Natural Environment and Rural Communities Bill |
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Jim Knight: The conducive and incidental powers in clause 13 are standard powers for any non-departmental public body. However, the powers are also frequently the cause of confusion. Indeed, it has been pointed out to me that we had a similar amendment and a similar debate in the House on the Food Standards Act 1999 when the Opposition spokesman, the hon. Member for Meriden (Mrs. Spelman), deputising for the hon. Member for South-East Cambridgeshire, described the clause we were debating, with some wit, as the Martini clause, “Any time, any place any where.” This debate will happen regularly and it may therefore be helpful and reassure the Committee if I clarify the standard powers, and spell out what they are all about. Their purpose is to ensure that there is clarification of the flexible powers that are implicit for non-departmental public bodies. They do not give Natural England carte blanche to do anything that it wants; they are secondary powers—a similar point was made on the last clause—that support its main powers and duties set out in clauses 3 to 12 and are informed by clause 2. In all cases, and in common with all public bodies, Natural England would be able to exercise its functions only in a reasonable manner, as my hon. Friend the Member for Stafford said. The need for public bodies to behave reasonably in the exercise of all their powers is a cornerstone of public law. It is implicit in giving any power to a public body that the power will be exercised reasonably. In some ways, the amendment goes wider than might have been anticipated. It is better to limit it to a power to do things that are conducive and incidental, which is already limited to doing things in a reasonable way. Because it is implicit that it is reasonable, we are limiting it further by adding extra objectives. Mr. Paice: I am interested in what the Minister is saying. He is addressing the issue of conducive or incidental and I accept that those words would be omitted by my amendment. However, my main concern is the phrase “appears to it”, which is the issue of who makes the judgment as to whether something is
Jim Knight: My interpretation of what the hon. Gentleman says is that it becomes very subjective for Natural England to make its own judgment about its actions. I reassure him that this is not a subjective issue. Natural England’s decisions can be legally challenged if those decisions are not reasonable and if they are not considered to be conducive or incidental. That is the reason for the clause, and the reason why it is a standard clause for all the non-departmental public bodies that are set up. I hope that that explanation is sufficient and helpful, and that he will withdraw the amendment. Mr. Paice: I am grateful to the Minister. I have no grounds for not accepting his assurance that a decision taken by Natural England will be challengeable in the courts if someone wants to challenge its reasonableness. He is right that my concern is about subjectivity and that Natural England can do anything as long as its decisions appear reasonable to it. I must accept what he said, but I still do not quite see why the clause could not be slightly constrained, again without necessarily sticking to my phrasing of the amendment, to make it a little less confusing to those who might see that possibility. However, I am happy to accept his words at this stage. Mr. Kidney: I just want to help the hon. Gentleman on the point about reasonableness. By the way, half the name of the case was Wednesbury Corporation; I remember that much. It is true that an organisation has to decide whether the decision is conducive or incidental, but the objectivity of the reasonableness test is what the judge will apply later on. In other words, the judge will still strike it down if no reasonable person could have said, “I think this is incidental to our powers.” That reasonableness is the overriding test, and the judge has got the organisation if its judgment has not been reasonable or sincere. Mr. Paice: I am grateful for the hon. Gentleman’s advice. The bill is totting up. I beg to ask leave to withdraw the amendment. Amendment, by leave, withdrawn. Clause 13 ordered to stand part of the Bill. Clause 14 Grants Question proposed, That the clause stand part of the Bill. Mr. Breed: Briefly, why does the Minister believe that clause 14(1) sits well with the independence of Natural England? Jim Knight: Clause 14 gives the Secretary of State powers to fund Natural England and to place conditions on its funding. The agency will be
Throughout the day, I have been discussing the need to grant Natural England its independence. We are now discussing a clause on the powers of the Secretary of State and I will now be saying that we need to ensure that Natural England is accountable to Parliament while others will argue that we need to preserve its independence. Such is life when one is setting up such a new body. In essence, however, the answer to the hon. Gentleman’s question is that the clause is about accountability, which is the reason for the clause. Question put and agreed to. Clause 14 ordered to stand part of the Bill. Clause 15 Guidance Question proposed, That the clause stand part of the Bill. Jim Knight: I wanted to say a few words about the clause, because clauses 15 and 16 were the subject of some comment and debate on Second Reading, so I thought that it would be helpful to say a little more rather than simply allowing them to go through on