Water Bill

HL Deb 13 June 1989 vol 508 cc1345-409

Consideration of amendments on Report resumed.

Lord Norrie moved, as an amendment to Amendment No. 140, Amendment No. 143G: In the proposed new subsection (7), line 6, leave out ("and") and insert ("or").

The noble Lord said: My Lords, Amendment No. 143G is a simple amendment but it raises a particularly important question. What protection will the Bill provide for the conservation and recreational use of water industry land which may be put up for sale and which is not situated within a special area? It is, I believe, a matter of considerable concern that there will be no protection. The special duties in the Bill mean that water undertakers must have regard to conservation and recreational needs on their land. The Government have introduced welcome amendments to ensure that this protection will extend to all land in which they have an interest, whether functional or non-functional.

But what if the plcs decide to sell off the land? That is a different matter altogether. Yes, the Secretary of State must now consent to the sale. That is a very good change to the Bill. However, my great concern is that unless the land in question happens to be situated in a special area such as a national park, an area of outstanding natural beauty or some other such area, none of the provisions of the new clause 150 for management agreements, consultation or the protection of covenants will apply. In particular, the Secretary of State will not even be bound by the general duties to the environment and recreation which are set out in Clause 8. It is this specific omission which my amendment seeks to put right.

I am glad that the Government have moved to give protection to important areas of countryside which the water companies might sell off. However, in doing so, and in deliberately excluding from this protection land which is "down the hill", they have left vast tracts of water industry property starkly exposed. 1 do not believe that it is too ungenerous to the Government to say that that is their intention. The Minister responsible for water made it quite clear when he announced amendments concerning the profit sharing of revenue from disposals of land that the Government believe that, particularly in urban areas, some of the water industry's surplus land has valuable development potential. He said quite categorically that the effect of his amendments was: to give the companies an incentive to make efficient use of land and to encourage disposals".

The Government have wielded a two-edged sword. By giving special protection to countryside of high environmental importance and by extending duties in the Bill to non-functional land they have focused the developer's eye on the water industry's lowland. However, we need to be concerned about this land also. I am not seeking to make a case that it is land which deserves precisely the same special protection as areas of high environmental importance. As a Conservative I do not object to the principle that land surplus to requirements might be disposed of. I suspect that such freedom of manoeuvre on the part of the water companies will be vital to ensure a successful privatisation. However, some of this lowland is important for recreational use. It provides ready and traditional access for the majority of the population who live in towns and cities. My submission is simply that, when the Secretary of State comes to consider whether he should grant his consent to a proposed sale of land such as this, he should at least have regard to its conservation and recreational importance.

The way to do this is to place on him the same duties as are placed on all relevant bodies over land which they own; indeed the same duty which is to be placed on the Secretary of State himself for land of special importance. In a single change of word, my amendment would secure this.

Nothing in my amendment would prevent water authority lowland from being sold off. I have been particularly anxious to table an amendment which is realistic and which preserves water companies' freedom of commercial manoeuvre. But at least the needs of recreation and conservation would be considered before a decision was made to allow the sale. I do not believe this would place an unreasonable burden on the Secretary of State. On the contrary, I think it is unreasonable to permit a loophole in the Bill which places duties on water companies which are simply extinguished, not when land is actually sold, but effectively before the decision to sell is actually made.

We need to listen to the views of recreationalists, who are particularly concerned about this matter. The Central Council of Physical Recreation, which represents 53 nationally recognised governing bodies of sport, believes that popular recreational facilities are in danger. It is one thing to encourage a privately owned water industry to dispose of its assets, but it is quite another for it to dispose of recreational facilities, land of even moderate conservation value and land which is important for local people, with impunity. This is a straightforward, logical amendment which I ask my noble friend to consider. I beg to move.

8.45 p.m.

Baroness David

My Lords, I wish to support this amendment. The Government have, with Amendment No. 75 already agreed to, extended the Clause 8 environmental duties to cover all land, not just functional land. Therefore, the water and sewerage undertakers, the NRA and the Secretary of State will now be bound by their Clause 8 duties on their activities relating to all land.

However, when it comes to the disposal of land, the Clause 8 duties will apply only if that land is located in a national park, an area of outstanding natural beauty or a designated area. It seems particularly odd that proposals for the disposal of land should not come under the same Clause 8 duties in all cases. After all, the Secretary of State has to give his consent for all disposals. Surely the relevant parties should still be bound by their environmental and recreation duties when considering disposals of land. This is a simple amendment. I hope for once that the Government will agree to accept it. I believe they will find that this provision is not already contained within the Bill.

Lord Hesketh

My Lords, the essence of the amendment of my noble friend Lord Norrie requires that the Clause 8 duties, or more importantly the duty to further conservation of flora, fauna and natural beauty, shall apply to the Secretary of State's consideration of all disposals and not simply those that concern land within national parks, areas of outstanding natural beauty and other designated areas. We have some sympathy with the noble Lord's concerns. However, I must tell him that I think his amendment goes too far.

The Clause 8 duties are onerous ones, particularly the duty to further conservation. We believe that that is a proper duty to maintain on the undertakers in performing their duties and managing their land. But the question is whether that should carry through in all circumstances to the terms of each and every sale. The Government's position is simple. In the national parks, areas of outstanding natural beauty and areas which are designated specifically for the protection and furtherance of conservation the duty is appropriate. It is consistent with overall planning policies and the purposes of those designations.

What is the position elsewhere? In redundant sewage works in urban areas there may be an urgent need to develop that land for housing, employment or other important social needs. The existence of SSSI designations will protect flora and fauna. I shall be going into that in further depth when we come to the amendment of the noble Baroness, Lady Nicol, which immediately follows this amendment. But, over and above that, to have a duty to further conservation applying would, we believe, go too far and could prejudice the decision which may need to be taken about the future use and development of the land.

We believe that it is a matter of balance. We believe that the main issues for conservation and amenity in the water industry estate will arise in the countryside catchment lands. Application of the duty is reasonable there. Elsewhere we believe that it is less appropriate and could, as I say, inhibit proper consideration of all those other factors—housing, employment and urban renewal—which must be weighed in the balance.

I remind your Lordships' House that the Secretary of State can, by order, designate areas which do not fall into the areas which I outlined when I moved Amendment No. 140 last week. It is very important to keep that important power in mind. It is for that reason that I hope that my noble friend Lord Norrie will be able to resist the temptation to press his amendment.

Lord Norrie

My Lords, I am very grateful to the Minister for his lengthy reply. In view of what he has said I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Nicol moved, as an amendment to Amendment No. 140, Amendment No. 144. In the proposed new paragraph (9)(a), line 3, after ("1949") insert— ("( ) is for the time being notified as a site of special scientific interest under section 23 of the National Parks and Access to the Countryside Act 1949 or section 28 of the Wildlife and Countryside Act 1981;").

The noble Baroness said: My Lords, this amendment was discussed during the long debate last week on a vast number of amendments. I gave notice then that I wished to bring it back because I particularly wanted to respond to the reply given by the noble Lord, Lord Hesketh, in his summing up of that debate.

The purpose of Amendment No. 144 and its consequential amendments is to include sites of special scientific interest in the designated areas which would be subject to the scrutiny of the Secretary of State or the Minister before disposal under the provisions of the proposed new clause. The noble Lord, Lord Hesketh, in his response to the main debate last Thursday, was concerned that this amendment would create two classes of SSSI—those in water plc land and those outside. But that is precisely what the Government themselves are proposing to do in the case of national parks. There is to be special protection for national park land owned by water plcs and a different level of protection for national park land not owned by water plcs. So the principle of two classes has been established.

The Government admit the importance of sites of special scientific interest but in the case of those outside the Broads, the national parks and areas of outstanding natural beauty they ask us to rely on existing protection under the Wildlife and Countryside Act 1981 and on planning procedures. Last week I gave some examples of how those procedures have failed to protect many valuable sites. I remind the House that in its 1987–88 report the Nature Conservancy Council listed 114 sites of special scientific interest which had suffered damage during that year. Twelve of those sites had been subject to planning controls. The sites which will be at risk as a result of water privatisation include many lowland reservoirs, which are essential habitat to a third of Britain's wintering population of waders, geese, swans and ducks, which travel here from as far away as Scandinavia, Greenland and Siberia.

I mentioned last week the development pressures on Rutland Water which regularly holds up to 7,000 wintering wildfowl. It has been notified as a site of special scientific interest and it requires special protection under the European Community birds directive and the RAMSAR Convention. Yet in 1987 Anglian Water extended the fishing season without even consulting the Nature Conservancy Council. If that can happen when land is owned by a water authority what hope is there that a commercial organisation will be more protective unless so obliged by the kind of control in the Government's new clause?

The Blackwater estuary, also a site of special scientific interest, holds 30,000 wintering birds and meets the criteria for designation under the birds directive and the RAMSAR Convention. Despite those international obligations planning permission has been given to infill part of the estuary with domestic refuse. Clearly the existing protection for sites of special scientific interest is not good enough.

We now have an opportunity to improve protection for those sites affected by the Bill. It is difficult to understand why the Government are so reluctant to act, given their new "green" image. Is it because they perceive a conflict between the needs of conservation and the political aim of a high value flotation? We argue that since our proposed amendment would still leave the Secretary of State or the Minister to exercise discretion the effect on the value of the flotation would be minimal.

I have one small final point. The noble Lord, Lord Hesketh, said last week (at col. 976) that the Government recognised that they had not clarified on the face of Amendment No. 140 the circumstances under which the order-making process might be relevant and that they might return to the matter at Third Reading. Can the Minister tell us whether he has had any further thoughts on the matter? That might be helpful. I beg to move.

Lord Norrie

My Lords, during the earlier debate I supported the noble Baroness, Lady Nicol, in seeking to bring SSSIs within the scope of the Government's new clause. The number of SSSIs damaged each year and the circumstances which allow them to be damaged demonstrate that the existing system of consultation and planning control is inadequate. I welcome the Government's new clause since it provides a safety net to catch sites which are to be disposed of and empowers the Secretary of State to direct that vulnerable wildlife habitats and landscapes should be subject to covenants or management agreements.

Since SSSIs are vulnerable to damage and, indeed, likely to be more vulnerable to damage as a direct result of increased commercialisation of the water industry, it is imperative that they enjoy the benefit of new measures being given to protect water authority land which is located in national parks or areas of outstanding natural beauty.

We heard during the Minister's response to evidence presented from all sides of the House that the Government were anxious not to create two classes of SSSI. We heard also that the Government's new clause would enable the Secretary of State to apply the provisions to certain SSSIs or any other land of exceptional conservation value. Since SSSIs have been designated for their special value it seems sensible to include them formally within the scope of the new clause.

Lord Addington

My Lords, I too spoke to this amendment when it was first brought forward. I reiterate that we should do as much as we can to protect wildlife habitats, particularly those in urban areas. I spoke at some length about reservoirs in the inner London area which provide a considerable natural habitat and are beneficial to many forms of wildlife. They also provide an amenity for the benefit of the residents of the capital. I support the amendment.

Baroness Blatch

My Lords, I welcome the new clause in Amendment No. 140. However, I should like an assurance from my noble friend that the designation power will be used readily for land which is of the same importance as national parks, such as the Broads or other AONBs? Can my noble friend also advise me whether SSSIs such as the Elan Valley and Lake Vyrnwy will be designated?

Lord Hesketh

My Lords, I and my colleagues, in common with the rest of the House, have listened with interest and sympathy, to the arguments of the noble Baroness, Lady Nicol, my noble friend Lord Norrie, the noble Lord, Lord Addington, and my noble friend Lady Blatch for the inclusion in specific terms within the arrangements for Amendment No. 140 of sites of special scientific interest.

The principal reason given for doing so was the implication in a number of speeches that the Government were not giving due consideration to sites of special scientific interest and were generally failing to give appropriate protection to them and to lowland areas in the event of disposal. I should not apply that argument to the point raised by my noble friend Lady Blatch, who took a slightly different tack in the debate.

So far as the Bill as a whole is concerned, that is inaccurate. I have to remind the noble Baroness that we have preserved in this Bill the duty to further conservation and that we have supplemented this with a conservation code, welcomed by the Nature Conservancy Council, which incorporates in its terms the council's advice to us. Finally, in Clause 9 we have strengthened notification procedures to secure proper co-operation by the water and sewerage undertakers and the NRA with the Nature Conservancy Council.

The fact is that those steps demonstrate that, in the Bill, we have had the most careful regard for conservation and SSSIs. There is absolutely no evidence to suggest otherwise. We have the fullest regard for the conservation of flora and fauna, and the Bill shows that.

But let me move on from that general line of argument to the specific arguments of the proposers of the particular amendment.

The underlying argument is, I must tell the House, built upon a misunderstanding. It is the misunderstanding that, because certain sorts of designated areas such as national parks and areas of outstanding natural beauty are treated in a particular way, so should others. But, for the purposes of the Government's proposals, there really is no equivalence between the two cases. SSSIs differ from the national parks and AONBs in three critical ways.

First, SSSIs are generally small, local and specific, where particular needs have been identified and provided for in very specific and precise ways. By contrast, the national parks and AONBs are simply broad planning designations covering very large areas. They cover widely differing circumstances and ownerships. They simply distinguish broad areas of environmental merit.

