Advisory functions

Section 3: Review and research

67.     Subsections (1) and (2) ensure that Natural England keeps under review matters relating to its general purpose, and that it consults bodies that it considers to have an interest when doing so.

68.     Subsection (3) gives Natural England powers to undertake research which relates to its general purpose, and to commission or support others to undertake such research. The power to support research is not limited to financial support and so could include the provision of accommodation, equipment and expertise. "Research" is defined by section 30 to include inquiries and investigations, and so could include, for example, surveys and monitoring of the natural environment.

69.     Subsection (4) ensures that when Natural England is carrying out functions to monitor nature conservation and related activities it should have regard to the common standards for monitoring of nature conservation, research into nature conservation and analysis of resulting information that have been established by the Joint Nature Conservation Committee.

Section 4: Advice

70.     This section specifies Natural England's duties and powers to provide advice to public authorities and others in relation to Natural England's general purpose. "Public authority" is defined in section 30.

General implementation powers

Section 5: Carrying out proposals etc.

71.     As well as allowing Natural England to carry out proposals itself in pursuit of its general purpose, this section gives Natural England power to assist, coordinate and promote others' carrying out of such proposals. This power will enable Natural England to enter into a variety of working arrangements with persons or organisations in the public, private, voluntary and charity sectors.

Section 7: Management agreements

72.     Management agreements are agreements that Natural England may enter into with people who have an interest in land. Their aim is to ensure that the land is managed or used in a way that helps to further Natural England's general purpose. This section replaces English Nature and the Countryside Agency's agreement-making powers in other legislation, but transitional provisions will ensure that any existing agreements made by English Nature and the Countryside Agency remain in force.

73.     Section 7 needs to be read in conjunction with the consequential amendments made to the 1949 Act, the 1968 Act and the 1981 Act by Schedule 11. Those Acts make further provision about the consequences of entering into or not entering into management agreements, and other related matters.

Section 8: Experimental schemes

74.     The Countryside Agency currently has powers under section 4 of the 1968 Act to make and carry out experimental schemes designed to facilitate the enjoyment of the countryside, or to conserve or enhance its natural beauty or amenity. This section gives Natural England power to enter into experimental schemes over its whole remit.

Other functions

Sections 9 and 10: Information, consultancy and training services etc.

75.     These sections specify information, consultancy and training services that Natural England may provide. In relation to information services, section 9 provides that the power is not to be read as limited by any other enactment conferring more specific information powers. (An example of a more specific power is section 86 of the 1949 Act, which requires information to be provided about the location and means of access to National Parks, areas of outstanding natural beauty and long-distance routes.)

Section 11: Power to charge for services and licences

76.     This section gives Natural England power, with the consent of the Secretary of State, to charge for its services. Charges are to be reasonable. The intention is to allow cost recovery.

77.     The section also gives the Secretary of State a power, exercisable by negative-resolution statutory instrument, to require charges for licences where no charging provisions are set out elsewhere and to provide for exemptions or remissions from those charges.

Section 12: Power to bring criminal proceedings

78.     This section provides that Natural England has the power to institute proceedings and the power to authorise persons other than barristers or solicitors to bring prosecutions on its behalf. This enables Natural England to have prosecutors on its staff in the same way as do organisations such as the Environment Agency and local authorities.

Section 13: Incidental powers

79.     Subsection (1) gives Natural England power to do anything conducive or incidental to the discharge of its functions. This includes but is not limited to the powers listed in subsection (2). The power to enter into agreements is not limited, and therefore can include working arrangements with persons in the private, public, voluntary and charity sectors.

Powers of Secretary of State

Section 15: Guidance

80.     This section gives the Secretary of State power, following consultation with Natural England and the Environment Agency, to give guidance to Natural England about how to carry out its functions. Subsection (1) requires the Secretary of State to give guidance to Natural England as to how it exercises its functions in relation to regional planning and associated functions.

81.     Similarly, Schedule 11 contains an amendment to section 4(5) of the Environment Protection Act 1995 to require the Secretary of State to consult Natural England as well as the Environment Agency before giving guidance to the Environment Agency.

82.     Natural England and the Environment Agency are required to have regard to guidance issued to them by the Secretary of State.

Section 16: Directions

83.     This section gives the Secretary of State power to give general or specific directions to Natural England and requires that those directions be published. Subsection (2) provides that the direction-giving power does not apply to functions that Natural England exercises through the Joint Nature Conservation Committee. (The Secretary of State has a separate power to give directions to that committee under section 38. See further below.)

84.     Natural England must comply with directions given under this section.

Chapter 2: Commission for Rural Communities

The Commission and its general purpose

Section 17: Commission for Rural Communities

85.     This section establishes the Commission for Rural Communities.

86.     It introduces Schedule 2, which sets out the constitution of the Commission, including provisions about its status, membership, chief executive and other employees, pay and pensions, procedure, accounts and annual reports.

