Water Bill

HL Deb 08 June 1989 vol 508 cc1008-54

Consideration of amendments on Report resumed on Clause 8.

Lord Gallacher moved Amendment No. 62: Page 8, line 16, leave out from ("body") to ("for") in line 19 and insert ("to preserve and make available").

The noble Lord said: My Lords, I shall also speak to Amendments Nos. 62A and 63. However, I am not speaking to Amendment No. 62B. Clause 8 concerns the general environmental and recreational duties of the Secretary of State, the Minister and the director. As such it is a very important part of the Bill. Indeed, considerable stress was placed upon its importance by the Government at Second Reading and in Committee.

Subsection (2) of Clause 8 has the appearance of being positive until one reads in detail paragraphs (a) and (b). One is left in no doubt that in terms of real power or the placing of a real duty on the Secretary of State, the Minister and director, the clause is inescapably weak. The purpose of these amendments is to try to strengthen it in respect of rights of access for the public to land after privatisation.

The question of water undertakers having a firm duty to preserve existing public freedom of access to land is one which we discussed at an earlier stage of the Bill. At that time we were disappointed at the Government's insistence that that duty must remain a duty, to have regard to the desirability

of protecting access. That does not seem to us to be as fair or as positive as it might be. The purpose of the amendment is to firm up the wording if possible and to persuade the Government that that can be done without any great loss or detriment to operational activity by the plcs.

The public has since 1973 enjoyed fairly extensive access to the half million acres which the 10 regional water authorities currently own. Although in one or two instances that access is not as good as it might be, the asset is very valuable from the point of view of the public who have access to recreation which we feel should be preserved and which we are anxious to see preserved even after privatisation.

When one considers that much of this land passed in 1973 to regional water authorities from local authorities without payment under the Act of that year, the public's desire to maintain access is in our opinion both understandable and justified. Indeed, Section 20 of the 1973 Act obliged regional water authorities to open their land to the public and, as I say, in the main regional water authorities have honoured that undertaking. We are perfectly satisfied that if the right of access can be preserved, it will be to the benefit of the public at large and to the benefit of amenity in general.

We are concerned that if paragraphs (a) and (b) are enacted in their present form, there may be a disposition on the part of the water authority plcs to seek to curtail in some way the right of access and the Minister may not feel under any serious obligation, given the wording, to have regard to the desirability

to maintain access in the way we consider it should be done.

There is also the view of the farming lobby. We are well aware that farmers differ in their attitude towards allowing the public access to land. In the main most farmers are happy enough to see the public there, always provided that they behave responsibly. However, a minority of farmers, if they sense that the protection under this Bill is weaker than it might be, may be less keen on giving access and may seek to restrict it. That, in our view, is a further reason for firming up paragraphs (a) and (b) in the manner suggested in these amendments.

During previous discussion I understand that the Government said that they genuinely intended to protect access but that they were frightened of incorporating words into the Bill which would not allow access restrictions when there were authentic operational reasons for such restrictions. If that is the position, we feel that it would be possible even at this late stage to draft the Bill in such a way as to permit restrictions for legitimate operational purposes. If, however, the Government are not taking the position that it is impossible to recognise the effective maintenance of access with operational requirements, we feel that they should drop their objections and permit the strengthening of the Bill in the manner we suggest in Amendment No. 62 and the consequential amendments. For that reason, I beg to move.

The Deputy Speaker

My Lords, I have to point out that if this amendment is agreed to, I cannot call Amendment No. 62A.

Lord Hesketh

My Lords, Amendments Nos. 62, 62A, and 63 would require the relevant bodies to preserve and make available public access rather than have regard to it. I recognise that there is concern that after privatisation the undertakers may restrict such access. I must reiterate to the House that there is no basis for such fears. Nothing the authorities have said or done indicates they will act in this way. Given the nature of most of the land in question—upland, rural areas—there would surely be little advantage to them in it. Since 1974 they have taken down the fences. As they have indicated, they have no intention of erecting them again.

So let me summarise what the position will be in respect of public access after privatisation. First, dedicated rights of way will of course be unaffected. Secondly arrangements established under private legislation will also continue. And by an amendment to the Bill in another place the Government have specifically denied themselves any right to vary or amend such legislation in consequence of the enactment of the Bill. Thirdly, in any case where access may form part of a management agreement with a national park authority, such agreements continue under successor owners unless there is express provision otherwise.

So the only area of uncertainty we are left with is concessionary access granted at the discretion of the water authority. But the fact is that Clause 8 provides a sound basis for continuation of policies of the water authorities by their successors. By an amendment in another place we have put beyond doubt that the duties in Clause 8(2) embrace all freedom of access, including concessionary arrangements and the right to roam.

It has, I recognise, been suggested that the terms of the duty are not strong. On the contrary, we believe they will be fully effective. Under this duty, and having regard to what authorities have in the past done in pursuit of it, there will be little scope for the undertakers seriously to alter their predecessors' policies in this area. The code of practice reinforces this. It requires a positive approach from undertakers towards public access. It incorporates a presumption that policies for opening up land of high amenity value for rambling and quiet countryside pursuits will continue. It refers to arrangements, including consultation, for establishing the current pattern of access rights—formal and informal. The duties, interpreted in the light of the code, will of course be enforceable by the Secretary of State.

What by contrast would be the effect of these amendments? The companies are not, as now, to have regard to the desirability of preserving access. They are to preserve it, full stop. At a stroke long-established discretionary arrangements are made mandatory. Yet in most cases they will have been established on a discretionary basis for good reason: because operational considerations may require them to be withdrawn; because for a few years, now and then, authorities may need to restrict access to conserve vegetation; perhaps, indeed, because—on reservoir banks for instance—there may be safety considerations and the company does not necessarily want to accept the risks involved. Whereas they purport simply to preserve public access by freezing existing discretionary arrangements, they would extend it in a arbitrary and unrealistic way.

What we have in the Bill and code now is the better course. It will be effective in securing that the general public access policies of the water authorities are maintained without setting in concrete particular discretionary arrangements which were always intended, for good reason, to have a necessary measure of flexibility. Much as the Government are committed to conservation and public access, we really could not accept these amendments; nor, I believe, should this House.

Lord Gallacher

My Lords, the Minister will not be surprised to learn that we on this side of the House are somewhat disappointed with the case he has stated. The Minister has perhaps great complacency—if that is not too strong a word—about how matters will shake down once the water companies become plcs. We have never been able to reconcile ourselves to the fact that a plc, whatever trade or industry in which it is engaged, has a primary duty to its shareholders.

Although we recognise that in this Bill the Government, in consideration of the fact that they are conveying a statutory monopoly of one of our most precious commodities to private enterprise, have endeavoured seriously to write protection for consumers into the Bill, we are not entirely satisfied that that protection as it stands in Clause 8(2)(a) and (b) is as strong as it could or should be. While we do not wish to set protection in concrete, as the Minister suggests, we feel that there is nothing in the Bill as it stands to prevent water plcs from attempting to restrict access. Above all, in the wording of the subsection there is no duty on the Secretary of State, the Minister of Agriculture and the director, to act positively in the way that we feel they should be obliged to do if our worst fears are in any way realised.

As regards restriction of access for temporary periods for operational reasons about which the Minister has spoken, I feel that I dealt fairly with that in my submission. There would be no objection, on our part or, indeed, on the part of those people who wish to use the facilities they currently enjoy, to restrictions on access of that kind. It is well understood in all walks of life and therefore suitable amendments could be made to the Bill to provide for such contingencies.

Nevertheless, it is obvious from the spirited nature of the noble Lord's reply that there is no joy to be had on this issue this evening. I interpret "spirited" more by the speed with which the reply to the amendment was read rather than the conviction underlying the reply. However, in view of that spirited reply we can see that there is at present no way of persuading the Minister even to look at this matter before Third Reading. We are not as assured as he is that all will be well in the future. Nevertheless, the firm words that the Minister did use, which we acknowledge, are on the record. Although we would rather have them in the Bill, nevertheless they are there. They may give comfort and succour to those people who, we hope, will not be denied access in the years ahead. With those remarks, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 62A to 62C and 63 not moved.]

8.45 p.m.

Baroness Blatch moved Amendment No. 64: Page 8, line 33, leave out ("land associated with water") and insert ("the water environment").

The noble Baroness said: My Lords, I move this amendment on behalf of my noble friend Lord Cranbrook who apologises for not being present as he is engaged elsewhere.

Your Lordships may be relieved to hear that I do not intend to rehearse all the detailed points made by my noble friend in Committee. However, it would seem not only from my noble friend but also from my noble friend the Minister, the noble Lord, Lord Norrie, and the noble Baroness, Lady David, that there is concern about a definition of this clause. Therefore, I ask my noble friend to give some consideration to the words set out in Amendment No. 76 which attempt to define land associated with such waters. I hope that my noble friend is able to say that Amendment No. 76 goes a long way towards making this definition more specific. I beg to move.

Lord Norrie

My Lords, I speak to Amendment No. 70. The purpose of the amendment is to maintain continuity of drafting in subsection (4). The amendment will ensure that the NRA has the conservation duties that the Government described in Committee. I refer particularly to the debate in Committee on 23rd May on what were then Clauses 121 and 122 and amendments moved by my noble friend Lord Renton.

The continuation of the conservation duties held by the water authorities under the Wildlife and Countryside Act 1981 is essential and this amendment ensures that there will be no weakening of those duties upon privatisation. Clause 8(4) describes the duties of the NRA with respect to the promotion of conservation and recreation. Subsection (4)(a) refers to conservation of natural beauty and amenities. Subsection (4)(b) refers to conservation of flora and fauna. However, the conservation of flora and fauna is confined to that which is dependent on an aquatic environment whereas subsection (4)(a) refers to water and associated land. Subsection (4)(c), relating to recreation, also refers to such waters and land.

The amendment would ensure that subsection (4)(b) is brought into line with the rest of this subsection. There is no reason for flora and fauna to be given less protection than landscape or recreation.

Baroness White

My Lords, in the absence of my noble friend Lady David perhaps I may be permitted to say a few words on this amendment. It is a matter of considerable concern that we should have a more satisfactory definition of the protection being offered for flora and fauna. The noble Baroness, Lady Blatch, indicated that the noble Earl, Lord Cranbrook, has done his best to provide a definition although whether the Government can accept it in precisely that form remains to be seen. Nevertheless it is important that flora and fauna should not be restricted to absolute dependence upon water.

In recent years there has been a great deal of work done on research into river corridors; that is, the land adjacent to inland waters. The attention of the House should be drawn to that. In England and Wales we have about 40,000 kilometres of river which is registered for classification for water quality. In addition, of course, there are a number of smaller tributaries which are not so registered. They provide, in particular, very important habitats for bird life.

One cannot say of birds that they are absolutely dependent on the water, because they are not aquatic creatures. But they are very dependent for their habitat on the river corridors. In Wales we have carried out a very interesting study of the River Teifi. It is one of the most important areas of research undertaken in this field. There was a co-operative study undertaken by the University of Wales's Institute of Science and Technology; the Welsh Water Authority; the Royal Society for the Protection of Birds; the Otter Haven Project and the Nature Conservance Council, with administrative assistance from Powys County Council. In other words it was a major co-operative effort.

It proved without doubt the importance for wildlife, for both flora and fauna, of protecting the adjacent land. It is not simply a matter of concerning oneself with the water. It is quite clear that the definition that the noble Earl, Lord Cranbrook, has suggested is intended to meet the very strong feeling among biologists and zoologists who are concerned with flora and fauna. One should not differentiate in the way that the Bill as now drafted does between the other uses of the riparian areas and the protection in such areas of the flora and fauna. These factors are covered by the amendments of my noble friend Lady David and the noble Lord, Lord Norrie.

I hope very much that the Government will address their mind to this particular problem, whether or not they accept the wording of this amendment, and make certain that they do not unduly restrict the reference in the Bill to the protection of flora and fauna.

Lord Hesketh

My Lords, this group of amendments applies to the recreation duty of the NRA, the undertakers and the drainage boards under Clause 8(3) and to the NRA's duty under Clause 8(4) generally to promote recreation and conservation. I wish to address first Amendments Nos. 64,65,69,72 and 76 tabled by my noble friend Lord Cranbrook. Clause 8(3) and (4) are drafted to apply the recreation and conservation duties they contain to water and land associated with water. These amendments will substitute "land associated with water" for the term "water environment". This term has been defined by Amendment No. 76.

