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Baroness Hilton of Eggardon: My Lords, while accepting that the government amendments relating to Clause 4—which arrived rather late—cover many of the points that we wished to be covered under Clause 1, my reason for supporting the amendment of the noble Baroness, Lady Hamwee, and the other amendments in the group, is that without a clear purpose for the agency in Clause 1, there is a certain hollowness about it; that

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is, we appear to be setting up an agency to do a collection of functions, but we are not giving the agency a clear purpose.

Although the government amendments to Clause 4, under the guidance provisions, may cover the functions that we wish to see the agency carrying out, there is something lacking in Clause 4. There is a certain lack of definition regarding the purpose of the agency. It would provide a bold introduction to the Bill if the agency's purpose was clearly laid out in Clause 1. Therefore on balance I continue to prefer that the purpose of the agency should be contained in Clause 1 rather than in Clause 4, to which we will revert at a later stage when we discuss Amendment No. 28.

The Earl of Cranbrook: My Lords, this issue turns on words. There are several critical words to be considered. First, there is the difference between the amendment of the noble Baroness, Lady Hamwee, and that of my noble friend Lord Marlesford as tabled, which he may or may not move in due course. Of the two I prefer the term, "protect and enhance". They are familiar words in the environmental world and we understand their meaning. The noble Baroness, Lady Hamwee, introduced unnecessary complications in using terms that are not familiar to us and to legislation in general.

The Long Title of the Bill and the draft management statement clearly indicate that the agency will be set up to provide high quality environmental protection. I believe that the wording that is to be introduced by my noble friend on the Front Bench that,

    "It shall be the principal aim of the Agency ... to protect or enhance the environment, taken as a whole, as to make the contribution towards",

may offer some hostages to fortune and complicate the system. I put it to my noble friend that it is and would be very much simpler to have a straightforward, precise and concise statement of duty in the fewest possible words right at the beginning of the Bill. I should very much like to see my noble friend the Minister consider the approach of my noble friend Lord Marlesford and thereby somewhat reduce the hazards and complications of the wording that he is about to propose in Amendment No. 28.

Lord Crickhowell: My Lords, my position is very close to that of my noble friend Lord Cranbrook. We shall run into some difficulties when we get to the Government's amendment and I sympathise with the idea that we should have a simple statement at the start of the Bill. The difficulty here is that we have two amendments which are flawed. My noble friend has spelt out —and I need not repeat what he said—the flaw in the amendment of the noble Baroness, Lady Hamwee. It is much more satisfactory to stick to the wording we have in the memorandum and in the Long Title. The trouble with the amendment of my noble friend Lord Marlesford is that he drops the words "whose objective shall be" and tells us that the agency,

    "shall, in exercising any of its powers under any enactment, protect and enhance the environment".

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That may be impossible. When we are dealing with flood defences I can envisage circumstances where it might be absolutely essential to take some measure for the protection of life and property that does not actually enhance the environment. It is the kind of dilemma with which the NRA has had to deal over the years. What one needs is duties that are reconcilable. What needs to be done is to take the idea away and come back, as would be perfectly possible, with an amendment which combines the virtues of the more gentle introduction of the noble Baroness, Lady Hamwee, with my noble friend's objectives. Then we would be getting very close to what we want.

Lord Chorley: My Lords, I rather agree with the noble Lord, Lord Crickhowell. Until Clause 4 and the Government's amendment are sorted out, Amendment No. 3 is extremely confusing. It uses the word "objective". I am not quite sure how that would relate to what is meant by "aim" in subsection (1) of the proposed new clause or "objectives" in subsection (2). I do not know which is subordinate to the other and so I end up being thoroughly confused. It would be better to get Clause 4 out of the way and come back to the point at a later stage, if necessary.

Lord Moyne: My Lords, I am confused by the use of the word "enhance". To me, "enhance" means to enhance a quality. Why "enhance" seems to be used in this Bill to mean what I would call "improve" I do not quite see.

Viscount Ullswater: My Lords, the noble Lord, Lord Chorley, put his finger on the problem. Trying to introduce an amendment such as this into Clause 1 of the Bill suffers from the difficulties to which he referred. I understand quite sincerely the desire of noble Lords to put up front what at Committee stage we called the strategic purpose. The attempt to put it in Clause 1 is quite legitimate. However, we have considered this carefully and I have brought forward the government amendment to Clause 4. I apologise to the House that it was at a rather later date than I would have wanted.

The amendments of the noble Baroness, Lady Hamwee, and my noble friend Lord Marlesford would place the agency under a duty, in exercising any power, to protect and enhance the environment and would empower Ministers to give guidance with respect to its new duties. The first of the amendments is in many respects similar to that proposed by the noble Lord, Lord Nathan, in Committee, but with the purpose extended from that of protecting the environment to protecting and enhancing the environment and limited to governing the exercise by the agency of its powers rather than its powers and duties.

When we debated that earlier amendment a number of noble Lords from all sides of the Chamber emphasised the need for some statement of the purposes of the agency on the face of the Bill, rather than leaving this solely as a matter for guidance. I listened carefully to those arguments and noted the broad acceptance of the idea even among those whose views differed as to what those purposes should be. That is why I have brought forward an amendment to include within the Bill a statement of the principal aims of the agency.

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As the noble Baroness, Lady Hamwee, said, in responding to the noble Lord, Lord Nathan, I drew attention to the dangers of attempting to encapsulate within a few words a complete statement of the purposes of the agency and the need to avoid possible inconsistencies between any such description in this Bill and the provisions of the existing legislation on which the agency will need to rely. I believe that the amendments which we are now considering illustrate those risks particularly well. Their effect would be to place the agency under a duty in every case to exercise its powers so as to protect and enhance the environment irrespective of the purposes for which the powers were originally enacted, the costs to itself and others that might result and the practicability of so doing.

My noble friend Lord Crickhowell gave us an example of the difficulties. I shall give another example. The agency has powers in relation to navigation. In exercising those powers it is undoubtedly right that it should seek to avoid doing so in ways which are environmentally damaging. But that is very different from saying that powers which were there to promote the interests of navigation should be capable of being exercised only where they protect and enhance the environment, which would be highly restrictive. Similarly, the agency will have numerous powers designed to ensure that it can function effectively as a body but which are not directly concerned with protecting and enhancing the environment; for example, powers to levy charges. To limit the use of such powers to cases where they protected and enhanced the environment would in practice be highly damaging to the effective operation of the agency.

More generally, all the amendments suffer from seeking to require the agency to pursue environmental purposes divorced from consideration of the wider needs of society and the need to ensure that environmental protection is not pursued where the benefits would not justify the costs. I know that there is a siren argument which says that the agency should be given a purely environmental role, and the need for difficult decisions about how that might need to be constrained where action would be disproportionate or incompatible with the pursuit of sustainable development should be left as a matter for Ministers. But in practice an agency with such a remit would be largely incapable of independent and effective operation since under such an arrangement Ministers would necessarily become involved in the agency's day-to-day operations. The need to pursue environmental protection in the context of sustainable development, taking proper account of costs and benefits, is central to the Government's approach to ensuring responsible and effective environmental protection in which all parts of society can become involved.

I hope I have made plain that these amendments would in practice restrict the agency in unreasonable ways. I trust therefore that the noble Baroness and other noble Lords will feel able to withdraw their amendments.

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