Memorandum submitted by Campaign to Protect
Rural England (Appendix 32)
SUMMARY
CPRE's submission focuses on answering the specific
questions raised by the Committee.
We believe that the provisions of the draft Bill
differ significantly from the institutional arrangements in the
Government's Rural Strategy in the following ways:
—The Integrated Agency does not have a statutory
purpose to protect the landscape;
—This omission confounds the intention of the
Government that landscape and biodiversity should be regarded
as being of equal significance by the new Agency;
—The level of protection afforded to the landscape
is effectively reduced from the present statutory arrangements
governing the Countryside Agency;
—The integration of landscape and biodiversity
responsibilities would not be as effective as they need to be;
—The Integrated Agency would not have the degree
of independence intended by the Government; and
—The protection and enhancement of the special
qualities of the countryside and access to it would not be explicitly
required of the new Agency.
CPRE considers that the provisions of the draft Bill,
if enacted, would not allow the Government to implement its proposals
in an effective way for the following reasons:
—The Agency would not be able to make clear
and effective decisions where conflict arose between several of
its statutory purposes;
—It would not be able to be an effective champion
of the natural environment where strong pressure arose to alter
or reduce the extent of the natural environment in the name of
outdoor recreation or management for reasons of social and economic
well-being;
—The inexactness of the sorts of outdoor recreation
and enjoyment of nature specified in the purposes of the Agency
could confound the intentions of the Rural Strategy to achieve
a harmonious relationship between the interests of wildlife, landscape
and access to them; and
—The Agency would not have the degree of independence
it would need to be confident that it might advocate a position
at variance with Government policy.
DETAILED RESPONSE
These views are elaborated below, along with a number
of other related issues we consider to be worthy of the Committee's
attention.
Whether the provisions of the draft Bill differ
significantly from the institutional arrangements in the Government's
Rural Strategy?
1.The Rural Strategy clearly states that amongst
the Government's top priorities is the "protecting [of] the
natural environment, for this and future generations" (Overview
summary page 5) and further states "our aim of protecting
and enhancing our natural heritage for this and for future generations"
(Overview paragraph 5, page 6). In chapter 3, Enhancing the Value
of our Countryside in paragraph 69, page 35, the Government sets
out its intentions:
"Our strategy is therefore twofold: a) First,
to continue to take action to protect and enhance the rural and
urban environments . . . and b) Second, to enhance the value and
natural beauty of the countryside for rural communities and for
the benefit of society in general" (the Government's emphasis).
2.CPRE believes that the provisions of the draft
Bill differ significantly from the institutional arrangements
in the Rural Strategy as in crucial respects, they do not yet
ensure that the proposed Integrated Agency will be able effectively
to protect the rural and urban environment, or protect the value
and natural beauty of the countryside. The reasons for our view
are:
(a)The draft Bill does not make it a purpose of the
Integrated Agency to protect the landscape, but merely to conserve
and enhance it in Clause 2.2(b). We have received legal advice
that the difference between protecting and conserving is significant
and that conserving is a significantly weaker term. We also regard
the word "protection" as having a positive sense of
"proactive, positive defence", rather than a more conservative
and less creative prevention of change which is present in the
meaning of the word "conserve".
(b)The Government has made it clear that it intends
to create a "strong national champion" and "a stronger
unified voice" (Rural Strategy, chapter 3, paragraph 73,
page 36). Together with the general intention expressed in paragraph
71, page 35, it is clear that the Government does not wish to
weaken the protection of landscape. At present, the Countryside
Agency has the statutory purpose of "the preservation and
enhancement of natural beauty in England, both in areas designated
as National Parks and AONBs and elsewhere". The omission
of a purpose to protect the landscape thus severely reduces the
existing level of commitment to landscape and its associated natural
beauty and cultural diversity.