the nod. The clause gives the Secretary of State powers to give guidance to Natural England. That will help to ensure that Natural England continues to focus on achieving Government outcomes, and allow the Secretary of State to give guidance as to how its purposes are to be achieved. That is a necessary provision for a body that will deliver many of the Government’s policies and be the source of the Government’s expertise in key areas. The requirement to publish any guidance given will ensure transparency. I remind the Committee that, following pre-legislative scrutiny by the Environment, Food and Rural Affairs Committee, subsections (3) and (5) were inserted to make the clause clearer. Subsection (1) was introduced following the Select Committee’s recommendation that Natural England should have a duty to contribute to regional spatial strategies. We thought about that carefully. I am quite clear that Natural England will, like English Nature and the Countryside Agency before it, be a statutory consultee in the process. However, there are several other important regional-level processes to which it is equally clear that Natural England will contribute—regional sustainable development frameworks, regional environment strategies, regional
Question put and agreed to. Clause 15 ordered to stand part of the Bill. Clause 16 Directions Mr. Paice: I beg to move amendment No. 50, in clause 16, page 6, line 32, at end insert—
This is the last amendment on Natural England, although we could have a stand part debate on the subject, if you were to grant it, Ms Anderson. The Committee will remember that on Second Reading my right hon. Friend the Member for West Dorset (Mr. Letwin) referred to the concerns and contradiction to do with the independence of Natural England—with some justification, I think; there was some sympathy with his point, at least from the Liberals. The argument, as the Government and Ministers have repeated several times today, is that they are creating an independent body; and yet, ultimately, clause 16 gives the Secretary of State the power to give general or specific directions as to the exercise of its functions. That is a highly interventionist possibility. The Minister may well start by reassuring me that the provisions are no different to lots of other bits of legislation on similar bodies, but even if that is so, that is not a very satisfactory situation. I do not see how there can be complete independence while the Secretary of State, according to law, can give general or specific directions. [Interruption.] The hon. Member for South-East Cornwall says that the two are mutually exclusive, and I entirely agree; it simply does not seem to fit. Just because something has been in other legislation, it does not automatically make it right. I believe that the Government should address the matter now. As with previous amendments, I could simply oppose clause 16; there would be a lot of merit in doing so. I do not wish to put words in their mouths, but it is conceivable that the Liberal Democrats might wish to oppose the clause; I do not know. However, I am
but the next subsection says:
To me, the whole thing smacks of the possibility of a Secretary of State getting extremely involved in how Natural England exercises its functions. 5.45 pmI am proposing that, before the Secretary of State issues those directions, they should be published in advance and reasons for them should be given. In amendment No. 50, I suggest that 30 days before directions are actually given,
That would not stop the Secretary of State giving those directions, but it would at least give Parliament the opportunity to consider whether the Secretary of State was being sensible in issuing directions. As I mentioned when speaking to earlier amendments, the Select Committee spent a lot of time on the issue of independence, with a lot of justification. I could detain the Committee by reading out some of the things that the Select Committee said, but I will not do that. The hon. Member for Sherwood is nodding again to affirm that the general thrust of what I am saying is correct. The issue of independence is crucial and is clearly at odds with the idea of giving directions. In many ways, the amendment describes itself. It is straightforward. It is intended—to use the Prime Minister’s words in a totally different context from last week—to give time for a pause for reflection. In the Prime Minister’s response to the question how long a pause needs to be, he said that it was as long as it takes. I am suggesting a 30-day pause in this context. That is a sensible precaution to allow time for reflection on what the Secretary of State is proposing. If the Minister is determined, as I believe he is, to create an independent body with as wide powers as it is reasonable to give it, to use his words again, that independence needs to be given a bit of a shove. The power of the Secretary of State to give directions seems to counter that entirely. I hope that the Minister will consider the amendment in the spirit in which it is intended. It is not intended to remove entirely the power to give directions, but it would give the House an opportunity
