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29 Jun 2006 : Column 407

David Miliband: My hon. Friend tempts me into the future of farming, which I spend part of my time addressing, because his point about biofuels is important to the vision of a diversified farming sector—as it is, too, to the future of our environment. The decision of the former Secretary of State for Transport a few months ago, that by 2010, 5 per cent. of all petrol bought will come from a biofuel basis is an important step in the right direction.

Hywel Williams (Caernarfon) (PC): The Secretary of State said that allocations for industry will continue to be made on the basis of need. I think that is historical need, so what are his plans to review and reassess that need on a regional basis, given that manufacturing in Wales is a substantially larger part of the economy than elsewhere in the UK?

David Miliband: The hon. Gentleman makes an important point. We have two years to make sure that phase 2 of the scheme works well from 2008. We shall be working closely not only with industry but also with the devolved Administrations to ensure that the scheme appropriately recognises different needs around the country.

Mark Lazarowicz (Edinburgh, North and Leith) (Lab/Co-op): If other European countries are to follow a lead set by the UK Government, they will be required not just to set tough national allocation plan targets but also to ensure that their own industries comply with those targets in a transparent way. What measures does my right hon. Friend think should be put in place to ensure that the European Commission can properly monitor the effectiveness of the schemes agreed and the implementation of the caps by all member states in the Union?

David Miliband: My hon. Friend raises a really important point about the difference between phases 1 and 2, which relates to a question put by the hon. Member for Eastleigh (Chris Huhne) that I forgot to answer. Phase 1 was characterised by much uncertainty about existing emission levels in different countries. We now have figures for emissions in every country and the European Commission has said that no country will be allowed to set a cap higher than its current emissions level. For starters, we are in a much, much stronger position. Secondly, my hon. Friend makes an important point about independent monitoring and reporting. Our strong view, which we are discussing with the Commissioner, is that we must do everything we can to strengthen the integrity of the monitoring and other systems.

Mr. Crispin Blunt (Reigate) (Con): Why did the Secretary of State not offer an explanation and an apology for the embarrassing shambles last year in the Department he now heads? Figures given to the European Union had to be corrected, but the Commission refused to accept the corrections and we were led into the embarrassing position of taking it to the European Court of Justice to put things right. What confidence can we have that his Department will be able to administer this otherwise thoroughly welcome scheme?

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David Miliband: To say that there is grotesque embarrassment is a bit rich, given that we are recognised around Europe as playing a leading role in the emissions trading scheme; but if it is any consolation to the hon. Gentleman, we are working closely with the Department of Trade and Industry to make sure that the expertise of the two Departments results in the successful operation of the scheme.

Ms Angela C. Smith (Sheffield, Hillsborough) (Lab): Major industries in my constituency, such as Corus Engineering Steels, are concerned about the impact of the scheme on their ability to compete. If we are helping to create a genuinely global carbon market, will it be likely to draw in the countries that initially stayed out of the Kyoto process, such as the United States?

David Miliband: My hon. Friend makes an important point. Fortunately, the Minister for Energy is sitting next to me and assures me not only that he is also responsible for steel but that he is a man of steel as well. He recently met Corus to discuss the point raised by my hon. Friend the Member for Sheffield, Hillsborough (Ms Smith) and other issues. Obviously, questions about environmental regulation, the role of climate change agreements and the role that we have set out for the insulation of internationally competitive sectors from the burdens imposed by the scheme are all part of the calculation that we and industry have to make to ensure that we achieve the right balance not only between the economy and the environment, but also between different parts of the economy. My hon. Friend’s commitment to a strong manufacturing sector is shared on both sides of the House and certainly by the Government.

Adam Afriyie (Windsor) (Con): Through my work on energy in the Science and Technology Committee, it is clear to me that the energy production industry is ready to trade carbon emissions for the next 20, 30, 40 or 50 years ad infinitum. The challenge is that there is no long-term framework, so will the Secretary of State let us know why he omitted the longer-term framework from his statement, and will he confirm the admission that the Government are on track to miss their target of carbon emission reductions by 2010?

