Natural Environment and Rural Communities Bill |
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Mr. Atkinson: Those situations arise elsewhere, as the Minister will appreciate, and the normal way around them is simple purchase of a title insurance. Jim Knight: Perhaps I will have to reflect on that matter, because the hon. Gentleman has gone into an area with which I am less familiar. I hope that we have now been able to discuss this matter enough to make progress, on the basis that if there are issues that he has raised that I need to write to him about or return to at a later stage, I will do so. Question put and agreed to. Clause 8 ordered to stand part of the Bill. Clause 9 Information services etc. Question proposed, That the clause stand part of the Bill. Mr. Roger Williams (Brecon and Radnorshire) (LD): It is a great pleasure, Ms Anderson, to serve on this Committee under your chairmanship. I should like to ask the Minister a question about the clause. It seems to me that Natural England will have great powers. It will accumulate a lot of personal information about people—about their ownership of land, or tenancy agreements, or leaseholds—and perhaps even more information about their businesses when it reaches management agreements on things such as SSSIs. 5 pmDoes the clause cover that information? I can foresee a situation in which an individual might not want to enter into an agreement with Natural England if information about their private life and private business—their ownership of land, or leasehold or tenancy—was going to be made public, because that might in some way hamper their business activities or the carrying out of the business they wish to operate in terms of land management. Is there any confidentiality in this, or is it just absolute, so that any information may be provided by Natural England? Column Number: 65 Jim Knight: I am grateful to the hon. Gentleman for that. I had regarded this as a relatively straightforward clause that gives Natural England powers to publish and assist in the publication of information, but I can assure the hon. Gentleman that it will of course be subject to both the Freedom of Information Act 2000 and data protection legislation. I am not an expert in either of those legislative areas, but my recollection—it is only that—is that protections are afforded to individuals around the sorts of circumstances to which the hon. Gentleman refers. They would apply in respect of the information gathered by natural England as much as they would to any other body subject to those two areas of legislation. Mr. Paice: The hon. Member for Brecon and Radnorshire (Mr. Williams) raises an interesting point, and I want to make the following point to the Minister. He refers to the Freedom of Information Act and data protection legislation. However, he may not be aware—I expect that he is, as I am sure that he boned up on all the relevant things that took place before he took up his post—that in the spring there was quite a kerfuffle when all the payments made to farmers under the previous support system were published under the Freedom of Information Act. What many farmers felt about that supports the point that the hon. Gentleman has made; they felt that that was their private business. Natural England is going to be making management agreements and it will be responsible for a variety of stewardship schemes. It will have responsibility for handing out public money in return for various activities, and I think it would be useful to know well in advance—on the occasion I have just mentioned, farmers got only a week’s notice—if information is going to be published and therefore made public about, for example, farmers, landowners or whomever getting £x for a particular activity, or lack or activity. There is a key issue here that the Minister should look at, and the hon. Gentleman is right to point it out. Mr. Robert Goodwill (Scarborough and Whitby) (Con): That was precisely the point that I was going to make about information on the payments made to farmers. It is not just a case of people being embarrassed when it is generally known in the pub how much they are getting from the Department for Environment, Food and Rural Affairs. It is the fact that landlords would often have a figure written on a piece of paper, and that would be the opening bid in rent negotiations. That has happened in my part of north Yorkshire, and it puts the tenant in a difficult negotiating position to know that the landlord knows how much the cheque from DEFRA will be for, and basically says, “Well, give me that as the rent, and you can have whatever you make otherwise.” That is worrying, quite aside from the embarrassment that a couple of very large landowners were subject to when those sums were published. Jim Knight: Clearly, an interesting point has been raised; these Committee sittings are learning experiences for all of us. In essence, what I am saying is that the Rural Development Service is being brought
