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Viscount Mills: Perhaps I may ask my noble friend two questions about what he said. I am grateful for his comments, and that may well be a solution to the problem. But how quickly might an order be brought in? Would it involve a scale of charges? Perhaps I may expand on that point. It is worth pointing out that land drainage consents are issued for minor projects such as putting in a number of rocks to provide habitat for fish, right up to the scale of activity that I have just mentioned; namely, barrage schemes.

Viscount Ullswater: I said to my noble friend that Ministers would be prepared to consider proposals put to them by the agency for changes to the fees. In that instance it would be up to the agency to say that it wanted to change the fees. If it put forward a proposition to Ministers which Ministers found acceptable, then I dare say that regulations could be brought forward. I cannot tell my noble friend how quickly that might happen. I would need to confirm this with advice; but if the proposal was for a scale of charges, then I dare say that Ministers would be prepared to consider that.

Viscount Mills: I thank my noble friend for his comments. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 35, as amended, agreed to.

[Amendments Nos. 203 to 207 not moved.]

Baroness Hilton of Eggardon moved Amendment No. 208:


After Clause 35, insert the following new clause:

("Agency to certify pesticides

.—(1) Each new Agency shall have the function of inspecting and certifying pesticides as safe for use.
(2) In carrying out its function under subsection (1) above, each new Agency shall satisfy itself that any pesticide certified as safe for use has no adverse environmental effects.").

The noble Baroness said: The amendment is part of our attempt to put clear-cut duties for the agency on the face of the Bill, and not just leave them to the whim of Ministers. It is also related closely to the fact that Clause 1, which we shall continue to attempt to amend, has no clear purpose for the agency.

The amendment ties in with ones moved earlier by my noble friend Lord Williams in relation to drinking water and other responsibilities that we feel the agencies should have. In 1993, there were breaches of the pesticide standard in drinking water from all 10 water companies. For example, 77 per cent. of the supply zones of the Thames Water area were contaminated by

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herbicide. For that reason we feel that the control of pesticides should go naturally with attempts to provide us with decent drinking water, and with the overall strategy in relation to our rivers, reservoirs and so on. The amendment would fit neatly into that logical set-up.

We feel that we should have more on the face of the Bill in relation to the actual purposes of these agencies. We should continue to press for at least a general purpose to protect the environment—an issue to which we shall return on Report. This is a specific duty that we feel the agencies should have. I beg to move.

Viscount Ullswater: After my previous remarks, I do not believe that the noble Baroness would expect me to accept the amendment. There is a well established and comprehensive system for authorising pesticides before they can be used and no purpose whatsoever would be served by sweeping this away and giving the task to the new agencies.

I should remind the Committee of the current arrangements for ensuring that pesticides used in this country are safe. These require that Ministers in six departments, including the Department of the Environment, and the Scottish and Welsh Offices, must authorise the marketing or use of any pesticide. Before Ministers will consider granting an authorisation, they will take full account of the recommendations of the expert Advisory Committee on Pesticides, which is independent of government and of industry. The committee in turn has the benefit of an exhaustive assessment of the relevant data by MAFF's Pesticides Safety Directorate or the Health and Safety Executive. Ministers and their advisers, as one would expect, consider fully environmental effects including effects on wildlife, soil and water. But they look also at human safety, whether it be of the pesticide user, of bystanders or of consumers of food. They also take account of the effectiveness of the proposed product in tackling its target pests or diseases.

The present system has been developed over a number of years and works well to make sure that human and environmental safety are ensured. There is no need to give this work to the new agencies, and much of the work involved—for instance, the human toxicology and agricultural efficiency —lies far outside their remit.

I hope that I have persuaded the Committee to reject the amendment if it is pressed.

Baroness Hilton of Eggardon: The Minister is right; I am not at all surprised by his response. The amendment is part of our overall attempt to give the environment agency clear responsibilities, if not specific functions. The fact that six Ministers are required to oversee the safety of pesticides suggests that it might be useful to have a single point of responsibility. However, in view of our intention to return at a later stage to the overall duties of the agency, I beg leave to withdraw the amendment.

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Amendment, by leave, withdrawn.

Clause 36 [Delegation of functions by Ministers etc. to the new Agencies]:

Lord Lucas of Chilworth moved Amendment No. 209:


Page 30, line 27, at end insert ("or a power to determine appeals against decisions of a new Agency.").

The noble Lord said: I shall speak also to Amendment No. 343, which is consequential. Although Amendment No. 209A in the name of the noble Baroness, Lady Hilton of Eggardon, is grouped with my amendments, I do not propose to speak to it.

