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The Earl of Kintore: My Lords, before speaking to Amendment No. 75, I declare an interest as a modest landowner in Scotland and member of the Scottish Landowners' Federation, of which I am a member by subscription. I thank the noble Earl, the Minister, and his officials for meeting us recently, but I fear that further clarification is needed. I have read the Minister's reply in Committee to an amendment similar to Amendment No. 75, and I note that the Secretary of State will consult

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the eight specified bodies and others before giving guidance to SEPA with respect to its aims and objectives.

Perhaps I may ask the Minister why there is a reluctance to put the bodies mentioned in the amendment on the face of the Bill.

Lord Pearson of Rannoch: My Lords, in supporting Amendment No. 75, I should declare an interest, in that I own modest land in Scotland which could be affected by the Bill and all the amendments to which I shall speak tonight. The amendment was ably moved in Committee by my noble friend Lord Balfour and supported then by the noble Earl, Lord Kintore. But I have to agree with the noble Earl that the assurances then given on behalf of the Government by my noble friend on the Front Bench were not entirely reassuring.

If my noble friend and the Government are prepared to guarantee that the Secretary of State will consult all the categories mentioned in the amendment, then I cannot see that there is any harm in making sure of them on the face of the Bill. Clause 29(1) requires that the Secretary of State shall from time to time give SEPA guidance as to the aims and objectives which he considers it should pursue in the performance of its functions.

Subsection (2) requires that guidance to point SEPA towards achieving sustainable development. I am not quite sure that anyone knows what sustainable development really means, although we all approve of it in theory. Whatever it means, it certainly encompasses a very broad church of possible activity. To illustrate this point, could I ask my noble friend if integrated river catchment management could be covered by subsection (2)? I believe it could, which would confirm that the clause has very wide implications.

Be that as it may, subsection (3) of Clause 29 is very strong stuff indeed. It says:

    "In performing its functions, SEPA shall have regard to guidance given [by the Secretary of State] under this Section".

So we are not dealing with guidance which SEPA may easily ignore or, indeed, ignore at all. The clause as it stands appears to me draconian and does not require the Secretary of State to consult with anyone at all. It is for those reasons that the noble Earl and I, and others, believe that all the consultees should be on the face of the Bill. The Secretary of State would, of course, be free to consult others if he so wished.

The Bill is a longish document, running to some 267 pages at the moment. It would not be made noticeably longer by the addition of the 14 lines required by the amendment. However, it would be much improved. I very much hope that my noble friend can accept the amendment.

10.30 p.m.

The Earl of Lindsay: My Lords, I shall refer first to Amendments Nos. 61 and 74, tabled in the name of the noble Lord, Lord Carmichael of Kelvingrove. I can assure the noble Lord that we want SEPA to protect and, where possible, to enhance the environment. Such an aim is already included in the draft management statement and in the outline of the scope of guidance

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which we intend to issue under Clause 29. The agency is of course to be called the Scottish Environment Protection Agency. The question, therefore, seems to be whether that aspiration should be enshrined in legislation.

In practice, an aim of this type in a management statement or guidance can sit more comfortably alongside any duties of the agency which could in other circumstances have led to conflict with the aim. However, if that non-statutory aim were to be enshrined in the Bill as a duty, along the lines of Amendment No. 61, there would be no obvious way of establishing a hierarchy of action. Certainly the guidance proposed in Amendment No. 74, might help. But, as guidance, it could not resolve the legal wrangles which a duty of the nature proposed could cause.

The noble Lord stressed that flexibility is one of the underpinning issues that he would be seeking from the agency. By having the objective of SEPA issued in a management statement and guidance, I believe that we shall achieve that flexibility with the other aims that SEPA will be pursuing.

Given the fact that SEPA would already have a more defined focus on the prevention and control of pollution than the Environment Agency for England and Wales, which would have wider functions, the Government are not convinced that it is necessary for SEPA to have a principal aim set out in legislation.

