|Natural Environment and Rural Communities Bill - continued
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Clause 13: Incidental powers
66. Subsection (1) gives Natural England power to do anything conducive or incidental to the discharge of its functions. This includes but is not limited to the powers listed in subsection (2). The power to enter into agreements is not limited, and therefore can include working arrangements with persons in the private, public, voluntary and charity sectors.
Powers of Secretary of State
Clause 15: Guidance
67. This clause gives the Secretary of State power, following consultation with Natural England and the Environment Agency, to give guidance to Natural England about how to carry out its functions. Subsection (1) requires the Secretary of State to give guidance to Natural England as to how it exercises its functions in relation to regional planning and associated functions.
68. Similarly, Schedule 11 contains an amendment to section 4(5) of the Environment Protection Act 1995 to require the Secretary of State to consult Natural England as well as the Environment Agency before giving guidance to the Environment Agency.
Clause 16: Directions
69. This clause gives the Secretary of State power to give general or specific directions to Natural England and requires that those directions be published. Subsection (2) provides that the direction-giving power does not apply to functions that Natural England exercises through the Joint Nature Conservation Committee. The Secretary of State has a separate power to give directions to the joint committee under clause 38.
Chapter 2: Commission for Rural Communities
The Commission and its general purpose
Clause 17: Commission for Rural Communities
70. This clause establishes the Commission for Rural Communities.
71. It introduces Schedule 2, which sets out the constitution of the Commission, including provisions about its status, membership, chief executive and other employees, pay and pensions, procedure, accounts and annual reports.
Clause 18: Commission's general purpose
72. This clause sets out the general purpose of the Commission. The purpose is focused upon the social and economic needs of people in rural areas of England, especially people suffering from social disadvantage and areas suffering from economic under-performance. The general purpose of the Commission is to increase awareness among relevant persons of rural needs, and to meet those needs in ways that contribute to sustainable development. "Relevant persons" is defined by the Bill to mean public authorities and other bodies which appear to the Commission to be concerned with rural needs.
Clause 19: Representation, advice and monitoring
73. Clause 19 establishes the three main functions of the Commission. These are:
Clause 20: Research
74. This clause gives the Commission powers to undertake, commission and support research which relates to its general purpose. The power to support research is not limited to financial support and so could include the provision of accommodation, equipment, expertise and any supporting working arrangements. "Research" is defined by clause 30 to include inquiries and investigations.
Clause 21: Information services etc.
75. The Commission may publish documents or provide information about any matter relating to its general purpose. It may also assist others in such activities.
76. In broad terms it is intended that the Commission will be a body that gives advice based on its assessment of the rural needs; it is not intended that it will provide services directly to the public.
Clause 22: Power to charge for services
77. This clause enables the Commission to charge what it considers a reasonable amount for services. This would, for example, enable the Commission to charge for its publications. The Commission must obtain the Secretary of State's consent before it charges for any services.
Clause 23: Incidental powers
78. This clause gives the Commission powers to take action which will help it to exercise its functions.
Powers of Secretary of State
Clause 24: Grants
79. This clause enables the Secretary of State to fund the Commission. The Secretary of State may impose conditions when giving a grant (for example, a condition requiring the Commission to supply a financial memorandum or enter a management agreement).
Clause 25: Directions
80. This clause enables the Secretary of State to give the Commission directions as to the exercise of its functions.
Chapter 3: Supplementary
Transfer schemes etc.
Clause 26: Transfers on dissolution of English Nature and Countryside Agency
81. This clause makes provision for the transfer of property, rights and liabilities in connection with the dissolution of English Nature and the Countryside Agency. This will be by way of transfer schemes made by the Secretary of State (see Schedule 3).
82. The transfers may be to Natural England, the Commission, regional development agencies and Ministers of the Crown.
83. In relation to the transfer of employment rights and liabilities, Schedule 3 provides for an equivalent of regulation 5 of the Transfer of Undertakings (Protection of Employment) Regulations 1981 (as amended) (TUPE). The Bill also makes provision for staff pensions. This is in the context of the Cabinet Office statement of practice of January 2000 "Staff Transfers in the Public Sector", which states that public sector bodies should ensure that the principles of TUPE are followed and that transferring public sector staff are offered terms that are, overall, no less favourable those set out in TUPE.