Secondly, the fact of designation as an SSSI carries with it a specific and detailed protective regime, tailor-made to particular circumstances. That is not the case with national parks and still less with AONBs. Protective arrangements in the form of management agreements can be entered into, but the fact is that they cover relatively little of the relevant areas. That, then, is another reason why their cases should be treated differently.

But there is a third reason. That goes back to the underlying reasons for the Government's proposal as I explained them to the House on Thursday. Our purpose must be fundamentally to protect things done by the water authorities in pursuit of their present environmental duties which could not be protected by planning and countryside legislation in the event of a disposal. That would cover concessionary access arrangements. It might cover landscapes, traditional agriculture or other conservation measures. Those are most likely to be found—and, as a matter of fact, are mainly found—within the confines of the national parks and the AONBs. But the one place where special unprotected features will not be found is in SSSIs, where they have already been identified, designated and, most importantly, are subject to a control regime which carries forward to successor owners. We all want to protect our vulnerable heritage of flora and fauna, but we must not fly in the face of logic and reason in attempting to do so.

It is for those three reasons that I do not believe that the noble Baroness is correct in suggesting that we have already set a precedent in regard to two classes.

Another reason why certain of the key provisions of the clause and the application of the Clause 8 duties are restricted to the relevant sites in national parks and AONBs is that these largely distinguish the "catchment lands". They are a distinctive category of water authority land, and they have been subject to a particular history and management regime in respect of public access, amenity and conservation. That is what the Government's proposals acknowledge. They use national park and AONB designations as a broad sieve: within them the balance of probability is that special protective measures will be appropriate. Elsewhere, the balance of probability goes the other way.

But we recognise that it is only a balance of probability, and that, outside the national parks and AONBs, there will be some special cases. The Secretary of State is therefore given a power by order to designate areas to be treated as though they were within them, if they meet the key test: are there features of the conservation or amenity, provided by or protected by the water authorities, which could be jeopardised by sale to new bodies not subject to the Clause 8 duties? Where necessary, lowland areas can be protected in that way, and in practice they may well include SSSIs.

Finally, there is the requirement to give a particular purchaser an opportunity to acquire the land. That must be at full market value to protect the companies and their duties to their shareholders, but it could in principle cover SSSIs, were the Secretary of State to conclude, for instance, that the pattern of undertakers' disposals was putting SSSIs in some way at risk.

The Government's proposals focus particularly upon the national parks and AONBs. We believe that it is necessary and right, for the reasons that I have given, that there is no reason for other areas—such as lowland SSSIs—to be automatically included. But I tell the House what I told it on Thursday: we have not forgotten the lowland areas and SSSIs. There is machinery to bring them in in particular cases if the need arises. That is why the Secretary of State has a designation power in new Clause 140. It is a power with a purpose, in answer to the question of my noble friend Lady Blatch concerning the Elan Valley and other areas of a similar type.

I am afraid that, for those reasons, we cannot support incorporation of the amendments, as they stand, in our new clause, as that stands.

But let me add that we are prepared to look again at the drafting of the new clause in the light of the debate today. We are prepared to see whether we can make clearer the circumstances in which SSSIs and relevant lowland areas can be subject to the protection in the new clause, and ensure that the reasonable concerns expressed are covered, so far as is appropriate, in the light of the points that I have made tonight.

It is unlikely that we can go all the way that the noble Baroness wishes, for the reasons that I have given, but I am preprared to consider the issues further. I hope, however, that this may be of some assistance to the noble Baroness, Lady Nicol, and that she may not feel it necessary to press the amendments as a result of what I have said. I leave the matter in the hands of the noble Baroness.

Baroness Nicol

My Lords, I am grateful to the Minister for that reply. I should like to reiterate that we appreciate the attempt in the new clause to cover our conservation worries. It has gone a long way, as we said in the earlier debate, and we are happy with it. However, I am still not very happy with the provision for SSSIs. The Minister keeps returning to the planning protection which has patently not worked. I have produced examples to show how it has not worked. But I appreciate the fact that he will look again at a possible clarification of the words that may go some way to meet our worries. I do not therefore propose to press the amendment this evening. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 144A to 146A, as amendments to Amendment No. 140, not moved.]

On Question, Amendment No. 140 agreed to.

Clause 151 [Laying and vesting of pipes etc.]:

[Amendment No. 147 had been withdrawn from the Marshalled List.]

Schedule 19 [Powers with respect to the Laying and Maintenance of Pipes etc.]:

The Earl of Airan moved Amendment No. 147A: Page 275, line 34, at end insert— ("( ) In this Schedule "relevant waterworks" means any waterworks which contain water which is or may be used by a water undertaker for providing a supply of water to any premises; and in this sub-paragraph "waterworks" includes any relevant pipe and any spring, well, adit, borehole, service reservoir or tank.").

The noble Earl said: My Lords, in moving Amendment No. 147A on behalf of my noble friend, I should like to speak also to Amendments Nos. 147B, 147C, 147D, 148A, 149ZA, 164 and 165ZA.

Schedule 19 sets out the powers conferred on the authority and water and sewerage undertaker to lay and repair pipes and carry out associated works. Schedule 25 makes provision for minor and consequential amendments to various enactments affected by the provisions of the Bill.

Section 21 of the Water Act 1945 provides for a person to be guilty of an offence by polluting a groundwater supply, that is, a spring, well, borehole or adit, the water from which is used for human consumption. The purpose of Amendments Nos. 164 and 165ZA is to extend the provisions of this section to cover pollution of the water supply distribution network as well as the groundwater source. This provision, together with the provisions in Clauses 61 to 63, will ensure that water for human consumption is protected from pollution from its source to the point that it reaches the consumer.

Amendments Nos. 147A to 147D, 148A and 149ZA are consequential to the amendments to Section 21 of the Water Act 1945. Their purpose is to provide for a water undertaker to be able to carry out necessary works to ensure that the water in the water supply distribution network is not polluted. These provisions will increase the protection against pollution of our drinking water supplies. I commend them to your Lordships. I beg to move.

Baroness Blatch

My Lords, government Amendment No. 165ZA deals with the issue of local authorities not being allowed to carry out this work on the grounds that the water undertakers' personnel were the ones who were medically screeened for that work. Can my noble friend confirm that I am right in thinking that there may well be a problem with this set of amendments on the same grounds? Perhaps this work should be carried out by the water undertakers and therefore this matter may need to be looked at again? I understand that the Water Authorities Association is talking to the department about this issue. Does my noble friend have an update on that situation?

The Earl of Arran

My Lords, I understand that the local authorities will not have any powers in respect of enforcement. I hope that that answers the question put to me by my noble friend Lady Blatch.

Baroness Blatch

My Lords, with the leave of the House, that was the local authorities and that matter has been dealt with. However, this set of amendments refers to the NRA and sewage undertakers in addition to the water undertakers. I wondered whether that presented the same problem.

The Earl of Arran

My Lords, with the agreement of the House and in particular my noble friend, perhaps we may look at that point again and come back to it later.

On Question, amendment agreed to.

The Earl of Arran moved Amendments Nos. 147B to 147D: Page 276, line 23, after ("street;") insert—

• ("(bb) to carry out in a street all such works as are requisite for securing that the water in any relevant waterworks is not polluted or otherwise contaminated;").

Page 276, line 25, leave out ("or (b)") and insert (", (b) or (bb)"). Page 278, line 4, after ("land;") insert—

• ("(bb) to carry out on any such land all such works as are requisite for securing that the water in any relevant waterworks is not polluted or otherwise contaminated;").

On Question, amendments agreed to.

[Amendment No. 148 had been withdrawn from the Marshalled List.]

The Earl of Arran moved Amendment No. 148A: Page 278, line 6, leave out ("or (b)") and insert (", (b) or (bb)").

On Question, amendment agreed to.

[Amendment No. 149 had been withdrawn from the Marshalled List.]

The Earl of Arran moved Amendment No. 149ZA: Page 278, line 22, leave out from ("description;") to end of line 24 and insert— ("(ii) the power conferred by virtue of sub-paragraph (1)(bb) above; and (iii) each of the powers conferred in relation to the powers mentioned in sub-paragraphs (i) and (ii) above by virtue of sub-paragraph (1)(c) above,").

On Question, amendment agreed to.

The Earl of Radnor moved Amendment No. 149A: Page 278, line 25, leave out from ("only") to ("and") in line 27 and insert— ("(i) in an emergency or when a pipe is laid in order to comply with a requisition under this Act, after reasonable notice has been given to the owner and occupier of the land; (ii) in all other circumstances, only after the consent of the owner and occupier has been given, which consent shall not be unreasonably withheld; any question whether such consent is or is not unreasonably withheld shall be referred to and determined by the Secretary of State;").

The noble Earl said: My Lords, this amendment is concerned with entry of the plcs in order to lay pipes on land whether it be land of large or small expanse. Under Schedule 19 they are required to give reasonable notice of their intentions. In the amendment that requirement has been expanded considerably but with no detriment whatsoever to the Bill, in that it is required that negotiations should take place in advance of such an operation and that permission should not be unreasonably withheld. There should be proper negotiation between the people who will enter and lay the pipeline and those who will, so to speak, receive it.

At the same time, as laid down in the first part of the amendment, any emergency situations such as those referred to in Committee are perfectly adequately dealt with, so that if some matter of public health or whatever arises there will be no particular worry and matters can be expedited. The amendment returns to the kind of situation that existed under the 1945 Act which I understand worked perfectly well. Since 1974, when the situation was altered, there has been a great deal of trouble.

There has been a very wide interpretation of what is reasonable notice. Owners have been asked to allow pipes through at rather short notice. They then find that the plans for those pipes have been laid two years before and that they could have been told much earlier so that they could have discussed them. Pipes have been put through land at harvest time or during lambing, at some inconvenience. Concurrent with that there have been difficulties afterwards in obtaining payment promptly.

It is right that this situation should be altered. Perhaps I may give noble Lords an extreme example about which my noble friend knows. It indicates that it is not just a matter for large landowners. In 1972 Esher Urban District Council wished a pipe to be laid through a certain Mr. Hutton's property, which was a bungalow. The reasonable notice was given on 30th March 1972. On 2nd May the council entered, the pipe was laid, the bungalow was destroyed, and on a complaint the whole performance was upheld by the courts. Such a possibility may seem extreme but it happened. It is to avoid such a situation that this amendment has been brought forward.

Oil companies and others operate under similar rules to those in the amendment. It seems quite wrong that water plcs should be treated in a different way. As I have said with many of my amendments, not only does it seem unfortunate that a great deal of inconvenience, worry and distress have been generated, but it is a pity that ill will may also be generated. I appreciate that there is a procedure under Clause 159 to sort such matters out in retrospect. Again, I do not think that that is desirable. We do not want such action to be in retrospect but in advance and properly within the terms of this amendment. I beg to move.

9.15 p.m.

Lord Monk Bretton

My Lords, I should like to support my noble friend Lord Radnor on this amendment. I very much hope that the Minister will look at it closely and do his best to help.

The report of the Country Landowners' Association states that this power has caused more dissatisfaction and ill will than any of the other statutory powers at present given to the water authorities. There have been complaints about lack of consultation in advance. My noble friend has already mentioned that when plans are being formulated, sometimes two years in advance, there may still be no consultation until the very last moment when it is too late to change anything. I have suffered from lack of supervision of contractors. We had a main put through at our home some years ago. Other issues were lack of enthusiasm to restore land, difficulty and delay in settling compensation afterwards and drainage systems not repaired. I recollect the most appalling problems which dragged on for two or three years after the matter was supposed to have been completed, if only it had been satisfactorily installed, which it was not. A number of mistakes which might so easily have been avoided and could have saved compensation were not discussed in time.

The Minister has promised us a statutory code in future instead of the voluntary one. Ministers have argued that this will be a sufficient safeguard. However, I fear—and I must express this fear very strongly—that it will operate only after everything has gone wrong. I believe that the solution lies in making water and sewerage companies operate, if possible, in the same way as the gas and electricity undertakings—in other words, to enter on to land only with the agreement of the owner and only after terms and conditions have already been negotiated. That would obviate continued and, I believe, unnecessarily frequent reliance upon compulsory powers. The amendment allows for different and more rapid procedures in emergencies.

Before 1974 the situation was different when the 1945 Act was in operation. That is the position we want to return to. I do not believe there was ever much evidence that the pre-1974 system under the 1945 Act did not work perfectly well. All that we have added is that now there is power to enter with consultation in emergencies.

Like my noble friend Lord Radnor, I do not want to see further cases such as Hutton v. Esher Urban District Council to which he referred. I believe that that sums it up. I hope that my noble friend will be able to consider this.

Lord Addington

My Lords, I too should like to support the amendment for the simple reason that a limited right of entry with an emergency provision is a sensible proposal.