The phrase "land associated with water" is taken directly from the Water Act 1973. It may seem somewhat vague but it has proved in practice to cover all the lands in respect of which it would be appropriate for the duties in Clause 8(3) and (4) to apply. I do not recall any complaints about it, but the term "water environment" as defined in Amendment No. 76 is not only untested in practice, but may be defective in theory. To take an abvious example, it would catch underground mines from which water was pumped into a river. I doubt whether such mines have much potential for recreation or conservation. For these reasons I suggest that these amendments be rejected.

I turn now to Amendment No. 70, tabled by my noble friend Lord Norrie and the noble Baroness, Lady David. This amendment applies only to Clause 8(4) and the NRA's general duty contained therein to promote the conservation of flora and fauna which are dependent on the acquatic environment. This amendment will substitute "such waters and land" for the expression "an aquatic environment". The key point is that in accepting this amendment it could take the NRA's responsibilities into the protection of fauna—badgers might be an example—which are living on land associated with water though not dependent on it. It is possible that it would lead to an unreasonable extension of the NRA's role into matters on which it will have no particular expertise. That is why we recommend that the amendment should be resisted.

I now come to Amendment No. 68, standing in the name of my noble friend Lord Caithness, which extends the NRA's duty in Clause 8(4) generally to promote the conservation and enhancement of natural beauty and the amenity of inland waters so that it covers coastal waters as well. Having just recommended your Lordships to turn down the amendments regarding the water environment tabled by my noble friend Lord Cranbrook, I am pleased to point out that Amendment No. 68, which I recommend to the House, is based on the comments that he made in Committee when he pointed out that the duty in respect of promoting the conservation and enhancement of natural beauty and amenity applied only in respect of inland waters and thus gave the NRA no adequate powers as regards water around the coast.

By contrast, the duty in respect of conservation of flora and fauna refers more generally to the aquatic environment. We accept that there is inconsistency here. More importantly, the Bill should not preclude the NRA from taking action, if it considers it to be necessary, for the conservation and the enhancement of waters around the coast as much as those inland. That is the purpose of Amendment No. 68. I should add that we believe it is unlikely, for the foreseeable future at least, that the NRA will seek occasion to make much use of these powers in respect of waters around the coast. It will of course have to exercise diligent control of discharges to such waters and to monitor as necessary in relation to them. But its wider promotional power should be there for use if it is required. On that basis I hope that the House will be able to support Amendment No. 68.

Baroness Blatch

My Lords, I thank the Minister for that reply. Amendment No. 68 certainly does expand and make a little clearer the definition of associated waters. I cannot speak for my noble friend Lord Cranbrook. I suspect that he will wish to read what the Minister said. I also accept the technical defect that one is not speaking of underground mines. I believe that there is scope for some thought between now and Third Reading for us all to think about a form of words that will catch and encompass all the interests of this group of amendments. I shall not press the amendment and therefore I beg leave to withdraw it.

Baroness White

My Lords, can the noble Lord say where he places the kingfisher, for example? To some extent it is dependent on an aquatic environment, but it does not live underwater.

Lord Hesketh

My Lords, by leave of the House, the noble Baroness certainly has the advantage over me as regards the kingfisher except that I know it chooses a very steep bank in order to avoid a rat getting into its nest.

Amendment, by leave, withdrawn.

[Amendment No. 65 not moved.]

Lord McIntosh of Haringey moved Amendment No. 66: Page 8, line 36, at end insert— ("(3A) The Secretary of State, the Minister, and the Director shall have the duty so to exercise their powers under this Part as may best secure the fulfilment by any relevant body of its duties under subsection (3) above.").

The noble Lord said: My Lords, this amendment perforce accepts the definition of "land associated with water" but this is still with reference to Clause 8(3), where we are not satisfied that the restriction of the environmental duty to the Secretary of State is going to achieve the objectives. We feel that the Secretary of State should have a duty to ensure that the water undertakings have the recreational obligations themselves rather than the Secretary of State having the direct duty. Ministers will recall that this was raised in Committee and that there was an agreement that the suggestion would be looked at. It went no further than that and I will not claim that there was any commitment.

We looked at the possibility of ensuring that the plcs are not exempt from recreation and amenity duties by including reference to their duties in the code of practice. The problem with the code of practice is that, unless it is mandatory, we need a new subsection of the kind that we propose in Amendment No. 66. It is clearly important that the creation of the plcs should not be seen as a way of getting around leisure, recreation and amenity obligations. We are aware that the Government, for reasons that have been set out at length, are not going to make the code of practice mandatory. Failing that, it seems that an amendment of this kind is necessary. I remind the Government that they said that they would consider adding the duty to the code even though it is not to be mandatory. If they will indicate that that is to be done it might be helpful in enabling us to consider whether we need to press the amendment. I beg to move.

9 p.m.

Lord Hesketh

My Lords, Clause 8(3) provides that relevant bodies—the NRA, the undertakers and the internal drainage boards—shall be under a duty to put the water and associated land to the best use for recreation. The purpose of this amendment is to place upon the Secretary of State, the Minister and the director an obligation to exercise their own powers under Part I of the Bill in the way that best secures fulfilment by the relevant bodies of their duties.

We are satisfied that this amendment is not appropriate. The relevant powers in Part I will be the appointment of the NRA, of the director general and of the customer services committees, the general duties in Clause 7 and the environmental duties. It would surely be inappropriate that such powers should be exercised so as to best secure recreational objectives. The option which was best in recreational terms could well be wholly inappropriate in terms of all the other obligations and considerations which the Secretary of State and director general must weigh. Further, to have the Secretary of State exercise his general environmental and conservation duties elsewhere in Clause 8 in the manner which best served recreation would surely be wrong and would completely unbalance this part of the legislation to the severe detriment of conservation.

Even if powers were more widely construed to include these elsewhere in the Bill the same argument would hold. We cannot require the Secretary of State and director to do what is best for recreation when this may be at the expense of all the other obligations and duties upon them. I believe I can nevertheless offer the noble Lord some reassurance on his underlying concern. The most relevant powers of the Secretary of State are his enforcement powers in Part II of the Bill. And he will have to use them in a way which secures that the statutory obligations of the companies—including the recreation duties—are properly secured. In this way recreational duties are placed upon the Secretary of State to the extent that is appropriate.

I hope that the noble Lord will to some extent be reassured by these comments and will feel that he does not have to press the amendment to a Division.

Lord McIntosh of Haringey

My Lords, I find that reply curious in one respect and incomplete in another. I find it curious in the sense that it would never have occurred to me that the words "best secure" to which the Minister paid such attention should weaken other aspects of the obligations of the Secretary of State. Best securing the fulfilment of the duties under subsection (3) does not mean that it comes before any other obligation. We have a difference in the meaning of words. Under those circumstances it is probably best, if I may use that word, if I take the matter away, think about it and see whether the Government would wish to think about it as well.

I asked a specific question about the codes of practice. I wonder whether the Minister can help me on that point before finally I make up my mind. When we were considering this matter in Committee the Government said at col. 481 of the Official Report of 8th May that they would consider adding this duty to the codes of practice. I wonder whether that has been done in the draft codes of practice or whether it is being actively proposed that it should be done.

Lord Hesketh

My Lords, with the leave of the House, I can partially answer that question. We are endeavouring to do so in the codes of practice.

Lord McIntosh of Haringey

My Lords, let us hope that they are "best" endeavours. Without best endeavours I am not convinced that we shall get the result that we all desire. Perhaps the Minister would be good enough to let me know in good time before Third Reading whether his endeavours are likely to reach fruition. I can then decide whether I need to return to this matter at that stage. I am sure that with his usual courtesy he will do so. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Graham of Edmonton moved Amendment No. 67: Page 8, line 38, leave out ("to such extent as it considers desirable").

The noble Lord said: My Lords, this amendment removes from the duties of the NRA under Clause 8(4) another example of what we consider are weasel words. Under that subsection the authority has duties generally to promote the conservation of areas of natural beauty, and of flora and fauna, and the use of waters and land for recreational purposes. The problem is that all these duties are to be undertaken, to such extent as it considers desirable".

The wording of the subsection suggests that in practice the activity will be little more than a power for the authority to undertake these activities. The qualification "generally" already imports a reservation as to whether or not the duties would actually be enforceable and the inclusion of the wording as to desirability would effectively remove the subsection from any element of judicial review. The creation of quangos, which are effectively beyond the reach of the administrative law in respect of their duties, is surely an undesirable development.

The amendment reflects earlier attempts to tighten up the duty. As Amendment No. 117, it was tabled for the Committee stage by my noble friend Lord McIntosh, the noble Lords, Lord Ross and Lord Norrie, and my noble friend Lady Birk. The debate was overshadowed by the promise of the noble Earl, Lord Caithness, to bring forward the amendment which has been debated today. However, the Minister replied at cols. 435–6 to the effect that the NRA would be playing a supporting role to riparian owners, navigation authorities, voluntary bodies and so on. In his view those words reflected the secondary nature of the NRA's role.

In the first place, this interpretation may be contested. If it is intended that the NRA should have a secondary role it might be better if Clause 8(4) actually said so. There is nothing in the words, to such extent as it considers desirable",

to suggest that its activities will necessarily fill the gap left by other organisations' activities. On the contrary, it would seem better for the NRA to have a generalised duty which clearly can take up any areas left undone by other organisations. For that reason the removal of the words would somewhat strengthen the duty.

The Minister's reply suggested that removal of the words would make the duty too strong. The operative word in the subsection is "promote". The authority is not being given a duty to undertake these functions but to promote them. In other words, to the extent that it can encourage other bodies to do the work it will do so; but where it cannot do so, it has a duty to try to secure that improvements are achieved, if necessary by undertaking the work itself.

It is suggested that the re-writing of Clause 8(4) to reflect that back-up and promotional function would be an improvement on the present wording. If the Government are prepared to accept that principle, no doubt they may wish to take the wording away to see whether they can produce something which fits in with that general approach. I beg to move.

The Earl of Arran

My Lords, I wonder whether I may try to put over the Government's view on this amendment. Clause 8(4) is an important new provision, and I should remind the House of the Government's intentions. It removes in respect of the NRA two significant constraints on the present water authorities in relation to conservation works and recreation provision.

In the first place, water authorities can at present only undertake works for the improvement or enhancement of rivers to the extent that such works form part of, or are ancillary to, the performance of one of their main functions. As we emphasised in Committee, we believe this is an unreasonable restraint. It is important that there should be a body able to take steps to conserve and enhance the river environment. Often of course such activities will fall to riparian owners or local planning authorities, but the NRA should not be inhibited by lack of powers from playing its part. We would not expect use of the powers to be substantial in the next few years: necessarily most environmental work by the NRA will be part of its drainage, water resources or pollution control functions. Nonetheless, the power is an important one.

With recreation the position is similar. There are already a number of co-ordinating or promotional bodies, such as regional councils for sport and recreation and local authorities. The NRA will not want to usurp their contributions. At the same time it must not be limited in its recreation provision to putting its own rights over water to recreational use. It should, for example, be able to help manage effective recreational uses of rivers where there is no navigation authority or give support to local voluntary bodies to do this. And there must be a body which, irrespective of its other regulatory functions, is able to take a clear overall view of the development of recreation on rivers where this is needed. Again it should not be expected that the NRA will make dramatic use of these powers in the short term. But it is important that from the start it should have the powers to promote recreational uses when it sees clear need and there is no other body well placed to assist.

Against this background, it follows that we do not believe that the qualification, to such extent as it considers desirable", should be deleted. Recreation opportunities on rivers will continue to be provided primarily by riparian owners; and there are other promotional and co-ordinating bodies the role of which should not be usurped. The NRA's task should be supportive: when things need to be done to facilitate recreational uses of rivers, and there is no other body better placed to do them, it is right that some obligation should fall upon the NRA. But it is the NRA which is itself in the best position to judge this.

I suggest that, to such extent as it considers desirable", precisely expresses this position and should be retained. An unqualified duty is not necessary and would be beyond what the NRA could discharge. The NRA is enabled by this clause to act in relevant circumstances, and, as we have consistently argued, we believe that it would be wrong to go beyond this. It is in the light of those considerations that I hope that the noble Lord will agree to withdraw the amendment.

Lord Graham of Edmonton

My Lords, it is my intention to withdraw the amendment, but listening to the Minister I must say that it all sounds grand, clear and precise: a body is required to be able to "take a clear overall view". In this amendment, as in many others, we are not doubting the Government's intentions or integrity with words but the interpretation which could be placed upon them. However, the amendment has provided the Minister with a further opportunity to defend his corner in respect of the intentions of the Bill and the limited powers that this subsection which we were seeking to remove provides.