(c)By including the vital purpose of the Integrated
Agency to protect biodiversity, with which CPRE strongly agrees
and has argued for consistently but not the landscape, the Government's
intention to attach equal importance to landscape protection is
undermined implicitly. The Government has made the inspired decision
to integrate biodiversity and landscape in response to Lord Haskins'
report; the wording of the purposes in Clause 2.2(a) and (b) undermines
that integration.
(d)The successful integration of biodiversity and
landscape responsibilities will allow the Government to match
its intentions in the Rural Strategy with the outcomes intended
in the draft Bill "While the protection of special sites
is essential to improve the biodiversity of the natural species
and wildlife that make England a rich and valued treasure, this
must also be part of integrated management of our countryside"
(Rural Strategy, Chapter 3, Summary, page 34).
3.The Government has made clear its laudable intentions
to create an Integrated Agency which is a "single, independent,
statutory organisation" (Rural Strategy, paragraph 71, page
35) and which is a "strong national champion" (Rural
Strategy, paragraph 73, page 36). This intention is reinforced
in the Policy Statement ". . . the new body—independent
of government—" (paragraph 3(b), page 4). However,
the draft Bill gives unlimited powers to the Secretary of State
to guide the Integrated Agency (Clause 15), or to redirect its
powers, (Clause 16). Further, the limitations on the Secretary
of State's powers in relation to English Nature, set out in the
Environmental Protection Act, 1990 (sections 131(4) and 132(1)),
which are important in confirming public confidence in English
Nature's independence, are not transferred completely to the draft
Bill.
4.A similar issue concerning the independence of
the Integrated Agency arises with the membership of its Council.
Schedule 1(3) allows the Secretary of State to appoint any number
of members to the Council as well as appointing its chairman and
deputy chairman. CPRE is concerned that the independence of judgement
and credibility of the Integrated Agency will be vulnerable in
the future to such interference from a Secretary of State as is
permitted, though not contemplated or intended, in the draft Bill.
The draft Bill is intended to set up institutions with a long-term
future. Both the Integrated Agency and the Commission for Rural
Communities should be clearly provided with the resilience to
survive changes in political priority and Whitehall reorganisation
in the future.
5.The Rural Strategy intends that the Integrated
Agency should "collaborate with a wide range of partners"
(paragraph 71, page 35) and "will own a wide range of levers
and interventions" in order to fulfil its purposes. The Policy
Statement stresses the need for flexibility in the operation of
the new arrangements. While these qualities will be welcome in
ensuring that the Integrated Agency is an effective force for
delivering widespread improvements in land management and access
provision, CPRE considers that flexibility should not be confused
with pliability. The unlimited delegation of functions to "non-designated
bodies" could conceivably allow delegation to bodies unsuited
to acting in the public interest or which might not be accountable
for actions undertaken ostensibly in the public interest or with
public funds.
6.The Rural Strategy expresses a strong intention
that the countryside should be protected and enhanced and access
to it greatly extended. CPRE strongly supports these intentions.
The Rural Strategy states: "The English countryside is of
intrinsic value to people. It provides essential natural resources
and services on which both urban and rural England depend"
(Paragraph 68, page 34). The Government recognises the special
importance of the countryside "It is valued for its wildlife,
landscape and cultural heritage and also tranquillity"(paragraph
68). While it is fundamentally important that the Integrated Agency
should have a remit which covers urban, coastal and marine responsibilities,
CPRE considers that the wording of the draft Bill does not adequately
define the vital importance of a distinctly rural experience and
the crucial role of the Integrated Agency in securing and enhancing
this and appropriate access to it. We suggest that the terms "natural
beauty" and "cultural heritage" which are both
used accurately and effectively in the Rural Strategy should be
written into the Bill. Both terms also have the great benefit
of already being defined in previous legislation.
7.The term "English Landscape" in the draft
Bill (Clause 2 (2b) causes concern to CPRE. We warmly welcome
the use of the word landscape, covering as it does the spectrum
of places from coastal and estuarine to rural, suburban, and urban
which we value so highly. We are aware of the weakness, however,
of the absence of a legal definition of the word "landscape".
