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Lord Renton: In effect the Minister says that if the conservation body makes an unreasonable decision which appears to it to be reasonable, it cannot be challenged and will be binding. Surely that is wrong. I know that it has been part of our law for 50 years but surely it is time we had a look at it.
Lord Whitty: The fact that it has been part of our law for 50 years, not only in this context but also in planning and much other environmental legislation, should give us reasonable comfort that it works. I am unaware of any serious incident where the wording of the legislation proved a great problem and was the subject of challenge to those decisions. There may be other aspects of such challenges but the wording of the legislation and the requirement on the agency must surely be as described here. I hope that noble Lords can accept that.
Baroness Hamwee: The Minister may have answered this question, but can the noble Baroness tell the Committee whether there has been a problem during the 51 years since this legislation was introduced? I do not mean this to be derogatory, but, while the amendment appears to be superficially attractive, if there has been no problem, as I suspect may be the case--there has to be reasonableness in assessing whether terms are reasonable to the agency taking a view--perhaps it is better to leave well alone.
Lord Renton: I hesitate to intervene again. However, if there has been no problem for 50 years, it does not mean that there never will be a problem. While we are considering this branch of the law surely we should try to get it right.
Lord Whitty: I cannot argue with that. There could well be a problem next week. The point is that we have had a great deal of experience and there has not been a problem. If a problem should arise in future, it may be of an entirely different order from that anticipated by the noble Lord, Lord Renton, and we should have to deal with it, as we should have to do should the issue referred to by the noble Lord arise. Prescient as we are as a Government, I do not think that we can entirely anticipate our future problems when we have had 50 years of relatively smooth running.
Lord Phillips of Sudbury: I find the Government's argument that the matter can always be tested in a court naive. For someone to have to go to the High Court on a judicial review in order to have an interpretation of a decision by an authority, with formidable costs and delay, scarcely constitutes a remedy. In this Chamber we need to be careful when saying that because there has been no problem over the past 50 years there is no problem. The problem is that the remedy is so hugely expensive and complicated that any normal citizen is scared off.
Lord Peyton of Yeovil: As the noble Lord said, there may not have been a problem. But when the Minister says that there has not been a problem for 50 years and that if one arises it will have to be dealt with, he credits the system with a speed in these matters that is not often demonstrated.
Baroness Hamwee: I hesitate to disagree with my noble friend, but it is only to a small degree. While agreeing about the cumbersome nature of our judicial system, the amendment does not alter that. If one disagrees with whether terms are reasonable or appear to be reasonable, the same remedies are available and the same processes would be followed.
Lord Phillips of Sudbury: We must continue this excellent debate! There is a difference. As drafted, the wording could be taken to be more subjective vis-a-vis the authority than the proposed change of wording.
Lord Whitty: I am hesitant to intervene in this little spat on the Liberal Democrat Benches. I side with the noble Baroness, Lady Hamwee. Whatever the wording here and however we express the term "reasonableness", it does not alter the fact that the expense and problems would arise if the matter eventually came to court. But that would be a long way down the line because there is an appeal to the Secretary of State and there would be, therefore, a public inquiry, which is rarely as expensive as using the judicial system. That is the context in which reasonableness would be tested in the first instance, were there to be a complaint. I am not sure that the point of the noble Lord, Lord Phillips, about expense is relevant, except in very few cases. The test occurs at a much earlier stage.
Baroness Byford: I hesitate to come in at all after such eminent lawyers have spoken. I thank those who have contributed to the debate. I am not happy with the Minister's reply. He has not explained why the Government have changed the original wording. I seek leave to test the opinion of the Committee.
Resolved in the negative, and amendment disagreed to accordingly.