Clause 27: Continuing powers to make transfer schemes
84. This clause makes provision for further transfer schemes. These are for the efficient management of property, rights and liabilities.
85. The transfers allowed are set out in subsections (2) and (3) and are, respectively, those from a Minister for the Crown to Natural England, the Commission or a person acting on their behalf, and those to a Minister for the Crown from Natural England or the Commission.
Clause 29: Interim arrangements
86. This clause gives the Secretary of State the power to require English Nature or the Countryside Agency to provide staff, premises or other facilities, on a temporary basis, to the Natural England or the Commission.
87. This power can be used during any period of transition between the establishment of the Natural England and the Commission for Rural Communities and the dissolution of English Nature and the Countryside Agency.
Part 2: Nature Conservation in the UK
Joint Nature Conservation Committee etc.
Clause 31: Joint Nature Conservation Committee
88. The Joint Nature Conservation Committee, referred to as the "joint committee", was established under Part 7 of the Environmental Protection Act 1990 ("the 1990 Act"). The Bill re-enacts, with changes, the provisions of the 1990 Act that relate to the joint committee. The main change is that under the Bill the joint committee has a UK-wide remit (covering England, Wales, Scotland and Northern Ireland), rather than merely a Great Britain remit (covering England, Wales and Scotland). This is reflected in Schedule 4, which reconstitutes the joint committee. The Schedule includes provision for Northern Ireland to have voting members.
89. Schedule 4 also reproduces the effect of the changes made to the 1990 Act by the Regulatory Reform (Joint Nature Conservation Committee) Order 2005 (S.I. 2005/634). This will, amongst other things, provide the joint committee with the ability to employ its own staff and pay its chairman and independent members. It will also enable the Secretary of State to pay money directly to the joint committee.
Clause 32: UK conservation bodies
90. This clause defines the terms "UK conservation bodies" and "GB conservation bodies". Some of the functions of the joint committee are UK-wide; others are GB-wide.
Clause 33: Purpose of functions under this Part
91. The joint committee is given functions for the purpose of nature conservation and fostering the understanding of nature conservation. In discharging their functions under this Part, the UK conservation bodies and the joint committee are required to have regard to actual or possible ecological changes and the desirability of contributing to sustainable development.
Clause 34: Functions of national or international significance
92. This clause sets out functions of the UK conservation bodies that can be discharged only through the joint committee. These are functions of UK-wide or international significance. They include giving advice about nature conservation matters of UK-wide or international significance. Advice on the development and implementation of policies can be given to "the appropriate authorities", i.e. the Ministers or governmental body in the relevant part of the UK. Advice can also be given, and knowledge disseminated, to any other person. The functions also include establishing common standards for nature conservation monitoring and for research and analysis, and commissioning or supporting research.
Clause 35: Advice from joint committee to UK conservation body
93. This clause gives the joint committee power to provide advice to UK conservation bodies, so long as that advice is connected with the functions of the body and is of UK-wide or international significance.
Clause 36: GB functions with respect to wildlife
94. This clause requires certain functions of the GB conservation bodies under the 1981 Act, to do with listing of protected animals and plants and related research, to be performed through the joint committee. The relevant provisions of the 1981 Act do not extend to Northern Ireland.
Clause 38: Directions
95. This clause enables the Secretary of State to give the joint committee directions about the exercise of certain functions. It is expected that, as the joint committee is a cross border body, any direction under this power would be made after consulting Scottish, Welsh and Northern Ireland Ministers.
Part 3: Wildlife etc.
Clause 40: Duty to conserve biodiversity
96. This clause and the two that follow replace section 74 of the Countryside and Rights of Way (CRoW) Act 2000 (conservation of biological diversity).
