House of Commons - Explanatory Note
Natural Environment and Rural Communities Bill - continued          House of Commons

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Clause 52: Wildlife offences: time limit for proceedings

130.     This clause introduces Schedule 6. The Schedule alters the present requirement to bring summary proceedings for certain offences concerning wildlife and habitats within six months of the commission of the offence. In relation to the legislation detailed in the Schedule, summary proceedings must be brought within six months of the acquisition of evidence sufficient in the prosecutor's opinion to warrant proceedings, and in any event within two years of the commission of the offence.

Clause 53: Application of Part 1 of 1981 Act to Crown

131.     This clause introduces a new section 66A into the Wildlife and Countryside Act 1981 which, with specified exceptions, applies the provisions of Part I of the Act to the Crown. This is required by European law obligations under the Wild Birds Directive (79/409/EEC) and the Habitats Directive (92/42/EEC).

132.     Where the Crown, for example a government department, contravenes any provisions of Part I, it will not be criminally liable for the action (or lack of action) in question; rather it will be open to anyone with an interest in the contravention to apply to the High Court for a declaration that the activity was unlawful. However, Part I will apply to people in the service of the Crown, such as civil servants, as it applies to any other person. Part I will not apply to the Queen in her personal capacity and this includes Her Majesty in right of the Duchy of Lancaster and the Duke of Cornwall.

133.     Powers of entry for enforcement purposes granted to police constables and wildlife inspectors under sections 18X to 19XA of the 1981 Act will not apply to premises occupied by the Crown. For example, there will be no rights of entry for the purposes of enforcing the 1981 Act over land occupied by the Ministry of Defence.

Part 4: Sites of special scientific interest

Clause 54: Offences in connection with SSSIs

134.     This clause introduces two new offences concerning SSSIs.

135.     Subsection (2) provides that where a section 28G authority, (as defined in section 28G of the Wildlife and Countryside Act 1981 - effectively any public body), fails to comply with its obligations under section 28I of the Act (notification to Natural England or as the case may be, the Countryside Council for Wales, before permitting operations likely to damage an SSSI, etc.), it commits an offence unless it had a reasonable excuse. Emergency situations qualify as a reasonable excuse, provided notification is given as soon as practicable after the permission was given.

136.     Subsection (3) provides a new offence of intentionally or recklessly destroying or damaging the listed features of a SSSI or disturbing its listed fauna, without reasonable excuse. This offence is in addition to that in section 28P(6) of the Wildlife and Countryside Act 1981. The difference between them is that commission of this new offence does not require knowledge that what was destroyed, damaged or disturbed was within an SSSI. Accordingly, it carries a lesser penalty.

137.     Subsection (5) provides that the court's powers to make a restoration order under section 31 of the Wildlife and Countryside Act 1981 also apply to convictions under the new offence created by subsection (3).

Clause 55: Notices and signs relating to SSSIs

138.     This clause introduces a general power for Natural England (and the Countryside Council for Wales) to erect, maintain and remove signs or notices about an SSSI, on land included in that SSSI. It will be an offence to, without reasonable excuse, intentionally or recklessly take down, damage, destroy or obscure such a sign or notice.

139.     Subsection (2) provides that the powers of entry to land provided by section 51 of the Wildlife and Countryside Act 1981 shall be available for the purposes of this clause.

Part 5: National Parks and the Broads

National Parks

Clause 56: Procedure for orders designating National Parks

140.     This clause makes various amendments to the 1949 National Parks and Access to the Countryside Act 1949.

141.     Subsections (2) and (3) bring up to date the terminology describing the types of principal local authority that must be consulted on the designation or alteration of National Park boundaries. As well as updating old terminology, the subsections include a new requirement to consult parish councils.

142.     Subsection (4) repeals section 9(2) of the 1949 Act. Section 9(2) enabled regulations to be made allowing proceedings preliminary to orders designating and varying National Parks to be taken concurrently with proceedings required in connection with development plans.

143.     Subsection (5) amends Schedule 1 of the 1949 Act to make it clear that only objections by principal councils (and not parish councils) trigger an automatic public inquiry into National Park designation or boundary amendment. This will, for example, prevent an objection by a single parish council automatically triggering a public inquiry into the designation of a National Park or amendment to a National Park boundary.

Clause 57: Members of National Park authorities

144.     The precise make-up of each National Park authority is set individually by secondary legislation. However, the general mix of members of each authority must be in keeping with a basic formula which is set out in primary legislation. Subsections (1) and (2) of this clause simplify the basic formula so that any composition in which (in Wales) local authority members outnumber "national" members or (in England) local authority members and parish members together outnumber "national" members will be possible. "National" members are the members who are not local authority or parish members. They are appointed by the Secretary of State.

