Memorandum submitted by the Country Land
and Business Association (CLA) (Appendix 11)
EXECUTIVE SUMMARY
1. At the time of the "Modernising
Rural Delivery" review, CLA expressed its strongly held concern
that the proposal for reliance for delivery of rural policy on
three separate agencies(i) an "integrated" agency
taking in English Nature (EN), parts of the Countryside Agency
(CA) and Defra's Rural Development Service (RDS), (ii) a stripped
down CA and (iii) the relevant Regional Development Agency (RDA)would
wrongly lead each of these agencies to believe that it had a responsibility
for pursuing only one of the three pillars of sustainable development,
environmental, social and economic sustainability. The result
would be not an integrated approach to pursuing true sustainability
but a disintegrated approach, with the inherent and serious risk
that the essential importance of economic viability of land management
businesses as the vehicle for environmental conservation and enhancement
would be ignored.
2. The draft Natural Environment and Rural
Communities Bill reignites these fears.
3. In particular, Clause 2 of the draft
Bill, which sets out the purpose of the "Integrated Agency"
(IA), provides that the exercise by the IA of its powers and duties
to regulate the conservation, enhancement and management of the
natural environment constitutes the totality of its remit to contribute
to sustainable development. The reference in 2(2) to economic
and social well being places no obligation on the IA to have regard
to sustainable development as a whole. On the contrary, the clause
assumes that management of the natural environment will itself
support economic and social well being.
4. The absence of a straightforward remit
for the IAan environmental agencyto contribute to
sustainable development in the same way as the RDAs and the proposed
Commission for Rural Communities (CRC) are remitted to do, is
mystifying and worrying.
5. The draft Bill is a departure from statements
by the Secretary of State for Environment, Food and Rural Affairs
which have recognised that environmental and social sustainability
are ultimately dependent on economic sustainability.
6. The draft thus raises doubts, despite
reassurances from officials, that Defra accepts that the IA must
have regard to the economic practicalities of rural land based
businesses in order for the agency is to be successful in achieving
its environmental objectives or contributing to sustainable development
overall.
7. In addition, and in number of places,
the draft Bill would give general and unqualified powers to the
Secretary of State, for example:
to authorise the IA to compulsorily
acquire land for experimental schemes;
to give directions to that agency,
the CRC and the joint nature conservation committee (JNCC) as
to how it carry out their functions;
to remove members of the Boards of
these agencies or the JNCC without explanation; and
to dissolve existing levy boards
and create new ones.
Clause 67 of the draft Bill would also enable
the Secretary of State to amend primary legislation through regulations.
Such extensive powers require justification.
THE PURPOSE
OF THE
INTEGRATED AGENCY,
CLAUSES 1-2
8. The purposes of the IA are set out in
Clause 2 of the draft Bill. Clause 2 (2) (e) states that ".
. . The Agency's general purpose includescontributing in
other ways to social and economic well-being through management
of the natural environment" and thus assumes that management
of the natural environment is the way for the Agency to contribute
to economic and social well-being. CLA believes that such an approach
is at odds with what the Secretary of State said at the time of
the launch of the rural strategy in July 2004 and what Sir Brian
Bender, Permanent Secretary at Defra, said at a seminar on Defra's
Five Year Strategy on 25 January 2005, namely that sustainable
development is built on the three pillars of environmental, social
and economic sustainability and that it relies on the economic
viability of land based rural businesses.
9. CLA accepts and supports that latter
approach and is dismayed that it has not been carried into the
draft Bill. We believe, strongly, that economic sustainability
is fundamental to the good management of the natural environment.
A policy approach that works with the grain of business is needed
in order to achieve the IA's environmental objectives. In making
this argument, we do not seek to choose between economic and environmental
objectives. Rather, we are saying that they are interdependent,
and that the Agency should have regard to the need to work with
market policy mechanisms in order to meet its environmental objectives.
10. Thus 2 (2) (e) as drafted is at best
circular and at worst back to front. Good management of the natural
environment may or may not enhance economic and social well-being.
There is no guaranteed process to ensure that it will. So (e)
cannot be a statutory purpose, since it is based on a hope, rather
than a mechanism.
11. Moreover, management of the natural
environment, which is cited twice in Clause 2, cannot be sustained
without policies that promote economic and social well-being.
How are land managers, who are the providers in reality of the
public benefits aspired to in Clause 2 (2) (a) and (b), going
to provide public benefit if they are progressively reduced in
profitability by public policy, pursued by the IA on the basis
that it is following (e)? It cannot be done.
12. We do not object to the general objective
at Clause 2 (1), and accept that that objective contributes to
sustainable development, but that is quite different from asserting,
hopefully, that management of the natural environment will somehow
support the economic or social pillars needed for true sustainability.
13. An alternative approach would be to
borrow words from the 1998 Regional Development Agencies Act as
it applies to RDAs. That Act states that a purpose of an RDA is:
"4 (1) (e) to contribute to the achievement
of sustainable development in the United Kingdom where it is relevant
to its area to do so."