Lord Monson

My Lords, I should like to support the amendment strongly. The noble Earl, Lord Radnor, and the noble Lord, Lord Monk Bretton, have already given specific examples of how extremely unsatisfactory the present state of affairs is. How much worse will it be when private profit-making companies are allowed to ride roughshod over farmers and other landowners, both large and small, including, by the law of averages, some perfectly ordinary householders. What makes it even worse is that these are at present immense powers conferred upon non-privatised companies; not quite as great as those conferred upon VAT inspectors, but heading that way. The powers have been in existence for barely 15 years and were not even preceded by an Act of Parliament, with the full scrutiny of both Houses which that would have entailed, but instead the provisions were implemented by means of a statutory instrument.

It is no good the Government saying that these quasi governmental powers are being conferred on private profit-making companies, but that the companies are not really working for profit but almost altruistically for the public good. Even if one could swallow that, I suppose one could say the same thing about the oil companies which supply the petrol with which the public gets to work, the supermarkets which supply the food on which the public lives, and British Gas which supplies the gas by which the food is cooked. If it is argued that privately owned water undertakers are different because in this case public health is involved, one could reply that gas—that volatile and dangerous substance—also involves public health, and that supermarkets involve public health from time to time when one reads about dangerous hazelnut yoghurt.

If it is really true that water and sewage are so special from the public health point of view that these somewhat draconian powers must be granted to the undertakers, the Government in effect are tacitly admitting that public health makes an uneasy bedfellow with private profit, which is what many of us have been saying all along about the whole Bill. I hope the House will support the amendment.

Lord Renton

My Lords, one can but sympathise with the motives which have been supported in various quarters of the House and which have inspired the amendment. However, frankly, I am rather worried. I think that it could create an unreal situation. In the public interest water and sewerage undertakers must have power to lay or relay pipes as necessary in order to maintain the system. In the words which are proposed to be deleted the clause requires reasonable notice. I believe that that covers the actuality of the circumstances which are likely to arise.

There are a couple of minor defects in the wording which could be put right if necessary on Third Reading. However, on balance, having listened to the sympathetic speeches which have been made and having looked again at the exact wording in the schedule, I prefer the schedule as it stands.

The Earl of Cranbrook

My Lords, I should like to echo the words of the noble Lord, Lord Monson. There are circumstances in which a satisfactory water supply and sewerage arrangements are of paramount importance and essential to public health.

The Earl of Caithness

My Lords, the House will be aware that water authorities are currently able to lay pipes after serving reasonable notice on the owners and occupiers of the land through which the pipes are to run. The consent of the owners and occupiers is not needed. We have decided that these powers should be retained by the NRA and water and sewerage undertakers for public health and operational reasons.

I am sure that noble Lords will agree that satisfactory water supply and sewerage arrangements are essential to public health. The NRA and water and sewerage undertakers would, I know, be the only public utilities with this power. The water industry can however properly be regarded as operating in a different context from other utilities Undertakers need to be able to replace defective private water supplies with public ones and complete major sewerage schemes quickly and without the delays that would be involved in seeking the consent of every landowner involved and where: consent was not forthcoming referring the matter to the Secretary of State.

As my noble friend Lord Arran explained when this was raised in Committee, we are aware of the scope these powers may offer for arbitrary behaviour by undertakers and it is for this reason that we have decided that the powers should be subject to a statutory code of practice to be submitted by the private companies to the Secretary of State for approval. Copies of the model code, on which the statutory codes will be based, are available in the Library. Unlike the voluntary codes which already exist in some water authorities, these codes will be mandatory and the powers will be subject to the oversight of the director general.

In addition, Clause 160 provides for the director general to direct an undertaker to make a payment to a complainant if he is satisfied that an undertaker has failed to consult the owner or occupier before or during pipe laying, or by acting unreasonably has caused them to suffer loss or damage or to be inconvenienced.

There is also provision in Clause 159 for undertakers to be required to alter or to remove a pipe in response to a reasonable request from a person with an interest in the land where the pipe is installed or in adjacent land. That is as a result of a government amendment made in Committee and I believe that it changes the picture which we were debating at an earlier stage. There will be recourse to the director general in cases where a person considers that an undertaker has refused to comply with a reasonable request to move a pipe. An undertaker will be able to recover from the person the expenses it reasonably incurs in carrying out the works. This will go a long way to ensuring that land crossed by pipes is not permanently sterilized.

I know that in raising this issue a second time my noble friends are greatly concerned about the powers that will be available to the water industry. I hope that they will accept that the powers are essential for operational, and perhaps more importantly, public health reasons.

My noble friend Lord Radnor gave an example of what he considered to be an unacceptable practice. I can also speak with experience because during the late 1970s I acted for and against water authorities and water companies. At that time some of their practices were not as good as one would have expected. However, I believe that there have been certain improvements since then. In fact, I made a particular point of seeing whether the matter could be improved because I have some sympathy with my noble friends and I am very grateful to my honourable friend the Minister for Water and Planning for what he has been able to do to try to alleviate the concerns of my noble friends.

Perhaps I may repeat that the powers will be subject to new controls, not only in the form of a statutory code of practice to be approved by the Secretary of State but also in the form of a requirement to move pipes which we believe will ensure that landowners receive a greater degree of protection than now. Therefore, I say to my noble friend Lord Radnor that I do not think it is fair that we should compare directly what happened in the example which he gave with the situation in the future. If this amendment were to be accepted, it would place a severe constraint on the ability of the authority and undertakers to carry out the works required of them and which in many cases are essential to public health.

Perhaps I may give my noble friend an example. If the water industry was currently required to operate under the constraints proposed in my noble friend's amendment, I think he would find that the recent London ring main may not have been built. I do not believe that that could have been classed as an emergency but it was certainly desirable. I wonder whether my noble friends would agree that the water authority would have found it possible to undertake such a beneficial project if it was required to negotiate and reach agreement with the many different landowners—hundreds of thousands of them—affected by that scheme, as required by the amendment of my noble friend.

We have given this very serious consideration and have gone a long way to meet some of the valid concerns under the present rules. I hope that in the future we shall have a much better regime under which everybody can work.

9.30 p.m.

The Earl of Radnor

My Lords, I am grateful to my noble friend for speaking at such length on this subject. I believe it is very important. It certainly deserves and perhaps in the future will still deserve considerable discussion and debate. As regards public health and emergencies and that kind of concern, which has been mentioned by my noble friends Lord Caithness and Lord Renton, I believe that both my noble friends are rather ignoring the first part of the amendment which I believe would deal with that situation.

As regards Clause 160 and the code of conduct, Clause 160 really comes rather too late in the day to help the sort of troubles which have occurred over the years and which I can quite see will still occur in the future.

As regards the ring main of London or perhaps the ring main of any other city, I was not aware that that had been built. However, I feel that such considerations, where large multiple negotiations would have to take place, should somehow be dealt with on a more satisfactory basis than "reasonable notice" and perhaps in some way, which I cannot quite pinpoint at the moment, which will not detract from the general trust of the amendment so that people are not short of water and help in those kind of circumstances.

I cannot possibly say that I shall not go away and look at this very carefully and I cannot say that I shall not raise the matter again at Third Reading. I believe that it would be good if I could have access to my noble friend to discuss this further before Third Reading. Having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 150 and 151 had been withdrawn from the Marshalled List.]

Schedule 20 [Orders conferring Compulsory Works Powers]:

Lord Gallacher moved Amendment No. 151A: Page 283, line 30, after ("copy") insert (", accompanied by a plan showing the effect of the order on the path or way,").

The noble Lord said: My Lords, on behalf of my noble friend Lord McIntosh of Haringey I wish to move Amendment No. 151A. At the same time I should like to speak to Amendments Nos. 15IB to 151F which are grouped with Amendment No. 151A and form part of a whole so far as the amendments to Schedule 20 are concerned.

The Bill provides for the National Rivers Authority and water undertakers to apply to the Minister for an order authorising them to carry out works which could be as extensive as the construction of a new reservoir. The order may contain provisions consequential upon the approval of the works and in particular may authorise the stopping up or diversion of a public footpath or bridleway which may be flooded when a new reservoir is built.

The Ramblers' Association and others who use the countryside for recreational purposes are concerned to ensure that when such an order is applied for the public at large has the opportunity to be informed of the proposal. The public may then make informed comment upon, or object to, the proposal as it does in the case of proposals to divert or stop up public footpaths or bridleways.

The provisions of the Bill derive from earlier legislation: the Water Act 1945 and the Water Resources Act 1963 as amended by the Countryside Act 1968. Since that legislation was passed certain improvements have been made to the powers which are used more generally to change footpaths and bridleways. The amendments seek to bring the powers conferred in the Water Bill into line with that situation. We regard them as being fair and reasonable in their administrative requirements.

Amendment No. 151A would require that the notice of the draft order which has to be put on site should be accompanied by a plan showing the footpaths and bridleways affected and the effect of the order. At present the notice does not have to state that the order affects footpaths and bridleways. There are precedents for this proposal. In the Wildlife and Countryside Act 1981 Parliament amended the powers most commonly used to divert or stop up footpaths or bridleways, so that similar plans have to be put on site with notice of orders made under those sections.

Amendment No. 151B would require the notice to be placed in the local newspaper to make it clear that the order affects footpaths and bridleways. At present the notice merely has to state the general effect of the order. There is no specific requirement to tell the public the exact effect of proposals. This is a commonsense amendment requiring no more than the addition of a sentence or two to a notice which has to be published in any event.

The provision in paragraph 1(3)(e) for persons to give prior notice to the authority is taken from the provisions in the Town and Country Planning Act 1971, the Highways Act 1980 and the Wildlife and Countryside Act 1981 concerned with orders affecting footpaths and bridleways. The amendment, which seeks to ensure that national organisations concerned with footpaths and bridleways, such as the Ramblers' Association, automatically receive notification of draft orders, is taken from the same legislation.

If the provision in the Bill is justified then so is Amendment No. 151C. Paragraph 1(1)(d)(iii) requires the draft order and any relevant map or plan to be made available for public inspection. The amendment would ensure that where the order proposed the stopping up or diversion of a footpath or bridleway there would be a plan showing existing and proposed paths and ways which would be available for public inspection with the draft order. With the Bill as presently drafted there might or might not be a relevant map or plan. That situation was accepted by the noble Earl, Lord Arran, in Committee on 23rd May at col. 307.

Highway authorities have responsibility for mapping and maintaining footpaths and bridleways and their information is used by the Ordnance Survey, as the Minister acknowledged on 23rd May. Unless there is a proper plan with the order such authorities will not have the information which they need to carry out their work properly. Amendment No. 151D provides for this situation.

Amendment No. 151E extends the provision enabling anyone to purchase a copy of the draft order also to have any relevant map or plan. If the map or plan is relevant to the order then it is logical that the same provisions as to purchase should apply.

Amendment No. 151F would ensure that public notice was given when the decision to make an order had been taken and that the Ordnance Survey would be informed. At Committee stage the noble Earl, Lord Arran, stated that such notice was unnecessary because there was no further opportunity to object and because any objectors to the draft order are automatically notified of the outcome.

As to this latter point, there is nothing in the Bill that requires the Minister or the applicant for the order to notify the objectors. The need for the amendment arises because there are bodies that have an interest in knowing that such an order has been made even if they have not objected to the draft order. Such bodies include the county, district and parish councils of the area as well as bodies such as the Ramblers' Association. In all other legislative provisions authorising the stopping up or the diversion of footpaths and bridleways, there is provision for a final decision to make the change to be notified to the public and to local authorities. There is no reason why these powers should be any different. I beg to move.

Lord Renton

My Lords, I am very doubtful whether in primary legislation we should have as much detail of an administrative kind as we find in Schedule 20. The amendments add to that detail and so far as I can follow them, they add somewhat unnecessarily to it. There is one point that I have to confess does not arise strictly regarding the amendments. I hope that I am not out of order in referring to it. When we come to page 285 and paragraph 4(1)(c), we find that where an application for an order has been made under Section 153 that enables rights of way to be interrupted or abolished——

The Earl of Caithness

My Lords, I am sorry to interrupt the noble Lord, but can he give me the reference again?

Lord Renton

My Lords, the reference is page 285, paragraph 4(1)(c). The result is that if an application has been made for an order by an undertaker and a notice of objection has been received by the Minister from any person on whom a notice has been served or—and this is the point I am coming to— (b) from any other person appearing to the appropriate Minister to be affected by the order as submitted to him or as proposed to be modified … then, unless the objection is withdrawn, the appropriate Minister shall, before making the order, either cause a local inquiry to be held or afford to the objectors … an opportunity (of) being heard". When a right of way is brought to an end, any member of the public or every member of the public, can be affected. It seems wrong that the Minister should decide which members of the public, and only they, should be entitled to a public inquiry. Therefore I feel that whatever view my noble friend may take on these amendments—I shall not be surprised if he rejects them all—nevertheless, he should look at the effect of paragraph 4(1)(b).

The Earl of Caithness

My Lords, I shall certainly have a look at what the noble Lord has said and seek advice on the point that my noble friend makes regarding Schedule 20, paragraph 4(1)(b). Returning to the amendment specifically moved by the noble Lord, Lord Gallacher, I have listened with great care to what he said. We had a similar debate at Committee stage as the noble Lord will know. I hope that he will agree that I should take away his amendments for further consideration because I believe that he had some quite useful points and convincing arguments. Perhaps we can discuss them between now and another stage to see whether we can find something that can satisfy us both.