David Miliband: I would have been happy to give an hour-long lecture on all aspects of energy policy, but today’s announcement was about phase 2 of the scheme, and it might have tried Members’ patience if we had gone further. However, in answer to the question, we have said that we are very clear about the 2050 goal as the guiding line for policy, we are very clear about the need for the EU and all its leaders and Governments to set a clear indication of the longterm direction and we are determined to do that as quickly as possible.

Dr. Alan Whitehead (Southampton, Test) (Lab): I welcome, with other colleagues, the great step forward represented by today’s statement in terms of carbon saving. Can my right hon. Friend confirm whether there will be a special good-quality combined heat and power sector in the second phase of the NAP? If there is to be a good-quality CHP sector, under the new entrants holdback will he be able to provide new CHP entrants with 100 per cent. of the spreadsheet calculation within that sector?

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David Miliband: To answer questions about spreadsheets I am going to have to get my PowerPoint out—[Hon. Members: “Excel.”]—or even my Excel. But my hon. Friend the Minister for Climate Change and the Environment assures me that CHP will be in the scheme. The only thing I would say is that, as I stressed in my statement, there are strong links between the statement today and the energy review, and the energy review will be looking right across the piece at energy need and how to meet it.

Mr. Charles Walker (Broxbourne) (Con): At a more granular level, the Rye house power station in my constituency is one of the UK’s top 100 producers of emissions. How is the Secretary of State working with organisations like that to encourage them to burn their fuel more efficiently in the creation of electricity?

David Miliband: The ETS is one way. My right hon. Friend the Secretary of State for Trade and Industry and I had a very useful meeting with the UK Business Council for Sustainable Energy, where we talked about the challenges that are faced by the sector but also the commitment of the sector to ensure that it works in a much more energyefficient way. Two weeks ago I was up in Warrington, looking at a major production facility that is now using 30 per cent. biofuels to help ensure that emissions are curbed as much as possible. Maybe there is something for the hon. Gentleman’s constituents to learn from that.

Mr. Adrian Bailey (West Bromwich, West) (Lab/Co-op): The Secretary of State may be aware that, in my capacity as secretary to the all-party steel and metals group, I have led deputations to the Minister responsible for steel on issues arising from phase 2, not least the dramatic reduction in carbon allowances that will be made. The industry maintains that both for blast furnaces and electric arc furnaces the spreadsheets on which the calculations have been based are incorrect and have not been drawn up in consultation with the industry. What steps is the Minister taking to ensure that in the consultation with the industry we arrive at targets that will deliver on our overall national target but not compromise the longterm viability of the steelmaking industry in this country?

David Miliband: I do know that my hon. Friend has been a doughty campaigner on behalf of not just his constituents but the steel industry throughout the
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country and has met my hon. Friend the Minister responsible for steel. I can assure him that if there are disputes about facts, we shall use the forthcoming period to get to the bottom of them and ensure that there is an agreed evidence base on which decisions are made.

Mr. Philip Hollobone (Kettering) (Con): Is phase 2 open to European countries that are not members of the European Union, and given that China, India, Brazil and the United States continue to splurge out carbon dioxide at an increasing rate, what progress is being made towards the establishment of a global carbon market?

David Miliband: The hon. Gentleman raises a very interesting point, not just in respect of China and India but perhaps also the 248 US cities that have now committed themselves to the Kyoto targets under something called the Seattle declaration led by the mayor of Seattle, some of which have expressed an interest in joining the scheme. The latest legal advice is that it is not open to non members of the EU. However, I am pleased to report that I hear that there are moves afoot to try to replicate the successes of the EU scheme in other regions of the world.

