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Viscount Ullswater: I thank the noble Lord for giving way. I believe that the criticism was not of the words in the schedule but of the fact that it should appear in the schedules to the Bill.

Lord Williams of Elvel: I am glad to hear the Minister say that, but I understood that there had been criticism of the drafting of the proposed schedule. Indeed, I understood a number of Members of the Committee to say, "We can't accept this; we can't accept that; we can't accept the other". That does not bother me; it is not the job of the Opposition to draft amendments, even if we accept all the Government's wording, as we have in this case.

In paragraph 8(2) (b), the proposed schedule instructs Ministers to ensure that the revised guidance:

In my view, that allows Ministers to do exactly what the noble Viscount wanted. I am not entirely clear what the concept of sustainable development means. However, if there is a concept it is obviously not static. It is right that the Minister may say that the guidance needs to be amplified and that the timetable for doing so will cover the next 10, 20, 50 or 100 years. Therefore, flexibility is built into the proposed schedule.

The one point on which the Minister gave the game away was in saying that the guidance has to be reviewed and considered and will be ready for consideration when the Bill goes to another place. From the Opposition Benches I have covered a number of Bills during their passage through this House. I have become somewhat tired of Ministers saying, "It will all be all right when it gets to another place. Your Lordships need not worry about what is happening. We will get it right by the time it goes down to another place". We have to get it right in this House; if not in this Committee, then at least in this House at some future stage of the Bill.

I say to the Committee in all honesty, and I believe that I am speaking the absolute truth, that unless it passes these amendments, however defective they may be—and I accept that they are defective and that there will be negotiation about how the provision may be translated into what the noble Lords, Lord Renton, Lord Marlesford and Lord Moran, want—we can wash our hands of Clause 4 and say, "There will be no improvement on Clause 4 and there will be no improvement on guidance until the Bill is in another place". That is a derogation of the duty of Members of this House. I wish to test the opinion of the Committee.

4.25 p.m.

On Question, Whether the said amendment (No. 38) shall be agreed to?

19 Jan 1995 : Column 771

Their Lordships divided: Contents, 88; Not-Contents, 146.

Division No. 1


Acton, L.
Addington, L.
Annan, L.
Ashley of Stoke, L.
Avebury, L.
Beaumont of Whitley, L.
Birk, B.
Broadbridge, L.
Bruce of Donington, L.
Callaghan of Cardiff, L.
Carmichael of Kelvingrove, L.
Carter, L.
Chorley, L.
Cledwyn of Penrhos, L.
Clinton-Davis, L.
Cocks of Hartcliffe, L.
David, B.
Desai, L.
Donaldson of Kingsbridge, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Eatwell, L.
Elis-Thomas, L.
Ezra, L.
Falkland, V.
Fisher of Rednal, B.
Foot, L.
Gallacher, L.
Geraint, L.
Gladwin of Clee, L.
Gladwyn, L.
Gould of Potternewton, B.
Graham of Edmonton, L. [Teller.]
Halsbury, E.
Hamwee, B.
Harris of Greenwich, L.
Haskel, L.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howell, L.
Howie of Troon, L.
Hughes, L.
Jay of Paddington, B.
Jeger, B.
Jenkins of Hillhead, L.
Jenkins of Putney, L.
Judd, L.
Kennet, L.
Kilbracken, L.
Mallalieu, B.
Mayhew, L.
McIntosh of Haringey, L.
McNair, L.
Meston, L.
Monkswell, L.
Morris of Castle Morris, L. [Teller.]
Mulley, L.
Nathan, L.
Nicol, B.
Palmer, L.
Phillips of Ellesmere, L.
Rea, L.
Redesdale, L.
Richard, L.
Rodgers of Quarry Bank, L.
Sainsbury, L.
Seear, B.
Sempill, Ly.
Serota, B.
Shannon, E.
Shaughnessy, L.
Stallard, L.
Stedman, B.
Stoddart of Swindon, L.
Strabolgi, L.
Taylor of Blackburn, L.
Thomas of Walliswood, B.
Thomson of Monifieth, L.
Tope, L.
Tordoff, L.
Turner of Camden, B.
Wallace of Coslany, L.
White, B.
Williams of Crosby, B.
Williams of Elvel, L.
Williams of Mostyn, L.
Winchilsea and Nottingham, E.


