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Lord Greaves: As I said at the beginning, this is a technical matter and I am grateful to the Minister for setting out some of those technicalities in detail. It was important to do so. If I understand the gist of her remarks correctly, she believes that what is set out in the Bill will give more protection in at least some cases than does the present situation. It is clear that I shall have to study the matter again in some detail in order to understand it. In the mean time, I am grateful for what the Minister has said and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 223 not moved.]
Baroness Farrington of Ribbleton moved Amendment No. 223A:
The noble Baroness said: These amendments arise as a result of the report of the Delegated Powers—
The Chairman of Committees: Before the noble Baroness continues, there is a Division in the Chamber, so perhaps we should adjourn for 10 minutes.
[The Sitting was suspended for a Division in the House from 5.25 to 5.35 pm.]
Baroness Farrington of Ribbleton: These amendments arise as a result of the report of the Delegated Powers and Regulatory Reform Committee which recommended that the directions issued under
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Clause 41 to exempt certain works from the controls on works in Clause 36 should be made by order rather than by administrative direction. We agree that it is appropriate for such exemptions to be issued by order, subject to the negative resolution procedure, and these amendments achieve that. I hope that Members of the Committee will support the amendments. I beg to move.
On Question, amendment agreed to.
Baroness Farrington of Ribbleton moved Amendments Nos. 223B to 223E:
On Question, amendments agreed to.
Baroness Byford moved Amendment No. 224:
( ) the upkeep of monuments or other heritage sites or the preservation of Sites of Special Scientific Interest"
The noble Baroness said: Clause 41 allows the Secretary of State or the Welsh Assembly to direct that certain works are exempt from the consent procedure in Clause 36, provided the works are for public access or rights of commons purpose. The Minister has indicated that the Government would like to take these amendments away and consider them, so I do not wish to not go through the reasons why we think they are very important. I await the Minister's response and I beg to move.
Earl Peel: At what stage in the proceedings would the Secretary of State implement the powers vested in him or her under Clause 41? To expand on the amendment moved by my noble friend Lady Byford, I see that the general consent under Clause 37 includes nature conservation. I am curious, therefore, why that has been omitted under the powers of Clause 41. Perhaps the Minister could explain.
Baroness Farrington of Ribbleton: Clause 41 provides powers for the national authority to exempt certain works from the controls in Clause 36 provided that the works are for one of a specified set of purposes, listed in Clause 41(3), to which the noble Earl has referred. I shall come back to that later. Amendments Nos. 224 and 225 would add to the list of purposes.
One of our objectives in this part of the Bill is to bring greater clarity to the types of works covered by the controls. We see Clause 41 as an important provision to help us achieve that. We accept that the list of purposes in Clause 41(3) is too narrow. We are considering how the list might be broadened and will listen very carefully to the suggestions put to us in Committee and elsewhere. I recall that at Second Reading the noble Viscount, Lord Ullswater, and the noble Earl, Lord Caithness, were particularly concerned that controls should not apply to minor management works.
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I propose to come back to the House on Report with an amendment to Clause 41. In preparing that amendment, we shall of course be very mindful of the concerns of noble Lords that we might be in danger of making the power to issue exemptions too broad. I hope I can reassure them that our objective is to ensure that primarily minor or temporary works needed in relation to a specific purpose can be exempted from the controls. We propose to list those purposes on the face of the Bill, which is the objective of the amendment we intend to table on Report.
I remind Members of the Committee that government Amendments Nos. 223A to 223E provide that exemptions must be made by order, subject to the negative instrument procedure.
The noble Earl, Lord Peel, referred to nature conservation. We are considering a list, and we will consider it carefully under Clause 41(3). In response to the noble Earl's secondary question, this is the first time we have had such powers and we can implement them at any time. The national authority could do so of its own volition or after prompting by another person. Those are the trigger points. If further clarification would help the noble Earl, I shall answer any queries he puts to me.
Earl Peel: The only other point I have is that the Bill says "may". The noble Baroness puts forward a very attractive proposition, but there is no obligation in the Bill for the Secretary of State to do this. If it is not going to happen, I fear that it will be a wasted opportunity.
Baroness Farrington of Ribbleton: I shall look very carefully at the point. In my experience of debates in your Lordships' House, I have found that the issue of "shall" or "may" is returned to in many pieces of legislation. However, that in no way underestimates the seriousness of the point made by the noble Earl. I shall write to him with clarification because I can see that his concern is a serious one; I do not seek to make light of it.
Baroness Byford: I am grateful to my noble friend for raising the question of "may". We discussed it on the way back from voting in the Division. I did not give the whole of my reasoning behind the amendment when I moved it and I should like to highlight the importance of promoting the welfare of animals, because we are very concerned about it. We believe there should be much greater awareness that commons associations will have to carry out works such as fencing, channelling animals away from recreational hotspots such as car parks, and providing greater protection for animals who stray on to busy roads. I may not have included that point in my very brief remarks, but I should not like the Government to miss it because it is enormously important.
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I am grateful to the noble Baroness for indicating that she will take away both of the amendments and consider them further, and I am particularly grateful to my noble friend Lord Peel for having raised the question of "may".
Lord Williams of Elvel: We have been through this so many times in the House. "May" equals "shall" and "shall" equals "may". That is normal parliamentary drafting procedure.
Baroness Byford: Then that makes me even more unhappy. "Shall" is a direction, meaning one shall do something, while "may" means that one may be enabled to do it. That is what those words mean in my admittedly pretty basic common English. So the noble Lord fills me with dread. Normally, we tend to agree on such things, but that is a great worry. I should be grateful if the Minister would consider it at greater length before Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 225 not moved.]
Clause 41, as amended, agreed to.
Baroness Farrington of Ribbleton moved Amendment No. 226:
On Question, amendment agreed to.
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