I am grateful to the Minister because it is quite clear that he has taken the point most seriously. Moreover, it may be that on reading what he has said those in this House and others outside will accept that we have received the best response that we can get. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hesketh moved Amendment No. 68: Page 8, line 41, after ("inland") insert ("and coastal").

On Question, amendment agreed to.

[Amendment No. 69 not moved.]

Lord Norrie moved Amendment No. 70: Page 8, line 43, leave out ("an aquatic environment") and insert ("such waters and land").

The noble Lord said: My Lords, my noble friend the Minister has already replied to the amendment. The amendment ensures that Clause 8(4)(b) is brought into line with the rest of the subsection. There can surely be no reason for flora and fauna to be given less protection than the landscape or recreation. I was not happy with my noble friend's reply. It is surely essential that the NRA should be able to deal with those issues. It is the obvious body to do so. My noble friend Lord Caithness said so in Committee in response to a debate on Clauses Nos. 121 and 122, as they then were. He said: that duty is placed on the NRA by Clause 8(4). I draw that clause to the attention of the Committee. It makes it very clear that it is a duty on the NRA to promote conservation with respect to both inland waters, and to the land associated with them".—[Official Report, 23/5/89; col. 277.]

On close examination of Clause 8(4) it is clear that while conservation of natural beauty and amenity with respect to water and land is dealt with, in respect of flora and fauna the aquatic environment only is mentioned. There is no mention of associated land with respect to the conservation of flora and fauna. I therefore ask my noble friend the Minister to reconsider the wording of Clause 8(4)(b). I beg to move.

9.15 p.m.

Baroness David

My Lords, I support the amendment. It would fit in with what has been accepted in the rest of the clause. I hope that the Minister will look upon it favourably. I do not know what the noble Lord, Lord Norrie, will do. It seems to me a sensible amendment which will fit in with what has already been accepted.

Lord Hesketh

My Lords, with the leave of the House, I have already replied to the amendment. There is nothing I can usefully add to what I have already said.

Lord Norrie

My Lords, I shall have to consider what my noble friend has said. I shall read Hansard and I may find that I shall have to return to the subject. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 70A to 72 not moved.]

Lord Graham of Edmonton moved Amendment No. 73: Page 8, line 45, at end insert— ("(4A) Any proposals by, or in relation to, a body or person to which subsection (1) above refers shall, where they relate to a land management plan, be made subject to the requirement that the person concerned shall undertake consultation with each local authority in the area to which the plan relates and shall have regard to the results of such consultation in relation to recreational or environmental matters.").

The noble Lord said: My Lords, the purpose of the amendment is to ensure that local authorities have an opportunity to protect the interests of the local community before land is disposed of. The amendment is a response to comments made by the Minister in Committee on Amendment No.103A. That amendment sought consultation with local authorities in the case of the disposal of or change of use of water land where that would have environmental or recreational implications.

The Minister considered the amendment to be too wide and pointed to existing planning procedures. It is in that spirit that the amendment is a narrower proposal which is of interest to those authorities that have been working with water authorities to improve recreational and environmental provision. Where there is an existing land management plan covering such activities there should be a consultation requirement.

The land holdings of many water authorities offer both local inhabitants and those living further afield unique opportunities to enjoy leisure facilities. The most obvious opportunities relate to the use of water for the full range of water sports, while the land in the catchment areas is an important recreational resource for those who wish to get away from it all. Consequently, when planning for the needs of a local community the local authority recognises that certain land owned by water undertakings forms part of the leisure resources of an area. That being so, the need for other land to be brought into recreational use is sometimes seen as unnecessary. Therefore—this is the gravamen of our argument—to remove land from recreational use without consultation could mean a sudden and unacceptable loss of a publicly used resource which might not be compensated for in the locality. The local authority should consider whether the loss of that resource is acceptable and, if not, what action it might take.

The same argument applies where land is of value as a habitat for wildlife. In the case of a disposal it would be helpful if the Government could undertake to insert a consultative provision in the new land sales agreement with the specific purpose of creating a conservation duty with local authorities in the case of sales of land covered by such management plans. I beg to move.

The Earl of Arran

My Lords, Clauses 8 and 9 already impose formidable duties on the new companies in respect of the conservation and recreational use of their land. The question is whether it is sensible to extend those obligations still further with a consultation duty which goes beyond what attaches to any other bodies.

We do not believe that it would be. We suggest that the Bill and associated code already provide all that is necessary. In the first place, in those areas where special environmental considerations arise—in the national parks and SSSIs—the Bill in Clause 9 already provides a special consultation procedure.

Secondly, within the code of practice we make clear the need elsewhere to consult widely on environmental and recreational matters, and we have already included some references to consultation with local authorities. We recognise, in the light of what the noble Lord, Lord Graham has said, that we may not have said enough in the code. Be that as it may; the code is the place to say it.

We do not think it is necessary or appropriate to load this additional statutory consultation duty on the companies. But we recognise that, at least when they have large land holdings of environmental and amenity significance, they should take local authority views into account in their land use management planning. While a good deal of flexibility should be left in the way this is achieved, we shall undertake to pursue this thought in the code and elaborate the guidelines there, taking full account of the points which the noble Lord, Lord Graham, has made. On that basis I hope he will feel that his purpose is substantially achieved and that he need not press this amendment.

Lord Graham of Edmonton

My Lords, I am grateful to the Minister for saying that he will be able to elaborate on the thoughts that I have expressed when he examines what should be laid down in the code of practice. He placed very heavy stress upon the existing provisions, particularly those for land with special environmental protection needs.

I think that the Minister understands that we are concerned with land which is the subject of a management agreement and plan. I hope that when the Minister has had further thoughts he will accept that there are recreational land uses which form part of a total local authority scheme. They may very well not fall within the need to be protected or specially looked at, but if the land were to be disposed of without consultation, it could be distressing to local people and the local council. Its overall recreational plan could be disturbed. We are not saying that the council should have power to stop it. But if our amendment were carried it would have to be consulted, and if it objected to the proposal it would have the opportunity of further discussions.

However, I feel that the Minister's remarks are along the lines of what I wanted, which is that further thought will be given to the matter. It may be that something will appear in the code of practice which will cover the point. I am grateful to the Minister and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Speaker (Lord Airedale)

My Lords, in calling Amendment No. 73A I have to say that if it were to be agreed to I could not call Amendment No. 74.

Lord McIntosh of Haringey

moved Amendment No. 73A: Page 9, line 1, leave out subsection (6). The noble Lord said: My Lords, in moving Amendment No. 73A, I wish also to speak to Amendment No. 74. In view of what the Deputy Speaker has said, clearly I shall have to think of these as being alternatives. I moved Amendment No. 73 out of the kindness of my heart because the Government got themselves into an impossible position in considering this amendment. Amendment No. 74 reflects, I hope directly, a point made by the noble Lord, Lord Renton, in Committee.

First, I shall deal with Amendment No. 73A. Clause 8(6) states: Nothing in this section or the following provisions of this Act shall require recreational facilities made available by a relevant body to be made available free of charge". In proposing the deletion of this subsection, we asked ourselves what it could possibly mean, and what force it could possibly have. The noble Earl, Lord Caithness, said on an earlier occasion that the subsection was of a "purely declaratory nature". What is a subsection of a purely declaratory nature doing in a Bill of this kind? Either it means something, in which case it should be argued properly rather than the Government telling us it is purely declaratory, or it means nothing, in which case it should be taken out of the Bill.

We have given the Government an opportunity to put matters right by tabling this amendment again.

I hope that they can now acknowledge that to have a subsection which is of a purely declaratory nature is nonsense in legislation and that the subsection should not be there. On the assumption that they will be sticky about this and will try to get round the pure logic of my argument, I have brought forward an alternative in Amendment No. 74. That amendment takes up the point made by the noble Lord, Lord Renton, in Committee. I paraphrase the argument that he presented at col. 493 of Hansard. The noble Lord said that there was something to be said for an amendment which safeguarded existing facilities where they were free of charge. Amendment No. 74 qualifies subsection (6) by stating: except where such facilities were available free of charge at midnight on 8th June 1989". In other words, this is not retrospective legislation. There is still time in the next two-and-a-half hours for the water authorities to impose charges, if they are quick off the mark.

I am being totally serious about this matter. If they do not impose charges in that two-and-a-half hours, where there is free access for recreational purposes, that access should remain free of charge. I think everyone is agreed on that. I hope that the Government will recognise the absurdity of a purely declaratory subsection and will accept Amendment No. 73A. Failing that, I hope they will agree with the point made in Committee which was supported, as I understand it, by the noble Lord, Lord Renton. I further hope that the Government will agree, at the very least, that Amendment No. 74 should be agreed to. I beg to move.

Lord Renton

My Lords, in view of what the noble Lord has said in reminding me of what I said in Committee, I must say that I feel bound to regret the leaving out of subsection (6). But I think that something on the lines of Amendment No. 74 is highly desirable. I suggested an alternative at the Committee stage, and I very much hope that we shall obtain from my noble friend a sympathetic reply indicating either that the Government accept Amendment No. 74 or that they will deal with the matter in some other agreeable way on Third Reading.

Lord McIntosh of Haringey

My Lords, before the noble Lord sits down, I must say that I much respect his views on the framing of legislation. Will he be willing to share his views on a subsection which is of a purely declaratory nature, which is what we were told subsection (6) was?

Lord Renton

My Lords, normally I would agree that purely declaratory legislation should not clutter up the statute book. There is a bit of it here and there in this Bill.

On the other hand, we have a new situation which we have never had before of companies with the dual purpose of providing a public service and doing so by means of making profits. I think that it might not be a bad thing to make it abundantly plain that it is better to keep subsection (6) but to add something to it, either on the lines of Amendment No. 74 or of what I suggested at Committee stage, which will ensure that there is no back peddling; in other words, that facilities which the public had enjoyed previously for recreation on the waterways shall be enjoyed in future.

9.30 p.m.

Lord Trafford

My Lords, I share many of the sentiments expressed by my noble friend Lord Renton, with two reservations. The first is a purely practical one, namely that facilities change. What may be appropriate at the present time may not fall into a development which takes place subsequently, after the water companies have taken over. It would concern me if the proposal was put on the face of the Bill in this way or if the subsection was left out; in other words if either of the alternatives in Amendments Nos. 73A or 74 was adopted. It could restrict plans or operations which might be introduced for recreational purposes—I am not talking about profit or the delivery of the service but simply about recreational and other facilities.

The second point is that anything that is inhibiting worries me. The deletion of subsection (6) could be inhibiting. However, I do not disagree totally and I understand the spirit in which the amendment is moved. I am not sure that the wording is right, but I understand the reason for putting in a restriction on imposing a charge where none was made previously. However, it worries me both on the practical grounds of being restrictive of further development and because it might interfere with any other recreational plans, whether made in conjunction with the local authority as suggested in relation to the previous amendment or from the point of view of the plcs themselves.

Lord Hesketh

My Lords, the effect of Amendment No. 73A would be to delete subsection (6) of Clause 8 which makes clear that nothing in the Bill requires recreational facilities to be made available free of charge.

Amendment No. 74 would set in statute a prohibition on the new companies charging for any recreational provision which is free at midnight tonight. As explained in the House in Committee, Clause 8(6), which Amendment No. 73A seeks to delete, is no more than a technical provision which is necessary for the sake of clarification. It holds no hidden threats, no matter how much the noble Lord, Lord McIntosh, may chortle in my direction when I tell him that. It in no way encourages further charging for recreational provision. Its concerns are reflected in the next amendment.

Turning now to Amendment No. 74, this addresses in undesirably rigid form concerns which we believe do not have foundation. Many things in life are not wholly free, and that includes access to water authority land and receational facilities in the sense that there are costs in terms of supervision, management, maintenance and, we believe, in the future in the most important way of all, as my noble friend Lord Trafford pointed out, development of facilities.

At some point someone is going to have to pay for those costs, particularly in the latter example, either those who directly enjoy the facilities or the public at large through water charges. The balance which is at present struck is that, where specialised facilities are provided, the water authority normally charges the going rate for the use of them. Elsewhere, where it is simply a matter of access for informal recreation, no charge is made. That is the position which can be expected to obtain after privatisation. As we have said many times before, it is impracticable to levy charges for access to the open countryside, mountains and moorland, and the companies have said that they have no intention or wish to try. So far as reasonable, it will still be open to the companies to recover the general costs of performing their recreational duties from their general charges.

