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Baroness Hamwee moved, as an amendment to Amendment No. 28, Amendment No. 29:

Line 2, leave out subsection (1) and insert:
("(1) It shall be the principal aim of the Agency in discharging its functions (subject to and in accordance with the provisions of this Act or any other enactment) to protect or enhance the environment, taken as a whole, in such manner as to make the contribution towards achieving sustainable development mentioned in subsection (3) below.").

The noble Baroness said: My Lords, in moving Amendment No. 29 I shall speak also to Amendment No. 30. Both amendments are in the names of my noble friend Lord Beaumont of Whitley and myself.

I am happy to be the first to welcome the new clause that the Government have proposed. It makes for a more rewarding process than some of us feared. At Committee stage when the Minister, understandably, said that he had noted what was suggested, he really had noted it. That is not always the case. Having welcomed that movement, I hope it is not churlish to suggest that perhaps there may be a little more movement.

I shall explain the two amendments. In Amendment No. 29 I propose that the words in parenthesis,

should govern the functions of the agency and not its aim. That is probably self-evident, and to some extent we have already debated it this afternoon. However, it is important that the aims and functions should be in the right order.

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I have omitted the reference to "likely costs" because I am not persuaded that the aim of the agency should be governed by the consideration of costs. In the real world, of course, costs must be taken into account and I shall welcome a further amendment later in the context of Clause 37. However, costs should not be elevated to quite the status they are given in the new clause. I wonder how the provision would be interpreted if the agency is to take into account "any likely costs". Costs to whom? That is a genuine question, not a posturing point. I read the provision as meaning costs to the agency. Perhaps in responding the Minister can say whose costs are meant by "any likely costs".

Amendment No. 30 proposes that:

    "The Ministers shall from time to time give to the agency such guidance as they consider appropriate with respect to how to achieve its aim".

That follows the debate at Committee stage, and the words are repeated in Amendment No. 28 that,

    "The Ministers shall ... give guidance to the Agency with respect to objectives".

I am sorry that the Government have not seen fit to take the objectives out of the remit of their own guidance. I believe that as the agency is to be set up, it is appropriate that guidance shall be given as to how the agency achieves its objectives but not what they should be. In other words, it is fair for the Government to say: "This is how you should set about it", but they do not give the overall objectives. Many of us feared at Committee stage that the work of the agency would be skewed by the Government's "interference", if I may use the word, in its objectives. We thought it would be better to separate the objectives and the functions in the guidance. I beg to move.

Baroness Hilton of Eggardon: My Lords, I echo the welcome given by the noble Baroness, Lady Hamwee, to the Government's amendment. It goes a long way towards meeting many of the observations we made at earlier stages of the discussion on the Bill. I also warmly welcome Amendment No. 124 in the group which includes environmental as well as financial costs.

However, like the noble Baroness, Lady Hamwee, I am still concerned that costs have been written into what is in some ways a purpose for the agency. It lays emphasis on costs rather than an enthusiastic and positive function and purpose for the agency. I should be grateful to the Minister if he could explain what the expression "taken as a whole" means. It seems to be a piece of parliamentary draftsmanship which has no clear meaning in ordinary English, although it is echoed by the noble Baroness, Lady Hamwee, in her amendment. I would be grateful for an explanation.

As we received the Government's amendment rather late, at this stage I should say that we shall bring forward an amendment at Third Reading to subsection (6) which will suggest that any guidance given under the clause shall be laid before Parliament, as well as being published in such other manner as Ministers consider appropriate. That will be a further amendment to the clause which we shall bring before the House in due course. But overall it represents a very welcome advance by the Government in their position, and we

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are grateful, although it does not go as far as writing a purpose into Clause 1, about which I am sure we shall continue to argue.

6 p.m.

Lord Elis-Thomas: My Lords, I also echo the warm welcome for the Government's response to this series of amendments. It means that we are moving gradually towards the objectives of proper environmental costing; that is, real costs in both economic terms (financial terms) and environmental resource terms. That moves us a long way towards the other objective of "sustainable development", which some Members of this House believe does not exist. It is clear to me from these amendments that the Government believe that it exists more and more.