Mr. Peter Bone (Wellingborough) (Con): Is the Secretary of State at all concerned that the EU will not operate the scheme in the way that he thinks it should be operated, given that, when the EU gas liberalisation happened, our continental colleagues completely failed to follow it and householders in this country paid £186 a year extra because of that failure?

David Miliband: I am sure that my hon. Friend the Minister for Energy is still pressing on the gas liberalisation issue—the hon. Gentleman raises an important issue. However, I can say to him that I felt in my discussions with the European Environment Council on Tuesday in Luxembourg that there was widespread recognition that we absolutely had to make the ETS work, because it is the lowest cost way of driving down carbon emissions, and that view was shared not just by member states but in the Commission. We shall be working very hard to ensure that they live up to that commitment.

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Point of Order

1.5 pm

Mr. Greg Hands (Hammersmith and Fulham) (Con): On a point of order, Mr. Deputy Speaker. May I get your guidance on the speed with which written questions are answered, especially in the Department for Work and Pensions? On 19 December 2005 I tabled a question on the cost of departmental Christmas cards, which was answered on 14 June 2006—some six months later—at a cost of about £3,000. I hope that they are more prompt in getting out their Christmas cards than they are in getting out their parliamentary answers.

Mr. Deputy Speaker (Sir Michael Lord): The hon. Gentleman must be aware that the speed with which Ministers answer written questions is not a matter for the Chair. He might, however, like to read yesterday's Adjournment debate, which was very much about these matters; he might find that of interest.

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Orders of the Day

Commons Bill [Lords]

As amended in the Standing Committee, considered.

New Clause 1

Vehicular Access

‘Section 68 of the Countryside and Rights of Way Act 2000 (c.37) shall cease to have effect.'. — [Barry Gardiner.]

Brought up, and read the First time.

1.6 pm

The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (Barry Gardiner): I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker (Sir Michael Lord): With this it will be convenient to discuss Government amendments Nos. 110 and 111.

Barry Gardiner: The amendment repeals section 68 of the Countryside and Rights of Way Act 2000—the CROW Act—in line with the discussion in Committee. Amendment 111 is consequential; the long title of the Bill must itself be amended because section 68 applies to some land other than common land and town or village greens, so its repeal falls outside the scope of the present long title. Section 68 was enacted during the passage of the CROW Act. It was designed to deal with a problem that had arisen through case law for householders who accessed their homes by vehicle over areas such as commons or greens. Section 68 has now become redundant for legal reasons, and repealing it will avoid any mistaken impression that the section has a residual role. We consulted publicly about doing this and will publish a report in due course on the findings of that consultation.

Mr. James Paice (South-East Cambridgeshire) (Con): I confess that I am puzzled by this group of amendments. Obviously I am very familiar with the debates that we have had on the issue of access over common land and village greens, and the work that was done by my right hon. Friend the Member for Bracknell (Mr. Mackay) and others to try to resolve the problems, but I am puzzled about why it is necessary to abolish section 68 of the CROW Act. I hope that the Minister can clarify the reason.

I am very much aware of the House of Lords judgment in Bakewell Management Ltd v. Brandwood and it is my understanding that it is on that basis that the Minister has been advised that section 68 should be repealed. However, it has been put to me that if we remove section 68 and the possibility of being granted a statutory easement thereunder, we are in effect reverting to the old arrangements involving a ransom payment, which were precisely what section 68 of the CROW Act was intended to overcome, because, as a result of the repeal, the landowner might then be in a better position than before to make a charge for a house owner driving over the land to gain access to his property, and might take all necessary steps to stop an
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easement being acquired over it, in order to keep his options open. That was not the intention of the Government, or indeed the Opposition, when section 68 of the CROW Act was enacted and I do not understand why we need to repeal it now.

The Minister said that the section has become redundant for legal reasons, but we do not know what those are. Indeed, it has been put to me that there are no legal reasons for abolishing it. Not impossibly, a householder might actually prefer, notwithstanding having made a payment, to have the grant of a statutory easement under section 68 than to have it prescribed under common law, because of the problems of producing evidence of the use and of getting his title right. To remove that possibility is also unhelpful to householders.