So why is there such alarm and the demand for freedom at midnight, even if there are three and a half hours left, to establish further charges?

Noble Lords

Two and a half hours!

Lord Hesketh

My Lords, I beg to the forgiveness of the House; there are indeed two and a half hours left. We suggest that there is no good purpose. Authorities are already charging the market rate for their specialised facilities and the market would in future stop them going further, for informal recreation charges would be impractical and, as will be clear from what I have said, there is no need for them to be imposed anyway.

But what would be the effect of this amendment? It would merely impose unreasonable limitations on the circumstances in which a company can recover its costs directly from those who benefit. What happens where a company invests to improve a facility at present provided free? What happens if maintenance costs substantially increase? Are the companies to be prevented from concluding that the time has come to attribute costs more closely to those who receive the benefits rather than to their customers at large? I say "those who receive the benefits" because, as we live in an ever more specialised leisured age, facilities will be custom designed for many greater numbers of groups but fewer numbers of people who wish to have specialised facilities.

This amendment takes a sledge-hammer to the proverbial nut. The prospect of companies seeking to charge for access to the open countryside is remote. Seeking to block off even that remote possibility by this amendment will introduce distortion and disadvantages out of proportion to the benefit—if any at all—that it would secure. For those reasons I hope that the proposer, the noble Lord, Lord McIntosh, will not want to press the amendment.

Lord McIntosh of Haringey

My Lords, that is nonsense, and the Minister must know that it is nonsense. So far as concerns Amendment No. 73A, the noble Earl, Lord Caithness, said that the subsection was of a purely declaratory nature which did not alter the effect of the Bill. Those were his words. There should not be in legislation subsections which do not alter the effect of the Bill. Otherwise, one might go around putting in the words "for the avoidance of doubt" in every other line. It is patently nonsense to have a whole subsection which does not alter the effect of the Bill. I am astonished that the Government should not take the opportunity to put right something that was revealed to be nonsense at the Committee stage.

I believe that there has been some distortion about what Amendment No. 74 says. Of coarse, the noble Lord, Lord Trafford, is correct to say that there can be change, but where there is change such facilities will not have been available at midnight on 8th June 1989. They will be created after 8th June. No one denies that one has to make charges for the use of car parks, landing stages, sometimes for access roads and for all sorts of other facilities, whether on land or water, which are made available for recreational purposes. But, if those charges are not made now, they are presumably not made for a good reason. If they do not exist now, nothing in Amendment No. 74 will stop them being charged for in the future because they will be new facilities which are not covered by the amendment and will not therefore be covered by the Bill.

I am sorry to say that in my opinion the Minister's confidence in the altruism of the water authorities and water companies is sadly misplaced. If a water company has as an objective to maximise its profitability and its rate of return on capital and it finds that it is spending money for recreational purposes and that it has land on which it could charge for recreational use, whether or not such a charge has been made in the past, it will do so. If they think that they are on to a good thing, nothing will stop them from introducing charges for the first time.

Of course, as the Minister says, they cannot in fact charge for access to great tracts of moorland which have never been charged for before because the cost of fencing would be more than the return from the admission charge. But there are many other cases of land or water where they could charge for access but where water authorities have not done so because they have been in the public sector and have had some sense of public service. That sense of public service will no longer be present because the companies will not be in the public sector and the temptation to introduce totally new charges for access to land for recreational and amenity purposes will be not only great but consistent with the objective set out in their own articles of association.

I firmly believe that the Minister ought certainly to think again about Amendment No. 74 even if he is not willing to reconsider Amendment No. 73A. I gladly give way to the noble Lord.

Lord Trafford

My Lords, I am most obliged to the noble Lord. I think he did not quite answer the point that I for one have raised in pointing out that there is a grey area around these matters. Off the top of my head I can give one example. Let us suppose that there is a rather low-grade car park in a field for which no charge is made. It is sited alongside a reservoir where swimming, or whatever, is allowed to develop. If that car park is upgraded and a facility is put alongside, it may be difficult to say whether a charge should be made. It is indeed the same car park that it was previously but now the area has been covered with tarmac and is no longer a field.

One moves into a grey area in deciding whether or not a charge should be made even with the amendment to which the noble Lord has just spoken. This is the kind of problem which gives me some concern about such a provision.

Lord McIntosh of Haringey

My Lords, I am certainly not influenced by that example. If money is spent to improve a facility, one is in effect providing a new facility which did not exist, and the amendment would not cover that provision. I cannot believe that there is any difficulty. If we are going into textual analysis at such a level we shall find ourselves spending 40 days rather than four days on Report.

I firmly believe that the Minister ought to come up with something better than he has done so far. After all, at Committee stage the noble Earl, Lord Caithness, said that he would go away and brood upon this issue. I am not quite sure what he meant by "brood" but he must have meant that he saw something there which deserved further consideration. Before I finally make up my mind on this amendment, perhaps I may just ask whether there is any possible response which could lead to an agreed solution rather than to confrontation on this matter.

Lord Hesketh

My Lords, with the leave of the House, I should like to extend the point made by my noble friend Lord Trafford and give an example of more expense which lies in the grey area which I know that the noble Lord, Lord McIntosh, is convinced does not exist. Suppose that a water ski ramp, which cost a considerable sum of money, was erected. It was used by a very small number of people, but the usage increased and it now has to be replaced. At the time that it was built, say 15 years ago, there were very few people using the lake on which it was used but now there is a far greater level of demand. Is it unreasonable that a very small group of individuals should particularly benefit under the proposals made by the noble Lord, Lord McIntosh? I accept the point that he has put to me. I feel that something would be gained if he would understand the point that not only I but also my noble friend Lord Trafford have made that the position is not quite so clear cut as he seems to think.

Lord McIntosh of Haringey

My Lords, I think that the Minister could go an inch or two further than that. First of all, his example does not affect the case at all. A new water ski ramp is a new facility and could be charged for. But if the Minister is saying that the wording of the amendment is defective but that its purpose—namely, to avoid new charges for existing facilities without change—does command further consideration, then I shall very happily withdraw the amendment.

However, I did not hear him say that. In criticising the wording he appeared to be criticising the purpose of the amendment. Is he in fact saying that it is the wording of the amendment which is causing him concern?

Lord Hesketh

My Lords, the Government's position is this. The situation is not so black and white as the noble Lord, Lord McIntosh, feels in justifying his amendment. That is why we are resisting it.

Lord McIntosh of Haringey

My Lords, I am disappointed. I thought that it was not a matter for confrontation. I should have thought that we could find a way to achieve what so many of us want. I believe that the wording is sound and that the argument about the grey area has no validity. I am confirmed in that view by the fact that the Minister has failed to criticise the wording. He has simply criticised the objective, which I feel as strongly as ever is important. I shall therefore seek the opinion of the House on the amendment.

9.46 p.m.

On Question, Whether the said amendment (No. 73A) shall be agreed to?

Their Lordships divided: Contents, 12; Not-Contents, 25.

DIVISION NO. 3
CONTENTS
Addington, L. [Teller.]	Hampton, L.
Airedale, L.	McIntosh of Haringey, L.
Birk, B.	Pitt of Hampstead, L.
Cocks of Hartcliffe, L.	Renton, L.
Dean of Beswick, L.	Ross of Newport, L.
Graham of Edmonton, L. [Teller.]	White, B.

NOT-CONTENTS
Ailesbury, M.	Hesketh, L.
Arran, E.	Hooper, B.
Balfour, E.	Knutsford, V.
Belstead, L.	Norrie, L.
Blatch, B.	Portsmouth, E.
Brougham and Vaux, L.	Rochdale, V.
Carnock, L.	Sanderson of Bowden, L.
Craigmyle, L.	Skelmersdale, L.
Davidson, V. [Teller.]	Trafford, L.
Faithfull, B.	Trefgarne, L.
Fraser of Carmyllie, L.	Trumpington, B.
Gardner of Parkes, B.	Wynford, L.
Henley, L. [Teller.]

Resolved in the negative, and amendment disagreed to accordingly.

9.54 p.m.

[Amendment No. 74 not moved.]

Lord Hesketh moved Amendment No. 75: Page 9, line 5, at end insert ("; and references in this section to a water undertaker or sewerage undertaker or to the functions of such an undertaker shall be construed as if those functions included the management, by the company holding an appointment as such an undertaker, of any land for the time being held by that company for any purpose whatever (whether connected with the carrying out of the functions of a water undertaker or sewerage undertaker or not).").

On Question, amendment agreed to.

[Amendment No. 76 not moved.]

Lord Ross of Newport moved Amendment No. 77: After Clause 8, insert the following new clause: ("Rights of access and recreation. .—(1) The public shall be entitled at all times to enjoy free of charge a right of access and recreation on any land held by the Authority or a water undertaker or a sewerage undertaker that does not form part of their operational land or is within the curtilage of a dwelling house, subject to any byelaws that may be made to regulate the exercise of that right. (2) Nothing in subsection (1) above shall prevent the Authority or a water undertaker or sewerage undertaker from making a reasonable charge for the use of landing stages, jetties or car parking facilities that they have provided or for the maintenance of which they are responsible.

1. (3) For the purposes of this section—
2. (a) 'operational land' shall have the same meaning as that provided in section 222 of the Town and Country Planning Act 1971;
3. (b) where land or an interest in land subject to the rights conferred by this section is transferred to another person that person shall be treated as the Authority or a water undertaker or sewerage undertaker.").

The noble Lord said: My Lords, I return to the subject upon which the House has just voted: namely, the question of public rights of access. We do not apologise to the Minister for the fact that this is the same new clause we tabled in Committee. We had a slight barney with him about the reply given on that occasion regarding the definition of "operational land".

I believe that Clause 8(6) invites future plcs to make charges and I ask the Minister to reconsider whether the subsection should stay in the Bill. The amendment is an attempt to ensure that free right of access across moorland and so forth remains and is written into the Bill because it comes within the definition of "operational land".

In Committee the Minister gave a truncated reply in which he quoted the definition of "operational land" that appears in Section 222 of the Town and Country Planning Act 1971. However, he gave only half of the definition and that is why we have raised the matter again tonight. On 8th May, the Minister said: The definition includes within operational land not only land being used for carrying on the undertaking but also land in which an interest is held for that purpose".—[Official Report, 8/5/89; col. 495.]

The Minister went on to justify that as meaning that catchment lands would be excluded from the scope of the provision. Catchment lands are the moorland and heathlands around the area set aside for catching the water. However, he gave the Committee only half the definition contained in Section 222. The section continues—I shall say this as carefully as I can—that such land must not be land, which, in respect of its nature and situation, is comparable rather with land in general than with land which is used, or in which interests are held, for the purpose of the carrying on of the statutory undertakings".

That is a bit of a mouthful. I have read it hundreds of times. I am told that it has been interpreted by the courts. They have said that whether land is comparable with land in general or land on which an undertaking is carried out is a question of fact but that catchment lands are far more likely to be considered to be comparable with land in general, such as rough pasture, woodland, etc., than land used for the purpose of carrying on the undertaking of sewage treatment plants, pumping stations, etc. That is the argument.

I return to the argument which has taken place over the past few minutes. We are trying to find a way in which we can ensure that access to open land now available to the general public is not suddenly fenced and charged for. Everyone accepts that recreational facilities, the provision of jetties, water skiing and so forth should be charged for. However, many ramblers and others are concerned that a water plc owning land running along a major footpath will suddenly put up fences and start to charge because of the cost of maintaining a footpath. It would be a backward step if that were to happen. I live along Offa's Dyke which is widely used and we know that other footpaths are being over-used and that damage is being caused.

In Committee we tried to say that the situation could be covered under the definition of "operational land". We believe that the answer which the Minister gave on that occasion was truncated and not correct and we ask him to think again. I beg to move.

Lord Renton

My Lords, I do not see how my noble friend can accept the amendment. Its purposes are fairly laudable but it would cause a tremendous breach of the law of trespass of England and Wales. It is sweeping. It goes much too far. Even the Ramblers' Association, with its desire to have a great deal of access to land for the purpose of following footpaths and so on, does not say that the law of trespass should be completely ignored where there is no right of way at all. Quite frankly, I do not believe that this is acceptable.

10 p.m.

The Earl of Balfour

My Lords, I totally disapprove of this amendment because on my reading of it it would place a farmer who is renting land in an almost impossible position. I must draw your Lordships' attention to the third last line, which slates: transferred to another person". So far as I can see in reading this wording very carefully, that would allow people to have a football match in the middle of a wheatfield if they felt like it. I could not disagree more with this amendment.

