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Lord Lucas of Chilworth moved Amendment No.92:

Page 29, line 43, leave out ("appropriate") and insert ("reasonable").

The noble Lord said: My Lords, in moving Amendment No. 92 I wish at the outset to thank the Minister for a very useful exchange of letters. I also thank his officials for some very useful consultations over this and other matters to which I shall return, probably next week. Your Lordships may feel that this amendment is only a matter of perception. However, I draw attention to what the Minister said in Committee when he set out the two categories of information that might be made available by the agency. The first is that obtained through pure research. The other, which is of more concern to me, is environmental information which the agency obtains through its statutory duties. The agency is under a duty to make that information available at reasonable charge, according to the environmental information regulations.

In the Minister's own words, there is doubt whether it is right to use the word "reasonable" or the word "appropriate". He says in his letter that the only doubt is whether the use of "reasonable" in the Bill will have unintended effects. I ask my noble friend why that doubt should arise when it has been used previously in primary legislation, notably in Section 52 of the Environmental Protection Act 1990 and the Control of Pollution Act 1974, although I accept that those provisions have now been superseded.

Perhaps I may say a little mischievously en passant that in Amendment No. 161 in the name of my noble friend Lord Ullswater the relevant wording is

If it can be used effectively in the 1974 and 1990 Acts and in Amendment No. 161 in this Bill, why cannot it be used in the instance to which Amendment No. 92 refers? I beg to move.

Lord Elis-Thomas: My Lords, I speak briefly to Amendment No. 93 which is grouped with the one moved by the noble Lord, Lord Lucas of Chilworth. The purpose of Amendment No.93 is to ensure that the agency's power to charge such fee as it considers appropriate for research and related matters is subject to a reasonable cost.

Clause 35(5) (b) attempts to give the agency power to charge whatever sum it considers appropriate for the results of research and related activities. The advice that I have been given by EarthRights—the law and resources centre—is that Article 5 of Directive 90/313/EEC provides that any charge for the provision of the agency's environmental information may not exceed a reasonable cost. Therefore, EarthRights argue that the clause as it stands may be unlawful. The results

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of research and related activities carried out by the environmental agencies will virtually always constitute environmental information within the terms of the European directive. So, if the agencies' power to charge for the supply of that information where it was in the form of "research or related activities" was "such as it considers appropriate", there is a danger that the directive's requirement of "reasonable cost" would be evaded. I do not expect the Minister to comment on this in great detail at this time of night, but I request that he consider the matter further during the Bill's passage.

Viscount Ullswater: My Lords, Amendment No. 92 would amend Clause 35(5) (b) to enable the agencies to charge a "reasonable" fee for research and related activities, instead of an "appropriate" charge, as currently provided.

I have some sympathy with my noble friend's wish to ensure that the charges which the agency makes for its research are reasonable. That is indeed the Government's intention, and I have considered the matter further since my noble friend raised the issue in Committee. However, I am advised by my lawyers that "appropriate" is the correct adjective to use in order to achieve that objective. It provides a wide discretion, from no charge at all—as is expressly provided by Clause 35(6)—to the market price. But while the agencies will have that discretion, they will also be fettered by the requirement that the charge is "appropriate". So, where it is appropriate to make research available free of charge the agencies can do so. On the other hand, where the market price is appropriate—as, for instance, in the development of a new piece of monitoring equipment—then the agencies may charge at that level. However, the agencies must not charge unreasonably. If they did so, they could be subject to judicial review.

My noble friend referred to other legislation where the term "reasonable" is used. I do not want to get into a long debate about the merits of existing legislation. I merely point out to him that Section 52 of the Environmental Protection Act, which is the section he quoted, concerns charges which may be levied by waste disposal and collection authorities on one another. It is right to use the word "reasonable" when determining statutory fees and charges, but what we are referring to in Clause 35 is payment for research and related activities. That needs to cover a range of charges, depending upon what is appropriate. All public bodies must act reasonably, and that applies to the agency in charging for research.