Lord Northbourne: My Lords, I welcome the Government's amendment. But it still does not address the definition of "sustainable development". It is certainly not addressed in this Bill; and so far as I know, there is no definition elsewhere. I suspect that this phrase arose out of the Helsinki Conference, which was mainly concerned with the use of resources in under-developed countries, and therefore with the way in which they would be brought into use as development took place.

Does the phrase really cover what we are trying to talk about in our own industrialised, and already resource-extravagant economy? Would it not be better—as I suggested in Amendment No. 24, which I did not move—to use the phrase "sustainable use"; or "sustainable use of resources"; or possibly, "sustainable use and development"? —although I suggest that "use" probably includes development. I urge the Government to consider either using a phrase that would be much more easily understood by people —that is to say, "sustainable use"—or else to define "sustainable development".

Lord Crickhowell: My Lords, following immediately on the point made by the noble Lord, Lord Northbourne, we have a difficulty in relation to the phrase "sustainable development". As I believe I pointed out at an earlier stage, the phrase attempts to embrace a balance between environmental protection and development, and in a sense economic development. In a sense therefore there is a conflict. In a curious way it is therefore rather odd that we should attempt to make an environment agency responsible for judgments about economic development. Hence the difficulty.

As I understand it, we have here an attempt to put the aim into statutory form, and then provide an interpretation by way of ministerial guidance. We shall therefore get a form of statutory ministerial guidance, and everything will crucially depend upon the guidance. It is for that reason that I very much welcome my noble friend's undertaking—or commitment as it is now—in this clause both to consult the agency and to publish that guidance. There is another amendment which seeks to make sure that that guidance is published in good time.

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I am grateful to my noble friend for meeting my request at an earlier stage and making it possible for me not to move my Amendment No. 27, which takes up this point about publishing the guidance and consulting the agency.

I think that we have here a laudable attempt by the Government to meet the demands of this House, and in a sense the concerns expressed in this House about our legislating about a phrase that has not been properly defined and which probably cannot be properly defined. Therefore there is no alternative but to rely on interpretation. And it must be for the Government to give an interpretation—that seems to me to be an appropriate role for government—on which the agency will act. It cannot be for an agency to make judgments about what is the appropriate economic role. Therefore we are still in the position of having to wait for the Government's publication of that guidance before we really know where we are. But at least we are now having it presented in a reasonably sensible way, and for that I am grateful.

Viscount Mills: My Lords, I agreed with my noble friend the Minister not to move Amendments Nos. 26 and 27 in order to save the complications that would arise given that the Government have re-written Clause 4. Anyway, there is no need to move Amendment No. 27 as the Government's Amendment No. 28 now provides Ministers with a statutory obligation, as my noble friend Lord Crickhowell has already said, both to consult the agency and to publish the guidance. I very much welcome that.

However, I should still like to refer to the point raised in what was my Amendment No. 26; namely, the need to provide preliminary guidance on sustainable development by 12 months after the Act comes into force. I stress the word "preliminary", because I fully accept that guidance may need to be revised and indeed added to.

The guidance on sustainable development will be central to the manner in which the new agency carries out all its functions. I was heartened in Committee when my noble friend the Minister said that it is indeed the Government's intention to publish guidance within a 12-month period. But I was slightly less heartened when he stated that he saw no need to state that on the face of the Bill. I can only ask the Minister perhaps to reconsider, and suggest that it would be helpful to set an appropriate time limit for delivery of the preliminary guidance.

It must surely be the Government's intention to provide such guidance at the earliest suitable opportunity. I ask simply: why cannot the Government commit themselves to a deadline on the face of the Bill? If they cannot, will my noble friend the Minister at least consider a timetable for the production of this guidance, albeit that it does not occur on the face of the Bill?

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