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Lord Williams of Elvel: My Lords, I believe that this is an important amendment. Indeed your Lordships will be aware, as the noble Lord, Lord Norrie, pointed out, that we have had many debates around this particular issue, which is an issue central to the Bill. We fully understand—this was referred to by the noble Lord in introducing his amendment—that HMIP feels that what is in the Bill is adequate for it. We do not believe, just because HMIP on one side thinks it is adequate for it, that it is adequate for the agency in general, because we believe that the Bill, as drafted, represents something of a weakening of the existing mandate of the National Rivers Authority.

During Report stage the noble Viscount said that the,


I am not sure that the environmental NGOs have underestimated and misunderstood the effect. Therefore I would like to see the Government accepting what is after all, as the noble Lord said, only a belt and braces amendment, to make sure that the pollution control functions of the National Rivers Authority are translated quite directly and specifically into the new Bill.

The Earl of Lytton: My Lords, I wish to make a brief comment. While welcoming the introduction by the noble Lord, Lord Norrie, of this amendment, I must apologise in that I was not in my place when he started to speak on it. However, I said at an earlier stage on a similar amendment of his that there is a basic mismatch as regards the necessity to foster nature conservation in the context of the pollution control duty because, unless the pollution control has been dealt with, it seems to me there can be little chance of installing and servicing the benefits that flow from the fostering of that duty towards nature conservation. I would counsel a little bit of caution in connection with this amendment for that reason.

Lord Elton: My Lords, I find myself in some difficulty with my noble friend's amendment because I am not absolutely certain I am clear in my own mind as to its effects. I am sure about its intended effect, but these two amendments together set out, first, to remove the exemption of pollution control functions at present contained in Clause 7 (1) (a) and, secondly, to put in a second leg, as it were, in subsection (1) (b). My noble friend spoke of the second leg, which is the insertion of the words,


    "which are not consistent with paragraphs (a) (i) to (iv) above",

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as though the effect of this would simply be to produce a graded list of duties on the Minister and the agency, being, in the first instance, a duty to further conservation etc. and, secondly, to have regard to the desirability of conserving etc.

The criterion for applying the restriction in the second leg is that anything done is done under subparagraphs (i) to (iv) of subsection (1) (a); that is, the areas and purposes within which the Minister or, as the case may be, the agency, acts. That means—does it not?—that anything which does not fall within that restriction is now exempted from the effects of subsection (1) (b). I am not sure whether that is the intention but it is removing a protection in the second grade altogether. That is why I am in a difficulty. However, if my noble friend is resolved to go into the Lobby, I would be persuaded in any case to go with my noble friend because the substantive argument is whether or not it is possible to reconcile the primacy of duty to enhance and protect when one is in an area where one may be controlling substances which are possibly lethally toxic and certainly noxious, and where one may find oneself in the position of having to ensure the spread of the primrose and the wild orchid, when what one ought to be doing is protecting the health of the local population. I believe that is to be avoided and I hope that my noble friend the Minister persists in his course.

Baroness Hamwee: My Lords, from these Benches I rise to support the noble Lord, Lord Norrie. As he said, the distinction appears to be between furthering conservation and enhancement of the matters set out in Clause 7(1) (a) and merely, as the noble Lord, Lord Elton, has said, the second grade duty of having regard to the desirability of doing so in respect of pollution control functions.

At the previous stage the Minister, talking about the duty to issue environmental licences, said that,


    "To further conservation in every case would be inconsistent with the agency's role in issuing environmental licences". —[Official Report, 2/3/95; col. 1660.]

I was troubled when I read those words again because I do not regard the two matters as being inconsistent. It appears that far greater emphasis is placed on the agency's commercial activities than on its conservation duties.

I might agree more with the Minister if we were talking only about enhancement, but both "conservation and enhancement" are referred to and must therefore mean different things. If it was simply a matter of status quo, which is implied by "conservation", I would have more sympathy with the argument that what matters is to maintain the status quo and not to jeopardise it. But when it is a question of licences being granted, enhancement of the environment may not have as important a role as conservation. I would not necessarily go along with such an argument; but I can see a distinction. However, Clause 7(1) (b) refers to enhancement and conservation, and to reduce

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conservation as well as enhancement in the league table of issues to which the agency must have regard cannot be right.