Lord Hesketh

My Lords, we have already today considered public access to water industry land and the House may feel that there is little more now that needs to be said. However, my noble friends Lord Renton and Lord Balfour pointed out that there is quite a lot more which can be said on this amendment. For my part, I will not rehearse arguments which we have already extensively pursued but will concentrate on only one critical feature to which, in relation to this amendment, we have already referred.

This amendment would provide for the public access, free of charge, to all the undertaker's land which is neither operational nor a house or garden. The essential feature is the qualification that the rights are to apply only in respect of non-operational land, as defined by Section 222 of the Town and Country Planning Act 1971. I must reiterate to the House that in our view the use of that definition has the effect of narrowing the scope of the right provided by this amendment so greatly as to render it of almost no effect.

The definition includes within operational land not only land being used for carrying on the undertaking but also land in which an interest is held for that purpose. The effect of this is that probably all the catchment lands, the most relevant land from the point of view of public access, would fall outside the scope of the provision. Indeed, it is arguable that the right would apply no more widely than to the small amount of surplus land on the Land Register.

No doubt that is not what the proposers intended, but it is the reality. That precisely illustrates one of the reasons why the Government prefer to rely on flexible and discretionary arrangements, backed by general duties, than to draw tight legal boundaries in circumstances where this is fraught with difficulty.

However, further to that, my noble friend Lord Renton pointed out very clearly that this goes to the heart of the law of trespass and that is a matter which cannot be discounted lightly. My noble friend Lord Balfour gave the illuminating example of a game of football being played in the middle of a field of standing wheat. We cannot accept this amendment and I hope that the noble Lord, Lord Ross of Newport, will feel fit to withdraw it.

Lord Ross of Newport

My Lords, I am certainly not suggesting that we start playing football in a field of wheat. I used to farm myself and I should not have been very happy with that situation. I did not read that into this amendment, but other people have done so. The noble Lord, Lord Renton, shot me down on this amendment but he supported my last amendment. I noted that with pleasure and delight. I think that there is something which the Government should consider. Although I accept immediately that my amendment is defective, there is something to be looked at again and something should be done before we complete Third Reading. I hope the Government will do that. There have been pleas from both sides of the House on that point. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 [Environmental duties with respect to sites of special interest]:

Lord McIntosh of Haringey moved Amendment No. 78: Page 9, line 32, after ("body") insert ("or to the National Park Authority or Broads Authority").

The noble Lord said: My Lords, I should like to speak also to Amendment No. 79. We are now on Clause 9, which deals with environmental duties with regard to sites of special interest. These amendments are concerned particularly with the issue of damage to sites of special interest. Noble Lords will be aware that many of these sites, and many of the sites in the ownership of the water authorities, are extremely vulnerable to damage. Some of it may be perfectly well-meaning damage arising because too many people want to have access to the sites, and some of it may be less well-meaning damage by the owners of the sites who put in inappropriate development, cause damage by neglect or in various ways damage the special interest of the sites.

In Committee the Government moved an amendment to produce a notification procedure by the national park authority or the Broads authority for sites of special beauty. The amendment stated that the undertaker would be required to consult them before undertaking works. We welcomed that amendment. It was an improvement. However, it is still defective in one particular respect. The undertaker—that is, the owner of the site—has the decision on what work is damaging, and that decision is final. Therefore, we propose in these amendments that the national park authority or the Broads authority should have the right to trigger the consultation by saying that the works proposed or carried out are damaging. In order that we do not produce deadlock by these amendments, if there is no agreement about what is damaging then the matter can be referred to the Secretary of State for adjudication.

As I have said, these are sites where the habitats of flora and fauna may be at risk; archaeological remains may be at risk, and some of the damage may be caused, even if unwittingly, by the undertakers. It is only right that, if that damage is identified by the national park authority or the Broads authority and there is no agreement, there should be a mechanism whereby the consultation procedure and the correction procedure is put in hand and it should not be dependent simply on the undertakers. I hope that the Government feel that this continues the worthy line of thought that they had in their Amendment No. 130 in Committee, that it complements that amendment, that it makes the amendment more effective and that it will be acceptable to them and to the House. I beg to move.

Lord Hesketh

My Lords, Clause 9 as presently drafted requires "relevant bodies"—that is the National Rivers Authority, water and sewerage undertakers, and internal drainage boards—to consult the Nature Conservancy Council, or the national park or Broads authorities, before doing anything which the relevant bodies think might cause damage to sites notified to them by the council or the authorities as being of environmental importance.

Amendment No. 78 would require the relevant bodies to consult the authorities before doing anything which they consider might cause damage to environmentally sensitive sites. The effect of this amendment would be to require the relevant bodies to inform the park and Broads authorities before doing anything at all in, or near, a sensitive site, so that the authorities could then decide for themselves whether they should be consulted. Clearly this amendment could result in the authorities being deluged with information about the activities of the relevant bodies; and equally clearly much of this information would probably be of no interest to the authorities.

However, this amendment should be rejected not only because it would result in the time and resources of the relevant bodies and the authorities being wasted, but also because experience has shown that the provisions in Clause 9 as drafted will work effectively and efficiently. Under Section 22 of the Water Act 1973 the water authorities only have to consult the Nature Conservancy Council about works and operations which the water authorities consider might damage environmentally important sites. This system has proved successful in practice. I may perhaps remind the House here that the 1973 Act has nothing in it about consulting the park and Broads authorities. This is of course something provided for the first time by this clause.

Amendment No. 79 is designed to allow the park and Broads authorities to request the Secretary of State to prohibit the relevant bodies from doing things which the authorities feel might damage environmentally sensitive areas and sites. Clearly this amendment, if accepted, would need to be supplemented by other amendments specifying time-limits within which the authorities must refer matters to the Secretary of State and within which he must reach a decision etc. But there is no reason to accept this amendment.

In carrying out their functions relevant bodies are governed by the conservation duty in Clause 8. They therefore cannot ride roughshod over conservation interests. They will be fettered by their conservation duty in exactly the same way as the water authorities are fettered by their conservation duty under the 1973 Act, and just as there has never been any need for something along the lines of this amendment to regulate the water authorities, so too there is no need for it in respect of the relevant bodies. That is why we resist these amendments.

Lord McIntosh of Haringey

My Lords, I find it curious that the Minister should be so confident of his arguments in support that he feels it possible to give such an uncompromising response. I did not move the amendment in that way but in the spirit of the Government's own amendment at Committee stage. If the Minister had been right and the conservation duties under Clause 8 had been of sufficient power to make these provisions in Clause 9 unnecessary, Amendment No. 130 itself would have been unnecessary. The fact that the Government brought forward the amendment and provided for this notification procedure is clear evidence that they recognise that the procedure is not sufficient. They have provided for a notification procedure which is an improvement on the previous provisions of the Bill.

It is irrational for the Government to provide this notification procedure and then to deny the power to the national park authority or Broads authority, which are, after all, the bodies most expert in assessing the potential damage to sites of special interest, and to leave the ultimate decision to the undertaker. I accept that if Amendment No. 79 is carried there may well be further amendments requiring time limits and for the Secretary of State to give his decision in one way or another. On that basis and that basis alone, I shall not press this amendment.

I feel that the Minister, on reflection and having read the debate, may feel that the amendment moved at Report stage was inadequate and that the matter deserves further consideration. Perhaps he may also reflect and consider that the point made is not a trivial one. I am certainly not impressed with the argument that either the authorities or the Secretary of State are likely to be deluged with unnecessary and time-wasting complaints. Nothing in these amendments would require the national park authority or Broads authority to pursue complaints that they did not feel were worth while. The amendments provide that the experts—namely, the national park authority and the Broads authority—should have the power to trigger the notification procedure. For the life of me I cannot see why the Government are being so obstinate in this matter. Because of the technical defects in the amendment, but only for that reason, I beg leave to withdraw it.

Amendment, by leave, withdrawn.

[Amendments Nos. 78A and 79 not moved.]

Lord Addington moved Amendment No. 80: Page 9, line 38, at end insert— ("(3A) Where the Nature Conservancy Council objects to any works, operations or activities of which they are notified pursuant to subsection (3) above, the relevant body shall be deemed to be the owner or occupier of the land for the purposes of section 28(5) of the Wildlife and Countryside Act 1981 and paragraph (a) of subsection (8) of that section (exemption for operations authorised by planning permission) shall not apply in such a case.").

The noble Lord said: My Lords, the reason for this amendment is to take out exemption for works authorised by planning permission. Many operations by undertakers or other bodies will be authorised by the general development order, given the potential damage caused by these works to SSSIs.

The amendment seeks to ensure that SSSIs are not damaged by planning permission work. Some damage is caused by works carried out by water authorities. If the Government are really committed to the green approach they will approve the amendment. The original amendment moved in Committee was objected to on the grounds that it did not fit into the Wildlife and Countryside Act 1981. This amendment is recast to take account of that system. It would ensure that works by the relevant bodies in an SSSI would have to follow the same approval system as that of any owner or occupier of the land. I beg to move.

10.15 p.m.

Lord Renton

My Lords, this is an extraordinarily unusual amendment. It would introduce a legal fiction that the relevant bodies—the water or sewerage undertakers—shall be deemed to be the owner or the occupier of land simply by the Nature Conservancy Council lodging an objection to works of which it has been notified, whether or not the land was owned by the water or sewerage undertaker. We should be very careful at all times about legal fictions. They are not good things. They can have misleading results and interfere unfairly with people's rights. I hope that my noble friends on the Front Bench will resist the amendment.

Lord Hesketh

My Lords, the effect of the amendment would be that if the Nature Conservancy Council objected to an operation which a relevant body—the NRA, an undertaker or a drainage board—planned to carry out and if the reason for the council's objection was that the operation would harm a site of special scientific interest, the relevant body, if it carried out that operation, would be guilty of an offence under Section 28 of the Wildlife and Countryside Act 1981 unless it had given the council four months' notice of its intention to go ahead with the operation and the notice had expired, or unless some other condition had been fulfilled; for example, the council had given its written consent to the operation or the operation had been executed immediately because of an emergency.

This amendment would lay a relevant body open to a £1,000 fine if it failed to give the NCC four months' notice before carrying out operations to which the council had objected because of their effect on an SSSI. If the relevant body owned or occupied the site concerned this amendment would do nothing at all because the offence provision in Section 48 of the Wildlife and Countryside Act automatically applies to all owners and occupiers.

The requirement contained in this clause to consult the council is modelled on that in Section 22 of the Water Act 1973, and just as Section 22 is not supplemented by any offence provision so too there is no need for an offence provision here. This is because the relevant bodies will, like the water authorities, have a statutory duty to further conservation. This duty will ensure that their consultations with the council are not meaningless. If the council objects to an operation, and the relevant body concerned goes ahead regardless, the body may well be in breach of its conservation duty. If that happens the Secretary of State will be entitled to take action against the body and his powers go far beyond the threat of a £1,000 fine and extend to the full enforcement powers of the Bill.

I am grateful for the intervention of my noble friend Lord Renton, who is unhappy about authorities being deemed on someone else's property. For the reasons I have given and for the reason given by my noble friend Lord Renton I hope that the noble Lord, Lord Addington, will consider it possible to withdraw his amendment.

Lord Addington

My Lords, having listened to what the Minister and the noble Lord, Lord Renton, have said, I have come to the conclusion that the amendment is not as effective as it should have been and I am therefore prepared to withdraw it. However, the issue behind it of giving greater protection to SSSIs is one that the Government should consider very seriously. I hope that all the good intentions will be carried through. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 [Codes of practice with respect to environmental and recreational duties]:

Lord McIntosh of Haringey moved Amendment No. 81: Page 10, line 4, leave out from beginning to ("approve") in line 5 and insert ("The relevant Minister may by order").

The noble Lord said: My Lords, in moving this amendment I should like to speak also to Amendments Nos. 82, 83, 85, 87, 88, 91 and 93. However, I must say that the issue is nothing like as complex or laborious as it may seem from the number of amendments concerned. This amendment has been tabled following exchanges in Committee on Amendment No. 136 when noble Lords on all sides of the Chamber expressed support for the idea that codes of practice, which are the subject of Clause 10 with which we are now concerned, should apply to the National Rivers Authority as well as to the undertakers.

The idea received support in Committee from the noble Viscount, Lord Caldecote, and also—I hope I have the correct column number for him—from the noble Lord, Lord Renton, at col. 525 on 8th May. I am sorry to keep on forcing the noble Lord to refer to his copy of Hansard, but quite often he says helpful things and I cannot resist using them when he does so.