145.     Subsections (3) to (5) of this clause allow councillors (or chairs of parish meetings) who are waiting to be re-appointed or replaced on a National Park authority following an election, to nevertheless continue to act as National Park authority members, subject to an upper limit of three months. The subsections are intended to minimise interregnums between members.

146.     Subsection (6) allows "national" members of National Park authorities to be appointed for up to four years at a time rather than the current three years. This brings them into line with local authority and parish members who normally serve four-year terms.

Clause 58: Expenditure by National Park authorities

147.     The Environment Act 1995 currently says that National Park authorities should not incur "significant" expenditure in support of their socio-economic duty, but it does not explain what "significant" means. This has caused uncertainty. Clause 58 removes the prohibition on "significant" expenditure.

Clause 59: Notification of agricultural operations on moor and heath in National Parks

148.     This clause transfers the power from the Secretary of State to a National Park authority to make an order under section 42 of the Wildlife and Countryside Act 1981. An order so issued places a temporary prohibition on ploughing, and on other specified agricultural or forestry operations on moor or heath in National Parks, and may be issued if those operations are likely to affect the land's character or appearance.

The Broads Authority

Clause 60: Functions of Broads Authority and others in relation to the Broads

149.     This clause aligns the wording of the first two purposes of the Broads Authority and other relevant authorities with that of the first two purposes of the National Parks. The purposes of the different areas had previously shared common wording until the National Park purposes were amended in 1995.

Part 6: Rights of way

Clause 61: Restriction on creation of new public rights of way

150.     This clause limits the creation of new public rights of way for mechanically propelled vehicles. It will prevent future use over a period of 20 years by any vehicle from giving rise to mechanically propelled vehicular public rights of way. Instead, new public rights of way for mechanically propelled vehicular rights will be created only if they are expressly provided for, or if the rights relate to a road intended to be used by mechanically propelled vehicles and constructed for that purpose under an enactment.

151.     Subsection (2) is intended to ensure that where there is illegal use of a way by mechanically propelled vehicles, that use cannot give rise to lower public rights of way (such as footpath, bridleway or restricted byway rights).

Clause 62: Ending of certain existing unrecorded public rights of way

152.     This clause extinguishes (subject to a few stated exceptions) unrecorded rights of way for mechanically propelled vehicles. This extinguishment prevents these rights being used to add new byways open to all traffic to the definitive map and statement for an area. The exceptions in subsection (2) apply. Exception (a) ensures that unclassified and other minor roads are not brought within the scope of the extinguishment. Exceptions (b) and (c) are identical to the exceptions in clause 61. Exception (d) ensures that a where rights were created by a qualifying period of use by mechanically propelled vehicles during a period prior to 1 December 1930, those vehicular rights are not extinguished.

153.     In addition, subsection (3) ensures that where an unrecorded public right of way for mechanically propelled vehicles is relied upon at the time of commencement to enable access to land to be obtained by a person with an interest in the land or by a lawful visitor to that land, that public right becomes a private right of way for mechanically propelled vehicles for the benefit of that land.

154.     This clause does not apply to areas in London where there is no definitive map and statement.

Clause 63: Supplementary

155.     This clause amends section 53(3)(c)(i) of the Wildlife and Countryside Act 1981. The purpose of this amendment is to allow the recording on the definitive map and statement for the area of a newly discovered right of way which is a restricted byway.

156.     The clause also deals with the repeal of new section 34A of the Road Traffic Act 1988, which was to be inserted by paragraph 6 of Schedule 7 to the Countryside and Rights of Way Act 2000. The Government announced in a written Parliamentary statement of 9 December 2003 (Hansard Vol. 415 Col. 80WS) that it would not be implementing section 34A. This is on the basis that the provision appears incompatible with Article 6(2) of the European Convention on Human Rights.

Clause 64: Interpretation

157.     This clause provides definitions for the purposes of Part 6 of the Bill, for example of "definitive map and statement". The definition of a mechanically propelled vehicle excludes electrically assisted pedal cycles.

Part 7: Inland Waterways

Clause 65: Inland Waterways Advisory Council

158.     This clause changes the name of the Inland Waterways Amenity Advisory Council to the Inland Waterways Advisory Council.

Clause 66: Constitution of Council

159.     This clause substitutes for section 110 of the Transport Act 1968 (which governs the existing Inland Waterways Amenity Advisory Council) a new section 110 setting out the arrangements governing the composition of the Council and the procedures to be adopted for the appointment of the chairman and members. The clause removes the requirement to consult the chairman of the British Waterways) (referred to in the 1968 Act as the Waterways Board before making appointments to the Council.

Clause 67: Term of office, procedure etc.

160.     This clause inserts a new section 110A in the Transport Act 1968 setting out the terms under which the members of the new Council hold office, and the procedure for the appointment of regional and other committees. The new section also provides for the payment of members' expenses and allowances, and the remuneration of the chairman.