97. Clause 40 extends to all public bodies the existing section 74 duty to have regard to biodiversity as far as is consistent with the proper exercise of their functions. However, only Ministers, government departments and the National Assembly for Wales (that is, roughly, those bound by the original section 74 CRoW duty) are obliged to have particular regard to the 1992 Convention; other public bodies are not.
Clause 41: Biodiversity lists and action (England)
98. This clause replaces and reflects what is in existing subsections (2) to (5) of section 74 of CRoW. It places a duty on the Secretary of State to publish, review and revise lists of living organisms and types of habitat in England that are of principal importance for the purpose of conserving English biodiversity, and to consult Natural England before doing so. It also requires the Secretary of State to take, and promote the taking of, steps to further the conservation of the listed organisms and habitats. A list was published in 2002 under the existing duty placed on the Secretary of State by section 74(5) of CRoW.
Clause 42: Biodiversity lists and action (Wales)
99. This clause is equivalent to clause 41, but relates to Wales rather than England. It requires the National Assembly for Wales to publish, review, revise and act on lists of organisms of principal importance in Wales. The Countryside Council for Wales is the body to be consulted.
Pesticides harmful to wildlife
Clause 43: Possession of pesticides harmful to wildlife
100. The Secretary of State may, by negative resolution order, prescribe those ingredients of pesticides that she believes could cause harm to wild birds and/or animals. An order under section 43 could be made in relation to several pesticide ingredients that have been linked with poisoning bait and that are known to be very dangerous to animals, in particular to birds of prey. It will be an offence to possess a pesticide containing a prescribed ingredient unless it can be shown that possession was for lawful use in accordance with relevant pesticide, biocide or poisons legislation.
101. Existing legislation in Part 1 of the Wildlife and Countryside Act 1981 already provides for an offence where it can be shown that a person has set or used a poisoned bait (sections 5(1)(a) and (b) and 11(2)(a) and (b)). However, in practice, it has been difficult to prove that the person set or used the bait, and so under the new clause 43 offence it will not be necessary to show this.
102. A similar offence to that set out in clause 43 has been introduced in Scotland by the Nature Conservation (Scotland) Act 2004.
103. The offence in clause 43 is not inserted in the Wildlife and Countryside Act 1981, and it uses instead the enforcement powers contained in Schedule 2 to the Food and Environment Protection Act 1985 (FEPA) that are available in connection with other provisions regulating pesticides. The FEPA enforcement provisions are stronger than those under the 1981 Act.
Clause 44: Enforcement powers in connection with pesticides
104. Inspectors to enforce clause 43 will be authorised by the Secretary of State in England and the National Assembly in Wales. Under subsection (1) inspectors may enter premises to check if persons have a pesticide containing a prescribed ingredient in storage without any lawful use for it. This power could be used where there have been reports of poisoning wild birds or animals in a neighbourhood and an inspector wishes to check for possession of such pesticides in that neighbourhood. The inspector can require the disclosure of information about any substance that he finds.
105. By virtue of the powers given by Schedule 2 (paragraph 7) to FEPA, the inspector can search a house where he reasonably suspects such a pesticide is being stored if he obtains a warrant from a justice of the peace. The inspector must either explain to the justice of the peace why it is not possible to communicate with any person entitled to grant entry to the dwelling, or show evidence that he has been unreasonably refused access.
106. By virtue of subsection (1)(c) of clause 44 an inspector can seize any substance that he has reasonable grounds to believe to be a pesticide containing a prescribed ingredient. This power could be used to take a sample for analysis, or to take the whole of the substance away.
107. Authorised inspectors using enforcement powers under paragraph 2 of Schedule 2 to FEPA may bring with them other persons and any equipment or materials to assist them in performing their functions. They must only operate at reasonable hours. Additionally they will be able to use reasonable force to perform their functions (for example in opening containers). They can photograph evidence. Related offences are provided for under paragraph 10 of the FEPA Schedule. These include supplying false information to an inspector and obstructing an inspector who is performing his duties.
Clause 45: Interpretation
108. In subsection (2) "pesticide" is defined. The term can include substances, preparations or organisms prepared or used for destroying any pests.