The amendments all have the same effect. They would all make the code of practice with respect to environmental and recreational duties apply to the National Rivers Authority as well as to the undertakers. It is a simple issue. It is not one on which I believe there ought to be a great deal of political controversy. I think that the Government in the many moves which they have made as regards Part I of the Bill have indicated their sympathy with the extension of codes of practice. I hope therefore that they will feel that this extension is not one with which they could quarrel and that they may therefore be able to support the amendments. I beg to move.

The Earl of Arran

My Lords, we accept the logic of the noble Lord's amendment. The functions of the bodies are closely related and many of the practices relevant to one body will be relevant to the others.

In Committee we took the view, however, that amendment was not necessary because the code could be applied to the NRA by directions. We now consider this to be a less satisfactory approach than bringing the NRA within Clause 10 in the way the noble Lord proposes. In the circumstances, therefore, we are ready to give his proposal our full support.

Lord McIntosh of Haringey

My Lords, I am most grateful to the noble Earl. I am, however, a little startled to find my wording and my intentions approved. Perhaps I may ask him before I finally proceed on the matter whether he will support the other amendments to which I spoke.

The Earl of Arran

The answer is yes.

Lord McIntosh of Haringey

I am most grateful. On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendment No. 82: Page 10, line 5, leave out ("Secretary of State") and insert ("relevant Minister").

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendment No. 83: Page 10, line 7, after ("guidance") insert ("to the Authority or").

On Question, amendment agreed to.

Lord Norrie moved Amendment No. 84: Page 10, line 7, leave out ("water undertakers and sewerage undertakers") and insert ("the relevant bodies").

The noble Lord said: My Lords, the purpose of Amendments Nos. 84 and 86 is to clarify the scope of the code or codes of practice. While the Secretary of State has power under Clause 145 to give directions to the NRA, including codes of practice, it is odd that this provision is not mentioned in the clause specifically dealing with codes of practice.

Clause 10 clearly lays down the powers to provide codes of practice for the private water companies. It would also help if the NRA was included in that provision since the Government have repeatedly stated that it is their intention to provide a code of practice for the NRA.

The amendments are purely for clarification and emphasise a point upon which there was considerable agreement on all sides of the Committee. I understand the Government's reasons for saying that the powers already exist, but a clause that deals specifically with codes of practice should mention relevant bodies and not just water and sewerage undertakers; otherwise it is misleading as to whether the codes of practice are intended for all the relevant bodies. While there may be such an intention, it is important that in a long and complex Bill the detail is clearly identifiable. That is what the amendments seek to achieve. I beg to move.

Lord Renton

My Lords, I wish to support the amendment moved by my noble friend Lord Norrie. This is a Bill in which there is a great deal of overlapping between different parts. If we are going to overlap, it is best that we overlap consistently. My noble friend's amendments would enable that to happen.

The Earl of Arran

My Lords, in response to the previous amendment I made it clear that the Government fully accepted the arguments for extending the scope of the code to the NRA. This further amendment would seek to extend it a little further to cover all relevant bodies; that is, taking in the internal drainage boards.

I am bound to accept that the argument that we have accepted in the case of the NRA—that the code should apply in a simple direct manner subject to the duties—has weight here also. We can see some merit in the amendment on that basis, but we regret that we are unable to accept the amendment for one fundamental reason. IDBs are self-governing statutory bodies, but the nature of Clause 10 and the relevance of the code of practice relies upon the existence of powers of regulation by relevant Ministers over the bodies in question. Those are available in the case of the companies and the NRA, but they are not similarly available in the case of IDBs.

We cannot therefore accommodate the amendment within Clause 10, but, having said that, IDBs are subject to the Clause 8 duties and must perform them. They also support and voluntarily apply the current conservation guidelines for drainage authorities which are substantially embodied in the drainage section of the code. In those circumstances, nothing is in practice lost by not bringing them directly within the terms of Clause 10—a course which, for the reasons that I have explained, we do not believe is open. In the circumstances, I hope that the proposers will not feel it necessary to press the amendment.

Lord Norrie

My Lords, I thank my noble friend for his reply. He has said a great deal which needs to be digested. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 85: Page 10, line 10, after ("by") insert ("the Authority or").

On Question, amendment agreed to.

[Amendment No. 86 not moved.]

Baroness Birk moved Amendment No. 86A: Page 10, line 13, at end insert— ("( ) The relevant bodies shall—

1. (a) draw up and publish policies and procedures for fulfilling their duties under sections 8 and 9 above and for implementing any Code of Practice as for the time being approved under sections 8, 9 and 10 of this Act.
2. (b) publish a description of the measures taken during the previous year to fulfil their duties under sections 8, 9 and 10 of this Act.

( ) It shall be the duty of the Secretary of State to review the performance of the relevant bodies in fulfilling their duties under sections 8, 9 and 10 of this Act at intervals not greater than five years.").

The noble Baroness said: My Lords, the object of the amendment is to ensure that all relevant bodies are publicly accountable when fulfilling their duties under Clause 8, and to help ensure that those duties are enforced. We have considered the points which were raised in Committee in relation to the amendment that we then moved and the points made in reply by the noble Lord, Lord Hesketh. Its wording has therefore been altered. The noble Lord acknowledged that that was an important consideration (Official Report, 8th May 1989, cols. 528 and 529) and that it was important that the body should report publicly on its performance. However, in his view there were two objections to the amendment. The first was that, While it may be appropriate to require reporting on performance of the duties, it is not similarly appropriate in relation to the practices recommended in the code".

I think that this objection rather misunderstood the amendment. It requires publication of policies and procedures in relation to the code, but not reporting of performance in relation to it. As the noble Lord, Lord Hesketh, said, the code is wide ranging; hence it is desirable that the bodies explain how they are to implement it. The reporting of performance is, as it was in the original amendment, entirely related to the primary duties set out in Clause 8.

The second objection was that it was inappropriate to require a special annual report concerning performance of these duties when any number of other such reports might be equally desirable on other subjects. We accept much of what was said in this regard and have therefore reworded the amendment to require the bodies to describe their performance in an annual publication. This, we believe, gives the flexibility of choice in the vehicle of publication which the Minister wanted, while still requiring a public statement.

I believe that the amendment overcomes the Government's objections to the earlier one. The Government have sought to incorporate in the code of practice, not in the Bill, an important matter of principle relating to the mechanics of public accountability of the new bodies. This principle should be enshrined in statute and not just in the code.

Policies and procedures for fulfilling environmental duties and implementing the code of practice will therefore be published. The performance of those duties will be published annually so that it can be measured against the published intentions of the bodies. Their performance should be regularly reviewed by the Secretary of State, who is answerable to Parliament for enforcing the duties. By this means, Parliament and the public are assured of a clear mechanism by which the performance of these duties can be scrutinised. I beg to move.

10.30 p.m.

The Earl of Arran

My Lords, as we acknowledged in Committee, this amendment raises an important issue and draws to our attention an important consideration. As we say in the code of practice, it is important that the bodies should report regularly and publicly on their performance in these areas. The question is whether the particular statutory arrangements proposed here are appropriate. We do not believe that they are.

We have, first of all, one specific reservation. While it may be appropriate to require reporting on performance of the duties, it is not similarly appropriate in relation to the practices recommended in the code. The code gives a wide range of detailed advice and guidance and it is inherently difficult to report on performance of advice and guidance because of its essential character. This therefore is one element on which we dissent from the proposal.

More generally, I doubt whether statutory reporting, prescribed in legislation, is appropriate. The duties in Clauses 8 and 9 inform and condition every aspect of the performance of the undertakers' functions, and it is inherently difficult to report on these features independently of any annual report on the performance of the functions themselves. The conclusion to which we are therefore drawn is that a statutory requirement in these terms could prove unduly rigid and inappropriate.

Furthermore, the amendments raise the question why, if there is to be a separate statutory reporting requirement in respect of these duties, there is not one also in respect of all the other statutory duties imposed on the companies in the Bill. But while for these reasons we doubt that the amendment is the right course to follow, we recognise that this is a matter which is at present inadequately covered in the draft code. We are looking again at that, and we shall want to consider whether there are features of this amendment which we could suitably incorporate in the revision of the code.

To that extent, we will be happy to take on board the underlying point of this amendment. But I am bound to say that we believe that guidance in the code is the right mechanism to employ. We believe the bodies concerned should be allowed flexibility as to the form, scope and timing of any reporting. So we recognise the importance of the points which the noble Baroness, Lady Birk, makes, and we will endeavour so far as is reasonably practicable, through the code, to meet them. But for the reasons I have given, we do not believe that adopting the amendment as it stands would be the right way to proceed.

I hope therefore that, in view of what I have said, the noble Baroness will accept that her concerns are already suitably covered and that she will agree to withdraw this amendment.

Baroness Birk

My Lords, I thank the Minister for that reply. However, I am a little perplexed because when his noble friend replied to a somewhat similar amendment in Committee—I explained how it differed from this amendment, and how I felt this amendment was better—the words used on that occasion were exactly the same as those used today. The words used were: To that extent we will be happy to take on board the underlying point of this amendment. But I am bound to say that we believe that guidance in the code is the right mechanism to employ. We believe the bodies concerned should be allowed greater flexibility … We recognise that this is a fine balance of judgment, and I hope that on reflection".—[Official Report, 8/5/89; col. 529.] In other words, we do not seem to have moved an inch since the Committee stage. We have not been told that, following the amendment moved in Committee, the Government have now decided that they will incorporate A, B, C or D in the code. We have not been given anything harder on which to deliberate. We are still given words that are paved with good intentions. However, those good intentions seem to be stuck in a rut too, because even the wording is still the same. The Government have not even replied to us in a slightly different way. At least my amendment is a different amendment from the one which my noble friend Lord Graham of Edmonton moved on 8th May. It is becoming rather boring to discuss this if we are always to receive the same answer.

The point is that we want to ensure that adequate monitoring will take place. We believe it should be incorporated, or certainly mentioned, in the statute. We also want to see a substantial provision in the code of practice. At the moment there is nothing at all. I shall be interested to hear the Minister explain how the Government are going to proceed next; or is the record going to go on and on and round and round?

The Earl of Arran

My Lords, we may have used the same words. However, that shows that we have not changed our thinking on this. The point is that the code at the present moment is still being re-examined and revised.

Lord Tordoff

My Lords, will the noble Earl beg the leave of the House?

The Earl of Arran

My Lords, I apologise to the noble Lord, Lord Tordoff. I should indeed have sought the leave of the House, and I now do so. I shall just repeat that the code of practice is being re-examined and revised. As I said when responding to the amendment, the worries and concerns that the noble Baroness has expressed are being taken on board.

Baroness Birk

My Lords, the provision has now been taken on board twice, so perhaps at a later stage of the Bill we will hear what is being done about this matter, or hear what the Government propose to put in the code. Once the Bill is passed and becomes law, it will be very difficult to do anything at all about this. We must obtain something more than a vague promise.

The Earl of Arran

My Lords, with the leave of the House, I am not in a position to give the precise date by which the revision of the code will be completed. However, I am in a position to say that the code is currently being re-examined and revised, and many of the points that have been made this evening have been taken on board.

Baroness Birk

My Lords, in that case I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 87: Page 10, line 17, leave out ("shall") and insert ("and the Minister shall each be under a duty to").

The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendment No. 88: Page 10, line 19, leave out ("under the following provisions of this Act in relation to") and insert ("by virtue of this Act in relation to the Authority or").

On Question, amendment agreed to.

Lord Greenway moved Amendment No. 89: Page 10, line 21, at end insert— ("( ) The power of the Secretary of State to make an order under this section shall be exercisable by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament.").

The noble Lord said: My Lords, in Committee I moved an amendment designed to strengthen the important environmental code of practice by making it subject to parliamentary scrutiny by means of the negative resolution procedure. At the time I received support from all sides of the House although some noble Lords, including the noble Lord, Lord Ross of Newport, favoured the affirmative resolution. Reading between the lines, I believe that the noble Earl, Lord Caithness, indicated that that would have been too time-consuming.

The noble Earl said, however, that he would look at the matter again since when he has been good enough to write to me. I now bring forward this new amendment designed to secure the same end, albeit with slightly different wording. I hope that it finds favour with the Government. I beg to move.

The Earl of Arran

My Lords, if it is indeed the feeling of your Lordships that negative resolution would, as the noble Lord, Lord Greenway, suggests, be appropriate it will receive our full support.