Question put and agreed to. Clause 9 ordered to stand part of the Bill. Clause 10 Consultancy services and training Question proposed, That the clause stand part of the Bill. John Mann: I rise to make another pedantic point, but such things are rather important when framing legislation. Subsection (2)(b) uses the word “thinks”, but the word seems rather ambiguous. Who is to determine whether something has been thought? It ought to be a word such as “determines”, otherwise someone may think that a thought has taken place and then enact it. That may lead to expenditure. However, others may think that it had not been thought; in other words, that it had never been determined in anything other than through the thought process. Although it is pedantic point, it is an accurate one. The second one is about the use of the word “special”. Again, it is a rather broad and strange term to have used. The second use of the word may have some logic, as a specialist has some relationship to “professional”. I make these points because of the danger of ambiguity, although I chose not to raise one or two examples in previous clauses that are open to some ambiguity. If ambiguity is built into legislation, problems may arise unnecessarily about what Parliament intended. Jim Knight: As always, I am grateful to my hon. Friend. Were it not for the fact that he is such an excellent Member of Parliament serving the people of Bassetlaw, he would clearly have had a future as a drafting official. I refer to a conversation that we had this morning, when I said that in forming Natural England we are forming a legal person, and one would hope that a person has the capacity to think. I suggest that the body corporate’s thoughts would be made by the board, and as such they would be recorded as board decisions. They would therefore be subject to more scrutiny than my individual thoughts or those of other hon. Members. As for the second “special” in subsection (2)(b), I am inclined to agree that “specialist” might be better. I shall reflect on that, taking advice from my good
Question put and agreed to. Clause 10 ordered to stand part of the Bill. Clause 11 Power to charge for services and licences Mr. Williams: I beg to move amendment No. 106, in clause 11, page 5, line 15, at end insert—
Seldom does legislation come before the House that does not give the Government the power to charge people for various services or other things that they may wish to dispense. That is despite the fact that the final regulatory impact assessment said about the provision:
However, clause 11 states that
My amendment would require the Secretary of State to consult land managers and other people with an interest in the services that might be provided by Natural England. Until now, I understood that English Nature would provide free advice to land managers who might wish to enter into an agreement to protect SSSIs or some other natural conservation area. The suggestion here is that there will be a departure from that practice and that Natural England may start charging for those services. It would be just if the Minister assured us that he will consider the idea that before such charges are made, the Secretary of State should consult those people liable to pay them. Jim Knight: Clause 11 gives Natural England, with the Secretary of State’s consent, powers to charge for its services. That carries forward similar powers that currently apply to English Nature and to the Countryside Agency in the Environmental Protection Act 1990 and the Countryside Act 1968. Indeed, there are some things that they already charge for. English Nature, for example, might publish a leaflet or pamphlet relating to a reserve that it might charge for. We should bear in mind that we are thinking about that sort of scenario as much as we are thinking about scenarios where neither body currently charges. Column Number: 68 The hon. Member for Brecon and Radnorshire is absolutely right to be concerned that before any future charge is levied by Natural England a thorough impact analysis, including not only the appropriateness of a charge but also the level at which it is set, should be carried out. At present, neither of the general charging powers for commercial services that apply to English Nature and the Countryside Agency requires the Secretary of State’s approval before charges are made. The Bill already moves that process forward and contains a more robust safeguard than is currently in place to ensure that any charges will be fair, proportionate and reasonable. In essence, I say to the hon. Gentleman that we should view this in the following way. The accountability is between Natural England and the Secretary of State and we have put the requirement for the Secretary of State’s approval in the Bill to ensure that that accountability is clear and is maintained. The delivery body, which makes the charge, is Natural England. Therefore, it is appropriate for Natural England to carry out the consultation, rather than the Secretary of State, which is the other way round from the proposal in the amendment. It would be better for Natural England to carry out the consultation and to be accountable to the Secretary of State for that as well as the charge, which is why we have set the process up in that way. It is not a matter of regulatory burdens but charging for services, and the two bodies already do that. I hope that the hon. Gentleman will rest assured that before the Secretary of State’s approval is given Natural England will need to explain the detailed background to DEFRA in some detail. I hope that he agrees that it is unnecessary for there to be a requirement on the Secretary of State also to consult people—it would create an extra burden for them if they have to be consulted twice—who may wish to benefit from a new commercial service each time before such charges are introduced on a normal cost-recovery basis. Mr. Williams: I have listened to the explanation from the Minister and I accept that it would be more appropriate for the consultation to be carried out by Natural England than by the Secretary of State. Perhaps the Minister could reflect on making it a requirement in the Bill that, before charging, Natural England should consult those people who would be liable to meet those charges. 5.15 pmJim Knight: When I thought about the clause, I was thinking not only about those commercial services, but about whether, for example, any future charge would be applied for some of the licences that are currently issued at no charge. Before any such move or order could be made, we would certainly expect Natural England to consult widely. That would be implicit in the way that Natural England would go about its business as an enabler and as a partner organisation. We are going back to some of the points made during the argument and discussion on clause 2 relating to powers. The style—the modus operandi—of Natural England should be partnership and inclusion, and