109. Under the Wildlife and Countryside Act 1981 "wild bird" means any bird of a species that is ordinarily resident in or is a visitor to the European territory of any member state in a wild state, but does not include poultry, or game birds (other than in a few specified circumstances). "Wild animal" under the 1981 Act means any animal (other than a bird) which is or (before it was taken) was living wild.
110. It is necessary to be able to inspect not only land and buildings but also vehicles, vessels and so on, and therefore in subsection (4) "premises" is given an extended meaning. It is not uncommon in legislation for the meaning of "premises" to be extended in this way.
Protection of birds
Clause 46: Protection of nests of certain birds which re-use their nests
111. This clause introduces a new paragraph into section 1(1) of the Wildlife and Countryside Act 1981. The new paragraph makes it an offence, at any time of the year, to take, damage or destroy the nest of a wild bird species included in a new Schedule ZA1 to the Act. Schedule ZA1 contains three bird species which traditionally re-use their nests: the golden eagle (Aquila chrysaetos), the white-tailed eagle (Haliaetus albicilla), and the osprey (Pandion haliaetus). Section 22 of the 1981 Act is also amended so that the list of species under Schedule ZA1 may be changed by the Secretary of State by order.
Clause 47: Birds released into the wild as part of a re-population programme
112. This clause substitutes a new section 1(6) in the Wildlife and Countryside Act 1981 and thus extends the protection afforded to wild birds under section 1 of the Act to birds which have been bred in captivity and lawfully released into the wild as part of a re-population or re-introduction programme. The clause also substitutes a new subsection 6(5) to the Act which has the effect of making it an offence under section 6(1) to sell, offer or expose for sale, or have in possession or transport for the purpose of sale any live, captive-bred wild bird included in the relevant list (under Part I of Schedule 3 to the 1981 Act) which has been released into the wild as part of a re-population or re-introduction programme.
Clause 48: Registration etc. of certain captive birds
113. This clause amends section 7(3A) of the Wildlife and Countryside Act 1981 and makes it an offence to keep or have in one's possession any bird listed in Schedule 4 to the Act within 5 years of having been convicted of an offence under section 7(1). Under section 7(1) it is an offence to keep or have in one's possession any bird included in Schedule 4 of the 1981 Act which has not been registered and ringed or marked in accordance with regulations made by the Secretary of State.
Invasive non-native species
Clause 49: Sale etc. of invasive non-native species
114. This clause introduces a new section 14ZA into the Wildlife and Countryside Act 1981. Under new subsection 14ZA(1), it is an offence to sell, offer or expose for sale, or to have in one's possession or transport for the purpose of sale, any animal or plant to which the section applies or anything from which such an animal or plant can be propagated, such as an egg or a seed. Under subsection 14ZA(2) it is also an offence to publish or cause to be published any advertisement for the purchase or sale of these animals and plants.
115. Subsection 14ZA(3) sets out the animals and plants to which the offences in section 14ZA(1) and (2) apply. These are live animals and plants which are included within section 14(1) or (2) of the 1981 Act (animals and plants which must not be released etc. into the wild) and which have been prescribed as coming within subsections 14ZA(1) and (2) by an order made by the Secretary of State.
116. Under subsection 14ZA(5) there is a defence available to these new offences where the accused took all reasonable steps and exercised all due diligence to avoid committing the offence.
Clause 50: Codes of Practice in connection with invasive non-native species
117. This clause introduces a new section 14ZB into the Wildlife and Countryside Act 1981 which gives the Secretary of State the power to issue codes of practice, or approve a code of practice issued by others, relating to non-native animal and plant species. It is intended that the codes will be used to provide recommendations, advice and information on how to stop the damage caused by non-native animals and plants.
118. Failure to comply with such a code is not in itself an offence; however it may be used as admissible evidence in any criminal or civil proceedings and a court may take account of a failure to comply with the code where it considers this to be relevant. For example, in proceedings for the release of a non-native species prohibited under section 14(1) of the Act, compliance with the code could be used to decide whether the accused may rely on the due diligence defence contained in section 14(3).
