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Lord Bach: These three amendments relate to the power of the Secretary of State to give Natural England guidance. The Secretary of State needs this power to help to ensure that Natural England continues to focus on achieving government outcomes over time and to allow her to give guidance on how its purposes are to be achieved. This is a necessary provision for a body which will deliver such a large amount of the Government's policies and which will be the source of the Government's expertise in key areas. At the risk of repeating myself, I can say that the power to give guidance is a standard provision for most large non-departmental public bodiesfor example, the Environment Agency.
As the noble Viscount has just reminded us, guidance from the Secretary of State will be published, which means that the process will be open and transparent. Guidance will be on topics such as Natural England's role in relation to regional planning and associated matters, as referred to specifically in the Bill at Clause 15(1). I shall have a little more to say about regional planning in a moment. The guidance will be discursive, by which I mean that it will resemble an essay rather than a statutory instrument. Although Natural England must have regard to the guidance, it will not be bound by it.
Following pre-legislative scrutiny by, and at the suggestion of, the EFRA Committee, subsections (3) and (6) were inserted to make Clause 15 clearer. Subsection (5) was added on Report in another place to add extra certainty about how such guidance can be varied or revoked.
Amendments Nos. 206 and 215 would effectively make this guidance the subject of an order before Parliament. As I indicated earlier, the guidance will include topics such as Natural England's role in regional planning. We do not think it appropriate to make such guidance subject to parliamentary procedure. The priority has to be that a wide range of
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stakeholders understand English Nature's role in such matters. That is why we emphasise publication and think that that is the right approach.
I turn to the issue of why regional planning processes are not specifically referred to in the Billfor example, regional spatial strategies. A list of regional planning processes within subsection (1) would be relatively inflexible and could become out of date quickly. That addresses the concerns of the EFRA Committee and clarifies the importance that we place on Natural England's engagement at regional level. Will the regional planning board bodies have to listen to Natural England? The clause cannot be used to place a duty on other public bodies to listen to Natural England. The Select Committee report made it clear that it did not think that any person had a right to be heard at a public examination.
Clause 4 gives Natural England very robust powers to ask other public bodies for an explanation if it believes that its advice has not been acted on. Any public body is at risk of judicial review through the courts if a party feels that Natural England is acting unlawfully.
On Amendment No. 216, to which the noble Duke, the Duke of Montrose, spoke, I am advised that a strict requirement of "contemporaneously" could provide practical difficulties. As a matter of protocol we expect Natural England to have a copy of the final guidance as issued by the Secretary of State a short time before it is published to the world at large, so that Natural England has the opportunity to respond to press inquiries. If the guidance is published on the web, it would need to be uploaded on to a server. If the guidance is published in paper form, someone has to produce the paper copies and make them available. Even if these arrangements could be put into effect very speedily, it is unlikely that publication could be genuinely contemporaneous. I hope that the noble Duke does not think that I am making a petty point; it is "contemporaneously" that is the problem.
It is our intention that the guidance will be circulated to interested parties and published on the website as soon as practicably possible. It is already implicit in Clause 15 that by publishing guidance we want to be open and transparent. Because of the concern expressed by the noble Duke, we shall consider his amendment to see whether we can insert a phrase that indicates dispatch in publishing the guidance without creating the practical difficulties that I have tried to describe.
The Duke of Montrose: I thank the Minister for that reassurance. We could see a problem if we suggested so many days, or something like that, which would make the provision too tight. It would be most helpful if the Government could produce suitable wording.
Baroness Miller of Chilthorne Domer: I thank the Minister for his reply, and noble Lords who have
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spoken in this short debate. I am glad that the Government will give some further thought to these issues, and will come back in response to the noble Duke at least. I beg leave to withdraw the amendment.
Viscount Eccles: In opposing the Question that Clause 16 stand part of the Bill, I wish to find out how the power to give Natural England directions will be used. The existing literature on directionsin Craies on Legislation 2004, for example, states:
"Acts frequently require or allow a Minister to give directions, generally in respect of some administrative matter. So long as there is a duty to comply with the direction it can be seen as a form of subordinate legislation. Generally the duty to comply will be express, but, particularly where the direction is given to a public body that is susceptible to the administrative law process of judicial review, it may be appropriate for the duty to comply to be left to be implied".
Yet I can find no directions clause in, for example, either the Wildlife and Countryside Act 1981 or the Countryside and Rights of Way Act 2000 which is in any way comparable to Clause 16. Presumably, however the clause is implemented, it is not intended to reducenor will it have the effect of reducingNatural England's independence. What, then, is it for?
I suppose that directions have hitherto been meant to deal only with administrative matters. If they have done more, or are intended to, surely there would be a parliamentary procedure at least equivalent to that applied to statutory instruments. No Secretary of State would wish to deny Parliament access to policy change.
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"These . . . powers of direction contained in the bill are drafted in similar mode so that they must all be in writing and published in a way that the person giving the directions thinks is suitable . . . All directions may either be of general or specific nature. It is considered by the department to . . . have these direction making powers in circumstances where a body with significant responsibilities is not acting in a way that is consistent with the purposes for which it is established".
That could be interpreted as meaning that a Bill is laid before your Lordships' House, debated on Second Reading, Clauses 3 to 10 are debated in detail in Committee and on Report and yet, once enacted, the Secretary of State can introduce detailed rules of the game without reference to Parliamentnew and unexpected rules, perhaps.
Am I right to conclude that Clause 16 goes wider than any similar clause in predecessor Acts? What is the Government's policy on directions, and how will it be applied to Natural England? Will the House be able to consider, before Report, a draft of the directions which the Secretary of State intends to make?
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