Lord Gascoigne (Con)

My Lords, it is beyond a joy to be here at this hour with some of my closest friends. I could not think of anything better to be doing right now. It is slightly ironic that what I will seek to do shortly is speak about some of our magnificent nocturnal species, including our beautiful barn owl. Unlike us, it is probably out there, full of beans and doing a better job than I probably will in tackling some of the issues I want to tackle. I have two amendments in this group. The first, Amendment 241, is, I hope, self-explanatory. It would remove protected species from the scope of an environmental delivery plan. I am delighted and honoured that the noble Baroness, Lady Young of Old Scone, for whom I have enormous regard, has co-signed the amendment. As we know—we have been round the houses plenty of times today—an EDP is in effect an impact assessment of a site that a developer will in theory own once it has contributed to a pot. The Bill states that an EDP “must identify … one or more environmental features which are … to be affected”, including species. Initially, my amendment may seem odd. When I was contemplating tabling the amendment, I had to think through carefully why I wanted to do this. It may seem odd that I suggest removing species from the scope of an EDP, but my intention is that what it will mean is that the EDP will have to revert to the existing law and protections when it comes to species. The reason is that, when you take the whole of Part 3, as we heard in a great debate earlier, and the rhetoric from some people over recent months and years, having species included within scope raises a number of concerns. The first is that, as the Bill is drafted, the Government are asserting that this EDP approach would work in all circumstances, yet only a few months ago they recognised that it would not. In, I think, December of last year, a Defra/MHCLG consultation looked at nature recovery and development. It stated that one of the three aims of what would become a revised scheme would be that of “allowing impacts to be dealt with strategically in exchange for a financial payment helps fund strategic actions, so development can proceed more quickly”. It followed up with a key line stating: “Project-level environmental assessments are then limited only to those harms not dealt with strategically”. In effect, this was an admission that the shift to a strategic emphasis does not always work. It recognised the impact it would have on all species, or indeed other environmental features. Why are the Government now asserting in this Bill that something is possible when, only months ago in the consultation, they said it would not be? My second point is specific to species. As I suspect all noble Lords know, most protected species are protected because there are not many examples of them left and it has been understood that their conservation status can be maintained only with strict protections in place. Birds, for example, have been protected since 1954, and other wild animals, such as bats and dormice, under domestic law introduced in the 1970s. Yes, as we discussed earlier, there can be—and in my view should be—a wider debate about what our current rules and regulations say and whether they best reflect our domestic species today. We should have that debate—but it is not the debate here. As I said, those pieces of legislation are the basis of the current provisions and are there for very clear reasons. We should not cast them aside lightly and, as I said at Second Reading, you cannot cut and paste every species. I say to the noble Lord, Lord Lucas, for example, that an EDP would not be suitable for all species of bat, or other protected species such as barn owls, because of the nature of these species and their attachment to specific sites rather than general habitats. In particular, some bat species have strong attachments to specific maternity roosts and must not be disturbed, while certain bird species, such as the barn owl, establish territories and return to the same nesting sites year after year. My third point is another thing I said at Second Reading, which my noble friend Lord Lansley touched on in relation to the previous group. I find it absolutely bizarre that there is still a provision in Clause 55 that, when assessing a site, part of the EDP need not identify all the possible environmental impacts of the environmental feature. Again, I cannot believe it is in there. The EDP assesses the impact of a site but does not need to identify all the impacts it would have. I have only limited time and my noble friend did a good job last time, but how is that going to be legally sound when or if this Bill is enacted as it stands and when it is put to the test? Are we going to say that developers should contribute to some impacted species that may not be on the site or, perversely, that some do not need to contribute to a species that would be lost because we do not know whether it is present? How can we know whether the conservation of a species will be enhanced if we do not actually understand whether there are any species populations there in the first place? For all these reasons, my personal view is that it would be better if we simply removed species from the Bill. I am not someone who says there is no merit at all in the EDP approach. Where there are strategic environmental challenges that cannot be addressed on an individual site through an individual planning application, a strategic EDP approach would make sense. An example we touched on earlier was tackling nutrient pollution. But we have to recognise that, when it comes to most protected species, the approach outlined in Part 3 is not capable of meeting its own test of enhancing the overall conservation of a species. If we do not confront that now, we will face some very difficult challenges ahead. The second amendment in this group, Amendment 255, links to the one I have just been speaking to. I am grateful for the support of my noble friend Lord Blencathra on the Front Bench and the noble Baroness, Lady Willis of Summertown, for adding their names. If the Government feel that there is not enough ecological expertise to ascertain which species should not be included in Part 3 but generally accept that the approach would not be right for all species, why do we not at least commission the Defra agency tasked with making such assessments to provide us with a definitive list? The body that would usually co-ordinate that work would be the Joint Nature Conservation Committee.