The European Landscape Convention defines landscape as "an
area, as perceived by people, whose character is the result of
the action and interaction of natural and/or human factors".
For CPRE, the important element of this definition is the recognition
of the value of human appreciation of topography and the subjective
appreciation of landscape. For the Integrated Agency to take on
the role of the Countryside Agency in developing and promoting
the understanding and recognition of landscape character in the
pursuit of policy objectives, this recognition of landscape in
the Bill is vital. CPRE considers that the establishment of a
legally understood term for "landscape" will ensure
the Bill achieves the objectives of the Rural Strategy.
8.In order that the Integrated Agency can continue
the work of the Countryside Agency in developing the concept of
landscape character and the monitoring of countryside qualities
such as tranquillity, as set out in the Rural White Paper (section
9.4, page 111, Promoting Tranquillity and section 9.5, page113,
Measuring countryside quality), the inclusion of the terms "natural
beauty", "cultural heritage" and a satisfactory
definition of "landscape" are needed. CPRE considers
that the word "English" might be interpreted either
in a territorial or a cultural sense and might limit the ability
of the Integrated Agency to act in the case of a cross border
issue or proposal which would affect landscape, wildlife or access
in England. We suggest that the term is written out of the Bill
as the remit of the Integrated Agency is made clear elsewhere
in the legislation.
Whether the provisions of the draft bill, if enacted,
would in our opinion allow the Government to implement its proposals
in an effective way?
9.In addition to its strong commitment to landscape
and biodiversity protection, the Rural Strategy states that "it
is right for each delivery organisation to have a primary economic,
social or environmental remit—this provides focus and avoids
confusion and overlap" (paragraph 99g, page 51). The Government
also states that it will consider adding powers to the Integrated
Agency "better to preserve and open up our natural heritage"
(paragraph 76, page 37). It is clear that the Government considers,
as does CPRE, that the issue of focus and priority for the Integrated
Agency is fundamentally important. It is clear that the enhancement
of access is regarded by Government as being entirely compatible
with the better preservation of the natural heritage. The legislative
framework of the CroW Act of 2000 shows how this is so. The Policy
Statement issued with the draft Bill reinforces the vital point
about focus and priority: "Working with partners, the new
body—independent of government—will be responsible
for protecting, managing and enhancing the natural environment
in all its guises, especially biodiversity and landscape [CPRE
emphasis], while seeking to deliver social and economic benefits
through its championing of the environment" (paragraph 3b,
page 4).
10.In the case of focus and priority, CPRE considers
that the provisions in the draft Bill differ from the institutional
arrangements proposed in the Rural Strategy in one vitally important
way, the ability of the Agency to prioritise within its purposes
where necessary. In the case of the Commission for Rural Communities
(CRC), a commitment made in the Rural Strategy to "make rural
disadvantage a priority" (paragraph 43, page 22) and repeated
in the Policy Statement ". . . it will provide a strong and
independent voice for rural people, communities and businesses,
specially those suffering disadvantage or the impacts of economic
underperformance" appears in the draft Bill (Chapter 2, clause
18, (2). In the case of the Integrated Agency this duty to prioritise
is not conveyed from the commitments made in the Rural Strategy
to the purposes of the Integrated Agency in the draft Bill. This
is even more strikingly clear in the case of the Policy Statement,
where paragraph 3(b), page 4) makes a similar commitment to prioritising
to that made in the case of the CRC. CPRE considers that a follow
through on the prioritising of purposes from the Rural Strategy
and the Policy Statement to the Bill in the case of the Integrated
Agency is essential.
11.CPRE believes that in the event of irreconcilable
conflict between its statutory purposes, greater weight should
be given to the protection of biodiversity and landscape over
any other purpose. There will be no other statutory body directly
responsible for the condition and extent of landscape character,
habitat and native species distribution. In the ultimate analysis,
in order for public access to be worth promoting and extending,
the landscape and biodiversity within it needs to be secure. Social
and economic well-being will usually be compatible with the protection
and enhancement of biodiversity, landscape and access. In many,
if not most situations, conflict between purposes will be avoidable
through good judgement and careful planning. Where this is not
possible, a clear statutory direction is required. Moreover, it
is also vital that the Integrated Agency can pursue objectives
and take actions which are to the benefit of the landscape and
the wildlife inhabiting it, which do not have directly attributable
social or economic benefits.
