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5.25 p.m.

Lord Crickhowell: My Lords, I begin by declaring an interest as the chairman of the National Rivers Authority. I hope that I may be forgiven for a brief historical digression, the relevance of which will become clear in a moment. In June 1941 Germany attacked Russia and by the first week of July in that year the House of Commons had met for the first time in this Chamber. By December 1944 Britain was within five months of the end of the war with Germany. By April 1946 the Labour Government were struggling with the problems of the peace. What has that to do with this Bill? Only this: that in July 1991 the Prime Minister announced his intention to set up an environment agency. Today, in December 1994, we have got to the Second Reading of the Bill that is to carry out that intention. By April 1996, all being well in an uncertain world, the agency will be taking over its responsibilities. I suppose that among the more charitable conclusions that could be drawn from that comparison of historical events is that it is more difficult to set up an environment agency than to win a war or that this is an unusually well prepared piece of legislation.

However, as a result of the prolonged labours we have here the elements that could become good legislation, and I welcome the long-awaited Bill. The national parks section has the familiar appearance of an old friend. If parliamentary procedures did not make it so absurdly difficult for a Private Bill started in this place to pass into law, even when widely supported in both Houses, it would already be on the statute book thanks to the admirable efforts of my noble friend Lord Norrie. In one respect that section of the Bill has taken a turn for the worse because the words "quiet enjoyment" do not appear.

I understand that the Government are sympathetic to the view that adequate protection must be provided. I hope that they will shortly find a way to overcome any drafting difficulties that may remain. I hope that they will also look again at the question of major developments in national parks to ensure that they take place only when there is no reasonable alternative, while always remembering that the parks are places in which people need to work and earn a living.

During the debate on the gracious Speech, I pointed out that the clause of the Bill creating an environment agency for England and Wales was in practice establishing a partnership, and that we should concern ourselves not just with the functions and duties proposed for the agency but equally with the role of government,

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and particularly of the DoE. Similar considerations may equally be true of the Scottish parts of this Bill. I referred to some of the difficulties that the NRA has faced in the course of its marriage. But unlike many modern couples we have persisted through the inevitable difficulties that are encountered in any marriage and we are still together, reasonably happy after five and a half years.

The marriage of the environment agency and the DoE may be altogether more difficult because I have an unhappy suspicion that on this occasion the Government are attempting to write the word "obey" into the marriage service, although I fear that they will not couple that word with the phrase,

    "with all my worldly goods I thee endow".

The NRA has not been obliged to live with a bossy and prescriptive management statement, but that appears to be the coming fate of the agency. The environment agency is being nagged by its partner even before the nuptials are concluded.

More serious is the potential impact of Clause 4, the guidance clause, with its reference to "sustainable development" to which a number of noble Lords have already referred. Guidance from Ministers cannot provide an ideal and stable foundation for policy-making, for regulatory activities which may impact heavily on others or for a legal framework which the courts can interpret and enforce. Furthermore, "sustainable development" is one of those phrases that means different things to different people. To environmentalists, the words initially gave an emotional thrill, meaning progress and fulfilment. Then came that moment of disillusion. It is now clear that if the emphasis is placed upon the economic and development aspect of those words, they can become an obstacle to environmental action; and there is a real anxiety that Ministers have that interpretation in their minds more frequently than the other.

Industrialists, water plcs and others will quickly see that there are opportunities here to challenge the agency's decisions. It is imperative that the Government publish their guidance and lay it before Parliament, and that they should do so while the Bill is before Parliament. It will not do if the Government rely later upon telephone conversations between officials and the chief executive along the lines of, "You really must try to bring your chairman to heel", or "Ministers are really most upset". Nor will it do if the guidance is given by way of the expression of an opinion given in a letter that is argued subsequently to be confidential. All those are techniques with which those who run government agencies will be familiar. It is not always easy to resist that kind of pressure, but then there should be no need to resist the Government's guidance if the agency's own advice is first considered by Ministers and Ministers' judgment is given openly and placed on the public record. It is odd that nowhere in the Bill is there a requirement that the Government should consider the agency's advice.

That takes me directly to another matter about which I spoke during the debate on the gracious Speech; and that is the general duty (created by Clause 37) for the

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new agencies to have regard to costs and benefits in exercising their powers. I do not object to the clause, but where are the instruments that will enable the agencies to put that duty into effect? Yes, it is true that the provisions within the Water Act to establish statutory water quality objectives, which did provide a mechanism and which Ministers described as a cornerstone of that Act, are still there, but they have never been used. In any case, there is no sign that they are to be extended to the new environment agency's other functions, and it is therefore difficult to know what is in the mind of Ministers. Have they or their officials thought this through and devised a mechanism by which the new agency will carry out its functions, particularly its pollution control functions, without it carrying a high risk that its decisions will be challenged repeatedly to appeal or in the courts?

There are a good many questions that require answers. For example, how does the cost benefit duty relate to references to economic criteria in existing legislation, and, in particular, to the BATNEEC criteria used to secure the best practicable environmental option available?

There seems to be a view within the DoE that policy issues on environmental economics should be left to the department and that the agency should confine its activities to implementing that policy. I hope that the agency will not fall for that sucker punch. It is already clear that the NRA has done more than the DoE or HMIP in the development of standard methodologies for the application of cost benefit techniques. It is absolutely essential that the agency continues that work on environmental economics. There is a compelling reason why it should do so because, while in the department it may remain a largely academic exercise, in the agency it will be a crucial day-to-day requirement if it is to do its job without the risk of continual legal challenge.

Research and development must continue here in the economic field as in other areas of the agency's activities. In that context, I am puzzled by Clause 5(4),

    "The Agency shall follow developments in technology and techniques for preventing or minimising",

and so forth, "the effects of pollution". Well, yes! But does it need a subsection of a Bill to make it do anything so obvious? What does it mean? What are its implications for the exercise of the agency's functions?