It has been put to me that if we remove section 68, we are in effect reverting to what I understand was called the Hanning v. Top Deck Travel era—with the illegality bar removed—when, for example, a commercial company claimed to have acquired the prescriptive right to drive a double-decker bus over a common, but without being able to do anything effective about it. It is important to remember that section 68 was enacted precisely to address that sort of situation by providing that there should be no vehicular easement to drive over common land, except as provided by section 68. That is an important protection for common land. Why does the Minister want to abolish section 68? What is it about the case to which I referred—Bakewell Management v. Brandwood—that he believes makes it unnecessary?

The argument is that a House of Lords judgment cannot abrogate a statute that this House has passed; it can only interpret it. When we enacted section 68, the House decided that a payment should be made and that there should be no free easement in situations in which Parliament has resolved that there should be a payment. I do not think that anything has occurred to alter Parliament’s view. Following that logic, section 68 is not redundant. The House of Lords does not have the power under the constitution to abrogate a statute. Section 68 of the CROW Act was, in any case, not a pleaded issue in Bakewell Management v. Brandwood. It was not even part of the case. The observations of the House of Lords in that reported judgment, as far as section 68 and the CROW Act are concerned, did not form part of the ratio decidendi—the argument at the end of the case. The contention is that section 68 is not therefore redundant. In fact, it constitutes the only means that the House has provided whereby an easement can be acquired to drive over a common. I hope that the Minister will come back with some more information as to why he believes that what he wants to do is necessary. We all agree with what we were originally trying to achieve, but I am unclear about why it is necessary to abolish section 68 to try to do that. By abolishing section 68, the Minister might be creating more problems than he thinks.

Barry Gardiner: I am glad to have the opportunity to respond to the hon. Gentleman’s questions, because it is important that these matters are clarified. The section and the regulations made under it were enacted because of the impact of the 1993 judgment known as Hanning v. Top Deck Travel. Before that case, it had
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been thought that home owners who had, for a sufficiently long period, driven across land such as common or green to gain access to their property had acquired a legal right to continue doing so by virtue of prescription or long use. The Hanning case held that that was not the position, on the ground that a legal right to continue doing something cannot be acquired by virtue of actions that involve committing an offence, and road traffic legislation makes it an offence to drive without lawful authority on land that is not a road. In the wake of that case, a significant number of householders around the country were asked to pay large sums of money to continue to drive to their own property over areas such as commons or greens.

Section 68 was brought about, late in the passage of the CROW Bill, to provide a means by which the payments necessary to secure easements for this purpose could be capped. I want to stress that. Section 68 was not enacted to prevent prescriptive claims of rights of way. It was enacted to cap any payments that, under previous case law, were required to establish an easement. The subsequent House of Lords ruling in the Bakewell Management case in 2004 overruled the Hanning judgment. It confirmed that in circumstances in which the owner of a common or green could, by granting permission to a householder, have made their use of the land for vehicular access lawful, there is no bar on the householder relying on their actual use, without such express permission, to establish the prescriptive right of access.

The reason for enacting section 68, therefore, has disappeared. Where long-standing vehicular use has taken place on land, it is usually the case that the landowner could have given permission for the use so as to prevent its constituting an offence. In such a case, the use would equally be sufficient to create a prescriptive right independently of section 68. If in a particular case, because of some other legislation, it would be an absolute offence to drive across a common or green or to do so in a particular way and the owner has no power under the legislation to grant permission for that use so as to disapply the offence, a right of vehicular use cannot be created at all. We believe that such cases are exceptional, but, where they arise, section 68 has never assisted a householder who has unlawfully been using the common or green for vehicular access and therefore its repeal will not make any difference to that position.

1.15 pm

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