161.     The Waterways Board is currently required to provide the Council with staff and accommodation. This requirement is dropped under the new section 110A. Under the new provision the Secretary of State and Scottish Ministers are required to fund the Council. This will enable the Council to make its own arrangements for staff and accommodation.

Clause 68: Functions of Council: England and Wales

162.     This clause adds a new section 110B to the Transport Act 1968 setting out the functions of the new Council in relation to England and Wales. The new section effectively replaces section 110(2) of the Act which sets out the existing Council's functions. It gives the Council the role of providing advice to the Secretary of State and navigation authorities about matters relevant to inland waterways in England and Wales. It also allows the Council to provide any other interested person with such advice.

Clause 69: Functions of Council: Scotland

163.     This clause changes the functions of the Council in relation to Scotland by adding a new clause 110C to the Transport Act 1968, replacing section 110(2) of the Act. It gives the Council the function of providing advice to Scottish Ministers and the Waterways Board about matters relevant to inland waterways in Scotland which are either owned or managed by the Waterways Board or in respect of which the Board is providing advice or assistance. It also allows the Council to advise other interested persons about such matters.

Part 8: Flexible administrative arrangements

Chapter 1: Agreements with designated bodies etc.

Powers to enter into agreements

Clause 70: Agreement between a Minister and designated body

164.     This clause gives a Minister of the Crown the power to enter into an agreement with a designated body authorising that body to carry out an eligible function on behalf of the Minister. The meaning of "eligible function" is dealt with in clause 73. "Designated body" is defined as a body listed in Schedule 7; the listed bodies already carry out functions within the broad Defra remit. The meaning of "eligible function" is dealt with in clause 73. The Secretary of State can amend the list in Schedule 7 by statutory instrument.

165.     An agreement made under this clause after the enactment of the Bill will enable activities that are currently carried out by Defra's Rural Development Service to be carried out by Natural England.

Clause 71: Agreement between the Secretary of State and non-designated body

166.     This clause gives the Secretary of State the power to enter into an agreement with a non-designated body to authorise that body to carry out any eligible function which currently falls to be performed by Defra. Such agreements would only be by mutual consent. This clause helps to enable functions to be carried out by the body that is best placed to carry them out.

Clause 72: Agreement between designated body and another body

167.     This clause allows a designated body ("A") (i.e. a body listed in Schedule 5) to enter into an agreement with a designated or non-designated body ("B") authorising "B" to carry out an eligible function of "A". This would be by mutual agreement, and subject to the approval of the "relevant Minister" (as defined in subsection (6)).

168.     The clause allows for the Minister's approval to be given either to a particular agreement or to a description of agreements. This will enable a Minister to approve an agreement in respect of a single function or to give a generic approval (which may be time limited if desired) that covers a group of similar functions.

Clause 73: Eligible functions

169.     This clause defines "eligible" functions. A function is eligible for the purposes of the Chapter if the authorising body thinks that it fits well with the existing purposes of the body taking on the function, and if it is not a listed "reserved function". Reserved functions cannot be subject to such Chapter 1 agreements. They are listed in subsection (4) of the clause and include, for example, powers of the Minister to make appointments and give guidance or directions, power to make subordinate legislation, power to fix fees and charges (unless the Secretary of State has ordered otherwise), and accounting officer functions. Powers of entry, inspection, sampling, seizure and related powers are also reserved functions, except where B is a public body.

Clause 74: Maximum duration of agreement

170.     This clause imposes a 20-year limit on the duration of agreements made under this Chapter.

Supplementary provisions

Clause 75: Powers of bodies authorised to perform functions

171.     A body cannot be authorised to perform functions that are incompatible with the purposes for which it was established. However the fact that it lacks a specific power will not prevent it from performing a function which it is authorised under this Chapter to perform.

Clause 76: Supplementary provisions with respect to agreements

172.      Agreements and any ministerial approvals under this Chapter must be in writing. The agreements are to be made public in such a way that, in the Secretary of State's opinion, bodies and people likely to be affected by an agreement have it brought to their attention. The clause provides that the body taking on a function can be paid to carry it out.

173.     Subsection (5) provides that no power of a Minister of the Crown to give directions to a statutory body can be used to require the body to enter into an agreement under this Chapter, nor to prohibit it from doing so.

174.     Subsection (6) applies Schedule 15 of the Deregulation and Contracting Out Act 1994 to authorisations by a designated body under this Chapter. This is to make it clear to each body how to handle confidential information and the situations where sharing of information between the contracting bodies is permitted.

Chapter 2: Powers to reform agricultural etc. bodies

Power to create boards

175.     This Chapter gives the Secretary of State the powers to establish new bodies for agricultural and related industries and to dissolve both existing levy bodies and any bodies created using the provisions in this Chapter. This Chapter also allows for property, rights, liabilities and any surplus to be transferred from the dissolved body or board.