Amendment No. 75, moved by the noble Earl, Lord Kintore, to which my noble friend Lord Pearson of Rannoch spoke and to which he has also attached his name, would set out in detail on the face of the Bill the bodies that my right honourable friend the Secretary of State must consult before issuing guidance to SEPA on its aims and objectives. As regards whether or not it would be appropriate to include such a list of consultees for the guidance on the face of the Bill, I can confirm that the bodies included in the amendment would, in either event, be consulted.

I agree with the principle behind the amendment; namely, that statutory consultation in relation to the guidance should take place with interested parties. The Government will, therefore, bring forward a suitable amendment on Third Reading. I should add that that amendment will also incorporate appropriate provisions for publicity.

I should tell my noble friend Lord Pearson of Rannoch that we shall consider carefully what he said about whether or not such bodies should be on the face of the Bill. He described sustainable development as being a policy area that incorporates a "broad church" of activity. If anything, I suggest that it is because sustainable development covers almost all human activity that we are reluctant actually to start specifying individual interest groups on the face of the Bill for fear of having to run to many pages of legislation to cover all such parties. However, I have given the assurance that those bodies mentioned in the amendment will be consulted in the formulation of Clause 29 guidance.

I hope that I have been able to reassure the noble Lord, Lord Carmichael. I invite him to withdraw his amendments on that basis. I would also ask my noble friend and the noble Earl, Lord Kintore, to withdraw

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Amendment No. 75 on the basis of the undertaking that I have given about a government amendment on Third Reading.

Lord Carmichael of Kelvingrove: My Lords, that is probably the most generous thing that has happened to me this evening while I have been sitting here for many hours listening to the debates. It would be very wrong of me not to welcome the Minister's concession. However, in his later reply, could the Minister give me a definition of the expression "the hierarchy of action"? I wondered exactly what he meant. I can see it vaguely as meaning that the same thing would come to the top every time. But, if you have basic principles such as those suggested in my amendment, which are so simple, then the prime motive should be fairly clear to most reasonable people. I must admit that I have not heard that phrase before; and, indeed, I am dying to use it at some point. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 6 [The Scottish Environment Protection Agency]:

The Earl of Lindsay moved Amendment No. 62:

Page 136, line 26, leave out from ("appoint") to ("such") in line 27.

On Question, amendment agreed to.

Clause 21 [Transfer of functions to SEPA]:

Lord Carmichael of Kelvingrove moved Amendment No. 63:

Page 21, leave out lines 4 to 6.

The noble Lord said: My Lords, the proposals in the Bill, contrary to seeking to strengthen the organisation of environmental protection in Scotland, merely seek to supplant the operational aspects of pollution control work which should be a matter for locally based personnel, locally accountable and remaining as close as possible to the industries and communities with which, and within which, they operate. District and islands councils in Scotland have been responsible since 1975 for waste regulation in Scotland, first, in terms of the Control of Pollution Act 1974 and, since May 1994, under the Waste Management Licensing Regulations 1994 which brought into force the licensing provisions of Part II of the Environmental Protection Act 1990. The principle of separation of regulation from operation in the area of waste disposal is already achieved through administrative arrangements made by local authorities. I am not aware of hard evidence to support the case for physical separation of these functions.

New powers were given to district and islands councils to implement local authority air pollution control (LAAPC) in terms of Part I of the Environmental Protection Act 1990 over "less polluting processes". These new controls came into effect only in April of 1992 following a very great deal of preparatory work, including the training of enforcement officers. It is scarcely credible that after such a short time the Government should propose to remove these duties from local authorities in Scotland, especially as their English counterparts are, as far as I understand the Bill, to retain the function. Has there been any criticism of Scottish

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local authorities in their carrying out of local authority air pollution control? It is clearly anomalous that differences should exist in Scotland when the 1990 Act is a Great Britain measure. The logic behind the argument is that there are fewer air emission processes which fall under the scope of the regulations in Scotland than in England and Wales.

I hope that the Minister will be able to shed some light on this matter before I decide whether to withdraw the amendment. Even if I do, I may return to the matter on Third Reading. I beg to move.

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