I hope I have convinced my noble friend that we have the right formulation for this provision, and that there is no intention of allowing the agency to make unreasonable charges for research and related activities.

Amendment No. 93, spoken to by the noble Lord, Lord Elis-Thomas, would further amend Clause 35(5) (b) to make payment of charges subject to Article 5 of Directive 90/313 on the freedom of access to information on the environment, which says that charges must not exceed a reasonable cost. That directive has been transposed into law here by the Environmental Information Regulations 1992. Those regulations

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(Regulation 3(4) (a)) include provisions for the imposition of a charge on any person in respect of costs reasonably attributable to the supply of environmental information.

Since those regulations will apply directly to the supply of any environmental information by the agency, they already lead to the result that the noble Lord's amendment seeks to achieve. If any agency attempted to charge a fee for environmental information, and that fee exceeded what was permitted by Article 5 of the directive, it could be subject to judicial review. So I hope that with those words I have managed to persuade the noble Lord that his amendment is not required.

Baroness Hamwee: My Lords, before the Minister sits down, he said, in connection with the term "appropriate" in Clause 35(5) (b), that a fee that was not appropriate could be challenged by way of judicial review. Will he confirm that with the fee being described as such as the agency considers appropriate, as distinct from such fee as is appropriate, the same degree of objectivity applies? In other words, will he confirm that the agency's discretion does not reduce the objectivity of the appropriateness of the fee, if I may put it in that way?

Viscount Ullswater: My Lords, I believe that under Clause 35(5) (b) the agency is in charge of:

    "such fee as it considers appropriate",

so it is a responsibility of the agency. I believe that that is where the responsibility should lie, and so it should be subject to judicial review if the consideration is that the fee is inappropriate.

Lord Lucas of Chilworth: My Lords, I thank my noble friend for his response, which I have to say was somewhat disappointing. He did not comment —I do not know whether he will—on the use of the word "reasonable" in Clause 54. It always amuses me that one calls in aid the lawyer's opinion; and we all know that one lawyer will give you one opinion while another will give you a different opinion. In the instance which I am discussing with your Lordships this evening, I cannot help thinking that there is a certain obstinacy in not acceding to my request. However, I do not believe that I can take the matter much further this evening. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 93 not moved.]

The Deputy Speaker (Lord Airedale): My Lords, in calling Amendment No. 94, I have to point out to the House that, if it were to be agreed to, I could not call Amendments Nos. 95, 96 or 97.

Clause 37 [General duty of the new Agencies to have regard to costs and benefits in exercising powers]:

Baroness Hamwee moved Amendment No. 94:

Page 31, line 28, leave out subsection (1) and insert:
("( ) The Ministers shall from time to time give guidance to each new Agency with respect to the new Agency's assessment, or otherwise, of the financial and environmental costs which are likely

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to be incurred and the financial and environmental benefits which are likely to accrue, in consequence of the exercise or non-exercise, or manner of the exercise, of a power of a new Agency.").

The noble Baroness said: My Lords, I believe that that proposal might be a relief at this time of night. However, I shall speak briefly to Amendment No. 94, which is grouped with Amendments Nos. 97, 98 and 102. Amendment No. 98 is also tabled in my name and is consequential.

I accept that the Government have moved considerably with their new definition, but I remain troubled by the provision in the Bill for assessing costs and benefits. It has been described as a "novel duty", which positively invites challenges by way of judicial review. Be that as it may—and I do not suggest that that is in any way an unimportant observation—I commented at the last stage of the Bill that, as technology was moving so fast in the environmental area and public assessment of the issues was also moving fast, certain factors were going somewhat against some of my other arguments on earlier clauses.

I wonder whether the issue of costs and benefits would not more appropriately be dealt with in guidance rather than in primary legislation. I suggest that because guidance could more easily be altered to reflect the changes which, as I say, may be both at the technological level and at the level of public awareness and public opinion. I beg to move.

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