Clause 78: Power to establish boards

176.     This clause confers power on the appropriate authority to make an order establishing a board. The order will specify the purpose for which the board is established and assign certain functions to it. The permissible purposes are set out in clause 79; the permissible functions are set out in clause 80. An order under this clause must specify the geographical area in relation to which assigned functions are to be exercised.

177.      "The appropriate authority" is defined in clause 87—

  • in relation to matters concerning England only, the appropriate authority is the Secretary of State;

  • in relation to matters concerning Wales only, the appropriate authority is the National Assembly for Wales;

  • in relation to matters concerning Scotland only, the appropriate authority is the Scottish Ministers;

  • in relation to matters concerning Northern Ireland only, the appropriate authority is the Department of Agriculture and Rural Development in Northern Ireland;

  • in relation to certain other specified matters (broadly speaking cross-border matters), the appropriate authority is the Secretary of State acting with the approval of the National Assembly for Wales, the Scottish Ministers (where a draft of the order has been approved by a resolution of the Scottish Parliament) or the Department of Agriculture and Rural Development in Northern Ireland.

178.     An order under this clause is referred to in the Bill (and in these notes) as a "section 78 order".

179.     The procedure for making a section 78 order is provided for in clause 88.

Clause 79: Permissible purposes of boards

180.     Subsection (1) lists the purposes for which a board may be established. Subsection (2) requires a section 78 order to specify the purposes for which the board is established and to define the industry to which the order relates.

Clause 80: Permissible function of boards

181.     This clause sets out the variety of functions which may be assigned to a board under a section 78 order. The clause introduces Schedule 9, which contains a list of functions that is based on those available for development councils set up under the Industrial Organisation and Development Act 1947. The functions include promoting and undertaking scientific research, and promoting marketing, product certification, development of export trade, education and training. The other permissible functions that may be assigned to a board are functions of the five main existing levy bodies. Three of them, those dealing with horticulture, potatoes and milk, are set up as development councils under the 1947 Act. There is a separate Act, the Cereals Marketing Act 1965, that set up the levy board in the cereals sector (Home Grown Cereals Association), and Part 1 of the Agriculture Act 1967 that set up the Meat and Livestock Commission. These bodies will remain in place unless and until the appropriate authority (see above) decides to dissolve them (see clause 82).

Clause 81: Ancillary provisions

182.     This clause introduces Schedule 10, which contains further provisions about the contents of a section 78 order. These include provisions relating to registers, returns and other information, investigative powers, levies, reserve funds, consultation duties and offences. In particular the board of a new body will be able to demand sight of records and other documents so as to enable it to verify that the correct levy is raised from people.

Power to dissolve existing levy bodies and boards

Clause 82: Power to dissolve existing levy bodies

183.     This clause confers power on the appropriate authority to dissolve the existing levy bodies (as defined by clause 80(2)). The clause ensures that where an existing levy body is dissolved the primary or secondary legislation which established the body is repealed or revoked.

Clause 83: Power to dissolve board

184.     This clause confers power on the appropriate authority to dissolve any board established under this Chapter.

Clause 84: Dissolution: supplementary

185.     In the event of an order for the dissolution of an existing levy body or a board created under this Chapter, the order may deal with the transfer of any property, rights or liabilities of the existing body or board. Also, where an existing levy body or a board has collected levies, any surplus assets can be applied elsewhere by the order (for example, for the benefit of the industry that has paid the levies in past years).

Powers of appropriate authority

Clause 85: Grants

186.     The "appropriate authority" (whose definition is set out in clause 87, and reproduced in the explanatory note on clause 78 above) may make grants to a board under such conditions as she sees fit.

Clause 86: Directions

187.     The appropriate authority may give a board directions as to the exercise of its functions, and revoke or amend such directions (which have to be in published).

Chapter 3 Financial assistance

Clause 89: Financial assistance

188.     This clause enables the Secretary of State to provide financial assistance in respect of expenditure incurred or to be incurred in any matter connected with a Defra function, subject to any conditions (for example terms governing reimbursement on breach) specified. These grant-giving powers are couched broadly and flexibly in order to enable the Secretary of State to fund any function within Defra's remit, even where a more specific power to give financial assistance exists. This will, for example, enable the Secretary of State to fund directly matters such as social and economic regeneration of deprived rural areas. At present she can do this only through the Countryside Agency or some other delivery agency. This clause extends to Wales and Northern Ireland.

Part 9: Miscellaneous

Clause 90: Byelaws relating to land drainage

189.     The existing byelaw making powers in Schedule 25 to the Water Resources Act 1991 and section 66 of the Land Drainage Act 1991 do not integrate environmental issues into the byelaw decision-making process. This clause amends the two enactments to do so.

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Prepared: 20 May 2005