As the noble Lord, Lord Rooker, is not in the Committee Room, the Whip has suggested that we delay taking this business. I believe that the Minister is downstairs presenting awards to the British Poultry Council.
I think that that is a sensible course of action. I do not know how long the Minister will be.
The Grand Committee stands adjourned for 20 minutes.
[The Sitting was suspended from 4.31 to 4.51 pm.]
rose to move, That the Grand Committee do report to the House that it has considered the Environmental Impact Assessment (Agriculture) (England) Regulations 2006 (SI 2006/2362). 46th Report from the Merits Committee (Session 2005-06).
The noble Baroness said: I am grateful to the Committee for having a temporary adjournment because it was enormously important that the Minister was presenting awards to the poultry industry. As that is where I started my trade, many years ago, as a poultry producer, I would certainly not have pulled the Minister off that particularly important job. I place on record, too, my thanks to the Minister for reconsidering the whole question of the IPCC charges because they are a real problem, on which I and many others have lobbied him.
Having started on a positive note, I am sorry to have to nitpick and raise certain questions. I suggest that we take these two sets of regulations together. Statutory Instrument 2006/2362 was made on 4 September, laid before Parliament on 7 September and came into force on 1 October. Statutory Instrument 2006/2522 was made on 13 September, when it was realised that there were errors in the first one, laid on 15 September and came into force on 30 September, but some remaining provisions came through on 10 October. Perhaps the Minister will tell us a little more on that matter.
My reasons for raising this issue in Committee are to seek clarification and assurance, and also to say, yet again, that the department is obviously not functioning as the Minister would like it to. To have to reproduce legislation so quickly after it has come into being seems undesirable, to say the least. How many copies of the original were made and how many were sold at £5.50? Consequently, how much money has been spent on reproducing the regulations? Presumably, there is a cost to the department which it covers.
With regard to Regulations 23 to 31, how much money does Natural England have in its budget to act as the enforcement authority? That is certainly not clear. Is the amount that it will cost Natural England to be taken out of the fees that it gets from the fines that may follow if people do not adhere to the regulations set? There is no clear definition of that. Also, does Natural England keep the fines or do they return to the revenue so that, in other words, they are lost?
Under Regulation 3.1, the Explanatory Memorandum for SI 2006/2522 states:
“The Department deeply regrets that it has had to break the 21-day rule”.
I can understand that it broke it because otherwise the other regulation would come into force. But Regulation 3.3 leaves us with a very sorry state of affairs. It states clearly:
“In order to correct a minor but persistent validation error in the S.I. template, a final draft of those Regulations was cut out and pasted into a fresh copy of the template. The new version validated correctly, but the cut-and-paste process had introduced an unexpected error into the instrument, mis-numbering all the paragraphs in Schedules 3 to 5. This was noticed after the instrument was made, and it was considered an error that was so obvious and minor that it could justifiably be corrected before the instrument was laid”.
The Explanatory Memorandum goes on to state:
“Unfortunately, the correction of that minor error introduced a surprising and yet more serious error into the instrument, with regulation 1 becoming regulation 2 … leading to consequential errors in the Regulations … Most regrettably of all, that further re-numbering error was not noticed until after the instrument had been laid and printed”,
That is not a happy state of affairs. Is that a lawyers’ or a printers’ error, because we have no knowledge of that?
The summary of the recommendations of the 46th Report from the Merits Committee of the 2005-06 Session states:
“These Regulations implement EU legislation on environmental impact assessment, and on habitats, by developing existing requirements for projects for the use of uncultivated land and semi-natural areas for intensive agricultural purposes. They also introduce new rules for projects for the restructuring of rural land holdings. The lack of clarity over the definition of restructuring projects in the Regulations means that there is a risk of accidental non-compliance (and thus commission of a criminal offence) by farmers and others”.
So it is not a light matter.
Further on, at paragraph 8, the Merits Committee states that Defra was,
“keen to choose a broad interpretation of the restructuring projects, particularly because the new rules being introduced under EU infraction pressure”.
Paragraph 9 goes on to state:
“The Department will also include details of new rules and guidance to all farmers on “cross-compliance” (planned for January 2007)”.