Section 18: Commission's general purpose

87.     This section sets out the general purpose of the Commission. The purpose is focused upon the social and economic needs of persons in rural areas of England, especially people suffering from social disadvantage and areas suffering from economic under-performance. The general purpose of the Commission is to promote awareness among relevant persons of rural needs, and to promote the meeting of those needs in ways that contribute to sustainable development. "Relevant persons" is defined by section 18 as meaning public authorities and other bodies which appear to the Commission to be concerned with any aspect of rural needs.

Functions

Section 19: Representation, advice and monitoring

88.     The three main functions of the Commission are:

• representation: i.e. to be an advocate to the Government and others for the social and economic needs of rural people, especially those suffering social disadvantage and those in areas suffering from economic under-performance;

• information and advice: i.e. to provide advice to the Government and others on issues affecting rural needs in England and ways of meeting them; and

• monitoring and reporting: i.e. to monitor and report on the way in which relevant persons' policies are developed, adopted and implemented report (by rural proofing or otherwise) and the extent to which those policies are meeting rural needs.

Section 20: Research

89.     This section gives the Commission powers to undertake, commission and support research which relates to its general purpose. The power to support research is not limited to financial support and so could include the provision of accommodation, equipment, expertise and any supporting working arrangements. "Research" is defined by section 30 to include inquiries and investigations.

Section 21: Information services etc.

90.      The Commission may publish documents or provide information about any matter relating to its general purpose. It may also assist others in such activities.

91.     In broad terms it is intended that the Commission will be a body that gives advice based on its assessment of rural needs; it is not intended that it will provide services directly to the public.

Section 22: Power to charge for services

92.     This section enables the Commission to charge what it considers a reasonable amount for services. This would, for example, enable the Commission to charge for its publications. The Commission must obtain the Secretary of State's consent before it charges for any services.

Section 23: Incidental powers

93.     This section gives the Commission powers to take action which will help it to exercise its functions.

Powers of Secretary of State

Section 24: Grants

94.     This section enables the Secretary of State to fund the Commission. The Secretary of State may impose conditions when giving a grant (for example, a condition requiring the Commission to supply a financial memorandum or enter into a management agreement).

Section 25: Directions

95.     This section enables the Secretary of State to give the Commission directions as to the exercise of its functions. The Commission must comply with directions made under this section.

Chapter 3: Supplementary

Transfer schemes etc.

Section 26: Transfers on dissolution of English Nature and Countryside Agency

96.     This section makes provision for the transfer of property, rights and liabilities in connection with the dissolution of English Nature and the Countryside Agency. This will be by way of transfer schemes made by the Secretary of State (see Schedule 3).

97.     The transfers may be to Natural England, the Commission for Rural Communities, regional development agencies and Ministers of the Crown.

98.     In relation to the transfer of employment rights and liabilities, Schedule 3 provides for an equivalent of regulation 5 of the Transfer of Undertakings (Protection of Employment) Regulations 1981 (as amended) ("TUPE"). Schedule 3 also provides for staff pensions. This is in the context of the Cabinet Office statement of practice of January 2000 "Staff Transfers in the Public Sector", which states that public sector bodies should ensure that the principles of TUPE are followed and that transferring public sector staff are offered terms that are, overall, no less favourable those set out in TUPE.

Section 27: Continuing powers to make transfer schemes

99.     This section enables further transfer schemes to be made in the future, in connection with the efficient management for public purposes of property, rights and liabilities.

100.     The transfers allowed are set out in subsections (2) and (3) and are those from a Minister for the Crown to Natural England, the Commission or a person acting on their behalf, and those to a Minister for the Crown from Natural England or the Commission.

Section 29: Interim arrangements

101.     This section gives the Secretary of State the power to require English Nature or the Countryside Agency to provide staff, premises or other facilities, on a temporary basis, to the Natural England or the Commission.

102.     This power can be used during any period of transition between the establishment of the Natural England and the Commission for Rural Communities and the dissolution of English Nature and the Countryside Agency.

Part 2: Nature Conservation in the UK

Joint Nature Conservation Committee etc.

Section 31: Joint Nature Conservation Committee

103.     The Joint Nature Conservation Committee, referred to as "the joint committee", was established under Part 7 of the Environmental Protection Act 1990 ("the 1990 Act"). The Act re-enacts, with changes, the provisions of the 1990 Act that relate to the joint committee. The main change is that under the Act the joint committee has a UK-wide remit (covering England, Wales, Scotland and Northern Ireland), rather than merely a Great Britain remit (covering England, Wales and Scotland). This is reflected in Schedule 4, which reconstitutes the joint committee. The Schedule includes provision for Northern Ireland to have voting members.

