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Baroness Byford moved Amendment No. 3:
"( ) In the event of any significant, irreconcilable conflict in the delivery of Natural England's objectives, greater weight shall be given to those relating to the conservation of the natural environment."
The noble Baroness said: My Lords, here we return to the issue of conflict, which has been very fully debated at various stages of the Bill. However, it still needs to be considered further, which is why I have
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tabled an amendment. On Report, there was some confusion about the Government's position in response to the amendment that we had tabled. As a result, I reserved the right to take further advice and, if necessary, to return to the subject at Third Reading. As more and more rules, regulations, codes and strictures wind around our lives, it becomes ever more likely that irreconcilable positions will be assumed for the best of motives and in response to genuine interpretations of the law.
We talk of Natural England as though it were a single entity such as a sculpture, but in fact it will be a body comprised of people each of whom will have a slightly different slant on any matter under discussion. They will be paid remuneration and allowances as the Secretary of State may determine, but they will not be employees. They will not be appointed because of their willingness to toe a line—at least I sincerely hope not. It is to be hoped that they will take a very independent stance. I believe that they will be people of independent mind with knowledge and expertise for the positions that they hold, but they will bring to those positions very different experiences and opinions. The purposes assigned to them will be the mainspring of their collective actions.
The Secretary of State will issue directions or guidance that will tend to be fairly non-specific and couched in terms such as "the board may", if it is guidance, or "the board must have regard to", if they are directions. In those circumstances, a conflict resolution provision would give a firmer steer to Natural England. The issue could be viewed in the light, for example, of conserving and enhancing the natural landscape, or securing the provision of facilities for enjoyment of the natural environment. I have deliberately left out the words "study" and "understanding" because Clause 2(2)(c) does not make it clear whether all three requirements—"study, understanding and enjoyment"—have to be present at the same time. But that is a minor issue and presumably the Secretary of State will sort it out in her directions.
I know that I am not alone in being concerned about the danger of conflict arising from these proposals. The EFRA Select Committee, speakers from all parties in another place and several noble Lords in Committee have all spoken in favour of some form of conflict resolution mechanism. None of us has sought to suggest that the process of decision making would be at fault, hence there would be no recourse to judicial review for anyone wishing to challenge a Natural England decision; nor has it been suggested that there should be an automatic prioritisation of the natural environment at all times.
The Oxford English Dictionary defines ideas that are "irreconcilable" as,
We consider that neither the Countryside Commission nor the Nature Conservancy Council was given a brief which allowed for such opinion. English Nature and the Countryside Agency were not troubled by internal inconsistencies; they made recommendations which
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were either agreed to or ignored. To be a trenchant champion of the natural environment with a duty to contribute to social and economic well-being may nevertheless leave Natural England in a cleft stick, but our amendment would ensure that it could not happen.
I emphasise that we do not anticipate this provision being used very much. We are concerned, however, as "Farming Today" stated this morning, that in instances of major conflict between government departments the argument should be brought clearly into the open. We support that: Natural England should not be called on to arbitrate in such circumstances. The Government should not be able to devolve their own responsibilities to it. We believe that, to be a champion of the natural environment, Natural England must be seen to be so. The most damaging event for its reputation will be an occasion where the board is unreconciled, the press is in hot pursuit, the Government are disclaiming responsibility and the various lobby groups are given tongue.
I am sure that none of us wishes to see this solution being used at all, but I refer noble Lords to our debate on Report, when the Minister said:
"it would not be appropriate to cover conflict resolution in the statutory guidance".—[Official Report, 15/3/06; col. 1275.]
If your Lordships remember, the Government did a U-turn; we were told one thing on Monday and something else on Thursday with no satisfactory explanation. I hope that the Minister will give us at least some form of explanation, because if it was not possible to do it through guidance then, I wonder what has changed or whether the thinking has changed. I seek clarity from the Minister. I beg to move.
Lord Chorley: My Lords, I have been a rather wobbly supporter of the Sandford principle in the Bill's context, mainly because the issue is more complex than it is in the case of national parks, where I am firmly behind Sandford. In Committee, the principle was going to apply only to Natural England's first purpose, in the sense that it had precedence over the second purpose. That was a little odd, as at times it would be difficult to apply in such a situation. Under the noble Baroness's amendment, it would apply to both purposes; at least, that is my reading of it.
On Report, the noble Baroness referred to a letter in which the countryside Minister, Mr Jim Knight, had made a proposal. I received a copy of the letter, as did others, and I thought the proposal a sensible solution and a better way of dealing with the matter, because it took a more flexible approach. It turned out to be a red herring, because the Minister withdrew it, as we have just heard. I do not know what the problem was, but it was a pity that that happened. I would prefer to go back to that proposal. However, here we are back to square one, although not quite, because the amendment that we have before us is different from the one in Committee in a significant respect: it is wider.