I would be grateful if the Minister could update us about where we are with that. However, in paragraph 10, the committee states:
“While we welcome DEFRA’s efforts to publicise the new rules, we are not persuaded that publicity will necessarily equate to understanding”.
Again, I would like to know how the Government have reacted to that.
In paragraph 11 the committee states:
“DEFRA have stressed that interpretation of the term “restructuring project” in the 2006 Regulations should be in line with the meaning of the relevant term in the EIA directive; and yet it is clear from the Department’s advice to this Committee that different Member States have interpreted this term in the EIA Directive differently. DEFRA have explained that Natural England, as the regulator with responsibility for screening decisions and consents, is ready to provide informal advice to farmers and land managers. However, it does not seem appropriate to us that uncertainties which should have been resolved in the Regulations themselves are left to be dealt with on an ad hoc basis through discussions between Natural England and individuals potentially affected”.
I seek a little more information from the Minister on that.
The committee states in conclusion in paragraph 12 that it is concerned that,
“the lack of clarity over the definition of restructuring projects means that there is a risk of accidental non-compliance (and thus the commission of a criminal offence) by farmers and others”.
I am sure that the Minister will agree that that is not a desirable state to be in, and that is why I have brought this issue to the attention of the Grand Committee. I shall wait to hear what other noble Lords and the Minister have to say and shall perhaps come back with further comments. I beg to move.
Moved, That the Grand Committee do report to the House that it has considered the Environmental Impact Assessment (Agriculture) (England) Regulations 2006 (SI 2006/2362). 46th Report from the Merits Committee (Session 2005-06).—(Baroness Byford.)
I congratulate the noble Baroness, Lady Byford, on bringing this matter to the Grand Committee and thank her for it. It is a complicated set of regulations, which, quite apart from the administrative difficulties involved in getting them right, merit a certain degree of scrutiny. Far too many substantial and complex items of secondary legislation go though nowadays without being scrutinised, so it is good that we are able to scrutinise this one.
In general, this is a sensible transposition of some parts of the environmental impact assessment directive and the habitats directive. It is unfortunate that the computer programmes, be they Defra’s or those of the Stationery Office, could not get it right. The noble Baroness had her five minutes of fun going through the problems that have arisen and I do not want to repeat what she said.
Go on, make yourself.
Perhaps it is a good thing that I did not hear that. There are some substantive issues here which are worth looking at. As the noble Baroness said, the regulations re-enact and amend the regulations in relation to uncultivated land and introduce regulations, belatedly perhaps, in relation to restructuring projects on farms. The substantial matter raised by the Merits Committee, which the noble Baroness explained in detail, is the possible lack of clarity about the definition of restructuring projects. It also expressed concern about whether there will be sufficient publicity, and understanding on the part of farmers and land managers, about the requirements of the new regulations.
Defra states that Natural England will provide informal advice, but if one is looking for a clear definition of what something means in law, and it can clearly make a substantial difference to what a farmer or land manager is able to do with their land, informal advice is not entirely satisfactory. What will that advice be and who will decide it?
The regulatory functions in these matters have been transferred from the Rural Development Service in Defra to Natural England. As in all such cases, there is an interesting question of accountability. A lot of people will be monitoring this very carefully. The new arrangements may work, but, if they do not, no doubt we will all be discussing them again.
One or two specific questions arise from the regulations. The first relates to cross-compliance. The regulations relating to uncultivated land are already in the cross-compliance rules and appear again in, I believe, Rule 37. However, the restructuring regulations will not be in the cross-compliance rules. It is stated quite clearly that they will not be included. I do not understand why this is the case. Perhaps the Minister will explain it to my satisfaction.
