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Lord Luke: I am grateful to the Minister for that explanation and for that of the noble Baroness, Lady Young of Old Scone, though I do not believe that the amendment would have provoked any owners to do what she suggested. However, I beg leave to withdraw the amendment.
Against that background, how can a Secretary of State properly adjudicate on an appeal against a management notice which will necessarily have been served with the aim of furthering the conservation and enhancement of an SSSI? If the Secretary of State upholds the appeal, he could be liable to judicial review for failing to honour his duty under new Section 28E. In practice, the Secretary of State is likely to avoid that possibility by rejecting appeals against notices as a matter of course. The right of appeal thus becomes totally meaningless.
A more independent person is needed to hear appeals. The amendment proposes that that might be the Lands Tribunal, which has the advantage of not being appointed by the same Secretary of State responsible for government policy on SSSIs and for the activities of the statutory agencies, English Nature and the Countryside Council for Wales. However, it is possible that the Lands Tribunal will also be caught by the duty under new Section 28E, which will lead to the same potential problem of conflicting interests and the desire to avoid judicial review by refusing appeals. Indeed, it may be the case that only the courts would be totally independent because they are not bound by the new Section 28E duty. If so, appeals should be heard by a judge in court.
Those issues need to be discussed and considered. In the light of the Human Rights Act, now in force, I believe, there is a general issue of whether the right to an independent hearing can be effectively exercised where the person hearing the appeal is not fully independent of the legislation under which the appeal is made. It is important that this Bill properly reflects the requirements of the human rights legislation.
Amendment No. 492 is in a similar vein and seeks to include within appeals against management notices appeals against the contents of a management scheme in so far as they are reflected in the notice. The Bill contains no formal mechanism for appealing against a management scheme. Owners and occupiers can merely make representations on a draft scheme, which must then be considered by the council as per new Section 28H(7). However, the council is not required to amend the scheme in the light of any comments or representations made on it.
An independent view on a management scheme can be sought only when an owner appeals against a management notice which gives effect to a scheme. If such an appeal can cover the details of the scheme as well as those of the notice, an effective safeguard is provided for owners. It makes sense to provide for appeals against schemes at the point at which they actually "bite" on owners and occupiers; that is, when a management notice is served. However, there is nothing specifically in the Bill to say that appeals against management notices will include appeals against management schemes, to the extent that the notice includes measures specified in the scheme. The amendment corrects that omission. I heard with considerable sympathy what the noble Baroness, Lady Young of Old Scone, said in relation to appeals and so forth. But appeals will arise and it is important that the Bill is correct and comes within the human rights laws.
Furthermore, I understand that members of the National Farmers Union are concerned that owners and occupiers will be restricted to appealing against requirements in a management notice as opposed to having a right of appeal against the imposition of the management scheme itself. Accordingly, they strongly support Amendment No. 492 as it seeks to link the management notice to the scheme as a whole. However, there is also anxiety about the perceived independence of the Secretary of State to hear appeals, given that the nature conservation bodies are his own statutory advisers on nature conservation matters. The NFU believes that the appeal procedure should be seen to be independent of politicians and quangos and urges Members of the Committee to press the Minister on the Government's intentions regarding the delegation of appellate functions to which paragraph 6 of Schedule 8 refers.
Earl Peel: I support my noble friend's amendment. There is no doubt about the significance and importance of the management agreements and the notices that go with them, not only from the point of view of the duties of English Nature and CCW, but also from the point of view of the person who has responsibility for managing the land. The management agreements and notices that follow could have a serious impact on the way the land is managed and how those responsible respond.
It is essential that appeals are heard in a thoroughly independent way. If the Secretary of State (or his appointee) is under a duty to conserve and enhance, as the Bill describes, how can he possibly be independent? And how can he be put in charge of the appeal procedure? Common justice alone, notwithstanding the human rights aspect, should ensure that Amendment No. 491 is accepted or considered seriously.
Baroness Carnegy of Lour: I shall be interested to hear the Minister's reply in relation to this human rights issue. I listened carefully to the arguments. Nobody would feel it was fair for the Minister of Agriculture, Fisheries and Food to decide whether or not a farmer could continue with his normal way of earning a living, despite the fact that he was doing damage. Equally, it would not be fair for the Secretary of State for the Environment, Transport and the Regions to do it. At the end of the day, conflicting interests arise in relation to these decisions.
I do not know what the answer is. But the "fair trial" point is extremely interesting. The whole subject interests me because it is cropping up in so many areas. It is not an exaggeration to say that this may turn into an issue. I therefore look forward to hearing the Minister's response.
We on these Benches understand concerns that the same department should not be judge and jury. An appeals procedure can adequately involve the Government through the inspectorate process and therefore I would resist any move towards including the Lands Tribunal in particular. I fear that it would represent only one section of the interests in the appeal.
Earl Peel: The noble Baroness acknowledged the fact that there needs to be independence in the procedure and then went on to say that it was important that it should be independent and that the public interest should be represented. However, in order for the system to be thoroughly independent it must be able to represent not only the public interest but also the interest of those responsible for managing the land.
The noble Baroness may be right in saying that the Lands Tribunal is the wrong vehicle, but I wonder whether she acknowledges the principle that it should be someone other than the Secretary of State or his representative within the department.
Baroness Miller of Chilthorne Domer: I shall be interested to hear the Minister explain which Secretary of State will be involved. The noble Lord, Lord Glentoran, wondered whether it would be MAFF or the Department of the Environment, Transport and the Regions and how they would tie in with equally difficult and contentious issues relating to development and control. Those are as controversial and difficult for owners of land and as difficult to resolve in the public interest as are the kind of issues which will be raised in respect of this legislation. There are not adequate procedures in place at present.
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