Aberdare, L.
Addison, V.
Allenby of Megiddo, V.
Arran, E.
Astor of Hever, L.
Astor, V.
Balfour, E.
Barber of Tewkesbury, L.
Barber, L.
Belhaven and Stenton, L.
Birdwood, L.
Blaker, L.
Blyth, L.
Boardman, L.
Boyd-Carpenter, L.
Brabazon of Tara, L.
Bridgeman, V.
Brigstocke, B.
Brougham and Vaux, L.
Buckinghamshire, E.
Burnham, L.
Butterworth, L.
Cadman, L.
Campbell of Alloway, L.
Campbell of Croy, L.
Carnegy of Lour, B.
Carnock, L.
Carr of Hadley, L.
Charteris of Amisfield, L.
Chesham, L.
Clanwilliam, E.
Clinton, L.
Coleraine, L.
Colnbrook, L.
Craigavon, V.
Cranborne, V. [L. Privy Seal]
Crickhowell, L.
Cullen of Ashbourne, L.
Cumberlege, B.
Davidson, V.
Dean of Harptree, L.
Denham, L.
Derwent, L.
Digby, L.
Dixon-Smith, L.
Downshire, M.
Effingham, E.
Elibank, L.
Ellenborough, L.
Elles, B.
Elliott of Morpeth, L.
Elton, L.
Faithfull, B.
Fraser of Kilmorack, L.
Gainford, L.
Gardner of Parkes, B.
Geddes, L.
Gilmour of Craigmillar, L.
Goschen, V.
Gray of Contin, L.
Greenway, L.
Hailsham of Saint Marylebone, L.
Harlech, L.
Harrowby, E.
Hayhoe, L.
Henley, L.
Hooper, B.
Howe, E.
Hylton-Foster, B.
Inglewood, L. [Teller]
Jellicoe, E.
Jenkin of Roding, L.
Kenyon, L.
Kingsland, L.
Kinnoull, E.
Knollys, V.
Laing of Dunphail, L.
Leigh, L.
Lindsay, E.
Lindsey and Abingdon, E.
Liverpool, E.
Long, V.
Lucas, L.
Lyell, L.
Lytton, E.
Mackay of Ardbrecknish, L.
Mackay of Clashfern, L. [L. Chancellor]
Manchester, D.
Mancroft, L.
Marlesford, L.
McAlpine of West Green, L.
Merrivale, L.
Mersey, V.
Miller of Hendon, B.
Mills, V.
Milverton, L.
Monckton of Brenchley, V.
Moran, L.
Mottistone, L.
Mowbray and Stourton, L.
Munster, E.
Murton of Lindisfarne, L.
Newall, L.
Norrie, L.
Northesk, E.
Orkney, E.
Orr-Ewing, L.
Oxfuird, V.
Park of Monmouth, B.
Pender, L.
Platt of Writtle, B.
Plummer of St. Marylebone, L.
Polwarth, L.
Rankeillour, L.
Rawlings, B.
Rennell, L.
Renton, L.
Renwick, L.
Rodger of Earlsferry, L.
Rodney, L.
Saint Oswald, L.
Salisbury, M.
Savile, L.
Seccombe, B.
Shaw of Northstead, L.
Shrewsbury, E.
Simon of Glaisdale, L.
Skelmersdale, L.
Skidelsky, L.
Soulsby of Swaffham Prior, L.
Stanley of Alderley, L.
Strange, B.
Strathcarron, L.
Strathclyde, L. [Teller]
Strathcona and Mount Royal, L.
Swansea, L.
Terrington, L.
Teviot, L.
Thomas of Gwydir, L.
Thurlow, L.
Trefgarne, L.
Trumpington, B.
Ullswater, V.
Vaux of Harrowden, L.
Vivian, L.
Young, B.

Resolved in the negative, and amendment disagreed to accordingly.

19 Jan 1995 : Column 772

4.34 p.m.

Lord Lucas of Chilworth moved Amendment No. 39:

Page 5, line 40, at end insert:
("( ) The guidance under subsection (1) above must include guidance on the extent to which, when considering whether or not to, or the manner in which it will, exercise any power, it is unreasonable for the Agency to take into account costs and benefits under section 37(1) below.").

The noble Lord said: This amendment still leaves us in the realms of the disputed Clause 4 and the guidance on Sustainable development: aims and objectives. Clause 29 falls into the category of other aims and objectives. It really has its meaning in Clause 37 which requires the new agency to take into account the costs which may be incurred and the benefits likely to accrue in consequence of the exercise of its powers.

19 Jan 1995 : Column 773

Before any Member of the Committee suggests it, I concede that this may not be the right place for the amendment. However, as I went through the Bill, it seemed to me that there was no other suitable place for it. It would be too late to try to amend Clause 35 because we are talking about the aims and objectives.

The duty to take into account the costs and benefits likely to accrue from the exercise of the agency's powers is not totally overriding; for example, it does not apply where the new agency has specific duties or a statutory obligation to discharge or where it would be unreasonable in the circumstances so to do.

Statutory responsibilities and duties and requirements imposed by directions are easily identifiable. But in many circumstances, determining whether or not it is unreasonable to consider costs and benefits may prove difficult and may very well lead to controversy. There is already sufficient controversy surrounding Clause 37 and this amendment is, in very large measure, an attempt to remove such controversy.

Of course it is right that cost considerations do not take precedence over primary environmental duties. But to allow the agency complete discretion in deciding when circumstances make it unreasonable for it to take into account costs and benefits is, I suggest to the Committee, an invitation to trouble.

The trouble that I foresee is that it may lead to the possibility of challenges against the agency's decisions; that is, appeals or perhaps applications for judicial review. Whether or not the challenge, in whatever form it is made, is upheld, it would certainly be damaging, costly, time-consuming and counter-productive. Therefore, it seems to me that clear guidance is needed which will prevent the agency from being diverted from its real job. I believe that that is the effect which my Amendment No. 39 will bring about.

I am somewhat heartened by the fact that I notice in the general briefing which the NFU has issued, and which a number of Members of the Committee may have received, that the NFU supports the amendment, which I now beg to move.

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