For the most part it will be relevant to the
area of an RDA to do this; indeed it is hard to envisage where
it will not be relevant. Such a remit for the IA would not deflect
the Agency from its primarily environmental objectives, but would
direct it to pursue these objectives in a way that also contributed
to sustainable development. This seems an entirely reasonable
purpose for an environmental agency to be given. It is surprising
that the IA has, according to the draft Bill, a lesser responsibility
to contribute to sustainable development than an RDA.
OTHER PROVISIONS
RELATING TO
THE INTEGRATED
AGENCY, CLAUSES
3-16
14. Clause 7, management agreements. At
present the conservation bodies can enter into management agreements
under section16 of the National Parks and Access to the Countryside
Act 1949, for securing the management of land as a nature reserve,
or under section 15 of the Countryside Act 1968 for the purpose
of conserving the special features of an SSSI.
15. It is not proposed to repeal either
of these sections, just to amend them to reflect the creation
of the IA. Accordingly, the new management agreements are a supplement
to the existing provisions, not a replacement, and are presumably
designed to enable the IA to operate the stewardship schemes planned
by Defra within the existing and proposed EU Rural Development
Regulations, ie, land on which an environmental benefit is sought,
but which is unlikely to be designated as either a nature reserve
or an SSSI. So far as the proposed entry level scheme is concerned
this could be agricultural land anywhere in England.
16. CLA has consistently supported the introduction
of these stewardship schemes, because they reflect the voluntary
approach described in paragraph 9 above. However, CLA will be
cautious in the advice it gives on entering these schemes to individual
members. Land managers may be tempted to enter into time-limited
agreements in respect of land which is of no special conservation
value and, having improved it in the way the IA desires, find
it permanently designated in some way, most probably as either
an SSSI or as access land under the Countryside and Rights of
Way Act, or both. Thus it is essential that land managers are
alive to this possibility.
17. Clause 8 (4), enabling the Secretary
of State to authorise the Agency to compulsorily acquire land
for an experimental scheme appears draconian, given that such
schemes, by their experimental nature, cannot be regarded as essential
to the national interest.
18. Clause 11 (3) would enable the Secretary
of State to make a statutory instrument (negative resolution)
requiring charges to be made for the issue of licences by the
Agency. It is not clear for what purposes such licences would
be issued. CLA will wish this provision to be clarified.
19. Clause 15 (1), Guidance. In the CLA's
view, guidance to the Agency from the Secretary of State should
be made public, in the interests of open government and the interest
of those being regulated by the Agency knowing what guidance the
Agency is acting under.
20. Clause 16 (1), Directions. Clarification
is needed that this clause is required to enable the functions
of the RDS to be carried out by the Agency. Otherwise it is not
clear why the Secretary of State should have powers to direct
the functions of a non departmental body. The award of similar
powers to the Secretary of State in respect of the CRC, in Clause
25, suggest that the Government does not have in mind a specific
reason for these powers to be awarded. Such expediency requires
justification.
COMMISSION FOR
RURAL COMMUNITIES
(CRC), CLAUSES 17-25, AND
GENERAL PROVISIONS,
CLAUSES 26-48
21. Clause 18 (1) (b): CLA notes that the
proposed CRC is to have a purpose, "to promoterural
needs in ways that contribute to sustainable development"
that is similar to the purpose in Section 4 (1) (e) of the RDAs
Act 1998 (see paragraph 13 above). Clearly the Government believes
that this formula works for the CRC and is consistent with its
overall sustainable development strategy. This eloquently makes
the case, once more, for a similar purpose for the IA. If a remit
to contribute to sustainable development is appropriate for an
economic agency (RDA) and a social agency (CRC), then there is
no legitimate reason why it should not be applied to an environmental
agency (the IA).
22. Clause 19, Representation, advice and
monitoring. CLA supports the clause which requires the CRC to
(a) represent rural needs, ie act as a rural advocate, (b) provide
information and advice, ie act as an evidence base and (c) monitor
the way in which policies are adopted, ie "rural proofing".
It should be clarified that this latter provision (i) enables
the CRC to monitor the activities of regional as well as national
bodies, (ii) is backed by a direction by the Prime Minister to
departmental Ministers to involve the Secretary of State (for
the Environment, Food and Rural Affairs), her officials and the
CRC at the formulation stage of policy, not just adoption, and
(iii) will be supplemented by the Prime Minister, Secretary of
State or others taking action to ensure that policies that do
not meet rural needs, or threaten not to meet them, are adjusted
as necessary.
23. CLA has concerns that the CRC will not
be a credible rural advocate and proofer, because it will not
have the direct experience of rural needs that the CA derived
from operating particular schemes, or that the Rural Development
Commission had up to 1999. The CRC will have to work proactively
and effectively with other bodies to garner the information it
needs to carry out these roles.
