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Lord Marlesford: My noble friend has highlighted a problem but I suspect that the solution proposed in the amendment may not be the right one. However, it is axiomatic that while one can have a review of a decision from within a hierarchy, an appeal against a decision cannot be fairly heard within that same hierarchy. Let us face it, in this context "Secretary of State" is another name for an official employed by him.
The noble Baroness mentioned the inspectorate, but in almost all cases an appeal against, say, a planning refusal by a local authority is made to a wholly separate and independent inspectorate which is not part of the local authority and in a sense cannot be said to be under the direct command of the Secretary of State.
Lord McIntosh of Haringey: It is important to put this interesting debate in context. These amendments address the situation in which the conservation agency has served a management notice requiring the owner or occupier to take specific actions to conserve the SSSI, who then has the right to appeal against that notice.
We have discussed the role of management schemes, but the management notice is an important new tool for the agencies in pursuing the aim of ensuring that all SSSIs are brought into positive management scheme. But it is carefully targeted. It can be used only where there is a management scheme. The scheme will not have been made without preliminary discussions with those who work the land to ensure that what is included is reasonable and practicable. Furthermore, there is a right of appeal against the notice to the Secretary of State or to the National Assembly for Wales. I shall turn to that point in a moment.
The Secretary of State is an abstract concept. In legislation, there is only one Secretary of State; he is not described as "Secretary of State for the Environment, Transport and the Regions" or anything else in case the names of departments change. However, one of the ways the Government are described in legislation is "Secretary of State". Incidentally, he is always referred to as "he". When in Opposition, I once tabled amendments to refer to the Secretary of State as "it" on the ground that that was less sexist. I did not get very far, although I am assured that it is done in Oregon.
The Secretary of State, that abstract concept, is well used to balancing the many different statutory duties under which he works and is required to reach decisions. It is intended that the appeals procedures should be speedy and effective--that takes up the point made by the noble Baroness, Lady Miller--and that they should reduce unnecessary formality and keep cost and delay to a minimum. That is in everyone's interest. Such procedures will also allow for full and fair consideration of all the points raised by the conservation agencies and by owners and occupiers appealing against notices.
I do not doubt that as a court of law--and it is equivalent to a court of law--the Lands Tribunal provides an excellent service in the determination of issues relating to land law and valuation, which is the expertise of the Lands Tribunal and not the kind of considerations we are debating. But I do not believe that the body is appropriate for this type of appeal.
We envisage that planning inspectors in the Planning Inspectorate, whose independence was referred to by the noble Lord, Lord Marlesford, will normally be used in the determination of these appeals. In the vision statement, the Planning Inspectorate has reiterated the aim that the inspectorate should be,
I was asked, as I have been on many occasions, about the European Convention on Human Rights. The position of planning inspectors was specifically examined by the European Court of Human Rights in the Bryan case in 1996. While the court established that a planning inspector is not an independent tribunal, planing legislation provides a means of challenging the decision in the High Court. The ECHR also found the scope of judicial review to be sufficient for the purpose of Article 6 of the European Convention on Human Rights. I am satisfied that determination by the Secretary of State fulfils the requirements under the Human Rights Act for a fair and impartial hearing.
As to the contents of the appeal, raised by Amendment No. 492, the management notice can only be served where an owner or occupier is not giving effect to a management scheme. It would be wholly unfair if the land manager could be required to take action without knowing beforehand what action he might be required to take. He will already have had several opportunities to influence the content of the management scheme, in particular under the consultation provisions in new Section 28H(3). I can assure the Committee that the agencies' staff will listen carefully to the views of those who live on or work the land. We covered that point in our debates on Amendment No. 483C.
Since the work specified in the notice must be work required to ensure the land is managed in accordance with the scheme, it is implicit that any appeal against the notice may address issues concerning whether the scheme is reasonable to the extent that the scheme is reflected in the management notice. If the appeal is allowed and the notice has no effect because the Secretary of State takes the view that the work is unreasonable or unnecessary, I would expect English Nature to look again at the management scheme and consider how it should be amended. That point was raised under new Section 28H(11) of the Bill which enables it to modify or cancel a scheme.
Lord Peyton of Yeovil: I must confess to some disappointment with the Minister's reply. Unsurprisingly, he is obedient to the instructions contained in his brief--I am not sure whether it is instruction or advice--and is at least content to go along with the proposal that the appeal should go to the Secretary of State.
I hope the Minister accepts that there is real dissatisfaction with the situation. It does not matter to me whether the Secretary of State is he, she or it, or the Minister has an attachment which limits his area of operation. I do not accept that the judgment and wisdom of Secretaries of State is always as immaculate as government supporters like to believe.
Lord McIntosh of Haringey: I am sorry to hear those comments, particularly in the light of their source. The noble Lord, Lord Peyton, who was a Minister in charge of a major part of what is now the Department of the Environment, Transport and the Regions, knows perfectly well the way in which legislation is formulated and how those on the Government Front Bench debate it. The noble Lord also knows perfectly well that in briefing meetings before the matter comes before the House of Lords, Ministers satisfy themselves that the arguments they put forward are not just plausible but convincing and right.
Lord Peyton of Yeovil: In view of the noble Lord's reference to my past, when I played a part in the great spongy heap then known as the "Department of the Environment" seeds of doubt began to be sown in my mind, and they have since flourished.
Lord McIntosh of Haringey: There is more joy in heaven when one sinner repenteth. Long may the noble Lord maintain his seeds of doubt! We have a job to do and we carry it out to the best of our ability. I have set out the reasons why we believe that the Planning Inspectorate is sufficiently independent for the purposes of these appeals. I also believe I have shown that when there was a direct challenge to the independence of the inspectorate the European Court of Human Rights found that the scope for judicial review was sufficient. Therefore, the planning legislation provides adequate means to challenge a decision in the High Court. I do not know that I can add to that.
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