The second question relates to publicity. My noble friend Lady Miller of Chilthorne Domer would no doubt raise it if she we here, because it relates to website publicity. Quite a few years ago, when we were talking about the CROW Bill, as it then was, whenever the Bill said that there had to be publicity in local newspapers and so on, my noble friend tabled amendments saying, “and on the departmental website”. The answer we always had then, and that we have had on a number of occasions since in different contexts, was “leave it to them, it will be okay”. We are now finding, and it is in these regulations as well, that the requirement to be on the website is being written into the law. We welcome that, because that how so many people communicate nowadays. Local newspapers are set out specifically, and websites should be set out specifically. We have an interesting situation here. Regulations 12 and 13 set out that applications for consent for significant projects, as they are called, should be in the local newspaper and on the website. Regulation 20, which covers where the decisions are announced, only specifies local newspapers,
“or by any other means it considers reasonable in the circumstances”.
So what we seem to have here is a halfway house where the websites are in one part of the regulations but not in the other. It would be helpful if there was consistency in these matters. We hope that, increasingly, legislation sets out that it does have to be on the website, because that is where nowadays a lot of people look first.
Finally, I hope that the regulations might be useful in the circumstances in parts of the uplands, including the Pennines, where I live, where there are sometimes serious threats to dry stone walls. People find that the income that they can get from hill farming is no longer worth the candle, but they can tear down and sell off the dry stone walls of natural stone for quite large amounts of money. There is a real danger that if hill farming declines significantly under the new regime—we all hope it will not but there is a possibility that it might—people will try to asset-strip those marginal farms on the edges of the moorlands in the upland areas, and the dry stone walls will be removed and sold off for astronomical prices to builders. I hope that the regulations might be useful in stopping that. Having said that, in general we support the regulations, and I look forward to hearing the answers to my questions and those asked by the noble Baroness, Lady Byford.
I will be happy to try to answer the points raised by the noble Baroness and the noble Lord. There is one minor technical glitch. Both the noble Baroness and the Deputy Chairman read out that the Committee will report that it has considered the Environmental Impact Assessment (Agriculture) (England) Regulations. Neither mentioned the Environmental Impact Assessment (Agriculture) (England) (No. 2) Regulations. I would hate to find that we have spent our time here and have to do it again.
I thought when I started that the two went together, so I was speaking to both of them.
Sorry, that is true, but the title of the second regulations has (No. 2) in it. That was not said by either the Deputy Chairman or the noble Baroness when they read it out. I do not want to be called back here again because the Committee failed to consider the regulations that we have been talking about.
The regulations implement parts of the environmental impact assessment directive, which is a very old directive that was introduced in 1985. There is a story to that, which I will repeat in a moment. The directive requires certain types of development projects that are likely to have significant effects on the environment to be subject to environmental impact assessments before they are allowed to proceed. The directive applies to more than 100 different types of project. In the UK, it is implemented mainly through environmental impact assessment rules relating to town and country planning. There are various EIA rules for projects not covered by the planning system, such as transport and forestry projects, and the two types of project to which the EIA agriculture rules apply.
The Environmental Impact Assessment Agriculture (England) Regulations came into force on 10 October 2006. They are a small but significant part of our effort to protect and enhance the rural environment, alongside much larger measures such as agri-environment schemes, SSSIs and cross compliance. The regulations do two things: they replace previous environmental impact assessment rules, which were introduced in 2001, applying to projects for the use of uncultivated land and semi-natural areas for intensive agricultural purposes and they introduce new rules applying to projects for the restructuring of rural land holdings.
We are legally obliged by the environmental impact assessment directive to have these rules, and we were required to introduce them by 1988. But UK transposition did not occur until 2001 for uncultivated land and 2006 for rural restructuring following infraction pressure. I do not want to be part of the blame culture, but there is a history to this. This has been done under infraction pressures, and the regulations have perhaps not ended up as they would have if they had been done properly when they were required to be done in 1988. We thought that they were delayed largely because the policy issues were already addressed by agri-environment schemes, hedgerows legislation and the SSSI rules.
In 2001, Defra introduced environmental impact assessment rules on uncultivated land. They gave a high degree of protection to uncultivated land and semi-natural areas, mainly by having no thresholds, which meant that all relevant projects needed permission before proceeding. Generally speaking, we have a good story to tell on the 2006 regulations—I do not want to over-egg the pudding, but this is a good Defra story for the farming community—which were developed with better regulation and Defra’s farming regulation strategy very much in mind.