24. Clause 23 (1) giving the CRC the power
to "do anything that appears to it to be conducive or incidental
to the discharge of its functions" appears to be a far reaching
and unlimited power for an agency of this type. The need for such
a power has yet to be justified. A similar power is given to the
UK conservation bodies in Clause 37, and again a justification
for such general and unqualified power is required.
25. Clause 42, agreements between the Secretary
of State and a non-designated body. The Secretary of State is
authorised to enter into an agreement with a non designated body
to perform eligible Defra functions.
26. As such the Secretary of State could
authorise NGOs to carry out an investigative or policing type
role, including one that involved rights of entry on to land.
This is wholly inappropriate and CLA opposes it for much the same
reasons as we, and others, opposed the granting of police type
powers to the RSPCA under the draft Animal Welfare Bill. For example,
it would be wrong to give the powers to carry out cross compliance
inspections to an NGO.
PROVISIONS RELATING
TO THE
LEVY BOARDS,
CLAUSES 49-59
27. Clauses 49-55 would give the Secretary
of State wide ranging powers to dissolve and/or reform the existing
levy boards (listed in clause 51 (2)). It is difficult to say
whether these powers are necessary in advance of reviews of the
effectiveness of these boards.
OTHER PROVISIONS
28. Clause 66, time limit on proceedings
for certain offences. CLA has serious concerns about this proposal.
The reason limitation periods exist in various statutes is both
obvious and sensible. With the passage of time, recollections
fade and evidence becomes stale. For example, in a case concerning
animal welfare animals may recover from mistreatment and their
wounds heal. Alternatively, the animal may need to be destroyed.
In any of these situations the quality of the available evidence
is reduced. All of this goes against the probability of any trial
being fair. In the CLA's view the interests of justice require
that the present position should be maintained.
29. Clause 67 gives the Secretary of State
the power to effect the provisions of the Bill if necessary by
amending or repealing primary legislation by order, albeit by
affirmative resolution. CLA is concerned to see Ministers being
given powers to overturn primary legislation by order.
30. Paragraph 7 of Schedule 1, Paragraph
7 of Schedule 2 and Paragraph 6 of Schedule 4 give the Secretary
of State the power to remove a member of the Board of the Integrated
Agency or the CRC (respectively) or of the JNCC without reason.
This raises concerns as to the independence in practice of the
IA, the CRC or the JNCC. For the IA, the CRC or JNCC to be credible
and to attract support, it will be necessary for these concerns
to be allayed. CLA notes with approval that annual reports of
the IA, the CRC and the JNCC are to be laid in each House of Parliament.
31. Removal of expenditure constraint for
national park authorities (NPAs). CLA would strongly support the
inclusion in the Bill of the Defra Review of English National
Park Authorities Action Item to "remove the expenditure constraint
on NPAs' activities in pursuit of their socio-economic duty"
as set out in Appendix 2 of the Draft Natural Environment and
Rural Communities Bill Policy Statement.
32. Three purposes of NPAs to be co-equal.
NPAs have three purposes with respect to National Parks. These
are (paraphrased):
to conserve and enhance the natural
beauty, wildlife and cultural heritage;
to promote opportunities for the
understanding and enjoyment of the special qualities of those
areas by the public; and
to seek to foster the economic and
social well-being of local communities with the National Park.
33. The NPAs have had limited success in
pursuing the third of these purposes, to foster economic and social
well-being. Some NPAs do more than others to facilitate change
or allow necessary growth, adaptation and investment in a National
Park economy. Economic viability underpins environmental land
management and it should therefore be made clear that the three
purposes of NPAs are of similar importance.
34. Removal of the expenditure constraint
for Area of Outstanding Natural Beauty (AONB) Boards. CLA would
also strongly support inclusion of an equivalent provision "to
remove the expenditure constraint" on AONB Conservation Board
activities in pursuit of their socio-economic duty.
35. AONB Boundary variations. CLA has concerns
over the Countryside Agency's (CA) ability to define boundaries
correctly for National Parks and AONBs in line with their own
criteria. In the case of the boundary for the proposed New Forest
National Park the Inquiry Assessor, the Inspector and the Secretary
of State all disagreed with the proposed large extension of the
New Forest Heritage Area.
36. The proposal to extend the area of land
to be taken into the South Downs National Park beyond AONB boundaries
stretches the CA's criteria. Judgements from the Inspector and
Scottish Natural Heritage Landscape Assessor are awaited.
37. In view of the potential impact of designation
of land (within national parks or AONBs), and of the CA's current
approach of seeking to effect minor AONB boundary changes without
a formal inquiry process, CLA believes that the following provisions
should be included in the Bill. Firstly, there should be a statutory
duty on the IA (which will replace the designation function of
the CA) to advise affected landowners of proposed AONB boundary
variations. Secondly, there should be a statutory right of appeal
for affected landowners to AONB boundary variations. Thirdly,
all minor AONB boundary variations should be subject to Public
Inquiry. These provisions are, we maintain, fully justified by
the past record, described above, of the CA on boundary designation.
Country Land and Business Association
February 2005
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