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Lord Judd: Who can resist that trailer? I strongly endorse what the noble Baroness just said about the importance of the marine dimension. While I applaud the intention behind the amendment, I am not so sure that it is a strong amendment. It seems to me that it is too generalised. If we are really concerned about the root causes of the challenge to what is happening to biodiversity—we have heard climate change
 
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mentioned several times—the duty on all public authorities should be to combat global warming. Then we would be dealing with the origins of the problem rather than the symptoms. I am rather sad that the amendment deals with the consequences rather than the origins. I urge those who put it forward to go away and think about it and see whether they can bring back a stronger amendment at a later stage.

Earl Peel: I do not disagree with the noble Lord but I think that there are two separate issues, although I know that they are interrelated. Climate change is one thing but the positive enhancement of biodiversity is another. I see no reason why we should not address them both.

Lord Judd: It is fighting a losing battle—that is the problem.

Baroness Byford: I shall leave my noble friend Lord Dixon-Smith to speak for himself but consistently throughout our debates he has raised the whole question of addressing the root cause.

10 pm

Baroness Miller of Chilthorne Domer: My noble friend Lord Livsey reminds me—and I repeat it to the Committee—that, even if we were tempted by the noble Lord, Lord Judd, to include something about combating climate change, the fact is that climate change is already happening. Therefore, this is also an issue of combating the threats and adapting to them. The work carried out by the CEH, the Biological Records Centre and the UK Phenology Network was all about recording that change and trying to interpret what it means. That is why such work is so important. Even if we could stop climate change now, the effects would still be felt decades into the future. Therefore, it is critical that the Government consider this matter.

Lord Dixon-Smith: For the peace of mind of the noble Lord who was just speaking, I have every intention of bringing the issue of global warming back to the Floor of the House again at a later stage of the Bill—in a form which I hope he will find possible to support.

Lord Bach: It is late at night to be having such a passionate argument, but this is an important issue and I am grateful to the noble Lord, Lord Brooke, for having raised it. I am going to disappoint the Committee tonight and I shall try to explain as briefly as I can why that is so.

I start with Clause 40, which places a duty on all public bodies and statutory agencies to have regard to conserving biodiversity in the normal exercise of their functions. The definition of conservation in the Bill includes restoring and enhancing habitats and populations of living species. Amendment No. 277 would change that duty to require public bodies to further the conservation of biodiversity.
 
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Noble Lords will know that there were interesting discussions on this topic during the Bill's passage through another place. As was said at Standing Committee there, the Government are comfortable that the existing words are strong enough to encourage public bodies to integrate biodiversity into their functions. The clause as it stands aims to enhance biodiversity conservation in England and Wales through improved integration into decision-making processes in the public sector.

Although the duty does not prejudge the outcomes for biodiversity, it should mean that decisions are more beneficial for the conservation of biodiversity than they might otherwise have been. As we are primarily trying to tackle instances where biodiversity loses out or is forgotten because it is simply not taken into account or considered, we believe that this duty is sufficient.

An example given at Standing Committee in another place looked at local authorities and planning applications. Currently 67 per cent of local authorities do not include questions on biodiversity within their planning applications. This new duty, as set out in the clause, would address that. In short, our view is that the duty to "have regard", as set out in the clause, is the most appropriate response.

I was asked why we are against strengthening this duty to "furthering", which appears in the amendment. We think that the provision as drafted strikes a balance between stakeholder views and provides for a duty that raises the profile of biodiversity and consolidates and clarifies existing statutory requirements without creating a new burden. With this duty—this is significant—we are trying to tackle instances where biodiversity is inadvertently damaged through not being considered in decision-making processes, and we are trying to cultivate a higher awareness of biodiversity so that positive outcomes are more likely. We have incorporated complete flexibility in delivery to stimulate innovation, so public bodies may go further if they want to. In those cases, they will realise the social, economic and environmental benefits that healthy diversity brings.

I was reminded of the Scottish experience. Thankfully it is not my place to comment on the practice of the devolved administrations. However, public bodies in this country and in Wales would be free to go beyond the duty,

In some cases, we know that they do so already. The Ministry of Defence, which I know reasonably well, and which was referred to in the debate, is an example. It is developing a biodiversity strategy across the UK defence estate. It is also MoD policy that all sites with a designated or protected species must have an MoD conservation group to advise on that nature conservation interest. If it is suggested that we are not doing a great deal for biodiversity, I would dispute that. We are doing a lot. That is an apt demonstration of how the duty to "have regard" delivers real benefits
 
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for biodiversity. There is no evidence—none has been put before us tonight—that the wording of the duty is not sufficient.

We are, in effect, being asked to tell public authorities that they have to promote biodiversity. We support and encourage the promotion of biodiversity. We expect the duty on public authorities to result in raised awareness of biodiversity issues. None the less, while it will be appropriate for some public bodies, such as local authorities, to be involved in biodiversity, it may not be appropriate for others. For example, it may not be appropriate to expect a fire authority to be involved in the promotion of biodiversity issues. The generic nature of the duty allows appropriate flexibility in delivery, and allows public bodies to implement it in the way most relevant to their functions and opportunities open to them. Adding the requirement to promote biodiversity will only add complexity to the duty and make it harder to define what a public authority has to do to comply.

I know that there is a lot of support for local authorities' role in this field, but strengthening the duty further, as proposed in the amendment, would raise difficult questions for local authorities. I wonder whether they have been fully considered. Under such a duty, a local authority could be faced with a decision between two projects: one that is good for biodiversity, but bad in other ways; and one that is neutral. Would the authority be obliged to approve the first project? Those are the kind of issues that the courts would have to consider.

Baroness Miller of Chilthorne Domer: I apologise for interrupting the Minister at this time of night. He has been good about giving us examples, but that is a completely hypothetical case. Knowing most local authority functions, as I do, it is hard to see what the writer of his brief had in mind.

Lord Dixon-Smith: I cannot resist this. The noble Baroness, Lady Farrington, referred to our mutual local government experience. All local government is a constant battle between conflicting interests. Nature conservation would simply be another interest to be taken into account, as public authorities already have to deal with and decide between conflicting interests. That is an entirely normal state, and the Minister—with the greatest deference—is, as far as I can see, simply raising a hare, for the sake of persuading us to chase it.

Lord Bach: How normal would that process be, if this amendment was carried and there was a legal requirement to further biodiversity? I, too, have a number of years of local authority experience, although never as exalted as in a county council, unlike my noble friend or the noble Lord, Lord Dixon-Smith. What difference would it make? It would mean that the biodiversity argument would win on every occasion—or most occasions. If it would not, what is wrong with the "have regard" in the present law?


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