Lord Gallacher

My Lords, I thank the Minister for that reply, In view of it, I shall resist the temptation to say anything to the noble Lord, Lord Renton. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 151B to 151F not moved.]

9.45 p.m.

Clause 159 [Duty to move pipes etc. in certain cases]:

Baroness Blatch moved Amendment No. 151G: Leave out Clause 159 and insert the following new clause:

• ("Duty to move pipes etc. in certain cases.

159.—(1) Subject to the following provisions of this section, where any relevant pipe or apparatus (whether above or below the surface) is kept installed by a water undertaker or sewerage undertaker in any land which is not in under or over a street, any person with an interest in that land or in any land immediately adjoining such pipe or apparatus may require the undertaker to alter or remove such pipe or apparatus on the ground that the alteration or removal is necessary to enable that person to carry out a proposed improvement of the land in which he has an interest. (2) The power conferred by subsection (1) above shall be exercisable only after 28 days notice has been given to the water undertaker or sewerage undertaker specifying the nature of the proposed improvement and the period within which the undertaker is required to alter or remove the relevant pipe or apparatus. (3) Where a person gives a notice under subsection (2) above it shall be the duty of the undertaker to comply with any requirement contained in the notice unless the undertaker, within the period of 28 days beginning with the receipt of such notice, gives that person a counter-notice which—

1. (a) states that, by virtue of subsection (8) below, the person is not entitled to require the alteration or removal of the relevant pipe or apparatus and specifies the reasons for so stating; or
2. (b) refuses to remove the relevant pipe or apparatus on the ground that—
1. (i) the requirement is unreasonable; or
2. (ii) the requirement would prejudice the carrying out of the undertaker's functions; or
3. (iii) there is no reasonably practicable alternative position in which to place the relevant pipe or apparatus; or
3. (c) specifies the estimated period (if a longer period than that specified in the notice) which the undertaker requires in order to alter or remove the relevant pipe or apparatus and such security as the undertaker may reasonably require to be provided for the discharge of any obligations imposed by virtue of subsection (5) below on the person serving the notice.

(4) Where a counter-notice is given under subsection (3) above, the undertaker shall alter or remove the relevant pipe or apparatus only—

1. (a) in a case under paragraph (c) of that subsection, if the person to whom the counter-notice is given agrees to the matters specified under that paragraph; or
2. (b) in accordance with the determination of the person appointed under subsection (6) below.

(5) Where a water undertaker or sewerage undertaker carries out any works under this section by virtue of a notice having been served by any person under subsection (1) above, or takes steps with a view to carrying out any such works, the undertaker shall be entitled to recover from that person an amount equal to the expenses reasonably incurred in or in connection with or in consequence of the carrying out of those works or the taking of those steps. (6) Any dispute as to any matter arising under a counter notice served by virtue of subsection (3)(b) or (c) above, or as to the amount of any sums recoverable by the undertaker under subsection (5) above, shall be referred to the arbitration of a single arbitrator appointed by agreement between the parties or, in defualt of agreement, by the Secretary of State. (7) Where for the purposes of subsection (3)(c) above any sums have been deposited with a water undertaker or sewerage undertaker by way of security for the discharge of any obligation, the undertaker shall pay interest at such rate as may be determined either—

1. (a) by the undertaker with the approval of the Director; or
2. (b) in default of a determination under paragraph (a) above, by the Director,

on every sum of 50p so deposited for every three months during which it remains in the hands of the undertaker. (8) This section shall not apply—

1. (a) where any relevant pipe or apparatus is kept installed by a water undertaker or sewerage undertaker on land in which that undertaker has a legal estate or legal interest; or
2. (b) where the undertaker can show that it or a predecessor of the undertaker has paid compensation equal to the amount of the depreciation in the value of the interest in the land in which the relevant pipe or apparatus is kept installed to the person entitled to that interest at the time of such payment.

(9) The duty of a water undertaker or sewerage undertaker under this section shall be enforceable under section 20 above by the Director. (10) In this section—

• "improvement", in relation to any land, includes any development but does not include any change of use or any improvement with respect to the supply of water or the provision of sewerage services to any premises; and
• "relevant pipe" has the same meaning as in Schedule 19 to this Act.".").

The noble Baroness said: My Lords, perhaps I may open my remarks by correcting a typing error which was mine and not that of the Public Bill Office. In line 3 of subsection (6) of the amendment on page 16 of the Marshalled List the figure (6) should read (5).

The House may recall that Clause 159 was a new clause added to the Bill by a government amendment in Committee. I moved amendments to the clause seeking to ensure that the duty to alter or remove pipes would not apply if it would prejudice the carrying out of an undertaker's statutory duty or if there were no reasonable, practical alternative position for the pipes. My noble friend Lord Caithness offered certain assurances and I withdrew my amendment. Clause 159 had not been the subject of prior consultation with the industry before the Government put it down for debate, and since Committee stage the utmost concern has been expressed on behalf of all undertakers. Hence this new amendment which would replace Clause 159 by a radically different provision designed to address that concern.

Although the Government had based Clause 159 broadly on the precedent in the Telecommunications Act 1984, there is a world of difference between the inherent flexibility of a telecommunications cable and, for example, a massive water main or sewer laid at a gradient determined some miles away by the topography and the need for an outfall at a particular level and location. An obviously crucial consideration is that a diversion to accommodate development might well necessitate pumping in what had previously been a gravity system.

It is true that Clause 159 provides that the expenses reasonably incurred by undertakers in carrying out works may be recovered from the person requiring alteration or removal of apparatus, but there is a great deal of legitimate disquiet as to whether this power extends to all costs consequential upon the requirement. Subsection (5) of my amendment is therefore directed to securing this extension. Another cause for concern is that Clause 159 omits altogether the counter notice procedure for which the Telecommunications Act provides. The Government's argument that this procedure is necessary for that Act because enforcement lies through the court is not a convincing reason for its omission from Clause 159.

Subsections (3) and (4) of my amendment are therefore calculated to provide an appropriate counter notice procedure. Any dispute arising in relation to this procedure or as to the question of consequential expenses ought properly to be the subject of independent arbitration. Subsection (6) of my amendment provides for this. At the same time I have retained provision in subsection (9) for enforcement of the undertaker's duty by the director general who would thus be able, as was pointed out by my noble friend at col. 354 of the Official Report when we debated Clause 159 in Committee, to take into account all the relevant circumstances of a particular case in determining whether or not an undertaker's proposal to alter or move a pipe was reasonable. The director general is also given power under subsection (7) to approve or determine the interest to be payable by an undertaker where sums are deposited with it as security for payment of the undertaker's expenses by a person requiring the alteration or removal. I beg to move.

The Earl of Caithness

My Lords, as my noble friend said, the principle we are discussing is precedented in the Telecommunications Act 1984. That legislation does not restrict the obligation in the way that this amendment proposes, and I am not persuaded that the position of water and sewerage undertakers is so different as to warrant a different approach, although I accept that the question of pipes in streets is less straightforward.

It should be open to all persons with an interest in any land in which a pipe is installed or in adjacent land to be able to require an undertaker to move or alter a pipe in order to carry out an improvement of the land in which he has an interest. The fact that an undertaker has a legal interest in the land in which the pipe is installed does not mean that land adjacent to the pipe line should automatically be sterilised indefinitely in so far as that land is concerned, as would be the effect of the amendment.

I have some sympathy with the concern that previously paid compensation should be taken into account. However, I am not convinced that it is a practical proposition to take account of compensation ofter paid many years previously, in many cases to past owners of the land in question, where even if amounts were known it is unlikely that the necessary detailed breakdown would be available. Moreover, it will be open to an undertaker to argue that it would be unreasonable to move pipes in cases where a landowner had accepted compensation often paid many years previously, in many cases to past owners of the land in question,

We fully accept that there would be circumstances when it will be unreasonable for undertakers to remove pipes. These could well be in the circumstances described by my noble friend. It is for this reason that we have included in the clause a role for the director general. If an undertaker considers that it would be unreasonable to remove a pipe, he is able to refuse to do so. The director general will take all the relevant circumstances of a particular case into account in determining the questions. A counter notice procedure is unnecessary in this case since the enforcement role will rest with the director general. The procedure is provided for in the Telecommunications Act because enforcement is through the courts. The Bill's provision already provides for the undertaker in carrying out any works by virtue of a notice served on it to be able to recover any expenses reasonably incurred.

I have said that I have some sympathy with some of my noble friend's detailed concerns and I undertake to look again at the provision in view of what she said, in particular in relation to the question of security for expenses incurred by the undertaker in connection with carrying out of the works and the question of pipes in streets.

In view of this and the general assurances which I have given, I hope that my noble friend will not seek to press her amendment.

Baroness Blatch

My Lords, I thank my noble friend for that full and detailed reply and for his offer to look again at the matter between now and Third Reading. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 165 [Offence of interference with works etc.]:

[Amendments Nos. 152 and 153 had been withdrawn from the Marshalled List.]

Schedule 22 [ Water Quality in Scotland]:

The Lord Advocate (Lord Fraser of Carmyllie) moved Amendment No. 154: Page 295, line 13, after ("regulations;") insert— ("( ) provide for a contravention of the regulations to constitute—

1. (i) an offence punishable on summary conviction by a fine not exceeding level 5 on the standard scale or such smaller sum as may be prescribed; or
2. (ii) a offence triable either summarily or on indictment and punishable, on summary conviction, by a fine not exceeding the statutory maximum and, on conviction on indictment, by a fine;").

The noble and learned Lord said: My Lords, these amendments to Schedule 22 have the effect of incorporating new provisions on offences relating to water quality into the existing Scottish legislation. They are already in line with the provisions for England and Wales which are in the Bill.

Amendment No. 154 makes it an offence to contravene regulations made by the Secretary of State under the new Section 76B(2) of the 1980 Act. These regulations will control the use by the Scottish water authorities—the regional and islands councils—of any substances, processes and products which might affect the quality of their water supplies. They may prohibit the use of substances, require them to meet prescribed standards and set conditions for their use. The regulations also provide for a body to be set up to approve or refuse the use of such substances, and require any person to provide relevant information to that body. The amendment provides for any contravention of such regulations to constitute an offence punishable by an appropriate level of fine, and brings the Scottish provisions on these regulations into line with the provisions for England and Wales.

The regulations will provide important safeguards for the quality of public water supplies and for public health. It is equally important therefore to ensure that the regulations are enforced and that any contravention of them is punished appropriately.

I should like now to move on to Amendment No. 154A which will make it a criminal offence for a water authority in Scotland to supply water in pipes which is unfit for human consumption. The offence extends to any employee of a water authority if he is guilty of negligence. On summary conviction the water authority is liable to a fine up to the statutory maximum of £2,000, and on conviction on indictment to an unlimited fine.

However, it will be a defence for the authority and its employee to show that they had no reasonable grounds for suspecting that the water would be used for human consumption. For example, in Scotland it may well be that the water was supplied for agricultural or industrial uses. In those circumstances, all reasonable steps having been taken to ensure that the water leaving the authority's pipes was fit for human consumption, the provision would cover them, as it would if circumstances were such that they did not anticipate that it would need to be used for human consumption. Those provisions are broadly equivalent to those provided for England and Wales in Clause 54.

It is important to understand the context in which these offence provisions will apply. The main provisions in Schedule 22 will strengthen and extend the provisions relating to water quality in the Water (Scotland) Act 1980. In particular, they will enable the Secretary of State to make regulations on the "wholesomeness" of drinking water.

We propose to make comprehensive regulations which will incorporate all the standards set in the EC directives on the quality of drinking water—and indeed we will go further. The water authorities will have a duty to comply with the standards in the regulations, with certain limited exceptions.

I should make it clear that it does not follow that a breach of the regulations would necessarily constitute an offence of supplying water unfit for human consumption. The quality standards set in the EC directive incorporate a wide safety margin, and drinking water would have to exceed a quality standard by a very long way before it becomes unfit for human consumption.

Water which is not fit for human consumption should never be supplied to the public and I stress that the Scottish water authorities have an excellent record in that respect. However, neither south nor north of the Border can anyone afford to be complacent and the unfortunate incident at Camelford last year demonstrated that there is a gap in legislation which needs to be filled.

I hope that we would seldom, if ever, have to use the new provisions and as Lord Advocate I hope that it will never be my responsibility to instruct such a prosecution. However I believe that they will have the important effect of focusing the attention of the water authorities and their employees on the need to ensure that their activities do not lead to the supply of unfit drinking water. Their consumers, the general public, deserve nothing less. I beg to move.

Lord Renton

My Lords, Amendment No. 154A, in amending a previous statute, refers to water unfit for human consumption. We find that in new subsection (1) of what will become Section 76C of the previous statute. If we turn over the page of the Marshalled List, in subsection (4)(a) we find that we have a reference to water that is fit for human consumption.

It is proposed to amend Schedule 22 in the two ways suggested by my noble and learned friend; but if we refer to the foot of page 293 we find that there is a reference to water "regarded as unwholesome", not unfit for human consumption, and in the next line there is a reference to water which "has ceased to be wholesome". At various other points in Schedule 22, which my noble and learned friend is seeking to amend—for example, at the foot of page 295—we find a reference to unwholesomeness which is said to "cause a danger to life or health". There is another reference somewhere in Schedule 22 to unwholesomeness. So far in the Bill we have referred to the word "wholesome". Until we come to the Scottish law, we have not used the expression "unfit for human consumption". But now that we have come to the Scottish law we find that both the expressions "wholesome and unwholesome" on the one hand and "unfit for human consumption" on the other are used.