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The amendment has three key features. First, it applies to the first two purposes as against the remaining three, to which I indirectly referred. It therefore deals with my original worry on how in practice we can deal with differences between purpose 1 and purpose 2—or (a) and (b), as it is in the Bill—or whether we would want to or even should. Secondly, the issue has to be significant; that is important. Thirdly, the conflict has to be irreconcilable; whatever is proposed must be incompatible with one of the last three purposes, as I have said before. That is a demanding test. The occasions when such a conflict occurs will be rare or at least fairly infrequent.
The most likely cause will, I guess, be cases of unlimited access across an important SSSI, where irredeemable damage would be done. In most such cases, the issue would be resolved by limiting access—for example, by time of year, time of day or locationally. In other words, most such issues can be resolved by limiting access rather than by instituting a complete ban. The other area of conflict might have to do with economic development masquerading under the banner of the fifth purpose.
I am left with one niggling worry: will it open the flank to the threat of judicial review? I am prepared to put up with that risk, so on balance I will go for the amendment if the noble Baroness divides the House. The guidance of Sandford is useful. Unlike the Minister, I do not think that it will unduly cramp the style of the new board.
3.45 pm
Baroness Young of Old Scone: My Lords, noble Lords have already recognised the muddle that we seemed to get into at a previous stage of the Bill with the guidance that existed and then did not exist—it came and went. The matter was perhaps inadequately debated at the previous stage and therefore I shall speak for slightly longer than is appropriate at this stage of the proceedings.
In supporting the amendment, I want to hark back to what some noble Lords may regard as ancient history, but which I think is a valid comparison—the position that English Nature found itself in on its establishment in the early 1990s. Noble Lords who recall the axing apart of the Nature Conservancy Council, which had covered the four countries of the UK until then, may recall that that act purported to be about devolution but was actually an act of neat revenge on the NCC, which had been a fairly trenchant champion of nature conservation until then. Indeed, it had "got in the way" of economic development on occasion and was reviled by some sectors of politics at that point. As a result, it suffered the penalty of being divided into four bits.
The NCC was also penalised in a different way, in that it was given a strong political signal at that time that that was the sort of thing which happened to bodies that stood up for nature conservation—they got hacked into pieces and told to sit in a hole and not be particularly championing in their approach. Indeed, for the first five or six years of its existence,
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English Nature did behave like that. It was frightened of its own shadow and it was not particularly robust in supporting nature conservation. Its staff were, at best, confused about their role and, at worst, demoralised. They were not explicitly told that if they put their head out of the hole it would be shot off, but that was certainly how they perceived the lie of the land. Basically, we had a nature conservation body which, due to an implicit political signal, would not even say "Boo" to a goose, far less to anybody who wanted to damage nature conservation interests. I am not saying that that will be the position as regards Natural England on its establishment, but those events show the power of gentle political signals in one direction or another. They were very much the result of an implicit rather than an explicit signal from the government of the time.
Successive leaderships of English Nature have changed that. They have made it clear that standing up for nature conservation is an okay thing to do. Indeed, we have seen some excellent work on the promotion of sustainable development through the conservation of nature done by English Nature since then. I believe that we run a double risk in not seeing either guidance to Natural England, or something in the Bill if guidance is not forthcoming. Without the right signal from government on the predominance of nature conservation, we run the risk that in some of the very rare, but nevertheless real, moments when there is considerable pressure from socio-economic development interests, harm will be done to nature conservation or the landscape. That is a problem. The double whammy is that, having argued all the way through the Bill that such a signal should not be given, the Government almost send the implicit signal that impacted on English Nature at its birth—that balance at all times is the order of the day and that, even in the rare circumstances where there is significant and irreconcilable conflict, that balance should be maintained. The risk is that during the passage of the Bill we are giving the wrong signal to Natural England at its birth.
On Report, the Minister talked about the risks of guidance. I declare an interest as chief executive of the Environment Agency. The Environment Agency is subject to 57 pages of guidance, which is renewed and reviewed every five years. At the agency's inception, the guidance contained some provisions that I was pretty sure we would be judicially reviewed on. I hesitated long and hard before I raised this issue on the Floor of the House today, because you can bet your bottom dollar that someone out there will read Hansard and come to the conclusion that we should be judicially reviewed on our sustainable development principle, but nevertheless we have not yet in our 10 years—it is our birthday this year—been so reviewed. To worry about guidance leaving an organisation wide open to frequent judicial review is probably not necessary.
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I am conscious that it is unlikely that the Minister will have a change of heart at this stage in the proceedings. A gentle signal given through guidance to the new body that biodiversity and landscape must, when push comes to shove and significant and irreconcilable conflict takes place between the purposes, take precedence is not a huge thing to ask for and does not expose the new organisation to risk. I hope that the Minister might delight us all by saying that he has changed his mind.
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