The objectives in shaping the regulations were to deliver targeted environmental protection while minimising red tape and to avoid hindering our wider policy objectives. Poorly gauged rules could do more harm than good by deterring farmers from signing up to agri-environment schemes or deterring work that is beneficial to the environment. They might also restrict farmers’ ability to diversify their businesses and compete and have a negative effect on the rural land market. We are very keen to take away some of the hurdles that prevent farmers diversifying if we can. As the noble Baroness knows, I am having issues related to planning matters looked at at present.
We improved the uncultivated land rules by introducing clearer tests for when projects are caught and by introducing a modest two hectare threshold to give the rules a lighter touch, while still providing a fairly high level of protection for a valuable environmental resource. We estimate that the revised rules will place 20 to 40 per cent less burden on business than the rules they replace.
We introduced the rural restructuring rules under EC infraction pressure. In doing this, we have done all we can to achieve minimum implementation by applying the highest thresholds we reasonably can, given the infraction risk. We have also sought to avoid duplication of existing measures which tackle problematic restructuring, such as the hedgerows regulations and other environmental impact assessment rules applying to planning and forestry. The result is that we have new rules that guard against the possibility of major negative effects on the rural landscape, but will not catch farmers engaged in routine farming activities, which is not our purpose at all.
It may shock the noble Baroness that we have had a generally—I do not put it any higher than this—positive response from the National Farmers Union. The NFU website celebrates that it:
“Successfully lobbied government for the introduction of thresholds into the Environmental Impact Assessment (Agriculture) Regulations 2006. This will mean that fewer farmers should have to go through the EIA screening process unnecessarily”.
That is quite right. Congratulations on the lobbying that has gone on in the past. It is very important that we genuinely try to take account of the red tape issue.
I also want to address some of the issues relating to the Merits Committee. Briefly, the rules work by requiring that anyone wishing to carry out a project must apply to Natural England for a “screening decision”. If Natural England decides the project is likely to have a significant effect on the environment, the environmental impact assessment must be prepared by the applicant before Natural England makes a final consent decision. People who breach the rules may face cross-compliance deductions, prosecution, and/or have to take remedial action. The noble Lord, Lord Greaves, raised an issue about stone walls covered by cross compliance or possible deductions for removers over 10 metres. He painted a horrible scenario of what might happen in the uplands, which would not be in anyone’s interests.
The noble Baroness, Lady Byford, said that she had come to nitpick today—her words, not mine. I do not accuse the noble Baroness of that. I cannot answer all her questions about why the regulations were redone. Obviously, it is much to be regretted that a computer glitch confused the cross-referencing in the initial EIA regulations, so we had to replace them with a corrected set. The rules of a statutory instrument have to be produced compared to a computerised template, in effect, so that the format is the same. The glitch caused the automatic numbering to make an unbidden change at the last moment, which made all the cross-referencing incorrect. Unfortunately, we did not spot the error until a few days after the regulations had been laid. Statutory instruments cannot be amended. There is a case for this House to be able to do that, but I have not come here to do revolutionary reform today. Therefore, we had to lay the corrected version—hence, the No. 2 regulations.
We replaced them free of charge to those people who had paid for them. I do not know how many were distributed. If the noble Baroness pushes me I will seek to find out how many and at what cost. That would cause extra cost to the department, but she is entitled to the answers to the question. On the money for Natural England, 9.4 staff years are budgeted, but, by the way, the fines do not pay for the regulations, which would not be normally the case.
The Merits Committee has expressed concerns on the regulations. The main concerns were that the regulations failed to give a sufficiently clear definition of the term,
“projects for the restructuring of rural land holdings”
and, as a result, there was a risk of accidental non-compliance and commission of a criminal offence by farmers and others.
On the way we defined projects for the restructuring of rural land holdings, the committee’s concern is valid to the extent that we cannot guarantee that farmers will fail to comply accidentally, which is the case with many offences in many laws. To answer the Merits Committee’s concerns, we are bound by the environmental impact assessment directive introduced in 1985, which does not define what,
“projects for the restructuring of rural land holdings”
means. In transposing the legislation we decided to follow the common practice of simply using the same wording as the directive without further elaboration. This is done, for example, in environmental impact assessment rules on the planning system and forestry. It is also the norm in other EU countries—for example, Irish and Dutch environmental impact assessment rules take the same approach.