As my noble and learned friend knows so well—and I am sure that it is as true in the Scottish as in the English courts—when different expressions are used in the same Act of Parliament they are assumed to have different meanings. In order to find out the meaning of the word "wholesome" in the Bill we have to refer to page 77, where Clause 66 says: 'wholesome' and cognate expressions shall be construed subject to the provisions of any regulations made under section 65 above".

10 p.m.

The Earl of Balfour

My Lords, I am sorry but I must correct my noble friend. He should be referring to page 303. The definition of "wholesome" which he will see there refers to paragraph 76I, which is what we are dealing with in this part of the schedule.

Lord Renton

My Lords, I am grateful to my noble friend. I thank him also for having drawn my attention privately only yesterday to what Clause 66 says about "wholesome". However, I think that what he said does not alter my argument that here we are using different expressions with the same intent. I believe that they have the same intent but if they are meant to mean something different—and we do not yet know the meaning of the word "wholesome"—my noble friend cannot challenge me on that——

The Earl of Balfour

No.

Lord Renton

That is because we have not yet had the regulations and will not receive them until some time after the Bill is enacted, presumably. Then we are in the difficulty as regards the schedule relating to Scotland that two different expressions are used, which, so far as I can see, have the same intent but to which the courts will be obliged, if they can, to attribute different meanings.

It may be that it is unfair to ask my noble and learned friend for an immediate answer to the matter. But it arises on the amendment which he has moved. It is a matter about which we should be clear because on the Bill, frankly, we have been going into a fantastic amount of detail. Everyone is involved in the use of water. It will not merely be the experts who will have to understand the Bill, people from the National Rivers Authority, the water undertakers and so on; it will also be people in local authorities, perhaps contractors, and the public who will be the consumers of the water. They may sometimes wish to know where their rights stand.

This is a matter, however technical, which we ought to try to get right. Therefore I hope that my noble friend will either be able to give an explanation now or to acknowledge that we are getting into a muddle which ought to be resolved at Third Reading.

The Earl of Balfour

My Lords, perhaps I may follow that. I feel that perhaps we should look more carefully at paragraph 76I. It states under "Standards of wholesomeness": The Secretary of State may by regulations make provision that water that is supplied to any premises", etc. I believe that we need to consider this rather carefully and I should be interested to hear what my noble and learned friend Lord Fraser says.

Baroness Blatch

My Lords, I wish to draw attention to a possible inconsistency between the English, Scottish and Welsh provisions. Clause 54(4) places a restriction on prosecutions. It would appear that that measure is not included in the Scottish provision. I am not sure whether the Government intend to bring the provision of the Bill that applies to England into line with the provision for Scotland or whether they intend the provisions to remain different. There may well be particular reasons why the provision that applies to Scotland should be different.

I wish to refer to a slightly different point in connection with Clauses 54 and 175. Nevertheless, it concerns the same issue of consistency. In Clause 175 reference is made to, any director, manager, secretary or other similar officer of the body corporate who may be liable to prosecution for an offence.

The provision that applies to Scotland refers to any person being liable to prosecution. Therefore, it appears that the Scottish provision is drawn rather wide. Are the Government likely to consider bringing the English part of the Bill into line with the Scottish, or will the two provisions remain different?

Lord Fraser of Carmyllie

My Lords, I am surprised that what I thought would be seen as a modest attempt to bring matters in Scotland broadly speaking into line with England and Wales should have been debated at great length in both this House and another place. I am surprised that this measure should have caused any query at all. However, I shall attempt briefly to explain the matter. We are not attempting, in any fashion, to introduce anything that is novel or different for Scotland. Without entering yet again into the political controversy about where the supply of water should rest, nevertheless I should say that the supply of water in Scotland will remain within the hands of the regional or island authorities. We have taken the view that if there should be any failure to supply water in terms of the regulations that the Secretary of State sets out, or circumstances occur where the water is unfit for human consumption, because the suppliers are still within the control of a public authority they should not escape prosecution. Those who supply water from within a private organisation would not escape prosecution in similar circumstances. Broadly speaking, that is why we have at this stage decided that it is important to introduce these changes.

However, there is certainly no intention to introduce a set of proposals which are markedly different from those provided for England and Wales. I would not like to say that I have slavishly copied what is provided elsewhere in the Bill, but it is quite clear to anyone who examines the matter that we have modelled the proposals for Scotland on the existing provisions.

I say to my noble friend Lord Renton that the term "unfit for human consumption" is already to be found in Clause 54 of the Bill. The clause states that, where a water undertaker supplies water by means of pipes to any premises and that water is unfit for human consumption the undertaker shall be guilty of an offence". In those circumstances, we are introducing for Scotland nothing that is novel. We are simply introducing something that parallels rather than mimics or imitates what is provided for in England and Wales. My noble friend Lord Renton also raised serious questions concerning what was meant by the term "wholesome". I am grateful to my noble friend Lord Balfour for pointing out the provisions contained in the proposed new Section 76I within Schedule 22, where the standards of wholesomeness are set out in very considerable detail.

I hope that that explains exactly how the matter will be established. I certainly do not anticipate that I shall be looking to prosecute people in Scotland for providing water that was simply unwholesome. I might however look to prosecute people if they had failed as a water authority in the provision of proper arrangements to secure wholesome water for the general public.

When it comes to subjecting an individual employee to a criminal charge we should be considering the rather more restrictive and very much worse situation of providing water that was unfit for human consumption. There is a gradation that moves from wholesome water through to unwholesome water and, so far as concerns individuals, a criminal offence with which they might be confronted if they were neglectful of the provision of water that was unfit for human consumption.

This is an extension of those provisions to Scotland, and although little of this Bill, thankfully, extends to Scotland, we have achieved consistency. If we were not to achieve that consistency I should have expected far greater criticism.

Lord Renton

My Lords, before my noble friend sits down I wonder whether he would be good enough to answer the specific point that I raised. I accept that his explanation shows that English and Scottish law would be consistent with each other. It is also clear from what he said that the expression on the one hand of "wholesome" or "unwholesome" and the expression on the other of "unfit for human consumption" will appear both north and south of the Border. Is he saying that water can be wholesome but unfit for human consumption, or vice versa? With great respect, although "wholesome" has not yet been defined in regulations, it does not seem to me to make sense that we should use the two different expressions.

Lord Fraser of Carmyllie

My Lords, I am grateful to my noble friend who is an expert on these matters of drafting. You cannot have water that is wholesome and unfit for human consumption, but you could have water that is unwholesome but is nevertheless not unfit for human consumption. That is the point that I sought to make. There is a gradation in these matters. It might be that the Secretary of State, by way of regulation, would seek to ensure that water that was unwholesome was brought up to standards of wholesomeness.

However, for an employee to be taken to task in the criminal courts for providing water that was unfit for human consumption would be a further stage down the road. I hope that I have reassured my noble friend that, as I see it, it is impossible to have water that is wholesome and at the same time unfit for human consumption.

On Question, amendment agreed to.

Lord Fraser of Carmyllie moved Amendment No. 154A: Page 295, line 34, at end insert—

• ("Offence of supplying water unfit for human consumption.

76C.—(1) Subject to subsection (4) below, where a water authority supplies water by means of pipes to any premises and that water is unfit for human consumption the authority shall be guilty of an offence and liable—

1. (a) on summary conviction, to a fine not exceeding the statutory maximum;
2. (b) on conviction on indictment, to a fine.

(2) Where an offence under this section is proved to be attributable to any neglect on the part of an employee of the water authority, he as well as the water authority shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly. (3) For the purposes of subsection (2) above, the penalty on conviction on indictment shall include imprisonment (in addition to or instead of a fine) for a term not exceeding two years. (4) In any proceedings for an offence under this section it shall be a defence to show that—

1. (a) there were no reasonable grounds for suspecting that the water would be used for human consumption; or
2. (b) all reasonable steps had been taken and all due diligence exercised for securing that the water was fit for human consumption on leaving the pipes or was not used for human consumption.").

On Question, amendment agreed to.

10.15 p.m.

Viscount Caldecote moved Amendment No. 155: After Clause 167, insert the following new clause:

• ("Nature conservation in Scotland.

. Schedule (Nature conservation in Scotland) to this Act shall have effect to make provision for Scotland in relation to nature conservation.").

The noble Viscount said: My Lords, in moving Amendment No. 155 I should like to speak also to Amendment No. 159. I hope that noble Lords and Ladies who live north of the Border will not think it presumptuous of me to introduce these amendments which relate to Scotland. Though my seat is not in Scotland my heart is in the Highlands—or more accurately, the Lowlands, where I was brought up.

The purpose of the amendments is to apply to Scotland the same provisions for protection and enhancement of the natural environment as the Bill now provides for England and Wales in Clause 8, mainly in subsections (1) and (4). The main provisions of the Bill do not apply to Scotland. However, during Report stage in another place the Government introduced Schedules 22 and 23 under Clauses 166 and 167 to make provision for Scotland in relation to the quality of water and the control of the pollution of water. That was achieved by making the Scottish water authorities and river purification authorities responsible for those activities in line with the National Rivers Authority in England and Wales. It was done by amending two previous Acts applying to Scotland. Although the amendments are welcome, nothing was done to make provision in Scotland for promoting the conservation and enhancement of natural beauty or the conservation of flowers and animals—that is, "flora and fauna" in the official language—which are dependent upon the water environment.

The two amendments now proposed seek to correct that omission. That objective is achieved by adding a new schedule after Schedule 23, amending the Rivers (Prevention of Pollution) (Scotland) Act 1951 which at present deals only with the cleanliness of rivers and other waters and not with conservation.

Since the Scottish river purification authorities are public bodies with many functions similar to those of the National Rivers Authority in England and Wales, it seems logical, and indeed essential, that they are subject to the same environmental obligations as the NRA in England and Wales. It is true that that imposes a new duty upon the river purification authorities; but it is a reflection of the influence that they can have on ensuring that our Scottish rivers and other waters are managed so as to support fish and animals, such as otters, aquatic plants and invertebrates, in the waters. I am sure that all noble Lords will agree that that aim is of great importance.

Perhaps I may make one other point in explanation. While the NRA will have a duty to promote the use of rivers for recreation and to consider freedom of access to land in the discharge of its functions, I have deliberately excluded matters of access from the amendments since Scottish law on that issue is different from and more complex than the law in England and Wales.

The amendments have the full support of the Royal Society for the Protection of Birds and have been drafted in consultation with the Nature Conservancy Council. I submit that the proposed new measures are simple in their effect; that they complement the schedules introduced earlier by the Government, and that they are also in line with the Government's avowed policy of protecting and enhancing the natural environment. I hope therefore that the amendments will be acceptable to my noble friend the Minister. But, although he may perhaps feel able to accept the objectives and principles of the amendments, he may not be happy about the way in which we have attempted to implement the principles and objectives through the amendments. In that case, I very much hope that he will give us an assurance to bring in suitable amendments, achieving the same objects and principles, at the Third Reading stage. I beg to move.

Lord Addington

My Lords, I should like to support the amendments. I believe that they are potentially of great beneficial effect to the environment in Scotland as they provide a requirement for the Scottish river purification authorities to promote nature conservation and the benefits for wildlife and the natural environment which should accompany that. The amendments call for the public bodies in Scotland to have the same duties and obligations as the NRA has in England and Wales. Thus, one of the truly beneficial parts of this piece of legislation will be extended to the whole of the country.

The Earl of Balfour

My Lords, perhaps I may intervene on this amendment because I am a little concerned in one respect. The river purification authorities in Scotland are financed out of the rates raised by regional councils, whereas the National Rivers Authority is financed by the Exchequer. I think that the Nature Conservancy Council is also entirely financed out of Exchequer funds. I am not at all sure that we should ask river purification authorities in Scotland to take over a duty that I believe should be carried out by the NCC in Scotland. That is the point that I wanted to raise.

Lord Norrie

My Lords, I put my name to this amendment which I consider as common sense and an important point of principle. I recognise that the Scottish river purification authorities (RPAs) already have a duty to further nature conservation in so far as it is consistent with their functions. Earlier tonight we heard from the noble Lord, Lord Hesketh, that the Government have brought forward a new duty to be placed upon the NRA to promote conservation outside its other functions. This amendment provides the opportunity to impose a similar duty on the Scottish RPAs.

The Minister of State, Scottish Office (Lord Sanderson of Bowden)

My Lords, I welcome the fact that my noble friend Lord Caldecote has taken part in a matter of great interest to Scotland and indeed has moved an amendment which is concerned with Scotland.

The purpose of these amendments would be to lay a formal duty on the Secretary of State and the river purification authorities—the seven mainland boards and the islands councils—in carrying out their other duties and functions for controlling and preventing water pollution to further the conservation and enhancement of natural beauty and amenity of water and to further the conservation of flora and fauna.

