Natural Environment and Rural Communities Bill

My Lords, I thank the noble Lord for raising the issue again. He has absolutely nothing to apologise for, except for the mischance that the amendment always seems to come up in what I cannot quite call the ““small hours””—but in the ““high number hours””, at the very least. I thank him for the way in which he put his case. Clause 40 places a duty on all public bodies to have regard to the purpose of conserving biodiversity. In fact, it extends to all public bodies the existing Section 74 of the Countryside and Rights of Way Act 2000 to have regard to biodiversity as far as is consistent with the proper exercise of their functions. This amendment is identical to one debated at Committee and seeks to extend this duty so that public bodies have a duty to further the conservation of biodiversity. Let me start by setting out what we want to achieve with Clause 40. This duty seeks to raise the visibility and profile of biodiversity across the public sector, to clarify and consolidate public bodies’ existing commitments with regard to biodiversity and to make biodiversity a natural and integral part of the decision-making process. I can tell the House that it is our intention that the expression ““have regard to”” all public authorities will actually mean what it says, and we shall watch very closely to ensure that all public bodies have regard to biodiversity matters in a way in which they sometimes have not in the past. We think that the present wording is sufficient for achieving that aim. As is known, Clause 40 extends a pre-existing duty on Ministers and Government to have regard to the purpose of conserving biodiversity, set out in the CROW Act. In the six years since that duty has been in force, government departments have achieved a considerable amount for biodiversity, as I think the noble Lord said himself in Committee, particularly the Home Office and the MoD. The noble Lord also mentioned the Prison Service’s biodiversity action plan and the useful surveys it has carried out on its estate. Let me go a little further and mention the wildlife areas that have been set up in several prisons across that estate, such as hedgerow planting in HMP Guys Marsh and pond creation in HMP Prescoed, and the fact that last year the service won the biodiversity category of the Corporation of London’s Liveable City Awards. Similarly, the MoD has made considerable effort to conserve and enhance the biodiversity on its estate through its development of a biodiversity strategy and the establishment of MoD conservation groups. We can see other evidence of departments taking action on biodiversity, through, for example, the publication by the ODPM last August of Planning Policy Statement 9 on biodiversity and geological conservation, and the sustainable framework for the government estate which requires all departments to set out how they can contribute to UK biodiversity targets. We believe that demonstrates the success of the duty to ““have regard””. By extending the duty within CROW to all public bodies, we wish to achieve similar positive outcomes across the wider public sector. The duty will tackle those instances where biodiversity loses out as a result of simply not being considered. It will ensure that public bodies must have considered biodiversity in the normal exercise of their functions. I hope it is reassuring to the noble Lord and the House that Defra is already in discussions with the Local Government Association, the Association of Local Government Ecologists, English Nature, the Countryside Council for Wales and the Wildlife and Countryside Link on developing guidance to support local authorities in implementing that duty, with the aim of outlining local authorities’ responsibilities with regard to biodiversity in areas such as providing leadership, incorporating biodiversity into planning and community strategies, management of local authority land holdings and the use of information and data. Defra is already working closely with partners including the ODPM and the Audit Commission to develop a robust set of biodiversity indicators that can be used to measure local authority performance in future performance frameworks. The first two stages of that project are complete, and we are about to pilot the approach with local authorities across the country. The indicators will create focus on the issue of biodiversity, clearly signal central Government’s commitment to biodiversity—which I repeat tonight in the House—and create pressure on local authority performance in this area, as the standardised measure allows for transparent comparisons. Those indicators will be signposted in the guidance we publish. As the noble Lord, Lord Brooke, said in Committee, local authorities can play a greater role in conserving biodiversity. We expect the duty to stimulate a culture change in public bodies and to encourage them to take positive action for biodiversity where it is appropriate to do so. The current wording, supported by relevant guidance, will facilitate that approach. There are a number of reasons why we do not think it appropriate to strengthen the duty from ““have regard”” to ““further””. We all share the common desired outcome for public bodies to take more positive action. However, in achieving that outcome, we have to ensure that we do not place undue burdens or costs on those we expect to deliver it. If a duty is imposed, we believe it could generate volumes of litigation just to find out what the duty means and what its scope is. That would cost a lot to public authorities. We also fear that placing a duty on all public bodies to further biodiversity has the potential to cause difficulties and invite legal challenges on the individual decisions of public bodies—in other words, judicial review. I mentioned in Committee an example where public bodies may be faced with decisions, where they are required to further biodiversity, even when it might be at the cost of other important social, economic or indeed other environmental considerations. This is not in line with the principle of sustainable development, where all three pillars must be balanced accordingly. We need to include sufficient flexibility for public bodies, which may need to take actions that are biodiversity neutral but further other worthwhile objectives. This is particularly relevant for public authorities, such as fire and police authorities, where it may be difficult to achieve further biodiversity. But it may equally apply to local authorities, depending on the circumstances. Our fear is that the words ““to further”” may lead to a situation where public bodies are regularly challenged to demonstrate to what degree they furthered biodiversity in all their decisions. Is this always an effective use of local government resources? I was challenged in Committee, quite rightly, that these cases are purely hypothetical. Of course they are hypothetical, because the Bill is not yet passed. But there are, we think, still real concerns. I have listened very carefully to what the noble Lord has said today. I hope that what I am about to offer will be of interest to the House because there is widespread feeling about the principles behind what the noble Lord has said, if not the detail. My offer, generous or not, is as follows, because I realise that Scotland has taken a certain course in this matter. I am offering that we should assess and review the impact of the duty to ““have regard””—which is how the Bill is phrased at the moment—within three years of its coming into force. During that period, we can also look at how the duty ““to further”” has rolled out in Scotland. Following the review, we can assess whether a stronger duty is necessary and appropriate. That may well not go as far as the noble Lord would like me to go, but I hope he recognises it as a gesture in the right direction.