Mr. Breed: We could have a discussion about the interpretation of the word “independent” similar to that about techniques, concepts and methods. However, most people understand what “independent” means. Although the Minister has stated clearly that he wants the body to have independence, the powers for the Secretary of State in clauses 14 to 16 remove the whole concept of independence. Clause 14 takes away Natural England’s power to spend money how it wants; for example, on resources that it would need to do anything and initiatives that it might want to take. Clause 15 covers the guidance that can be given and clause 16 deals with directions. I recognise that the Government wish to ensure that there is accountability. However, it is difficult to understand how a non-departmental public body is distinct from a departmental aspect of Government if the Secretary of State’s powers over an NDPB are virtually the same as those over his own Department. I should have thought that Natural England would want recognition that it is independent from Government, at least to a reasonable extent. Otherwise, it will not be seen in the areas in which it has responsibility as anything more than another arm of Government. It will not be able to criticise policy or suggest improvements without being seen as having the Government as its paymaster. I suppose that there could have been opportunities for independence under the grants, but there are definitely opportunities here for the Minister. He should at least recognise that if the powers are so tightly drawn that everything that Natural England spends or grants has to be approved and if, as it says in subsection (5),
that is the body—lock, stock and barrel. Whatever has gone before in the other 13 clauses, and however much we would want to create the impression of independence, clauses 14 to 16 take it away. There is no balance—it is gone—and to say that there is would be to misunderstand the Secretary of State’s powers. I hope that, even at this late stage, the Minister will explain how he can remain true to the concept of an independent NDPB when we are asked to approve clauses 14, 15 and, in particular, 16. Jim Knight: Throughout the day, we have tried to be as consensual as we can, but I must be clear that I reject the comment of the hon. Member for South-East Cornwall that everything that we have said about independence is annulled by clauses 14 to 16. The Secretary of State needs to be able to give Natural England directions; that is the case with all NDPBs. That provision is a bottom line to ensure that the Secretary of State is accountable to Parliament for the money that is spent on the policies delivered
The hon. Gentleman raises an interesting debate, which is both philosophical and practical in the context of what the Committee is considering, about NDPBs and whether a public body can ever be independent, given that it spends taxpayers’ money and therefore needs to be accountable in some way to the taxpayer. It would be tempting to get bogged down in that debate, but there is a clear difference between a service delivered directly by DEFRA and one delivered by an NDPB. The Rural Development Service is currently a part of core DEFRA, as we seem to describe it within the Department, and it is reshaping itself in anticipation of the formation of Natural England to become part of an NDPB. I suggest to the hon. Gentleman and other Committee members who are interested in the difference that it can make that they spend time talking to those who are responsible for the Countryside Agency, English Nature and, in particular, the RDS. They have seen the change in governance that has come about from having a board and achieving semi-independence from DEFRA, as well as the change in how its advice is seen in consultation with planning authorities. As a statutory consultee, Natural England will need to be seen to be independent from Government and not just repeating the Secretary of State’s advice on a planning application. The NDPBs will have some negotiation with each other. Regional development agencies are NDPBs, and Natural England will need to negotiate with them on an independent basis. If it is seen as just a part of DEFRA, that will not work. It is clear that we are doing nothing different in the Bill from what has been done in establishing other NDPBs. The Government response to the Select Committee stated:
It necessary to understand that process in considering the clause. The parliamentary briefing from the confederation of the three predecessor bodies states:
The consortium added that it welcomed
and “the transparency of publication”. Indeed, on Second Reading, the hon. Member for Lewes (Norman Baker) was involved in an exchange with the right hon. Member for West Dorset in which he pointed out the merits of our moving things on by making the process more transparent, in that the Secretary of State would have to publish the direction that would be given to Natural England, and Members
Natural England will be no less independent than any of the predecessor bodies. Powers for Secretaries of State to give directions are normal throughout Whitehall. They are required to ensure proper accountability for a publicly funded body. The Secretary of State can give English Nature and the Countryside Agency directions at present, and the Rural Development Service is, as I have said, part of DEFRA, so we are not changing the status quo. Hon. Members can be assured that the direction provisions in the Bill are in no way an attempt to undermine the independence of Natural England. They are included to ensure proper accountability. Paddy Tipping: I accept a great deal of what the Minister says, but there is some disparity between clause 15, where the guidance is out for consultation, and clause 16, where it is not. However, it would be helpful if the Minister could give practical examples of how clause 16 might be used. Perhaps he could provide some reassurance for the many