Enforcement etc of provisions relating to wildlife
Clause 51: Enforcement powers in connection with wildlife
119. This clause introduces Schedule 5, which inserts various new sections into the Wildlife and Countryside Act 1981, and applies enforcement provisions under that Act to the other four main Acts that deal with licensing for the protection of wildlife: the Destructive Imported Animals Act 1932, the Conservation of Seals Act 1970, the Deer Act 1991 and the Protection of Badgers Act 1992.
Part 1 of Schedule 5 - Amendments to the Wildlife and Countryside Act 1981 ("the 1981 Act")
120. The Countryside and Rights of Way Act 2000 introduced for the first time the ability for authorised wildlife inspectors to check for compliance with licences and enforce certain specified provisions of Part 1 of the Wildlife and Countryside Act 1981 alongside the police. Two new sections were introduced into the 1981 Act, namely sections 19ZA (enforcement: wildlife inspectors) and 19ZB (power to take samples).
121. Part 1 of Schedule 5 to this Bill inserts a number of new sections in the 1981 Act. It also replaces existing sections 19ZA and 19ZB:
Police powers enhanced:
122. New section 19XA of the 1981 Act provides constables with powers in connection with taking samples and amends the existing enforcement powers of the police that are contained in sections 19 and 19ZB of that Act.
Wildlife inspector powers enhanced:
123. The authorisation of wildlife inspectors by the Secretary of State under section 19ZA (1) will on the commencement of this Bill be transferred to a new section 18A. The powers of the inspectors currently found in sections 19ZA and 19ZB (which are both being repealed) are re-enacted and extended under new sections 18B and 18C for what are to be known as "Group 1 offences", and under new sections 18D and 18E for what are to be known as "Group 2 offences".
124. The "Group 2 offences" are those under sections 19ZA and 19ZB of the 1981 Act. These offences mainly relate to licensing of captive, ringed and registered birds, and certain other licences for other animals and plants. Many captive birds are kept in dwellings, and therefore section 18D includes a power for inspectors to enter dwellings except in the case of enforcement of section 14 (introduction of new species etc.).
125. The "Group 1 offences" are not covered by the existing powers of enforcement of the wildlife inspectors under Part 1 of the 1981 Act. These offences mainly deal with animals, birds and plants that are found in the wild and of which it is rare for any person to have possession or control.
126. Offences in connection with all enforcement powers (whether in relation to the police or the wildlife inspectors) appear in new section (19XB); and these offences include obstructing a wildlife inspector acting in the exercise of his powers, not providing reasonable assistance, failure to make specimens available for inspection and falsely pretending to be a wildlife inspector.
127. Finally, paragraph 5 of Schedule 5 amends section 21, which sets out the penalties for the section 19XB offences.
Part 2 of Schedule 5 - Enforcement of four other Acts
128. The same officials authorised by the Secretary of State to act as wildlife inspectors under the 1981 Act will also monitor and enforce compliance with the four other main pieces of wildlife legislation in England and Wales: the Destructive Imported Animals Act 1932, the Conservation of Seals Act 1970, the Deer Act 1991 and the Protection of Badgers Act 1992. This Part 2 of Schedule 9 extends the enforcement powers available to the inspectors under the 1981 Act to the other four Acts, so that the powers are similar notwithstanding which Act the inspectors are acting under. This should make it simpler to train officials and issue appropriate authorisations for inspectors.
129. This amendment removes certain disparities between the four Acts' enforcement powers. Currently, only police have powers of entry under the Deer Act 1991 and the Protection of Badgers Act 1992 (except where there is a licence agreement that specifies that authorised officials of English Nature or the Secretary of State may enter the premises to monitor the terms of the licence). Authorised inspectors have certain limited powers of entry in connection with the enforcement of the Destructive Imported Animals Act 1932 (namely, police can seize wild musk rats, coypu and mink). Under the Conservation of Seals Act 1970 police have powers to stop and search persons that are suspected of an offence of killing or injuring seals without a licence, and authorised persons representing Secretary of State may enter land for the purpose of obtaining information relating to seals.
|© Parliamentary copyright 2005
|Prepared: 20 May 2005