I suggest that these amendments are not necessary, and I wish to demonstrate why I believe that to be so. These proposals are very far reaching in their scope and extend well beyond the matters on which the department carried out extensive public consultations in 1986. We made it clear at that time, and again in 1988, that our intention in making legislative changes for Scotland through the Water Bill was to introduce a small number of measures relating to drinking water quality and to water pollution control, with the primary aim of maintaining a common line with England and Wales in the context of EC obligations. The amendments proposed by my noble friend would impose a duty which we could not accept without further consultation with those likely to be directly concerned, such as—and my noble friend Lord Balfour has mentioned this point—the river purification authorities themselves and others with a major interest in the water environment, including industry, fisheries and water authorities. For the following reasons we think that they are unnecessary and inappropriate.

The duty which these amendments would impose would necessarily be secondary to the river purification authorities' primary duty to promote the cleanliness of rivers, conserve water resources-and generally to control water pollution. As such, I suggest that they would amount to a general principle rather than a duty which could be executed meaningfully. It is really beyond the role and functions of river purification authorities to have imposed on them by statute an absolute duty to conserve and enhance the amenity of rivers and other waters. River purification authorities, unlike their present counterparts in England and Wales—the water authorities—or the new National Rivers Authority, have no direct responsibility for navigation, recreation or conservation. The underlying breadth of these functions would present a major extension to the duties of the river purification authorities, with all that that might imply in manpower resources and funding.

In Scotland, the Nature Conservancy Council is the body responsible for the natural amenity of land and waters, and it is proper that that duty should remain with the council. The Government have no reason to seek to remove that responsibility wholly or in part from the council in Scotland and it is not a duty which sits well with the river purification authorities as presently constituted.

In any event, the Countryside (Scotland) Act 1967 already requires all public bodies, which include river purification authoritities, in exercising their functions relating to land to have regard to the desirability of conserving the natural beauty and amenity of the countryside. The Government have been very well aware of what that implies. Some years ago the Secretary of State wrote to river purification authorities encouraging them in carrying out their functions to further, rather than just have regard to, the conservation and enhancement of natural beauty and the conservation of flora and fauna and other natural features of special interest, and to consult with the council on matters of importance. There is no evidence that that request has not been heeded. River purification authorities have a good record of consulting with appropriate interests and we understand that the council is similarly enthusiastic about keeping river purification authorities informed of relevant developments.

The other aspect of the amendment relates to the duty of promoting the conservation of flora and fauna dependent on an aquatic environment. I believe that the existing provisions of the Control of Pollution Act 1974 which are re-enacted and strengthened in the Bill achieve that objective. For example, Section 37(2) of Schedule 23 gives the Secretary of State power to direct river purification authorities to revoke a consent to discharge into controlled waters, to modify any conditions attached to that consent or to make the consent subject to conditions—all for the express purpose of protecting flora and fauna dependent on an aquatic environment. There is a related provision at Section 38(3) for compensation to be paid where the need for the changes I referred to in connection with Section 37 ought to have been foreseen when the consent was first granted or reviewed.

There is therefore a presumption that river purification authorities will seek to protect flora and fauna when considering applications for consent to discharge into controlled waters. Further, Section 46(1)(b) gives the river purification authorities power to undertake such works as appear to the authority to be necessary to remedy or forestall the pollution of controlled waters. The river purification authorities are also empowered in such circumstances to restore the flora and fauna dependent on the aquatic environment of the waters affected to their previous state.

River purification authorities and the Secretary of State are already acting in a responsible manner with regard to environmental matters. There are already sufficient and relevant powers and duties available to river purification authorities to meet the general aims of these amendments. We do not feel that there has been a good reason to cause us to want to alter these provisions or to add to them at this stage of the Bill.

If any further evidence were needed that river purification authorities were actively involved in conservation of the natural beauty of rivers, I need only refer to the Tidy Britain Group's award this year to the Forth River Purification Board for the successful "Clean Forth" campaign. The board was actively engaged in organising teams of young people to tidy up the banks of the River Forth and its environs which was part of a national campaign, and the success of its achievement is self-evident.

The Government are not unsympathetic to the general principle of my noble friend which is contained in the amendments. But we consider that they are not necessary and that adequate provisions are already available in the Bill and elsewhere. There is no evidence that these measures and the way in which they are carried out have been ineffective. Even if we agreed that the amendments were desirable—and for the reasons I have indicated we do not—this would not be an appropriate time, we believe, to make such changes without full consultation and consideration of the very clear implications which I have attempted to demonstrate.

My noble friend Lord Caldecote mentioned that river purification boards have many functions similar in scope to the new National Rivers Authority in England and Wales. The river purification boards do not have the same range of functions—as I have tried to demonstrate—as the NRA. The boards are almost solely responsible for the quality of water. They do not have any responsibility for other functions.

Having heard what I have said, I hope that my noble friend will realise that we are doing our very best in Scotland on matters of pollution and the environment, and take such matters very seriously. I hope that my explanation has given him food for thought.

Viscount Caldecote

My Lords, I am most grateful to the Minister for that very full explanation. Perhaps I may raise two points. I am not clear why the arrangements in Scotland for enhancement and protection of the environment should be different from those in England. Alternatively, is he saying there are as adequate powers for the enhancement and protection of the environment as there are in England?

Lord Sanderson of Bowden

My Lords, yes. As we have already understood in previous amendments, the law is different in England and Scotland. Between the Nature Conservancy Council and the powers that the river purification boards have we feel that the Secretary of State has acted in the interests of the environment up to now. We feel that that is the way to proceed in Scotland.

I have to remind my noble friend that we are not dealing with a completely new situation in Scotland, as indeed is the case in England and Wales with this Bill.

Viscount Caldecote

My Lords, I am extremely grateful to the noble Lord for his very full explanation. He gave a little hope by saying that he did not think that this was the right time to make these changes without further consultation with those involved. That gives a little hope that he might be prepared to carry out such consultation. He has put forward many fairly complex points—with aid and support from his office—which are difficult for amateurs like myself to deal with at a time like this. I should like to leave it that we shall consult together, perhaps after this debate, and if necessary bring forward a proposal at Third Reading to deal with this very important point on the basis that it is just as important in Scotland as in England to have provisions to protect and enhance the environment. That is the principle behind the amendment. I should like to consult the noble Lord later to see whether we can together agree something to achieve that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.30 p.m.

Schedule 23 [Control of Water Pollution in Scotland]:

Lord Sanderson of Bowden moved Amendment No. 156: Page 303, line 46, leave out ("controlled") and insert ("inland").

The noble Lord said: My Lords, in moving Amendment No. 156, I also speak to Amendments Nos. 157, 158, 172, 173 and 174. Amendment No. 156 substitutes "inland waters" for "a stream" in Section 4(4) of Part I of the Control of Pollution Act 1974. "Inland waters" most closely parallels the present term which of course will become obsolete when the new definitions of water in Section 30A come into force. A similar amendment has already been approved in Committee in respect of England and Wales.

Amendment No. 157 would get rid of an unnecessary subsection as the matter is already fully covered in Section 31C.

Amendment No. 158 effects a commonsense change in specifying the general aims which the Secretary of State must have when considering the levels of charges which a river purification authority makes for consents to discharges. A similar amendment has already been approved in Committee in respect of England and Wales.

Amendments Nos. 172 to 174 are simply drafting amendments. I beg to move.

Lord Renton

My Lords, I am sure your Lordships will wish to accept these amendments for the reasons which my noble friend has given. But I think that we should note in passing that in Schedule 23 we are amending the primary law of Scotland in relation to control of pollution and we are doing so in 30 pages. That follows 10 pages of amendment to the primary law of Scotland in Schedule 22 where we deal with water quality.

There is nothing in the Long Title of the Bill that warns us that there are these voluminous amendments to the law of Scotland in these two schedules. Perhaps it is a matter for consideration whether the Long Title should be amended in order to show that.

Having said that, and having drawn attention to the fact that these schedules normally only deal with matters of detail, we are to a very considerable extent amending the primary law of Scotland.

The Earl of Balfour

My Lords, I should like to ask my noble friend two questions. Amendments Nos. 172 and 173 seek to leave out Schedules 22 and 23. I feel that it is sometimes useful to people who have to read legislation to know that those two schedules are being included.

My main question relates to Amendment No. 157. New Section 31B in Schedule 23, to which Amendment No. 157 refers, seeks to leave out subsection (3)—fair enough. I am always pleased when pieces of legislation are left out. Would my noble friend try to persuade his colleagues on the Front Bench that they might leave out the same subsection (3) of Clause 111 on page 120 dealing with nitrate sensitive areas? The words are identical and if Scotland can do without them it would be nice if England could.

Lord Sanderson of Bowden

My Lords, with the leave of the House, I take seriously the comments of my noble friend Lord Renton. I shall read what he said about the long schedules which have been presented to the House in respect of Scotland. I must consult with my colleagues on the Front Bench about the comments of my noble friend Lord Balfour. I have a feeling that the answer will be no, but I shall discuss the matter.

On Question, amendment agreed to.

Lord Sanderson of Bowden moved Amendment No. 156A: Page 307, line 11, at end insert—

• ("Consultation and collaboration.

30E. In the performance of their functions in relation to waters partly in Scotland and partly in England river purification authorities shall, in matters of common interest, consult and collaborate with the National Rivers Authority.").

The noble Lord said: My Lords, I should like to speak also to Amendment No. 156B. The amendments are aimed at the continuing existing measures for dealing with matters of common interest in respect of cross-Border rivers. Amendment No. 156A would in effect replace the consultation provisions presently available under the Border Rivers (Prevention of Pollution) Act 1951 which is to be repealed by the Bill. Amendment No. 156B will provide a defence against a charge of polluting Scottish waters if it happened as a result of discharge to which the National Rivers Authority has given a consent under the Bill. A corresponding provision for England and Wales is provided elsewhere in the Bill. I beg to move.

On Question, amendment agreed to.

Lord Sanderson of Bowden moved Amendment No. 156B: Page 307, line 46, after ("1985;") insert— ("(iv) any consent given under Chapter I of Part III of the Water Act 1989;").

On Question, amendment agreed to.

Lord Sanderson of Bowden moved Amendment No. 157: Page 311, line 1, leave out subsection (3).

On Question, amendment agreed to.

Lord Sanderson of Bowden moved Amendment No. 158: Page 328, line 20, leave out ("need to ensure") and insert ("desirability of ensuring").

On Question, amendment agreed to.

Lord Sanderson of Bowden moved Amendment No. 158ZA: Page 332, line 2, leave out from first ("on") to end of line 4 and insert ("—

1. (i) the river purification authority;
2. (ii) every local authority whose area includes the whole or any part of that locality; and
3. (iii) in the case of an order containing any such provision as is authorised by section 31B(4)(b) of this Act, such owners and occupiers of agricultural land in that locality as appear to the Secretary of State to be likely to be affected by the obligations in respect of which payments are to be made under that provision;

and").

The noble Lord said: My Lords, I should like to speak also to Amendments Nos. 158A and 158B. These provisions have already been approved for England and Wales by the House. It is appropriate that the same provisions are made for Scotland. They would ensure that those farmers and others directly affected by the terms of an order containing compulsory restrictions with entitlement to compensation would be sent details of the draft order direct. Amendments Nos. 158A and 158B would increase from 28 days to 42 days the period between publishing the draft order and finally making the order. I beg to move.

On Question, amendment agreed to.

Lord Sanderson of Bowden moved Amendment No. 158A: Page 332, line 18, leave out ("twenty-eight") and insert ("forty-two").

On Question, amendment agreed to.

Lord Sanderson of Bowden moved Amendment No. 158B: Page 332, line 31, leave out ("twenty-eight") and insert ("forty-two").

On Question, amendment agreed to.

[Amendment No. 159 not moved.]

Lord Graham of Edmonton moved Amendment No. 159ZA: After Clause 169, insert the following new clause:

• (" Work Environment fund and Advisory Body.

.—(1) The Director shall establish as soon as is practicable and in any event not later than six months from the transfer date, a Work Environment Fund for the purposes of funding and carrying out health and safety improvements for employees of water and sewerage undertakers. (2) Each undertaker shall pay into the Fund a percentage of payroll costs which shall be determined by the Secretary of State and not exceed one per cent. (3) The Secretary of State shall establish as soon as is practicable and not later than six months after the transfer date a National Water Health and Safety Advisory Body. (4) Membership of the Advisory body shall consist of equal numbers of undertakers, trade union representatives of those employed by undertakers and the Authority and the Health and Safety Commission. (5) The Advisory Body shall have the duty to research into and to promote the health, safety and welfare of the employees of the undertakers and the Authority. (6) Nothing in the foregoing shall take the place of the duties of the Authority and undertakers under the Health and Safety at work etc. Act 1974.").

The noble Lord said: My Lords, this amendment seeks to establish a national work environment fund for the water industry which would provide an invaluable new initiative and structure to finance and administer necessary practical measures on health and safety at work throughout the industry. One aim of the fund would be to ensure that standards of health and safety at work for employees in the industry do not diminish as a result of privatisation. However, the broader aim is for far more than one which seeks to prohibit a deterioration in standards; namely, the development of a strategy to improve standards through a programme of action predicated upon a preventive approach to occupational health.