104.     Schedule 4 also reproduces the effect of the changes made to the 1990 Act by the Regulatory Reform (Joint Nature Conservation Committee) Order 2005 (S.I. 2005/634). This will, amongst other things, provide the joint committee with the ability to employ its own staff and pay its chairman and independent members. It will also enable the Secretary of State to pay money directly to the joint committee.

105.     Those powers are supplemented by provisions which provide that the conservation bodies for England, Wales and Scotland and the relevant Northern Ireland department must together contribute sufficient financial resources to the joint committee to enable it to discharge its functions. The level of contribution from each of the four bodies is decided by agreement by the relevant Ministers and Assembly members in Great Britain and the Northern Ireland department, following consultation with the bodies.

Section 32: UK conservation bodies

106.     This section defines the terms "UK conservation bodies" and "GB conservation bodies". Some of the joint functions to be discharged by the joint committee are UK-wide; others are GB-wide.

Section 33: Purpose of functions under this Part

107.     The joint committee is given functions for the purpose of nature conservation and fostering the understanding of nature conservation. In discharging their functions under this Part, the UK conservation bodies and the joint committee are required to have regard to actual or possible ecological changes and the desirability of contributing to sustainable development.

Coordinated functions

Section 34: Functions of national or international significance

108.     This section sets out functions of the UK conservation bodies that can be discharged only through the joint committee. These are functions of UK-wide or international significance. They include giving advice about nature conservation matters of UK-wide or international significance. Advice on the development and implementation of policies can be given to "the appropriate authorities", i.e. the Ministers or governmental body in the relevant part of the UK. Advice can also be given, and knowledge disseminated, to any other person. The functions also include establishing common standards for nature conservation monitoring and for research and analysis, and commissioning or supporting research.

Section 35: Advice from joint committee to UK conservation body

109.     This section gives the joint committee power to provide advice to UK conservation bodies, so long as that advice is connected with the functions of the body and is of UK-wide or international significance.

Section 36: GB functions with respect to wildlife

110.     This section requires certain functions of the GB conservation bodies under the 1981 Act, to do with listing of protected animals and plants and related research, to be performed through the joint committee. The relevant provisions of the 1981 Act do not extend to Northern Ireland.

Directions

Section 38: Directions

111.     This section enables the Secretary of State to give the joint committee directions about the exercise of certain functions. It is expected that, as the joint committee is a cross border body, any direction under this power would be made after consulting Scottish, Welsh and Northern Ireland Ministers. Directions made under this section must be complied with.

Part 3: Wildlife etc.

Biodiversity

Section 40: Duty to conserve biodiversity

112.     This section and sections 41 and 42 replace section 74 of the Countryside and Rights of Way Act 2000 (conservation of biological diversity). In these notes, that Act is referred to as "CRoW".

113.     Section 40 extends to all public authorities the existing section 74 duty to have regard to biodiversity as far as is consistent with the proper exercise of their functions. However, only Ministers, government departments and the National Assembly for Wales (that is, roughly, those bound by the original section 74 CRoW duty) are obliged to have particular regard to the 1992 Convention; other public authorities are not. "Public authority" is defined in section 40. It includes, for example, local authorities, local planning authorities and statutory undertakers.

Section 41: Biodiversity lists and action (England)

114.     This section replaces and reflects what is in existing subsections (2) to (5) of section 74 of CRoW. It places a duty on the Secretary of State to publish, review and revise lists of living organisms and types of habitat in England that are of principal importance for the purpose of conserving English biodiversity, and to consult Natural England before doing so. It also requires the Secretary of State to take, and promote the taking of, steps to further the conservation of the listed organisms and habitats. A list was published in 2002 under the existing duty placed on the Secretary of State by section 74(5) of CRoW.

Section 42: Biodiversity lists and action (Wales)

115.     This section is equivalent to section 41, but relates to Wales rather than England. It requires the National Assembly for Wales to publish, review, revise and act on lists of organisms of principal importance in Wales. The Countryside Council for Wales is the body to be consulted.

Pesticides harmful to wildlife

Section 43: Possession of pesticides harmful to wildlife

116.     The Secretary of State may, by negative resolution order, prescribe those ingredients of pesticides that she believes could cause harm to wild birds and/or animals. An order under section 43 could be made in relation to several pesticide ingredients that have been linked with poisoned bait and that are known to be very dangerous to animals, in particular to birds of prey. It will be an offence to possess a pesticide containing a prescribed ingredient unless it can be shown that possession was for lawful use in accordance with relevant pesticide, biocide or poisons legislation.

117.     Existing legislation in Part 1 of the Wildlife and Countryside Act 1981 already provides for an offence where it can be shown that a person has set or used a poisoned bait (sections 5(1)(a) and (b) and 11(2)(a) and (b)). However, in practice, it has been difficult to prove that the person set or used the bait, and so under the new section 43 offence it will not be necessary to show this.