Lord Greenway

My Lords, I am most grateful for this concession, which I know will be very much welcomed by the boating interests. I believe that it will help to give the code greater authority, and I commend the amendment to the House.

On Question, amendment agreed to.

Lord Graham of Edmonton moved Amendment No. 90: Page 10, line 21, at end insert— ("(2A) Any code of practice made or approved under this section shall make provision for such procedures relating to consultation between relevant bodies, as referred to in section 8(7) above, and such bodies including conservation and recreation organisations and local authorities as the Secretary of State considers appropriate, and the code shall specify the circumstances in relation to which such procedures are to be undertaken.").

The noble Lord said: My Lords, the purpose of the amendment is to give responsible groups and local authorities an acknowledged statutory right to be consulted on matters which affect the local environment and recreational issues. As the House is aware, the code of practice acknowledges that in the development of a management plan and in the identification of good practice consultation is essential. However, it is less than specific in identifying the organisations with which consultations should take place. Because of the planning role of local authorities and since they need to consider how the lives of local residents will be affected by land use changes, the local authorities should be included in the list of consultees.

I simply remind the Minister that the Government agreed, at col. 491 of Hansard for 8th May, to look at whether the drafting of the code of practice could be amended to reflect a duty to consult on the carrying out of Clause 8 duties by undertakers. This amendment is tabled in order that we can hear from the Minister what has happened since the previous stage. I beg to move.

The Earl of Arran

My Lords, we recognise that consultation is an essential element of the full discharge of the relevant bodies' environmental duties. The draft code already makes this clear and states that regular liaison and consultation should be established. The code already meets the concern of the first part of the amendment. As for the circumstances in which the consultation should take place, this is precisely what the main body of the code establishes.

The code continually makes reference to the undertakers and the NRA consulting with appropriate conservation and recreation bodies in the performance of their various functions and operations which are considered by the code. Clearly, then, this amendment is unnecessary.

However, there is possibly room for strengthening the wording of this aspect of the code and detailing in full the organisations which the relevant bodies should consult. We are at present considering this as we begin to finalise the text following our own consultation with the many conservation and recreation bodies on the text of the draft code. I can offer the noble Lord our assurance that his concerns expressed in this amendment will be fully met in the code. I trust that on that basis he will not wish to press the amendment.

10.45 p.m.

Lord Graham of Edmonton

My Lords, that is the best offer that I shall get tonight. I realise that the hour is late. I am grateful for small mercies and for the Minister's words. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord McIntosh of Haringey moved Amendment No. 91: Page 10, line 23, leave out ("Secretary of State") and insert ("relevant Minister").

On Question, amendment agreed to.

The Earl of Arran moved Amendment No. 92: Page 10, line 26, after ("Council") insert (", the Sports Council for Wales").

The noble Earl said: My Lords, I move this amendment on behalf of my noble friend Lord Caithness. Its purpose is to add the Sports Council for Wales to the list of consultees which the Secretary of State must consult before making an order under Clause 10.

At the Committee stage of the Bill the Sports Council was added to the list of consultees because of its key role in sporting matters. The Sports Council for Wales is an independent corporate body which has powers similar to the powers of the Sports Council but in relation to Wales. One of its functions is to advise government departments on matters relating to its powers. The codes that may be approved under Clause 10 will be relevant to those powers. I beg to move.

On Question, amendment agreed to.

Lord McIntosh of Haringey moved Amendment No. 93: Page 10, line 28, at end insert—

• ("( ) In this section "the relevant Minister" means—

1. (a) in relation to the Authority, the Secretary of State or the Minister; and
2. (b) in relation to a water undertaker or sewerage undertaker, the Secretary of State.").

On Question, amendment agreed to.

Clause 11 [Appointment of Undertakers]:

Lord McIntosh of Haringey moved Amendment No. 93A: Page 10, line 36, after ("may") insert ("in the first instance").

The noble Lord said: My Lords, in moving this amendment, I shall also speak to Amendment No. 93B. With this amendment we move to Part II of the Bill, after nearly two days of Report stage dealing with fewer than 10 pages, although including a certain amount of schedule material.

This, like a number of other amendments that I have proposed this evening, follows discussion at the Committee stage in which the noble Lord, Lord Renton, participated. I am sorry to see that he is no longer with us. I have no doubt that the Government will be sorry to see that. However, at the Committee stage on Amendment No. 148ZA, he was active in pointing out that there was confusion in the drafting of Clause 11(1). I remind the House that it is concerned with the appointment of undertakers.

It was not sufficiently clear from the drafting of Clause 11(1) that the Secretary of State should make the initial appointment and that the director should make subsequent appointments and variations in line with a general authorisation given by the Secretary of State. In other words, what is still defective in Clause 11(1) is the fact that it does not square with the provisions of Clause 11(4). In drafting the two amendments we have taken the words of the noble Lord, Lord Renton, at col. 565 of Hansard. I hope that the Government will feel that this is a helpful drafting amendment and that they will be able to recommend that the House should agree to it. I beg to move.

Lord Hesketh

My Lords, Clause 11 provides for the appointment of undertakers to be made by the Secretary of State, or with his consent, or in accordance with a general authorisation given by the Secretary of State to the director. The intention of these amendments is to set out in subsection (1) that the Secretary of State is to be responsible for making the initial appointments of water and sewerage undertakers and that subsequent appointments must be made by the director.

The wording of the proposed amendment draws closely upon the wording suggested by my noble friend Lord Renton which my noble friend Lord Caithness undertook to take away and draw to the attention of our advisers.

The wording of the clause as it stands has been carefully reconsidered and I can assure your Lordships that it allows the Government to achieve their objective; namely, that the Secretary of State will make the first appointments and will then authorise the director to make subsequent appointments.

I think it may be helpful to your Lordships to mention that the clause distinguishes between power and duty. Subsection (1) provides the power for the Secretary of State to make appointments or to consent to the director making appointments and is subject to the provisions which follow it in that clause. Subsection (4) provides that it is the duty of the Secretary of State to make the initial appointments of the statutory water companies as water undertakers for their areas and of the successor companies as water and sewerage undertakers.

Subsection (4) also makes it the Secretary of State's duty to secure that there are companies holding appointments at all times for all of England and Wales. The amendment would have the effect of precluding the Secretary of State from making further appointments. Our intention is that future appointments will be made by the director because in our view and, if I remember correctly, that of my noble friend Lord Renton we consider that he will be the best qualified person. But it would be inappropriate to confine the Secretary of State's power completely in that way. There will always be a Secretary of State able to make appointments but there may be circumstances when there is no director general.

I hope this explanation will persuade the noble Lord to withdraw his amendment.

Lord McIntosh of Haringey

My Lords, I thank the Minister for that reply. Certainly I should not wish to do anything which created a new conflict between subsections (1) and (4). I shall have to consider carefully the effect of the distinction that he makes (which is not new to us) between the duty on the Secretary of State and the power of the Secretary of State, and think about its effect on the drafting of the amendment. In anticipation of that I think it best that I should ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 93B and 93C not moved.]

Lord McIntosh of Haringey moved Amendment No. 93D: Page 11, line 51, at end insert— ("(5A) Any Code of Practice relating to an undertaker appointed under this section shall be included as a condition in the instrument of appointment of that undertaker, and the inclusion of such a code in any instrument of appointment shall be by Order of the Secretary of State subject to annulment in pursuance of a resolution of either House of Parliament.").

The noble Lord said: With this amendment we are pushing at a door which to some extent was opened by the Government at Committee stage. It will be recalled that we argued that so far as possible all the codes of practice incumbent on the undertakers should be given statutory force, and in response to that the Government agreed that the: disconnections code and the leakages code should be included in the licence awarded to the undertakers.

First of all we should like to take this opportunity of seeking an assurance from the Government not only that the leakages code and the disconnections code will be in the licences but also that as much as possible of the general code and the environmental code will be in them. It would be helpful to have an indication of where the drafting of the licences stands in that respect.

We are also proposing that there should be a parliamentary process whereby the codes are formally included in the instrument of appointment by means of a negative resolution. I am conscious that there may not be many precedents for a procedure of that kind. It is not common for instruments of appointment to be subject to parliamentary procedures, even the negative resolution procedure that we now propose. However, for two reasons I want to push at this door which has been partly opened.

First, can the Minister tell the House how far he anticipates that the Government may continue to be involved in the codes of practice and what opportunity there may be for Parliament to consider whether there should be changes in codes of practice over a period of time? After all, codes of practice and the conditions in which they operate change and it is appropriate that they should be varied. I should not wish to propose anything which made it difficult to change them but I do wish to propose that Parliament should have an opportunity to consider major changes at suitable intervals.

My second question seeks to establish the process by which the change might be undertaken. For example, there might be disagreement between the parties concerned about an amendment to the code. Who is the ultimate court of appeal in this matter? How shall we ensure that, when there are disagreements and when the codes of practice need revising, a Minister accountable to Parliament will be the ultimate arbiter of what the code should contain, as indeed he is when the code is first established?

I do not think that these are revolutionary amendments. They follow a line of thinking that has already been accepted by Government. I hope that these amendments will enable the Government to enlighten us further about their thinking on these matters. I beg to move.

Lord Hesketh

My Lords, the effect of this amendment would be to include in Clause 11—which provides for the making of appointments—a requirement that any relevant code of practice should be incorporated in the conditions of appointment and that such an inclusion should be made by an order subject to negative resolution. Codes of practice would then be enforceable under the Bill.

It would be inappropriate to write into the conditions of appointment the full details of all the various codes of practice relating to undertakers and thereby make each and every breach of any aspect of these codes directly enforceable by the director general. To do so would be to conflict with their nature as codes of practice since these are documents that should offer guidance rather than imposing rigid requirements. If this is the course that the noble Lord wishes to follow, the more appropriate course of action would be to argue for these to be written into primary or secondary legislation. It is in keeping with their status as codes of practice that we have provided in Clause 10 that contraventions of codes of practice on environmental and recreational duties shall not of themselves give rise to any criminal or civil liability which should be taken into account by the Secretary of State in deciding when and how he should exercise his enforcement powers.

In the case of the disconnection code of practice, it is the principles of the procedure to be followed before a domestic customer can be disconnected which are written into the licence adopted by the undertaker, not the complete code itself. It is therefore only for breaches of these principles that the director general can take enforcement action. Unlike the main principles of the disconnection codes, customer leakages codes are not of an appropriate nature to include in the licence. The environmental code will be open to negative resolution procedure under Clause 10 as amended tonight. With these remarks, I hope that the noble Lord will feel able to withdraw his amendment.

Lord McIntosh of Haringey

My Lords, I am disappointed with that reply. I thought that our thinking was close enough to that of the Government to enable us to make some progress on this matter, as we did at Committee stage. However, I shall have to read carefully what the Minister has said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

11 p.m.

Lord McIntosh of Haringey moved Amendment No. 93E: Page 11, line 51, at end insert— ("(5A) A water or sewerage undertaker appointed under this section shall include in any annual report a statement of the extent to which it has fulfilled its duties under section 8 above and shall, before an appointment is made, furnish the Secretary of State with a statement of the extent to which its activities in the previous financial year would have fulfilled the requirements of that section if they had been duties at that time applying to the company.").

The noble Lord said: This is rather similar to the amendment moved by my noble friend Lady Birk some time ago. We want some procedure for monitoring and reporting on the fulfilment of the obligations under Clause 11, as my noble friend did with Clause 8.

If this amendment is agreed to, before an appointment is made, the undertaker will give the Secretary of State a statement of how—because these are ongoing bodies which have been in existence before—its activities would have conformed with Clause 8 in the previous year. It is rather like an application for an independent television franchise. If one is going to put up a plausible case for obtaining an independent television franchise, one has to be able to argue that one's past record is satisfactory. That might mean the past record of the individuals concerned. It might be the past record of the company making the franchise application. In the case of the water undertakings, they will all have been water authorities in the past. They will have had an opportunity to fulfil environmental and recreational duties. We are asking that they should make a statement of how they have done so in terms of Clause 8. That is the best formulation of environmental and recreational obligations that we have available.

If it is not to be done in this way, I must ask the Minister what form of screening on environmental grounds he will apply, and whether he will give any thought to how the undertakings which propose to take up licences should show that they are responsible in environmental and recreational matters. I beg to move.

The Earl of Arran

My Lords, Amendment No. 93E deals with the question of reporting on the fulfilment of the Clause 8 duties. In addition to companies being required to report in their annual report on the performance of their Clause 8 duties, they would also have to report to the Secretary of State on how their activities in the previous year would have complied with the duties before they receive any appointment as an undertaker.