people who want true independence by outlining situations in which clause 16 directions might be used. Jim Knight: I am grateful to my hon. Friend. I shall do so, and at the same time attempt to speak more directly to the amendment. I fear that I have strayed into more of a stand part debate in my comments so far. A good example of a relevant situation would be a foot and mouth outbreak—an emergency involving pressing issues of animal health and farmers’ livelihoods, in which we should need to act quickly. We should not want to become involved in negotiation with an agency about how to act; one would hope that we would previously have agreed how the agency was to act, but I should still not want to anticipate whether there would be a need to issue directions in such an emergency. Equally, with reference to the amendment, I should not want to have to give 30 days’ notice of the direction. I should want to allow the agency to get on with the action that the Government required it to take to respond directly to the problem in hand. I am grateful to my hon. Friend for reminding me to get back to the amendment. I hope that the example has been helpful in showing why I think it would be a mistake to apply a 30-day delay to the coming into force of any directions, and I hope that on that basis the hon. Member for South-East Cambridgeshire will withdraw the amendment. 6 pmMr. Paice: I am grateful to the Minister. That last exchange with the hon. Member for Sherwood was helpful. Of course, none of us would argue against the idea that something as catastrophic as foot and mouth requires some pretty instantaneous decision-making. I entirely see his point about not having to give Natural England 30 days’ notice, as he was planning to do. Column Number: 81 I would suggest, however, that, even though he may give Natural England 30 days’ notice, it would be astonishing if they did not act immediately in such circumstances. Just because the directions did not necessarily come into legal being for 30 days would not preclude Natural England from doing whatever it was he had asked it to do immediately. One would hope that, if it is the organisation that he has repeatedly suggested it will be, it would act responsibly and immediately to deal with something as catastrophic as that. My concern is wider. Again, it deals with a point that I made on an earlier amendment. The perception is one of conflict between independence and the giving of directions. That is the point that the hon. Member for Sherwood and the Select Committee referred to. I hear the Minister when he says that the confederation’s predecessor bodies are happy with this. Well, there is a bit of the Mandy Rice-Davies about it—“They would say that, wouldn’t they?”—because they have lived with it for all that time. I am not suggesting that that power has necessarily been abused in the past, but the Government potentially can give direction. Our concerns about the credibility of Natural England seem to fly in the face of the argument for independence that the Minister has made. I happily accept his intentions, but I would suggest that the direction power goes against it. I hear his views about the 30 days—I have thoughts on the issue of foot and mouth, and I understand his point—but I suggest that what we are discussing would have happened anyway if that sort of situation arose. Much more worrying is the scenario where a Secretary of State concludes that care of the environment should be going off in a totally different direction; that those concerned should be looking at buying large pieces of land or at all sorts of different types of agreements. There are all sorts of potential things that some—dare I use the phrase?—maverick Secretary of State might do in the future, and would have the power to do. Although the Minister is right to say that the issue of publication takes us a step forward in openness—the public would have an opportunity to consider whether what the Secretary of State had done was sensible, wise or reasonable—they would not have any counter to it. The Secretary of State would have served the direction. There is nothing here to require that directions be published before they are served. It could all take place in one moment in time. In the normal course of events, there should be a requirement that the directions, and the reasons for them, should be published ahead of their effective date, notwithstanding the point about foot and mouth. I am not going to detain the Committee by forcing a division at this stage, but I do think it is an important point, on which I hope the Minister will reflect. There is obvious general support from the Select Committee about the point we are making on the perception of independence. If the Minister could find a way of moving towards either consultation on the point that his hon. Friend the Member for Sherwood referred to, which is absent from clause 16, or prior publication
Amendment, by leave, withdrawn. Question proposed, That the clause stand part of the Bill. Mr. Roger Williams: I want to turn to another aspect of this independence, and how the body is going to work. What sort of people will give their time and expertise to Natural England if the whole process will be under the control of the Department for Environment, Food and Rural Affairs and the Secretary of State? The type of people whom we want to attract are those who can think independently, have initiative and are energetic. What will be the opportunities for them to express such qualities? |
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