12.The Integrated Agency will have two vital aspects
to its effective operation: as an incentivising and enabling body
and as a regulatory, enforcing body, which offers expert and strategic
advice. CPRE has established over many years of policy engagement
that it is not possible to rely on management prescriptions and
incentives alone to resolve conflicts of land use. A clear process
needs to be in place to assert environmental constraints or limits
when these are unavoidable and when it would be contrary to the
overarching purpose of an organisation's statutory responsibilities.
CPRE has already set out in its evidence to the Select Committee
the reasoning for the inclusion of a "Sandford" principle
as most recently employed by the Government in respect of Areas
of Outstanding Natural Beauty in the CROW Act, 2000. We maintain
our strong support for this policy mechanism of last resort, whose
main effect is to prevent conflict through clarity of purpose
at the outset. There will be added benefits in terms of ensuring
that the new Agency does not find itself involved in internal
conflict and that other bodies are clear where the Integrated
Agency's purposes lie.
13.The definition of the phrases "open air recreation"
"facilities" and "enjoyment of nature" (Clause2
(2c and d)) are open to wide interpretation. Although there is
clearly no intention for the Integrated Agency to promote or secureactivities
or outcomes which would damage the natural environment or enjoyment
of access or quiet recreation in it, these terms can easily be
construed as allowing the promotion of activities which would
damage the quality or extent of biodiversity, landscape character
or appreciation of these things. The intentions of the Rural Strategy
to encourage enjoyment of the countryside as well as the protection
and enhancement of biodiversity and landscape could be unintentionally
thwarted by such inexact wording.
OTHER COMMENTS
CPRE makes the following further observations, which
we believe the Committee might usefully consider:
14.CPRE is concerned that the Government's intentions
to achieve effective regional action by the Integrated Agency
working in partnership with other bodies are yet to be secured.
We have concerns on three counts:
(a)A commitment to the resourcing of the Integrated
Agency at a regional level is not yet made. Adequate regional
funding should not be provided at the expense of the Agency's
national capacity which is very likely to receive increasing demands
on its resources. But it is crucial that the Integrated Agency
is able to play its part, fully and effectively in the preparation
of and consultation over Regional Spatial Strategies and Regional
Economic Strategies. The Government has made clear that it will
be relying on the Integrated Agency to be a principal environmental
champion in the development and implementation of regional policy.
(b)The competence of the Regional Development Agencies
(RDAs) to take on the social and economic responsibilities work
of the Countryside Agency is not clear. Furthermore, the inclination
of the RDAs to invest adequate attention and commitment to rural
areas is not yet established on the basis of evidence available
CPRE so far.
(c)The effectiveness of connection and communication
between the Commission for Rural Communities and the Integrated
Agency, as well as the Regional Rural Affairs Fora and other regional
bodies is uncertain.
15.The full integration of the management of common
land and particularly the ability of commoners to participate
in agri-environment schemes is an urgent requirement. CPRE sees
an important link between the successful completion of legislation
on common land and the protection and enhancement of much biodiversity,
landscape and the enjoyment of it by the public.
16.CPRE suggests that the Government might consider
including the ability of the Integrated Agency to work through
the Joint Nature Conservation Committee (JNCC) in the pursuit
of landscape objectives. This would be particularly important
if and when the United Kingdom ratifies the European Landscape
Convention.
17.CPRE is concerned that the draft Bill states that
international action on biodiversity can only be undertaken by
the JNCC (Clause 34 (1)). CPRE suggests that the Integrated Agency
should be able to act its own right in international or trans-national
matters, whether in planning consultation, biodiversity, landscape
or access promotion or obligations.
Campaign to Protect Rural England
February 2005
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