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Lord Boyd-Carpenter: My Lords, before my noble friend replies, I should be most grateful if he would indicate whether the technique of a Minister issuing guidance arises under other statutes or whether this is an innovation?

Viscount Ullswater: My Lords, the Clause 4 guidance has been the subject of a good deal of debate during the proceedings on the Bill. We amended it substantially at Report to take into account many of the concerns which have been expressed. Amendments Nos. 2 and 3, in the name of the noble Baroness, Lady Hamwee, now seek to make such guidance subject to the affirmative resolution procedure. I do not believe that that is appropriate. Guidance of the kind we are discussing here is often not subject to any kind of parliamentary scrutiny—my noble friend Lord Renton is

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right on that. None of the guidance issued under Part I of the Environmental Protection Act is subject to parliamentary scrutiny. The affirmative resolution would, in my view, be going too far and would be an inefficient use of parliamentary time.

The noble Lord, Lord Williams, asked me what would happen if an amendment were passed by either House. So far as I understand the position, the Government would have to consider whether they should withdraw the guidance and bring it back in terms of the amendment or whether they would ask the House to pass the guidance as it was.

I have considered very carefully the points made by noble Lords in earlier debates and have accepted that the guidance should be subject to parliamentary scrutiny. The noble Baroness, Lady Hilton, indicated at a previous stage that she would like to see it subject to some form of parliamentary scrutiny. Therefore I have tabled my own amendment, Amendment No. 4, which would ensure that the guidance was laid before each House and was subject to the negative resolution procedure.

I am not able to answer the question of my noble friend Lord Boyd-Carpenter. I am not sure whether the procedure is innovative. However, I believe that I am reflecting very much the wish of your Lordships both in Committee and at Report stage that this is important guidance and should be subject to some form of parliamentary scrutiny. I hope that the noble Baroness will withdraw her amendment, and then in due course I shall move my Amendment No. 4.

Lord Williams of Elvel: My Lords, before the Minister sits down, I recognise that this is Third Reading and I do not want to hold up proceedings but could he just explain subsection (5B) in his amendment. I am unclear about it. It says that if,

    "either House resolves that the guidance, the draft of which was laid before it, should not be given, the Minister shall not give that guidance".

The House may resolve that the guidance can be given but in a form slightly different from the Minister's suggestion. What will happen at that point?

Viscount Ullswater: My Lords, if the guidance was not according to the draft which was laid before the House—if it were amended in some way—the Minister should not give that guidance.

Lord Boyd-Carpenter: My Lords, I wonder whether my noble friend can answer the question I put to him. Is the provision of guidance which has to be approved by the House an innovative procedure or are there precedents for it? I am not saying that if it is new we should necessarily object to it, but before we introduce a new procedure—if that is what we are doing—we really ought to know what we are doing.

Lord Elton: My Lords, I know that we are not in Committee but perhaps I may join this rather substantial interruption just to say to my noble friend that, although the procedure may have implications for the parliamentary timetable, if it is an innovation, it is an extremely welcome one. I remember fighting endless

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battles over guidance which had not yet been formulated in police and criminal evidence legislation in the 1980s. Matters would have been made very much easier had I been able to assure noble Lords that they would have been able to reject the guidance in the form in which it was presented and ask for it to be brought back—changed by how little or how much would depend on the debate. Therein lies the answer to the noble Lord, Lord Williams of Elvel.

Viscount Ullswater: My Lords, I shall try again to answer the question posed by my noble friend Lord Boyd-Carpenter. I am not able to answer it with any degree of certainty. However, I am unaware of another example of guidance being subject to this kind of process, although the process itself is, of course, a well-known one. Having said that, I was responding—I am glad that my noble friend Lord Elton has given me some comfort in that—to a considerable desire on both sides of the House that the guidance should be subject to some form of parliamentary process. I believe that the negative resolution is the correct process for this guidance.