Clause 36 gives Ministers wide-ranging powers to agree with the new agencies that they carry out such ministerial functions as shall be appropriate. However, the Bill allows for the delegation of certain specified functions. In cases where those functions should properly be exercised only by government, they are not appropriate to the new agencies. They are set out in Clause 36(2).

I believe that there has been an oversight in the drafting of the clause. Clause 36(2) provides that an agreement between a Minister of the Crown and the new agency under subsection (1) leaves the agency, or any of its employees:


    "to exercise on behalf of a Minister of the Crown any function which consists of a power to make regulations or other instruments of a legislative character or a power to fix fees or charges".

There is, however, another responsibility which should not be delegated to the agencies. It is the vital safeguard against unreasonable or unsound decisions for those who will be regulated by the new agencies; it is the right of appeal to the Secretary of State. To be effective and credible regulators, the agencies must have the confidence of those they regulate and must be seen to be accountable. Clearly, it cannot be the Minister's intention that the agencies might be allowed to determine an appeal lodged against them under subsection (2). My amendment corrects that oversight. I beg to move.

Baroness Hilton of Eggardon: I shall speak to Amendment No. 209A, which seeks to prevent Ministers from acting unreasonably. Clause 36(1) provides for any Minister of the Crown to enter into an agreement with the agency to carry out a function on his behalf. However, Clause 36(7) allows the Minister to exercise that function himself, even though the previous agreement exists. My amendment is designed to ask the noble Viscount whether it would be reasonable for a Minister to ignore the agreement and act in his own right. The fear is that, having reached an agreement with the agency on some specific matter such as the level of activity in combating certain polluters, the Minister might ignore or overrule findings which would lead to their prosecution.

The current position on licensing scrapyards, for example, makes it clear that scrapyards fall within the class of operations which will be subject to waste licensing. For many years waste regulators have been making it clear that scrapyards present considerable potential for serious pollution. However, the

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Government are taking extensive steps to exempt many scrapyards from licensing and are ignoring the pollution potential of such places.

A similar conflict could arise where the agency is required to exercise the Minister's pollution prevention powers while the Minister might refuse to apply them to certain undertakings. I therefore ask the noble Viscount to resolve the apparent contradiction between Clause 36(1), where an agreement can be reached with the agency to carry out certain functions, and Clause 36(7), which will allow the Minister to overrule that agreement. The amendment is intended to ensure that the Minister acts reasonably in carrying out that overruling.

5.15 p.m.

Viscount Ullswater: I have every sympathy with Amendment No. 209, moved by my noble friend. If an appeal against an agency decision is made to the Secretary of State, it would clearly be quite unreasonable for the Secretary of State then to delegate the determination of that appeal back to the agency.

It seems to me that what is at issue is the appropriate form of drafting to achieve the policy. Clause 36 allows only the delegation of "eligible functions", which are defined in Clause 36(10) as those which the Secretary of State considers can appropriately be exercised by the Agency in question. As it would obviously be inappropriate for the Secretary of State to delegate the determination of an appeal back to the agency which made the original decision, I am advised that there is no need for the clause to make an express provision to this effect. I hope that my noble friend is reassured and will feel able to withdraw this amendment and Amendment No. 343 which is consequential upon it.

Amendment No. 209A, moved by the noble Baroness, Lady Hilton, seeks to amend Clause 36(7) to ensure that any Minister who has delegated an eligible function of his to a new agency may only exercise this function himself "reasonably". I do not believe that this amendment is necessary. The current provision ensures that any agreement by a Minister to delegate a function to a new agency does not prevent him from exercising the function. If such an agreement ends, or if the agency fails for any reason to exercise the function adequately, the Minister would need powers to exercise the function himself. I would not expect a Minister to delegate function of his to a new agency should he wish to continue to exercise the function himself under normal circumstances. But since the clause also provides that anything done, or not done, by an agency shall be treated as having been done, or not done, by the Minister —except in the case of consequent criminal proceedings—it is the Minister who still has responsibility for ensuring that the function is exercised or performed satisfactorily and who is, of course, accountable to Parliament for this.

I believe that I comprehend what the noble Baroness is seeking to do by this amendment but I cannot see that it is necessary. Clause 36(7) as it stands ensures that Ministers have sufficient power to exercise delegated functions themselves should this be necessary; the

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normal test of "reasonableness" should apply and there is no need for such a qualification to be inserted into each relevant subsection of legislation. I hope that the noble Baroness will withdraw her amendment.


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