Although we have not resolved what is meant by,
“projects for the restructuring of rural land holdings”,
in our transposing legislation, we have done so in our implementation. For example, we have explained the term in the accompanying guidance. We feel it is reasonable to expect land managers to understand and apply this definition. We consulted the NFU on this, to ensure that the guidance was as user-friendly as possible, and the NFU approved it before it was issued. There may have been a transparency problem if we had set a low threshold, which is one reason we set high thresholds. It does not seem unreasonable to require a person to realise that planning work on the scale of removing or adding more than four kilometres of field boundaries is not a minor job—four kilometres of field boundaries is quite an exercise if one is out there doing it, and I have seen it being done. Nor is removing more than 10,000 tonnes—about 400 large lorry loads of earth or rock. These are substantial jobs by any stretch of the imagination. It is not like, “I’m nipping out to knock this job off in half a day, dear, and I’ll be back”.
The guidance gives details of a Natural England telephone helpline, and other contact details. If managers are in any doubt, they are advised to contact them. It is important to publicise the regulations, which we have done. I was almost tempted to say, “I have got all this written down, put together by my fine officials, who have explained all this, the background and why it is a good news story to me”. However, a front-page article in Defra’s October Farming Link newspaper, sent out to all farmers, set it out in clear, tabloid language—I do not say that in a derogatory way—which gets the meat across to anyone interested in half a dozen bullet points. At the end, there is the helpline, and email and website addresses. If farmers did nothing but read that, the new rules to protect the countryside and the issues I have raised about the four kilometres and 10,000 tonnes are mentioned there. Our press notice was picked up by the farming press as well, so it did not get buried or die a death. Both the NFU and CLA have issued guidance to members on their own websites, and we have published straightforward guidance on the Defra website.
The Merits Committee asked why we chose to make a criminal offence of breaching the restructuring rules. For the avoidance of doubt, we did this because we considered it an effective way of ensuring compliance and making the rules enforceable. It reduces the risk of placing the UK in breach of the directive, which would happen if unnotified and unpermitted projects had significant effects on the environment, and is in the interests of consistency and proportionality. A criminal offence existed in the 2001 regulations, and we plan to keep it for uncultivated land projects. So why would we consider it a criminal offence to fail to give screening permission for an uncultivated land project, but not a restructuring one? As I said, the restructuring must be quite large.
We do not expect many to undertake restructuring projects exceeding the high thresholds we have set. It is early days. After the first two months of the regulations, no screening applications have been received to undertake restructuring projects. We expect that trend to continue, because the high thresholds exclude routine land management activities which farmers are rightly doing all the while. That would be normal, whereas what I have outlined is on a large scale. Most restructuring over the threshold will be exempt, because it will already be covered by existing legislation: the environmental impact assessment rules applying to the planning system, forestry, land drainage and water resources, the hedgerow regulations and the Law of Property Act.
We have asked Natural England to implement the rules with a light touch. Frankly, I give all Defra’s agencies that advice: see the rules are followed, but do not go over the top. We do not want farmers, or people working on the land, metaphorically trapped by barbed wire and wrapped up in red tape. We are trying to release them from that where we can. People will suffer a criminal penalty only if they are prosecuted and convicted by a court, so it not an issue of being done by Defra officials. Any prosecution would of course have to satisfy the public interest test.
This is basically a good news story, subject to the unfortunate glitch. We are prone to using computers; if you press the wrong key or there is a problem with the program, these things happen. It was unfortunate that it was not spotted. I am not in the blame game; I just want to get on with it and see that they are operating effectively, but we regret this. On the recent difficulties, I say to the noble Baroness that this issue appeared nowhere in any of my lists of the cause of the technical adjustment to Defra’s budget this year. It has not been on the scale of other issues.