Mr. Williams: The Minister has got a lot to reflect on. He has given us that commitment and I accept that. I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 11 ordered to stand part of the Bill. Clause 12 Power to bring criminal proceedings Question proposed, That the clause stand part of the Bill. Mr. Paice: A few minutes ago, the hon. Member for Bassetlaw referred to ambiguity. Nobody could pretend that subsection (1) is ambiguous. It is quite clear and blunt:
I want to take the opportunity of the stand part debate to probe the Minister on exactly what that means in practice. On the face of it, it is an extremely wide, bald power. He said just now that, as he said earlier, Natural England is a legal person. Subsection (1) implies that it can start prosecuting people for anything under the sun. He may want to reflect on whether that is right or whether there should not be something in the Bill that relates the provision to Natural England’s general purposes and to the protection of wildlife, the countryside, the landscape and the environment. The subsection reads as though the proceedings could almost relate to someone being drunk and disorderly on the streets of London. I therefore question whether the statement should be quite as all-embracing as it is at present. I raise this issue purely as a matter of inquiry. I would be grateful for the Minister’s thoughts; perhaps he could take the issue away and consider whether the statement needs to be quite as open as it really is, or whether it should be limited somehow to the purposes of Natural England in clause 2. Jim Knight: The hon. Gentleman said that the provision could be used for anything under the sun, but it is implicit, as with everything that follows on from the reference to its purpose, that the actions of Natural England would be confined to things that come within its purpose. There is a parallel with the Environment Agency. The Environment Act 1995 confirms that the agency can institute criminal proceedings in England and Wales. The provision is very straightforward and, read in isolation, it seems open-ended and as though it might allow the agency to prosecute people for anything under the sun. However, it is governed by the purpose of the agency as set out in that legislation. It does not go around prosecuting people for antisocial behaviour unless it is
We have talked about ambiguity. In fact, the clause removes some ambiguity in existing legislation, in respect of English Nature and the Countryside Agency’s prosecution powers across their enforcement duties—for example, in relation to byelaws—which are not clearly expressed in legislation. We have used this opportunity to clarify the powers in respect of byelaws. I reassure the Committee that there is no intention for Natural England to become an enforcement body that goes wider than the constituent bodies that make it up. I confess that the clause caused some confusion when the Bill was published, which is perhaps reflected in the comments that we have heard. Some stakeholders erroneously thought that it represented a wide extension of the predecessor bodies’ enforcement powers. There is no intention for those to go any wider. In some cases, in the existing legislation there are elements of ambiguity about whether the constituent bodies have enforcement powers. We have removed that ambiguity here. As I said, Natural England will inherit the regulatory powers of the constituent bodies. I shall give some examples: English Nature’s various enforcement and regulatory functions in relation to SSSIs, nature reserves and some wildlife enforcements; the Countryside Agency’s relatively few enforcement powers, in relation to byelaw making and management agreements; and the Rural Development Service’s role in wildlife licensing and in direct enforcement, mainly monitoring and inspection activities on the ground. Those are the sorts of things we are talking about. We are not talking about going any further than that. Mr. Breed: The Minister will be aware that in the past quite significant damage has been done to SSSIs, but there have been virtually no prosecutions. Is the new integrated agency intended to be more robust in these situations, so that we do not see significant deterioration to SSSIs? The damage is quite deliberate on most occasions. Jim Knight: As we have discussed, we are giving Natural England the enforcement powers, and they are clearly and unambiguously stated in the Bill. We also have a public service agreement target of bringing 95 per cent. of SSSIs up to standard by 2010. If we are going to achieve that, then we need to make sure that the public out there believe that Natural England will use its enforcement powers if people are damaging SSSIs unnecessarily and without proper permission. I would hope that the new body will be robust. Certainly it will be strengthened by bringing the various bodies and enforcement powers together, so that expertise can be concentrated and, perhaps, economies of scale achieved in enforcement. On that basis I hope that the hon. Gentleman is happy. Mr. Goodwill: Mention is made of cases being brought in the magistrates court. I wondered if the Minister envisaged Natural England participating in a