As the noble Lord, Lord McIntosh of Haringey, has said, we have already dealt with the matter of reporting on the fulfilment of the Clause 8 duties in considering an amendment to Clause 10. I shall not repeat it again, so in dealing with this amendment I can be brief.

Clearly, the ability of any prospective undertakers to meet the statutory duties in Clause 8 is one of the matters that the Secretary of State and the director would have to have regard to in making any appointment. It is not necessary or appropriate to require the special reporting mechanism before any such appointment is decided upon. In making appointments, the Secretary of State will be bound by the general duty in Clause 7 which requires him to secure that the franchises of water and sewerage undertakers are properly carried out. In this way, he will have to appoint undertakers who will act in the responsible way that the noble Lord, Lord McIntosh, desires. Therefore, I hope that in the light of what I have said the concerns of the noble Lord are already covered.

Lord McIntosh of Haringey

My Lords, that is not what Clause 7 says. Maybe it should say that, but it does not. What it says is that they have to fulfil their functions properly and to make a reasonable rate of return on capital. It does not say that they should act in the responsible way that the noble Lord, Lord McIntosh, requires. Maybe we will have to put down an amendment to that effect in order to achieve the objective.

I do not think that is a satisfactory answer. It may well be something that we shall have to come back to again, because the initial appointment is clearly critical to the subsequent prospect of the undertakers taking seriously their environmental and recreational duties, and if the initial appointment is defective the subsequent procedures are likely to be defective as well. But in view of the hour, I think it more appropriate that I should beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Graham of Edmonton moved Amendment No. 93F: Page 12, line 7, at end insert— ("(6A) Before terminating the appointment of a company holding an appointment under this Chapter, or varying the area to which it relates, the Secretary of State or the Director shall serve notice of his intention to do so on any local authority acting as a sewerage agent for that company where its duties under that arrangement relate to a different area than that covered by the authority itself.").

The noble Lord said: My Lords, this amendment follows Amendment No. 151A at Committee stage, in which my noble friend asked for notices of termination or variation of appointments of undertakers to be notified to local authorities which were sewerage agents in the area concerned. The Government believed that the amendments were unnecessary, given the requirements in Clause 13 for the Secretary of State or the director to inform local authorities affected by replacement appointments or by variations.

At that stage the noble Lord, Lord Hesketh, undertook at col. 599 of the Official Report to consider the position of a local authority which had an agency in a different area from that covered by its own boundaries. This amendment is drafted with such a requirement in mind, and it would be useful if the Minister could tell us what further consideration has been given to this matter since the last stage. I beg to move.

The Earl of Arran

My Lords, Clause 13 is drafted to ensure that all local authorities are notified as authorities about variations or appointments which affect their areas. We accept that there is a need to ensure that all local authorities are notified, even though they may not be the agents for their particular areas. It is not the purpose of the clause that authorities should be notified by virtue of any responsibility which they may have as sewerage agents.

In practice the obligation to notify local authorities, as authorities, of variations to the sewerage appointment in their areas will normally act as notification to them as sewerage agents. The only occasion on which it would not do so would be if the local authority was acting as an agent outside its area. It is this case which the amendment addresses.

I must point out to your Lordships that it is only on the coming into effect of this Bill that local authorities will be empowered to act as sewerage agents outside their areas. To do so they will have to reach an arrangement with a sewerage undertaker. Surely, notification of matters which might concern them is a natural provision for a prospective agent to wish to see incorporated in a new arrangement. This is a matter which the undertaker and agent should decide between themselves and not a matter which should be imposed by legislation. An additional objection is that the amendment puts a duty on the Secretary of State or director to notify an agent. Are we also to impose a duty on the director to notify all the sewerage undertakers' contractors and suppliers?

We believe that this amendment is undesirable and unnecessary. I hope that the noble Lord will see fit to withdraw it.

Lord Graham of Edmonton

My Lords, I do. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12 [Restrictions on making replacement appointments]:

Lord Hesketh moved Amendment No. 94: Page 13, line 9, at end insert— ("( ) It shall be the duty of the Secretary of State or, as the case may be, of the Director, in making an appointment or variation to which this section applies and, where he makes such an appointment or variation, in determining what provision is to be made with respect to the fixing by the new appointee of—

1. (a) charges in respect of services provided in the course of the carrying out of the functions of a water undertaker or sewerage undertaker; and
2. (b) amounts of any other description which such an undertaker is authorised by or under any enactment to require any person to pay,

to ensure, so far as may be consistent with his duties under Part I of this Act, that the interests of the members and creditors of the existing appointee are not unfairly prejudiced as respects the terms on which the new appointee could accept transfers of property, rights and liabilities from the existing appointee.").

The noble Lord said: My Lords, Amendments Nos. 94, 97, 103 and 106A are government amendments of a technical nature. I beg to move.

On Question, amendment agreed to.

Lord Hesketh moved Amendments Nos. 95 and 96: Page 13, line 17, leave out ("are") and insert ("consist in a building or part of a building which is"). Page 13, line 23, leave out ("are") and insert ("consist in a building or part of a building which is").

The noble Lord said: My Lords, again these are government amendments of a technical nature. I beg to move them en bloc.

On Question, amendments agreed to.

Lord Hesketh moved Amendment No. 97: Page 13, line 33, at end insert—

• (" "new appointee", in relation to an appointment or variation to which this section applies, means the company which by virtue of the appointment or variation becomes the water undertaker or sewerage undertaker for the whole or any part of an existing area;").

On Question, amendment agreed to.

Clause 14 [Conditions of appointment]:

Lord Graham of Edmonton moved Amendment No. 97A: Page 15, line 4, after ("above") insert— ("(c) conditions requiring the payment of compensation by the appointed company to any person affected by a breach to which this paragraph applies of any condition provided for in paragraphs (a) and (b) above, the amount of such compensation and the breaches in relation to which compensation may be payable being determined by or under the conditions.").

The noble Lord said: My Lords, this is an important issue. The amendment returns to the issues raised in Amendments Nos. 158A, 158B and 158D in Committee. Compensation was sought for consumers over breaches of appointment conditions. The House will recall that on that occasion the noble and learned Lord, Lord Brightman, supported the amendments and the noble Lord, Lord Harmar-Nicholls, expressed himself as being dissatisfied with the Minister's reply (col. 612 of the Official Report). There was particular concern about the effect on the "small man" of the failure of water plc services.

In their reply the Government appeared to be arguing that enforcement was more important than compensation. It is not entirely clear why both enforcement and compensation might not be appropriate. That is except for the obvious implications, namely, that enforcement is left in the hands of the Secretary of State while compensation would be a matter of a right for the consumer.

Amendment No. 97A is a lesser variant of the second amendment put forward in Committee. It would require the appointment conditions to reflect the compensation system, the amount of such compensation and the breaches to which it related to be determined under the licence itself. In other words, the amendment sets out the principle without constraining the director or the Secretary of State in negotiating the licence with the companies as to precisely which conditions should be subject to the compensation arrangements.

Since the last stage, the National Consumer Council has drawn my attention to its reactions to the reply then given by the Minister. I should like to indicate to the House some of the things which it has said: Compensation for breaches of these service standards are clearly important to consumers who take time off work to keep appointments, and to provide an incentive to the water plcs to improve their standards of service. It is anomalous that the government does not consider consumers to be equally deserving of compensation when there have been breaches of conditions of the licence or water quality standards, which may have been equally or more inconvenient, worrying or unpleasant than a delay in responding to a complaint".

It goes on to give a very good illustration of that. In its letter it states: The knowledge, for example, that consumers' washing will not be stained with brown water in the future is satisfying, but does not help with the immediate problem of baskets of streaked washing. Alternatively companies who disconnect consumers for non-payment of their bills without a court order will be in breach of the conditions of their appointment and subject to enforcement proceedings under Clause 20. This amendment would allow the Secretary of State to set up a system of compensation for consumers affected by such illegal disconnections".

Those are the words of the National Consumer Council. I am sure that had other Members of your Lordships' House been here, they would have spoken in support of this amendment. I beg to move.

Lord Hesketh

My Lords, the effect of Amendment No. 97A would be to provide under the conditions of appointment for automatic compensation to be paid by the undertakers to any person affected by breaches of the other conditions of appointment. We believe that the automatic entitlement to a payment or credit provided for in the guaranteed standards scheme will help to avoid the frustration customers at present experience because they cannot obtain any compensation for inconvenience caused in the cases covered by the scheme. This is an important new customer safeguard which has been welcomed by the National Consumer Council and other consumer organisations. We believe that it would be quite wrong to expand what has to be an easy to operate "no quibble" scheme to cover the complexity of the conditions of appointment and it is in no way a substitute for the right of civil redress. I hope that this reasoning will persuade the noble Lord to withdraw the amendment.

Lord Graham of Edmonton

My Lords, is the Minister saying that the purport of what I have suggested, which is the automatic right, is already covered in some other way under the guarantee scheme? I am always willing to acknowledge that he and his advisers can see more in the words on paper than we see—and I say that in no cavalier fashion. I am always grateful to have my attention drawn to the fact that what I believe I want is not necessary. Is the Minister telling me that what I want in this amendment is not necessary because it is achieved in some other way by another method?

Lord Hesketh

My Lords, with the leave of the House, I am sure that the noble Lord remembers the interesting exchange which we had on this matter in Committee. The point which I should like to reiterate to him is that the new guaranteed standards scheme is something which does not exist. It is a major step forward. We believe that he asks for a step forward beyond that. We should learn to walk before we can run, if I may put it in that way.

Lord Graham of Edmonton

My Lords, I am all for taking the necessary steps. The fact that I might be trying to take two at once could mean that I come a cropper. I do not believe that that would be an elegant posture in which to conclude today's proceedings at this time of night. Therefore, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Lord Hesketh moved Amendment No. 98: Page 15, line 36, at end insert— ("(3A) Subsection (3B) below applies in relation to the appointment of any company under this Chapter in pursuance of section 1 l(4)(a) above where provision is contained in that appointment by virtue of subsection (2) or (3) above for postponing the determination of, or of any of the terms of, the conditions of the appointment with respect to the fixing by the company of—

1. (a) charges in respect of any services provided by that company in the course of the carrying out of the functions of a water undertaker; or
2. (b) amounts of any other description which such an undertaker is authorised by or under any enactment to require any person to pay,

until a time after the transfer date and before the end of the financial year current on that date. (3B) Where this subsection applies in relation to a company's appointment, the conditions or terms mentioned in subsection (3A) above shall not be determined in accordance with the provision so mentioned unless—

1. (a) notice of the proposed determination has been served on the company;
2. (b) the company has been allowed a period of at least twenty-eight days from the date of service of the notice for making representations or objections with respect to the proposed determination; and
3. (c) the Secretary of State has considered any such representations or objections which have been duly made and are not withdrawn.").

The noble Lord said: My Lords, in moving this amendment I speak also to Amendment No. 99. Clause 14 describes conditions which may be included in a company's conditions of appointment. These two amendments are concerned with the possibility that the conditions of appointment may be incomplete at transfer date. I beg to move.

Lord Brougham and Vaux

My Lords, I shall not detain the House for more than a moment or two but had my noble friend Lord Elliott or Morpeth been able to attend at this late hour he would have wished to comment on the amendment on behalf of the Water Companies Association. Therefore, I have been asked to say a brief word on his behalf.

My noble friend the Minister will be aware of the discussions currently taking place between his department and the Water Companies Association about the progress of setting Ks for the statutory water companies. I shall be grateful if he can confirm that this amendment in no way intends to prejudice those discussions.

Lord Hesketh

My Lords, with the leave of the House I can certainly give my noble friend the assurance that he requires.

On Question, amendment agreed to.

Lord Hesketh moved Amendment No. 99: Page 16, line 14, at end insert— ("( ) Where an instrument of appointment has been served under subsection (3) of section 11 above on any company, the coming into force of the appointment for the purposes specified in subsection (2) of that section shall not be affected by any contravention of the requirements of this Act with respect to the provision contained by way of conditions of appointment in that instrument; and if the Secretary of State considers it appropriate to do so in consequence of any legal proceedings with respect to any such provision, he may by order made by statutory instrument direct that such conditions as may be specified in the order are to be treated as included in the appointment in question until there is an opportunity for the provision to which the proceedings relate to be replaced by virtue of any of the other provisions of this Chapter.").

On Question, amendment agreed to.

The Earl of Arran

My Lords, I beg to move that further consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.

House adjourned at eighteen minutes past eleven o'clock.