
Mrs. Campbell: Many Opposition Members are concerned about costs and benefits being weighed against environmental benefits in a way that we do not think will be fully beneficial. Is one of the reasons for the Minister's approach the fact that his Department is working on what it calls an integrated environmental index, which intends somehow to combine costs with some environmental factors? I do not find that reassuring, but perhaps the Minister could say how his Department or HMIP is thinking about this issue.
Mr. Atkins: I intended to mention that matter, but as the hon. Lady has asked about it, I shall deal with it now. I said in Committee that, in 1991, my Department issued a guide called "Policy Appraisal and the Environment". There was a follow-up in 1994 illustrating its applications to specific cases, and it was entitled "Environmental Appraisal in Government Departments". Also relevant is a document entitled "A Guide to Risk Assessment and Risk Management for Environmental Protection", which we published earlier this month.
As I said in Committee, the National Rivers Authority has developed a manual on the assessment of costs and benefits, which it currently applies when, for example, assessing proposals for water quality standards. Hon. Members, including the hon. Member for Cambridge (Mrs. Campbell), have regularly pressed me for greater precision and specification in the requirements that are to be incorporated in the Bill. However, it is important to appreciate that, the more precise and detailed a requirement is, the greater the inevitable risk that it will prove inappropriate in a particular case. The risk that the agencies will be open to challenge for failing to pursue that procedure will follow.
I have made it plain why the Government are not prepared to delete clause 38. Much as Opposition Members may deny it, it is hard to see amendment No. 3 and new clause 3 as anything other than delaying tactics to avoid the early introduction of the duty. They certainly show a lack of confidence in the ability of the new agencies to use their judgment and professional expertise in dealing with a reasonable requirement, and their wide discretion on discharging their duties.
There is an erroneous belief among Opposition Members that somehow there is a generalised right way to take account of costs and benefits, and that it can be applied to all the circumstances that the agencies will face. They also think that it could be discovered if only there was sufficient prior effort and consultation. That is simply unrealistic.
As I said earlier, considerable work has been done on this matter, and I do not think that any technique will be equally applicable in every circumstance. Clause 38 implicitly recognises that the agencies must be able to exercise their judgment on what sort of consideration is appropriate in any particular circumstance. That is likely
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to lead to a modest and desirable evolution rather than a single sudden shift in the way that the agencies approach their tasks compared with their predecessor bodies.Ms Ruddock: Given what the Minister has just said, why does he not accept our view that these matters should be the subject of guidance? He has clearly stated that this so-called science is utterly imprecise, and he has given every reason why agency decisions should be subject to judicial review. He must agree that this is not a proper matter to put in the Bill. I repeat that it would be unique to do that.
Mr. Atkins: The hon. Lady is obsessed with judicial reviews. I have tried to explain that the agencies will be allowed wide discretion. If matters are made more precise and specific, there is a likelihood that more judicial reviews will be held than were conducted in the past. What I said in Committee bears repeating. I remind the hon. Lady that I said:
"All challenges by way of judicial review require leave to be given by a judge. If they are unsuccessful they can result in orders for costs against the challengers. Frivolous or vexatious challenges are disallowed. There are significant protections against the bringing of borderline or exploratory cases for judicial review."--[ Official Report, Standing Committee B , 18 May 1995; c. 285.] As I have said in this debate and in others, being precise and specific is likely to do more harm than good.
Although there is a fundamental issue between the Government and the Opposition on this clause, I suspect that there is not much difference between us on the way that the matter is being addressed. Opposition Members have made it clear that they believe that the cost assessment of any action by the agencies should be of secondary importance. That is not our view. Despite the fact that we have debated this issue time and again, I cannot accept the amendment that proposes to replace clause 38 or the amendment tabled by the hon. Member for Ceredigion and Pembroke, North (Mr. Dafis).
In summary, at best the amendment of the hon. Member for Ceredigion and Pembroke, North is confusing. The new clause, as I have sought to explain, is unnecessary, and its interpretation differs from that which we believe. If carried--I am sure that it will not be, because I shall urge my right hon. and hon. Friends not to do so--it will result in precisely the field day for lawyers about which so much concern has been expressed by hon. Members on both sides of the House.
Ms Ruddock: The Minister has been utterly unconvincing. He has failed to answer the fundamental point: why should these matters be on the face of the Bill and not in guidance, their proper place, for which universal acclaim exists on the Opposition Benches and in all concerned bodies outside the House? The new clause must be pressed to a Division.
Question put, That the clause be read a Second time:--
The House divided: Ayes 242, Noes 263.
Division No. 178] [7.00 pm
AYES
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Abbott, Ms DianeAdams, Mrs Irene
Ainger, Nick
Ainsworth, Robert (Cov'try NE)
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Allen, GrahamAlton, David
Anderson, Donald (Swansea E)
Armstrong, Hilary
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Ashdown, Rt Hon PaddyAustin-Walker, John
Barnes, Harry
Barron, Kevin
Battle, John
Bayley, Hugh
Beckett, Rt Hon Margaret
Beggs, Roy
Bell, Stuart
Bennett, Andrew F.
Benton, Joe
Bermingham, Gerald
Berry, Roger
Betts, Clive
Blair, Rt Hon Tony
Blunkett, David
Boateng, Paul
Bradley, Keith
Bray, Dr Jeremy
Brown, Gordon (Dunfermline E)
Brown, N (N'c'tle upon Tyne E)
Burden, Richard
Byers, Stephen
Caborn, Richard
Campbell, Mrs Anne (C'bridge)
Campbell, Menzies (Fife NE)
Campbell, Ronnie (Blyth V)
Campbell-Savours, D N
Cann, Jamie
Carlile, Alexander (Montgomery)
Chidgey, David
Chisholm, Malcolm
Church, Judith
Clapham, Michael
Clark, Dr David (South Shields)
Clarke, Tom (Monklands W)
Clelland, David
Clwyd, Mrs Ann
Coffey, Ann
Cohen, Harry
Connarty, Michael
Cook, Frank (Stockton N)
Cook, Robin (Livingston)
Corbett, Robin
Corbyn, Jeremy
Corston, Jean
Cousins, Jim
Cunningham, Jim (Covy SE)
Cunningham, Rt Hon Dr John
Dafis, Cynog
Dalyell, Tam
Davidson, Ian
Davies, Bryan (Oldham C'tral)
Davies, Rt Hon Denzil (Llanelli)
Davies, Ron (Caerphilly)
Denham, John
Dewar, Donald
Dixon, Don
Donohoe, Brian H
Dowd, Jim
Eagle, Ms Angela
Eastham, Ken
Etherington, Bill
Evans, John (St Helens N)
Fatchett, Derek
Field, Frank (Birkenhead)
Flynn, Paul
Forsythe, Clifford (S Antrim)
Foster, Rt Hon Derek
Foster, Don (Bath)
Foulkes, George
Fraser, John
Fyfe, Maria
Galbraith, Sam
Galloway, George
Gapes, Mike
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