Jim Knight: What an interesting question the hon. Gentleman puts. I had not anticipated it and will drop him a line and copy the rest of the Committee into the answer to that question. Question put and agreed to. Clause 12 ordered to stand part of the Bill. Clause 13 Incidental powers Mr. Paice: I beg to move amendment No. 48, in clause 13, page 5, line 39, leave out from ‘that’ to ‘the’ in line 40 and insert ‘is reasonable for’. This is an important amendment. Clause 13 has the anodyne heading ‘Incidental powers’, but then goes on to say in subsection (1):
I read that, frankly, as meaning Natural England can do virtually anything. My reason for concern is the qualification, ‘that appears to it’. In other words, as long as Natural England itself—ultimately the board—is content ‘that it appears to it’ that what it is doing is okay, then it must be okay and, therefore, in pursuit of or ‘conducive or incidental’ to the discharge of its functions. The Minister has referred to independence several times during the debate, and the Select Committee spent a lot of time considering that issue. I support the idea that the organisation should be independent, but there must be some limits on it, because it is a corporate entity, a legal person. The Minister said a few minutes ago that it would be accountable through the Secretary of State, but I believe that it has to be accountable ultimately to the community that it serves. I refer back to the earlier conversation about rural communities and landowners and others, because my reading of these incidental powers is that they are so wide that as long as it appears to Natural England that what it is doing is right, it can do anything, which may be to the disadvantage of someone else. Among its many functions is, as we have discussed, the enforcement of various wildlife and natural environmental protection legislation. Its functions are also to enter into management agreements and, obviously, to interpret them, to carry out research, to advise, to give grants and to do all manner of other things. It occurs to me that there could be a situation in which Natural England intended in effect to force an organisation or individual to do something that they did not like and which they genuinely believed to be beyond or irrelevant to the purposes outlined in clause 2. There needs to be an opportunity for ultimate challenge. I am certainly not advocating vexatious
It would have been easy for me simply to propose deleting subsection (1), but throughout our proceedings I have tabled amendments that are designed to address in a reasonable—I use the word advisedly—way what we are trying to achieve. In reply to an earlier debate this afternoon, the Minister said that we were trying to set up—I think that I wrote this down verbatim—“an independent body with as wide powers as we can reasonably give to it”. I understand that and do not really disagree with it, but it seems to me that he has gone beyond it in clause 13. That seems to me to go beyond reasonability, which is why I propose deleting the part about anything that appears to Natural England to be conducive or incidental, and simply saying that it may do anything that “is reasonable for” the discharge of its functions. It would then have the opportunity to judge whether something was reasonable. The proposal does not seem to offend that. My understanding—I do not pretend to be a lawyer—is that “reasonable” can be challenged in the courts, so someone who felt really aggrieved and that the organisation was going beyond what most people would think of as reasonable could challenge it. That is all I seek to achieve. I simply want to place a small constraint on what I see as the completely open-ended ability of Natural England to do anything that it likes. Mr. David Kidney (Stafford) (Lab): I thank the hon. Gentleman for giving way. It was the mention of lawyers that caused me to intervene, as a former solicitor. I forget the name of the case of half a century ago, but judges supervising statutory bodies exercising statutory powers have said since that time that those powers have to be exercised reasonably; if they are not, they are subject to judicial review. There is no necessity to say that they must be reasonable, which is why the draftsmen left it out. Nevertheless, the hon. Gentleman is entirely right; they must be reasonable. 5.30 pmMr. Paice: I thank the hon. Gentleman for his intervention. I hope that I do not receive a bill for his advice in the morning. I noted that he said, “As a former solicitor”; I did not think that they ever stopped charging. However, I am grateful for his comments and for his support for my fundamental point that what Natural England does must be reasonable. However, having said that and accepting his advice, I do not understand why that point should not be covered in the Bill. Column Number: 73 As legislators, hon. Members must remember that we are producing legislation that applies to everybody else out there. People watching or reading our proceedings and reading the legislation could, with some justification, look at clause 13(1) with a degree of apprehension—I put it no more strongly than that—that Natural England appears to be able to do whatever it likes. I therefore ask the Minister to consider whether there is a way—perhaps as I described—simply to say that it should act reasonably in the discharge of its functions as a way of mitigating any concerns. I have made my point and the hon. Member for Stafford (Mr. Kidney) has endorsed my objective, although he said that it is not necessary to put such a provision in the Bill. It might not be necessary—I will not argue that point—but it would be helpful and advisable to do so and I should be grateful if the Minister would consider it. |
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