The WEF will be financed by a percentage of payroll costs and jointly controlled through the National Water Health and Safety Advisory Body. The payroll levy ensures that each undertaker contributes towards the fund on an equitable basis. No one undertaker would bear a disproportionate share of the costs contributing towards the fund. Joint control of the fund mirrors the tradition of tripartism practised as the British approach to regulating health and safety at work. Joint control ensures that the activities financed by the fund are the subject of negotiation between employer and employee representatives with the presence of Health and Safety Executive representatives to provide technical guidance and neutral expert opinion.

All separate undertakers within the water industry face similar responsibilities under health and safety laws, while correspondingly all employees (regardless of which undertaker employs them) face similar hazards at work. However, the fragmentation of the industry which will result from privatisation will undoubtedly evoke differing responses to common responsibilities and problems. The establishment of a WEF will therefore allow a co-ordinated strategy to be developed for regulating standards of health and safety for all employees throughout the industry.

If no such body exists to facilitate identification of common problems and to co-ordinate appropriate action to remedy these, then separate undertakers throughout the industry will be forced to carry out their own work on identifying causes and solutions to hazards. Some may not do this, or at least may do so less vigorously than others, resulting in differing standards throughout the industry. Those undertakers that do carry out such work would want to see the results of any investment on health and safety research used for the direct benefit of their own employees, and may keep the results to themselves. This is in fact the existing unsatisfactory pattern of research into occupational health matters throughout British industry as a whole, a pattern which results in considerable duplication of effort coupled with poor dissemination of the results of that research.

The establishment of a WEF would combat the fragmentation and lack of co-ordination which contributes towards lower standards of health and safety than are feasible.

There are a great many benefits which could accrue not only to the individuals who work in the industry, to the undertakers, but also to the nation. The model upon which such a fund could be based exists on a national level in Sweden. It is widely accepted that attention to the physical, chemical and psycho-social factors—and I shall try not to say that again—which determine the quality of the working environment is nowhere more comprehensive than in Sweden. Broadly speaking, standards of health and safety at work, quality of research into occupational health matters and improvements in working conditions are higher in Sweden than in any other industrialised country. The Swedish WEF, established in 1972, is acknowledged by employers, trade unions and the National Board of Occupational Safety and Health alike as having made a major contribution towards improving the work environment in all areas.

The activities of the fund are financed by means of a tax paid by all employers. The fund in Sweden does not engage in research itself, its main task being to finance projects aimed at research and development, training and information.

More than 200 projects have been funded since 1972. A water industry WEF could reliably be anticipated to contribute towards achieving standards of employee welfare and an awareness among both management and staff of health and safety issues similar to those that the Swedish model has engendered. I beg to move.

10.45 p.m.

Lord Hesketh

My Lords, the effect of the proposed new clause would be to required, first, that the director set up a water environment fund into which water and sewerage undertakers would pay a percentage of payroll costs; and, secondly, that the Secretary of State should set up a national water health and safety advisory body to research into and provide for the health, safety and welfare of employees of the water and sewerage undertakers and the National Rivers Authority. I do not consider it is necessary to make statutory provision for either a fund or an advisory body, as the noble Lord, Lord Graham, proposes. Privatisation of the water authorities is intended to free the successor companies as far as possible to manage their affairs in the same way as any other company in the private sector. The health and safety needs of the water industry are already well catered for and I see no reason why this should not continue without the need to set up an advisory body. The proposed new clause is a recipe for confusion. Paragraphs (3) to (5) almost guarantee that the sixth will not be complied with. Dual responsibility is seldom as effective as clean-cut single responsibility because of the danger of passing the buck.

The Health and Safety at Work Act already establishes duties and responsibilities. There is no need to establish more duties in the water industry. Where an industry, for example the construction industry, has greater problems than others, then an advisory committee may be set up by the Health and Safety Commission. However, where there are good joint committees it is unlikely that this would prove necessary.

I do not dispute the sense of having some means of co-ordinating water and sewerage industry issues. The Health and Safety Executive encourages joint employee and employer committees to pool technical advice on health and safety problems. The national health and safety forum carries out such a function for the water industry. These committees are voluntary and there is no reason why the water authorities' successor companies should not make similar arrangements. Additionally the training centre, known as Water Training, is able to carry out its services through the support of the water industry and will continue to do so after privatisation. Water Training provides training courses specifically on health and safety. Proper training and equipment address the problems of work in confined spaces or in trenches, complicated electrical work, handling chemicals and good sanitary practice for water-borne diseases, which are the most hazardous aspect of water and sewerage work. The industry has a good record.

I hope that the noble Lord, Lord Graham, will not see fit to press this amendment.

Lord Graham of Edmonton

My Lords, this all sounds wonderful, and if that is so I wonder why the employees in the industry are asking those of us on this side of the House to put forward this proposal.

Of course they have a vested interest in this matter. They are concerned about their health and safety and about the knowledge that they have. I do not dispute that there are good employers and that they enjoy good relations. I think that the Minister failed to undertstand what I have said in support of this amendment. This is not an ambulance service; it is not something to make sure that things do not happen; its prime function is to develop a positive strategy to improve standards through a programme of action predicated upon a preventive approach to occupational health.

The Government are setting employers free under the guise of deregulation. The Minister knows that many employers will not carry out minimum standards and functions to protect their employees. They will not carry out proper consumer standards. One only has to look at the training initiatives introduced by the Government. They are going to abolish industrial training boards and give back to employers the freedom to decide how much training they are going to do.

I am disappointed with the Minister's reply because I think that this situation calls for a more sympathetic response. It is quite clear that the Minister is not prepared to impose this minimum responsibility on the undertakers to carry out that which is contained in this new clause.

If the Minister said that this was a matter that could be considered, I believe that the employees in the industry who are primarily the concern of the General, Municipal and Boilermakers' Union—a union with a fine record of forward thinking in the strategy of protecting its members—would have been satisfied that the case had been made. It is clear that by promoting this new clause the union believes that there is a job to be done. The Minister or those who advise him do not think so. There is little point in pursuing the matter at this stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 170 [Indemnities in respect of fluoridation]:

Lord Monson moved Amendment No. 159ZB: Page 170, line 32, at beginning insert ("Subject to subsection (3) below").

The noble Lord said: My Lords, in moving this amendment it will almost certainly be for the convenience of the House if I speak at the same time to Amendment No. 159ZC for which Amendment No. 159ZB is merely a paving amendment. Perhaps I may remind the House that the Government introduced the controversial Clause 170 just before four o'clock in the morning on the final day of the Committee stage and shortly before the House rose for the Whitsun Recess.

My noble friend Lord Baldwin of Bewdley made a pungent and telling criticism of the new clause, but inevitably at that particular hour there were not many Members of the Committee present to hear him. One must remember that the new clause has never been submitted to the scrutiny of the other place. There are those who have argued that the provisions of the new clause are not necessarily as profligate in disbursing taxpayers' money to private companies as would appear from a superficial glance at the clause, since the consent of the Treasury will be needed before any moneys can be disbursed. There is no guarantee that such consent will ever be forthcoming.

That argument is a perfectly valid one and explains why a sword of Damocles must lie over the flotation of the new plcs, since investors cannot be sure whether or not the companies in which they are invited to invest will or will not be called upon at any time in the future to meet claims as regards fluoridation. Let us assume for the sake of argument that some indemnity reassuring to potential investors can effectively be given. It surely would be utterly wrong if the taxpayers' potential burden were to extend to paying for acts of negligence on the part of the statutory undertaker which led to the kind of extremely dangerous overdose that we experienced at Camelford not so long ago, notwithstanding that the incident involved aluminium rather than fluorides.

It is just such a potential burden on the taxpayer that this pair of amendments is designed to prevent. The Secretary of State has no powers and seeks no powers to indemnify the private pharmaceutical industry for liabilities arising out of the supply of medicinal products and costs incurred in connection with any proceedings brought by any person with respect to the supply of medical products.

According to my noble and learned friend Lord Jauncey, in his famous 1983 Strathclyde judgment, fluoride is indeed a medicine. Opinions vary as to whether it does any good or not in small doses, and I shall come to that point later. I believe that even the most ardent fluoridationists will concede that it is harmful in excessive doses, just as excessive doses of, for example, aspirin, antibiotics, tranquillisers or sleeping pills are harmful.

One understands that to date no overdosing incidents have, thankfully, occurred in the United Kingdom as regards fluoride. But elsewhere in the world several overdosing accidents have occurred, unhappily, resulting in deaths and severe disablement of consumers of fluoridated water. This is something which the privatised companies should lean over backwards to avoid at all costs. But tragic accidents do unfortunately occur from time to time, against which privatised companies should insure at their own expense without relying on the crutch of the taxpayer. I beg to move.

Lord Renton

My Lords, whatever the other virtues of the amendment may be, it is, alas, inconsistent with what has gone before in Clause 170. Subsection (1) says: The Secretary of State may, with the consent of the Treasury"— which I regard as quite unnecessary— agree to indemnify any statutory water undertaker in respect of"— and I go straight to the point— liabilities incurred by the undertaker in connection with anything done"— those are the operative words— by the undertaker for the purpose of increasing the fluoride content of any water supplied by the undertaker". If we were to accept the amendment we would be introducing an inherent contradiction into the clause.

In any event I must confess that I do not see the practicality of the case put forward with great sincerity by the noble Lord. Fluoridation is not done on a massive scale. It has been done by a number of water companies and water authorities on a scale which has been accepted by the public and by Parliament. For the most part it has been accepted as being beneficial. It is hard to imagine that in practice any truly excessive fluoridation is ever likely to occur.

Lord Trafford

My Lords, I spoke briefly on this matter in Committee. As that was, as the noble Lord, Lord Monson, pointed out, at an unearthly hour, I was extremely brief and possibly slightly sharp with the noble Earl, for which I now apologise. I think I was unduly sharp in making my comments.

Although there are arguments with regard to the consequences of excess fluoride—it would have to be excess fluoride—on the whole it has been regarded as being beneficial from the point of view of so-called dental care, particularly in younger children. To say that a substance added at one part in a million is not harmful but when given in an overdose is harmful is absolutely obvious. The example of Camelford was quoted by the noble Lord, Lord Monson, but the quantity of aluminium put into the water in that case was horrendously large.

It is not strictly true to say that the Government never take liability with regard to other medicinal compounds. As I am sure the noble Lord is aware, discussion is now going on where the Government are liable to take on considerable liability for indemnity with regard to pharmaceutical products, medical activities and so on. This has arisen simply because of the enormous costs, charges and damages that are being awarded by the courts in matters involving medicinal compounds, medical activities and so on. They are not necessarily even due to any form of negligence but to the natural state of chance that arises in these circumstances. It is therefore quite possible that considerable damages or consequences could ensue if it is the Government's wish to promote in the interests of some form of preventive health the fluoridation of water to a minor degree—the one part in a million which they are now advocating as the best but lowest level.

I do not disagree with the noble Lord, Lord Monson. He said that there have been problems with regard to excessive fluoride. However, it must be very excessive fluoride. For example, there are those who take it as a form of treatment for bone disease; indeed, it has been prescribed as a medicinal compound. I should add that I do not believe that it has proved to be very effective; but nonetheless, in such circumstances, it has been prescribed in vastly greater amounts without necessarily causing much trouble, if not producing much benefit.

However, be that as it may, the fact of the matter is that the Government have taken the line that on balance—I do not argue with noble Lords about every single detail as regards fluoride—this has a beneficial consequence. Therefore, it is only proper that they should say, "If we as a government argue this case, we intend to take some action to protect people from the consequences of what we have decided upon." That is, not what a plc has decided but what the Government have decided.

My noble friend Lord Renton pointed out some aspects of the clause. I do not disagree with what he said about any action taken regarding the consequent fluoridisation of water, and so on. I am sure that this is a matter which my noble friend on the Front Bench has taken on board. However, I should just like to point out to the noble Lord, Lord Monson, one or two defects in the amendment.

I suggest that if it is a question of balance, then the balance of probabilities and the balance of preventive health care would suggest to me that fluoridisation is in our favour and remains so, subject to any further research discoveries or evidence. If that is what we wish to encourage, then that is something the consequences of which we should be prepared to look carefully upon.

11 p.m.

Lord Brougham and Vaux

My Lords, as I spoke briefly on this matter during the last stage of the Bill, I rise simply to support my noble friend Lord Trafford. Unfortunately, my noble friend Lord Colwyn is not in his place this evening; but I should like to reiterate what my noble friend just said. However, we have debated this subject at length many times in the past, and I think therefore that it is a matter which should be left alone.

Lord Stoddart of Swindon

My Lords, I should like to express my support for the amendment. I must say, irrespective of what government policy may be overall in relation to the addition of fluoride to water supplies, that I find it almost inconceivable that a government should give to a private undertaking an absolute and ongoing commitment to indemnify a private firm and its staff in relation to the overproduction of a poisonous element added to the water supplies.