Clause 5 as a whole is an odd clause. We are told that the agency shall compile information, and if,

    "required by either of the Ministers to do so",

shall carry out assessments and,

    "prepare and send to that Minister a report".

Well, I certainly hope that the agency will compile information. It would be strange if it failed to do so. I hope equally that it will carry out assessments and prepare reports, whether or not Ministers ask it to do so, and I trust that it will place those reports, whether prepared on its own initiative or at the request of Ministers, in the public arena. It may or may not be a comfort to know that whether the agency decides to do that or not, it is almost certain that the information will leak and be published by someone else in any event--

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probably in that excellent source of reliable information, the journal Ends, to which Ministers turn to discover what is going on in their departments and in the latest copy of which noble Lords will find a comprehensive and well-informed brief on the contaminated land section of the Bill.

There are a number of things in the Bill which I welcome greatly. It makes it clear that the agency can recover the costs of investigating pollution as well as clean-up costs; it brings Crown property partially into control; it introduces enforcement notices for water pollution risks; removes the tripartite sampling requirement and enables machine samples to be taken as evidence; it extends to environmental issues the agency's and the sea fisheries committees' by-law-making powers; and it introduces fixed penalties for fishery offences. All that is very welcome.

However, I am disappointed that, although the NRA also argued the case that the agency should be able to issue enforcement notices and prohibition notices and have injunctive powers to deal with threatened pollution, Schedule 18 provides for enforcement notices only. As a consequence, the harmonisation with existing HMIP and waste powers is only partial and incomplete. I am disappointed also that the water resources provisions asked for by the NRA, including the power to make drought orders on environmental grounds, do not appear.

As a former Secretary of State for Wales, and as the present chairman of the NRA, I regard the Opposition proposal that there should be a separate agency for Wales as wholly unhelpful. I am certain that it would guarantee that environmental protection would be much less effective and much more expensive.

There are three other important matters to which I wish to refer. First, although I welcome the fact that the Government have listened to the representations put forward about the inadequacies of the original draft conservation clause, we in the NRA still believe that Clause 7 is significantly weaker than the current legislation. At present the NRA has a duty to further conservation with regard to all its functions, including pollution control. The new clause omits pollution control and thus leaves the agency with weaker legislation than internal drainage boards and water service plcs which it will regulate. We believe that the duty as it is at present provided in the Water Act enables the NRA to do things to preserve water quality and protect SSSIs, for example, which would not otherwise be possible.

I am delighted that the Government have now put into legislation something to deal with the long-standing problem of contaminated land. However, there are some serious issues which do not appear to have been addressed, of which, from my point of view, by far the most important is that related to the funding and future ownership of what are often known as "orphan sites". It is all very well providing for situations where an owner can be identified and the owner has resources to deal with the problem. Unfortunately, there are a large number of sites where that is not the position. Either the owner is unknown--the parents are dead and gone--or

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the present owners, who may have inherited from long deceased forebears, so to speak, are impoverished and not in a position to do anything about the matter.

We are faced also with a system that appears to be bureaucratic and of Byzantine complexity. It seems likely that there will be long delays before treatment can be carried out.

I have one simple central question to put to my noble friend. Will the agency be able to obtain funds from the Government to carry out priority clean-ups if others cannot be found to do so? I suppose that that is a damn-fool question in the light of the statements about the Bill's financial and manpower effects that:

    "The contaminated land provisions are not expected to lead to any additional expenditure falling on either the Consolidated Fund or the National Loans Fund";

that there is to be no effect on public service manpower levels; and that the legislation is not expected to increase existing costs or place additional burdens on business. I find it hard to see how effective action can be taken against that background.

Of course, what we could and should have had was a system of grants funded by the levy on landfill sites. No doubt that sensible route has been blocked by the Treasury's obsession with hypothecation.

I very much welcome Clause 55, which gives a definition of abandoned mines and creates new provisions to deal with them. I welcome in particular the requirement to give six months' notice of a proposed abandonment, including cessation of pumping. That will be of great help.

However, there is as yet no adequate provision to enable the agency to deal with the increasingly serious problem of pollution from mines that have already been abandoned. When notice is given, it appears that the agency will be able to do little that is effective because at that stage it will become entangled with local authorities and the extraordinarily complex and time-consuming arrangements for dealing with contaminated land under Clause 78.

Like the noble Lord, Lord Ezra, I welcome the news that the defence against prosecution for pollution provided under the Water Resources Act 1991 will not apply to mines abandoned after 1999. But why 1999? Again, I suppose that I am asking a damn-fool question. By then privatisation will have been completed and by then any mines that are likely to close in the immediate future as existing supply contracts run out will probably have closed. I am pretty certain about what happened; someone in the DoE asked that the clause should take immediate effect, somebody in the DTI suggested the year 2005 and they settled in the middle! If the requirement is wrong and needs replacing, surely it needs to be replaced today and not in five years' time.

I find myself finishing as I began, with the extended timetable being pursued by the Government; and yet it worries me that the Government, taking so much time themselves, are now asking the newly created advisory committee, which as presently constituted is thin on relevant experience, to rush its fences and take early decisions about structures, locations and budgets while, most of the committee members will not have had time to acquire detailed knowledge of a very complex subject

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and when it is not likely that there will be a chief executive or senior management team in place before the summer of next year. If the shadow authority members are wise, their first show of independence from ministerial guidance will be by way of a refusal to be rushed or to commit themselves to the decisions that the full board and management team may later come to regret.

I hope that we pass this Bill but improve it a good deal before it leaves this House.

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