118.     A similar offence to that set out in section 43 has been introduced in Scotland by the Nature Conservation (Scotland) Act 2004.

119.     The offence in section 43 is not inserted in the 1981 Act partly for reasons connected with enforcement powers. Section 43 needs to be read with section 44, which confers enforcement powers in connection with the new offence, including certain powers contained in Schedule 2 to the Food and Environment Protection Act 1985 (FEPA) that are available in connection with other provisions regulating pesticides.

Section 44: Enforcement powers in connection with pesticides

120.     The inspectors on whom the enforcement powers under this section are conferred will be authorised by the Secretary of State (in England) or the National Assembly for Wales (in Wales).

121.     Under subsection (1) inspectors may enter premises to check if persons have a pesticide containing a prescribed ingredient in storage without any lawful use for it if they have reasonable grounds to suspect that they may find evidence of an offence. This power could be used where there have been reports of poisoning wild birds or animals in a neighbourhood and an inspector wishes to check for possession of such pesticides in that neighbourhood. The inspector can require the disclosure of information under (1)(b) about any substance that he finds.

122.     Subsection (4) applies most of the enforcement provisions of Schedule 2 to FEPA to the enforcement of the offence in section 43. This is particularly significant in connection with the power of entry conferred by subsection (1)(a) of section 44. Under paragraph 7 of Schedule 2 to FEPA, an inspector may enter a dwelling only if a justice of the peace has issued a warrant authorising him to do so. Such warrant will only be issued in certain prescribed circumstances as listed in that Schedule (for instance, where it is not possible to communicate with any person entitled to grant entry to the dwelling).

123.     Authorised inspectors using enforcement powers under paragraph 2 of Schedule 2 to FEPA may bring with them other persons and any equipment or materials to assist them in performing their functions. They must only operate at reasonable hours. Additionally they will be able to use reasonable force to perform their functions (for example in opening containers). They can photograph evidence. Related offences are provided for under paragraph 10 of the FEPA Schedule. These include supplying false information to an inspector and obstructing an inspector who is performing his duties.

124.     By virtue of subsection (1)(c) an inspector can seize any substance that he has reasonable grounds to believe to be a pesticide containing a prescribed ingredient. This power could be used to take a sample for analysis, or to take the whole of the substance away.

125.     Subsections (5) to (8) provide safeguards in connection with seizure and a procedure for recovery of the seized substance if proceedings are not brought or after the completion of any criminal proceedings.

Section 45 Codes of Practice

126.     The Secretary of State may issue a code that details how the authorised pesticide inspector will conduct himself before, during and after he has entered premises under the powers given by section 44. The inspector must have regard to such code and it will be admissible in evidence in any proceedings where it can be taken into account by a court.

Section 46: Interpretation

127.     Subsection (2) defines "pesticide". The term can include substances, preparations or organisms prepared or used for destroying any pests.

128.     Subsection (3) defines "wild bird" and "wild animal". Under the Wildlife and Countryside Act 1981 "wild bird" means any bird of a species that is ordinarily resident in or is a visitor to the European territory of any member state in a wild state, but does not include poultry, or game birds (other than in a few specified circumstances). "Wild animal" under the 1981 Act means any animal (other than a bird) which is or (before it was taken) was living wild.

129.     It is necessary to be able to inspect not only land and buildings but also vehicles, vessels and so on, and therefore in subsection (4) "premises" is given an extended meaning. It is not uncommon in legislation for the meaning of "premises" to be extended in this way.

Protection of birds

Section 47: Protection of nests of certain birds which re-use their nests

130.     This section introduces a new paragraph into section 1(1) of the Wildlife and Countryside Act 1981. The new paragraph makes it an offence, at any time of the year, to take, damage or destroy the nest of a wild bird species included in a new Schedule ZA1 to the 1981 Act. Schedule ZA1 contains three bird species which traditionally re-use their nests: the golden eagle (Aquila chrysaetos), the white-tailed eagle (Haliaetus albicilla), and the osprey (Pandion haliaetus). Section 22 of the 1981 Act is also amended so that the list of species in Schedule ZA1 may be changed by the Secretary of State by order.

Section 48: Birds released into the wild as part of a re-population programme

131.     This section substitutes a new section 1(6) in the 1981 Act and thus extends the protection afforded to wild birds under section 1 of that Act to birds which have been bred in captivity and lawfully released into the wild as part of a re-population or re-introduction programme. The section also substitutes a new subsection 6(5) in the 1981 Act which has the effect of making it an offence under section 6(1) to sell, offer or expose for sale, or have in possession or transport for the purpose of sale any live, captive-bred wild bird included in the relevant list (under Part 1 of Schedule 3 to the 1981 Act) which has been released into the wild as part of a re-population or re-introduction programme.