Lord Skelmersdale: My Lords, during the discussion, I took the liberty of looking at Clause 52, which refers to environmental licences, which are defined as authorisations, licences and consents. Authorisations, licences and consents, by definition, contain an element of allowed pollution and I agree with what the noble Baroness, Lady Hamwee, has just said.

However little pollution is allowed by the licences, authorisations and consents, that cannot possibly equate with enhancing the environment on all occasions. There comes a point in scientific knowledge where the least environmental damage is accepted for the time being but beyond that point it is impossible to enhance the environment.

3.45 p.m.

Viscount Ullswater: My Lords, Amendment No. 5, taken together with Amendment No. 6, would have the effect of subjecting Ministers and the agency to a double test when formulating or considering any proposals relating to the agency's pollution control functions. First, they would be under a duty to further conservation so far as that was consistent with the purposes of any enactment relating to its functions; for Ministers, the objective of achieving sustainable development; for the agency, guidance given under Clause 4; and, for the Secretary of State, with his duties under Section 2 of the Water Industry Act 1991.

Secondly, where any proposals relating to the agency's pollution control functions were not consistent with its duty to further conservation, it would have to apply the duty to have regard to conservation now contained in Clause 7(1) (b).

The result of the amendments, if accepted, would be highly complex and confusing and probably unworkable in practical terms. It would be very unclear what test had to be applied, in what circumstances, and when one test would end and another begin. I cannot believe that the resulting confusion would advance the cause of conservation.

For example, where the agency considers applications for authorisations under integrated pollution control, it has to consider BATNEEC (best available techniques not entailing excessive costs). Would it be consistent with the purposes of the Environmental Protection Act 1990 to require it at the same time to further conservation? My noble friend Lord Skelmersdale put his finger on that point. At what point would those within the agency responsible for individual decisions have to switch from "furtherance" to "having regard", and what would they need to do to be able to show that they had properly done so? It would surely not advance the work of the agency to leave that confusion unresolved.

Before the Bill was even introduced the Government responded to the anxieties expressed by a number of environmental and conservation groups by amending Clause 7 to draw the distinction now contained between the pollution control functions of

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the agency addressed in Clause 7(1) (b) and its other functions, addressed in Clause 7(1) (a). The amendments do not satisfactorily address the fundamental difficulties of applying a duty to further conservation to the new and wider pollution control functions of the agency, where in a number of instances such a duty may well be inconsistent. I do not believe that in bringing forward these amendments my noble friend Lord Norrie fully recognises the important extension to the agency's ability to take proper account of conservation in discharging its pollution control functions which is represented by Clause 7(1) (b) as it stands. However, I do believe that the duties attached to the functions of the agency in this area need so far as possible to avoid the difficulties, ambiguities and inconsistencies which amendments such as these would introduce.

I hope that I have said enough in the course of the Bill's passage through your Lordships' House to reassure your Lordships about the importance which the Government attach to nature conservation and its place in the agency's functions. I recognise that there is a distinct concern among Members of your Lordships' House. We have discussed the matter on numerous occasions and I have sought to reassure your Lordships that the provisions in the Bill will be at least as effective as the current duty on the NRA, that the agency will have all the powers that it needs to contribute effectively to conservation, that the present important conservation gains being achieved through the NRA's pollution control functions are not dependent on the present form of words in Section 16 of the Water Resources Act 1991 (and your Lordships will have noted what my noble friend Lord Crickhowell said about that during the Report stage), and that the new formulation in Clause 7(1) (b) will allow the agency to act on the basis of conservation considerations in a number of cases where the present wording would not. In my speech on Report I referred to the list of enactments at Clause 5(5) of the Bill to which the duty to have regard to conservation will now apply.

As I have said, Clause 7 in its present form represents an important extension to the new agency's ability to take proper account of conservation in discharging its functions, which avoids the difficulties which I have suggested would arise from the amendments. For those reasons, I hope that my noble friend Lord Norrie will withdraw his amendment.


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