Baroness Hamwee: My Lords, the comments made on this group of amendments show the continuing concern of your Lordships that the matter should be dealt with in the best possible way. In saying that, I would regard the use of parliamentary time for the guidance to be issued under the Bill when it becomes an Act as being very important. One wants to make the most efficient use of parliamentary time. However, to consider closely guidance which goes to the very heart of the activity of these agencies could scarcely be more important.

Perhaps I may add to that another concern which we encounter in different contexts. I refer to the relationship between the Government and their quangos and how far Parliament has a role in agreeing the scope, the functions and, as it says in Clause 4(2), the objectives of the quangos which are set up and become at any rate semi-detached from the parliamentary process.

I appreciate that the negative resolution procedure is the one the Government favour. I hope that that will provide an adequate course for us to follow. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 3 not moved.]

Viscount Ullswater moved Amendment No. 4:

Page 6, line 6, at end insert:
("(5A) A draft of any guidance proposed to be given under this section shall be laid before each House of Parliament and the guidance shall not be given until after the period of 40 days beginning with the day on which the draft was so laid or, if the draft is laid on different days, the later of the two days.
(5B) If, within the period mentioned in subsection (5A) above, either House resolves that the guidance, the draft of which was laid before it, should not be given, the Ministers shall not give that guidance.
(5C) In reckoning any period of 40 days for the purposes of subsection (5A) or (5B) above, no account shall be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.").

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The noble Viscount said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 7 [General environmental and recreational duties]:

3.30 p.m.

Lord Norrie moved Amendment No. 5:

Page 8, line 30, leave out ("other than its pollution control functions").

The noble Lord said: My Lords, I return to the thorny issue of the agency's environmental duties relating to pollution control. We had a long and a rather tortuous debate at Report stage when it was evident that a number of different interpretations about Clause 7 existed both inside and outside the House. I welcomed the support of my noble friends Lord Cranbrook and Lord Crickhowell during the debate. I have been in touch with my noble friend Lord Moran and my noble friend the Minister to try to clarify these issues. My new amendment seeks to address some of the points raised during that debate.

I must first say that I recognise that a duty to "further" conservation will not always be appropriate. I can visualise more instances where it will be appropriate in the field of water pollution than in relation to pollution of air or indeed land. That is perhaps why, when Dr. Slater, the chief executive of HMIP, gave evidence to the House of Commons Environment Select Committee, he did not believe a duty to further conservation would be necessary. This may well be true in relation to many of the pollution functions which HMIP now holds.

However, I think there are instances where such a duty will be necessary, and I do not think it is mere chance that there has been such strong support for the retention of the duty to further conservation, not least in relation to the NRA's water pollution functions. I have used the example of Bassenthwaite in the Lake District before, and I think it illustrates the point so well. The NRA, under its duty to further conservation in relation to pollution control functions, has achieved so marked an improvement in the lake's conservation status that it has been upgraded from an SSSI to a national nature reserve. Surely this is an example of what furthering conservation is all about. I agree that my earlier amendment, which simply provided a duty to further conservation, conditioned, as it must be, by a phrase "so far as this is consistent" with other functions, did not specifically address those circumstances where such a duty is not compatible. I am grateful to the noble Lord, Lord Moran, for pointing that out so clearly.

It seems to me therefore that the issue turns on the legal distinction between a conditioned duty to further conservation, and an unconditioned duty to have regard to it. I suggest that this distinction depends not only on the legal niceties of interpretation but also on the effect on the spirit and confidence with which the agency undertakes its work. Surely the ideal solution is to find a way of applying a duty to further conservation in relation to pollution control functions where this is appropriate, but ensure that there is a fallback requirement to have regard to this where it is not. My

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amendment attempts to do exactly that. It provides a belt and braces approach and this, I suggest, tackles the Government's concerns directly. The duty to further conservation would apply only where it was consistent with the criteria set out in Clause 7(1) (a); otherwise, the "have regard to" duty applies. I therefore hope my noble friend the Minister will respond positively to this attempt to meet the important point he made at Report stage. I beg to move.

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