Natural Environment and Rural Communities Bill

My Lords, we return to conflict resolution. Whatever view we take of this, I am grateful that we have had debates on four occasions, including Second Reading, on this important topic. I am grateful, too, for the spirit in which those debates have been conducted. It will not surprise noble Lords to know that the Government remain opposed to including a clause of this type in the Bill. Natural England’s purpose, and the powers it has to research, experiment, advise and fund, have been drafted to be broad and enabling and, in particular, to give it the flexibility and, above all, the independence to be an effective and, indeed, trenchant—a word heard often in this House—champion of the natural environment, taking action on a wide front. However, Natural England will, of course, make its decisions in the context of sustainable development. It will contribute to sustainable development by proactively seeking solutions which, while achieving environmental benefits, also provide long-term economic and social benefits, and avoid untoward economic and social impacts. With that remit at the forefront of our minds, I invite noble Lords to imagine that they are board members of Natural England. What sort of issues will come up for discussion and decision? I offer a few examples: first, deciding whether to fund a new initiative to improve the quality and accessibility of urban open space; secondly, advising government on their climate change action plan; thirdly, deciding how to target agri-environment funds to get the best value for money; fourthly, advising government on the management of a wild species whose population is out of control; and lastly, deciding whether or not to enter a statutory objection to a road scheme. Noble Lords will remember the lively debate on Report about the pros and cons of tourist development in the Cairngorms. It is of course unlikely that Natural England will comment on a development in Scotland, but it is not a bad example of the type of complex issue which will come before the board. Would the clause help members of the board to decide Natural England’s position on the breadth of issues I have just listed? In each case, they would need to consider which of their objectives were in conflict. For example, is there a conflict between both social and economic well-being and environmental conservation, or just one of these? Perhaps there is a conflict between the study of the natural environment and conservation, or between the enhancement of the natural environment and its conservation. How might they resolve a conflict between the conservation of landscape and the protection of biodiversity, both of which are aspects of the natural environment? Having identified their conflicts, they must consider whether each one is ““significant”” and ““irreconcilable””. Thus, having reached a short list, they must decide exactly how to give ““greater weight”” to conservation and ensure that their decision is fully documented to show that it has taken into account all relevant considerations to resist challenge—possibly through judicial review. The effect of imposing such a statutory duty within Natural England’s general purpose, far from being helpful to their deliberations as board members, would, in practice, be closer to a nightmare. The board would certainly need extremely good and attentive expert and legal advice to help to decide when a matter falls within the category of significant, irreconcilable conflict””. It is not just the board of Natural England that must jump through those hoops. Every officer making a grant, issuing a licence or offering advice is likely to come under pressure from either the public or the affected customer to decide whether the situation at hand does or does not come within the parameters of this duty. That is likely to result in very detailed reasoning having to be recorded for all decisions that are made, which could add significantly to the workload of the new body. Perhaps we should ask why no other equivalent body has a conflict resolution clause—not English Nature; not the Countryside Agency; not the Countryside Council for Wales; not Scottish Natural Heritage; not even the Environment Agency itself. None has such a duty. It may not be a surprise but the technical briefing to your Lordships of those bodies that will make up Natural England states that,"““the Bill aims to set up Natural England with a clear purpose but an integrated and measured overview of the natural environment. An independent NDPB should have the freedom to engage in debate with all parties and decide how it achieves its purpose, within a sustainable development context. The agency aims to be a robust champion for the natural environment and to exercise its judgement accordingly—it should not be told how to resolve any particular conflict””." That is the Government’s view, too. The case against a conflict resolution clause seems to be powerful. However, even if we are proved wrong, there remains the option of statutory guidance. As your Lordships know, and I make it abundantly clear again, we do not think that there is a case at the outset to issue guidance on the subject to Natural England. If, in time, it becomes clear, which we do not expect, that Natural England’s decisions, or perhaps one subset of decisions, would benefit from such statutory guidance on how to resolve conflicts, we have the option of issuing such guidance, following consultation, as set out in Clause 15(3) of the Bill. We believe that Clause 2, when read together with the Explanatory Notes, will provide the right framework for the board of Natural England to decide how to address the diverse range of complex issues that fall within its remit. It will be one of the Government’s key advisers on managing the natural environment. Our argument is that it would not be right to constrain the judgment of the board in the Bill in the way proposed in the amendment, or to expose it to the threat—however unlikely—of judicial review on this ground for every difficult decision that it and its officers take. It is for those reasons that I invite the noble Baroness to withdraw her amendment.