Finally, I am grateful to be able to answer the question of the noble Lord, Lord Greaves, on why rural restructuring is not covered by cross compliance. The short answer is that we were keen to avoid increasing the burden of cross compliance. The new rules are designed to have a light touch, so are intended to catch only a small number of projects, whereas cross compliance already covers some of the ground dealt with in the regulations. The benefits of extending cross compliance to cover rural restructuring projects were so small that it was not worth doing. I have no doubt I could give the noble Lord a longer answer, but I hope and imagine that he will be satisfied with that one.
I am grateful to the Minister for his full response. He said I was nit-picking, but it has given us an opportunity to debate something important and, obviously, regulations which we support. Perhaps I should keep a list of how many times the Minister has to apologise for things going wrong in his department, but we will let that one pass. I certainly never suggested, as he well knows, that it was a contributor to Defra’s funding issues. I totally accept that.
I am grateful that the Minister updated us on how Defra has gone about putting it on the newsletter, along with the two other organisations. When he hopes that Natural England will deal with it with a light touch—we have not had anybody apply, but let us say that it is a problem in future—can the Minister clarify further whether Natural England will be the last port of call, or will the farmer or land manager held to account have any redress, either through the department or Natural England? I am always uneasy about something that makes somebody guilty unless you can prove that they are innocent. Here we are again, doing just that.
On Natural England, there will be a method of appeal for the farmer to the Secretary of State. If it is a question of prosecution, that would of course be an issue for the courts.
I am grateful to the Minister for that, and to the noble Lord, Lord Greaves, for his questions. We obviously support the Minister’s drive to minimise red tape that so many farmers and land managers must go through and lessen the burdens on business. Both of us want British agriculture to succeed; there is no difference between us on that. I must say, however, that we will look carefully at all the statutory instruments that come through. If we feel that the Merits Committee has raised concerns, we shall take a view: some we raise with the Minister, and others we do not. This one, however, we felt that we should. Before I finally sit down, I again seek clarification on something I have raised.
The committee referred to different member states looking at this regulation in different ways. Is the Minister satisfied that it will in no way disadvantage UK producers or land managers, compared with others throughout the EU? I support flexibility to a certain extent, but I do not want to see flexibility disadvantaging UK producers and land managers.
That is the dilemma. I shall take advice and perhaps write to the noble Baroness on that, but if matters are left to member states things will be done slightly differently in each. On the other hand, if there is rigidity from Brussels, everyone will complain, “It doesn’t suit our local circumstances”. I said that we were following a similar pattern to, for example, Ireland and the Netherlands in the way that we used the lack of a definition in the regulations. We simply transposed the same words in the directive, because that was the legally safe way of doing it. But if there is a relevant issue relating to the treatment of the regulations by different European countries, I shall gladly write to the noble Baroness.
I am grateful for that. At the beginning of the debate I referred to the Minister’s presentation of the awards downstairs. One of the issues raised was the whole question of the IPPC charges. The Minister has recognised that there are difficulties on that for our producers and said he will go away and think about how we can ensure that we are not disadvantaging UK producers.
Perhaps I may save myself from writing a letter. In answer to the question of why UK regulations are tougher than those in other member states, the restructuring rules are a very light touch, given that we transposed them much later than other member states. One of our problems is that, from 1988, we in this country did nothing for nearly 15 years. That is probably the root cause of our problem, because we did that under infraction pressure and the European Court of Justice case law emphasised the need to interpret the directive broadly. Infractions are brought against member states that define the directive too narrowly, so the UK opted for a broad interpretation.
The uncultivated land and semi-natural area rules are tougher here than in most member states because we wanted to protect valuable areas that were not already protected by environmental designations following the major loss of uncultivated and semi-natural areas during the 20th century. We introduced thresholds to the rules in light of the reduced threat to uncultivated land and semi-natural areas following CAP reforms and the rapidly expanding agri-environment schemes. That is the reason. In some ways it goes back to what was done under infraction pressures after we did nothing from 1988 to 2001. Then we got caught and had to deal with it in that way.
I suspect that the responsibility is shared almost equally by his Government and mine and that it should have been done earlier. I thank the Minister for answering the many questions that we have put today.
On Question, Motion agreed to.