As I read it, the new clause says to the water undertakings that because it is government policy that fluoride should be added to water supplies, "We will indemnify you no matter what you do. It does not matter if one of your employees"—as one did in Camelford—"tips gallons of fluoride into the water supply and you are sued for millions of pounds by people whose health may be damaged. We will indemnify you against such an occurrence." That seems to me to be taking matters much too far; indeed, it is an encouragement for the private water undertakers to be less careful than they otherwise would be had they to meet the cost of damages themselves or through an insurance indemnity.

I think that the matter is probably even worse than that because there is no unanimity among the population of this country—nor indeed is there among doctors and dentists in this country and abroad—as to the beneficial effects of added fluoride to water. By extending that indemnity to private firms, the Government are going much too far. The modest amendment moved by the noble Lord, Lord Monson, asks the Government to give pause, and I support it.

Lord McIntosh of Haringey

My Lords, I intervene only because of the intervention of my noble friend Lord Stoddart of Swindon who is to be admired for his tenacity and clarity. The Labour Party has in recent years been surfacing from a surfeit of doctrinal disputes, and I want to make it clear that this is not a matter on which the Labour Party takes a party view. Anything that my noble friend and I say from these Benches is said in a personal capacity and not as a representative of the Labour Party.

I happen to disagree with my noble friend. I happen to have been convinced during the many years that I spent in local government debating these issues with almost monotonous regularity that the arguments for fluoridation in water are strong. I have also been convinced of that from the experience of my family. I therefore do not support the amendment moved by the noble Lord, Lord Monson, and I hope that the Government will resist it.

Lord Hesketh

My Lords, I like to believe that my teeth might have benefited.

The effect of the amendment would be to prevent the Secretary of State for Health indemnifying water undertakers against costs or damages imposed on them as a result of proceedings brought against them where the flouride content of the water supplied by them had been increased in excess of the prescribed level. At the outset I should like to stress that the Government, on the basis of some 40 years' experience in the USA and 30 years in this country, are quite satisfied as to the safety of fluoridation.

The Water (Fluoridation) Act 1985 prescribes that when requested so to do by health authorities water undertakers may increase the fluoride content of the water supplied by them. Any arrangements made by the water undertakers should secure that the concentration of fluoride in the water supplied to consumers shall as far as reasonably practicable be maintained at one milligram per litre.

One part per million is the optimal fluoride content of the water supply. It is certainly not the upper limit for safety and there is no reason therefore why from time to time supplies should not have a fluoride content of slightly more than that with absolutely no danger to health.

Technical advice on the levels of fluoride permissible in supplies is provided by the Department of the Environment's Standing Technical Advisory Committee on Water Quality. Those provide strict limits between which the fluoride content of a fluoridated supply can vary, providing in particular that the average fluoride content of the supply in any calendar month should be between 0.9 and 1.1 milligrams per litre and that the fluoride content of the supply should never exceed 1.5 milligrams per litre. That leaves a very wide margin of safety and is consistent with the World Health Organisation's recommendations and the EC directives relating to the quality of water intended for human consumption.

Since fluoridation began in the United Kingdom it has been the policy of health ministers to indemnify water undertakers against possible damages arising on the grounds of safety. What we are proposing is no extension to private companies; merely a continuation of a practice. It is the Department of Health, and not the water undertakers, which has the overall responsibility for giving assurances on the overall safety aspect. Water authorities are of course responsible for maintaining the safety of individual fluoridation plants and have an excellent record in that respect. These indemnities are necessary to protect the interests of water undertakers and thereby encourage them to accede to requests from health authorities. I therefore ask the noble Lord to withdraw his amendment.

Lord Monson

My Lords, I am grateful to all noble Lords who have spoken. I must of course yield to the noble Lord, Lord Renton, in matters of drafting, but I must say that I thought that my paving amendment provided for the one exception. I shall return to that point in a moment. The noble Lord, Lord Trafford, doubted whether truly excessive fluoridation was ever likely to occur. It has occurred, albeit not, thank goodness, in the United Kingdom. We could have a Camelford, with fluoride rather than aluminium. I hope not, but it could happen.

What I am afraid the noble Lord, Lord Trafford, and the Government in the person of the noble Lord, Lord Hesketh, have missed, is that the amendment would come into play only if a court found that the statutory water undertaker had been negligent to the extent that a really massive overdose had been inserted into the water supply. I guess, in fact I am certain, that a slight overdose would never come into this category: a mere 50 per cent. overdose would not come into the matter at all.

I should like the Government to examine the matter again. I do not like Clause 170; I admit that freely. But I am not trying to insert a wrecking amendment into the clause. I have accepted it. What I wish to do is to exclude negligence on the part of the statutory water undertaker: I do not see why the taxpayer should pay for negligence. It is something which the undertaker should insure against and pay for out of his gross profits.

The noble Lord, Lord Brougham and Vaux, thinks that the subject should be left alone, on the grounds that it has been discussed before. That is a curious way of looking at legislation. Knowledge advances —scientific knowledge and every other sort of knowledge—and what may not be evident to somebody in 1985 might appear quite differently in 1990. Therefore I cannot accept that advice.

The noble Lord, Lord Stoddart of Swindon, got to the heart of the matter. I do not feel that the Government have really grasped what the amendment is all about. There is always a temptation to say that in view of the lateness of the hour, we shall not divide the House. I give way to the noble Lord.

Lord Renton

My Lords, I apologise to the noble Lord, I had overlooked his paving amendment; he is quite right.

Lord Monson

My Lords, I am very grateful to the noble Lord. In view of the thinness of the House—it will of course be thin the next time round as well because Clause 170 appears towards the end of the Bill—I should like to study what the noble Lord, Lord Trafford, said in relation to one particular aspect and I should also like the Government to think again about their interpretation of my amendment, bearing in mind that it can only have effect if the court were to prove negligence on the part of an undertaker. Reserving the right to come back again at the next stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 159ZC not moved.]

Lord Monson moved Amendment No. 159ZD: Page 171, line 12, at end insert— ("( ) At the end of the period of five years from the passing of this Act the provisions of this section shall expire unless their continuation in force has been approved by a resolution of each House of Parliament.").

The noble Lord said: My Lords, this amendment provides that both Houses of Paliament should have the opportunity to review this controversial clause, Clause 170, after five years from the passing of the Act. They can then decide whether or not they wish its provisions to remain in force. I say "controversial" because, as I mentioned in speaking to the previous amendment, a very large liability is placed on the shoulders of the taxpayer in respect of privately-owned companies, as opposed to the nationalised or quasi-nationalised ones.

I believe that there are three reasons why Parliament is likely to wish to review the matter in due course, quite apart from the open-ended potential liability of the taxpayer. The first is cost effectiveness. When we last debated fluoridation at any length three or four years ago, I do not think that there were the statistics from the United States which have recently appeared, covering a very long period. It is a thorough piece of research spanning 17 years, studying 28 areas which were fluoridated compared with 29 which were not fluoridated. The average number of decayed, missing and filled teeth in the first group was 1.96, and in the second group. 1.99. It was statistically so small as to make no difference at all.

Even those dentists and doctors who are reluctant to accept the evidence of the survey and still believe in the efficacy of fluoride are beginning in some cases to have doubts about whether the unselective—I think that is the word to use—method of fluoridating the public water supply is the most cost effective way of going about it.

I have in front of me a letter from an eminent dentist, writing from what estate agents would describe as a prestigious address in London W1. The dentist states that: The crowns of all the permanent teeth, apart from the wisdom teeth are formed by the time the child is six years old, and after this time the ingestion of fluoride can have no beneficial effects whatsoever.".

The dentist goes on to recommend pills and fluoridated toothpaste, but ends up by stating that: It is a waste of resources apart from the possible health hazard to fluoridate water".

I know that the noble Lord, Lord Colwyn, who is not here would disagree with him. Professional people often disagree—and who can tell which eminent dentist is right in this matter? Well over 90 per cent. of the population is of course over the age of six. None of these approximately 50 million people can benefit from fluoridated water. On the contrary, they may well be harmed to some degree. That brings me to the second reason for this amendment.

Unlike myself, the Government and indeed all the Opposition parties are committed to a much greater degree of harmonisation with our partners in the European Community. However, the great majority of the EC countries—over 75 per cent. of them—abhor fluoridation, having studied the matter in detail. Is it not likely that we shall soon have to fall into line with our partners if EC harmonisation on environmental matters is to be taken to its logical conclusion? By European countries, I refer not only to EC countries but also the health-conscious Scandinavian countries of Norway and Sweden which are not in the Community. Their suspicion of fluoride is based on sound, empirical reasoning, which leads me to the third reason for this amendment.

The pace of medical research is such that all kinds of products, medical and non-medical, which were thought to be perfectly safe, and indeed beneficial as recently as 10, 12 or 15 years ago are now revealed to be very far from safe. One immediately thinks of thalidomide, although perhaps that is an unfair comparison to make. A better comparison is asbestos. One can remember when asbestos was considered to be God's gift to mankind. The noble Earl, Lord Caithness, will know as well as anyone that farm buildings and light industrial buildings were constructed from asbestos during the 1960s and even later. Asbestos was also used widely in domestic houses: I remember the asbestos mats on which kettles simmered. Look at the way we regard asbestos now!

A few years ago the concept of cholesterol in meat fat and butter meant nothing to people. Cigarettes and alcohol were universally accepted; and tranquillisers were prescribed in massive doses 10 or 12 years ago without any regard to the consequences. Now of course doctors have recognised the consequences and have put a very heavy brake on prescribing them. All the things I have mentioned were once considered either harmless, or, at worst, very mildly harmful. How times change! I think it more than likely that the professional perception of fluoridation may well also change in the next few years. For that reason, I urge the House to consider the amendment seriously. I beg to move.

11.15 p.m.

Earl Baldwin of Bewdley

My Lords, I support this amendment because I believe the time is coming, as it has come in other countries, when there will be a reappraisal of the effects of fluoride in drinking water. The subject, I can assure the noble Lord, Lord Brougham and Vaux, will not go away.

One reason for this is that the evidence for its harmful effects cannot go on being overlooked for ever. I would particularly commend in this regard a long and thoughtful article in the American Chemical and Engineering News of 1st August 1988. One or two short quotations from this will illustrate what I mean. I quote: The Washington Bureau editor of…the monthly publication of the Academy of General Dentistry wrote last year that supporters of fluoridation have had an 'unwillingness to release any information that would cast fluorides in a negative light', and that organised dentistry has lost 'its objectivity—the ability to consider varying viewpoints together with scientific data to reach a sensible conclusion'.". The professor of environmental medicine at Odense university in Denmark, writing of a World Health Organisation study on fluorine and fluorides, said: information which could cast any doubt on the advantage of fluoride supplements was left out by the Task Group. Unless I had been present myself I would have found it hard to believe". A scientist at the US Environmental Protection Agency reports how: The scientific assessment of fluoride's health risks written by the Agency in 1985 omits 90% of the literature on mutagenicity, most of which suggests fluoride is a mutagen". Examples are given of how articles have been refused for publication because: the opposition to fluoridation has become virulent again", or this is a sensitive subject and any publication in this area is subject to interpretation by antifluoridation groups". One has to remind oneself that this reasoning comes from editors of academic and professional journals. From popular newspapers one could understand a political approach of this kind.

An American graduate student in the 1970s did his Ph.D. thesis on the fluoridation controversy. His conclusion was: that the vast majority of the reviews of the literature were designed to promote fluoridation, not to examine evidence objectively". Let me give one final quotation, from a leading United States public health officer at a meeting of state dental directors as long ago as 1951, when fluoride research had hardly begun: If it is a fact that some individuals are against fluoridation, you just have to knock their objections down. The question of toxicity is of the same order. Lay off it altogether. Just pass it over. 'We know there is absolutely no effect other than reducing tooth decay', you say, and go on". The same officer later wrote: The minute doubt is created in the minds of the public, any public health program is doomed to failure". I think that that last statement is deeply significant for the whole debate when one considers the absolute nature of many of the claims for fluoride. The reasons why the whole issue became a campaign from the start, rather than a proper scientific inquiry, are of great interest in themselves though there is no time for them here. I should add that I believe that the motives were, by and large, of the best.

But times are changing. The noble Lord, Lord Monson, spoke of the history of other substances once thought safe and endorsed as such by scientific bodies. I agree entirely with what he said and have made the same points myself in speeches on environmental matters. Other countries such as France, Germany, and Denmark have decided that the risks of fluoride are too great. There is a mood in this country which is now gathering pace in which people are no longer prepared to see their air, food and water treated with doubtful substances. I believe that the Government would do well to heed that mood, and the increasingly solid evidence on which it is based.

Lord Craigmyle

My Lords, the noble Lord is entirely correct. That mood concerning food, air and water is becoming very strong. I believe that he and the noble Lord, Lord Monson, should be supported, particularly on the aspect of the question which touches on harmonisation with other countries in Europe. That is why I added my name to the amendment.

I should like to add one point to what has been said on this subject. If one reads the writings for and against fluoridation one will see that those in favour of fluoridation all date from some time ago. The great majority of the more recent writings, dating from within the past 10 or 15 years, are against fluoride. It is quite possible that in the next few years there may be a considerable swing of public opinion against it and, unless this amendment or something very like it is agreed, we may find ourselves saddled with something that it would need a new Act of Parliament to change.

The Earl of Balfour

My Lords, I believe that at this stage we should remember that the reason why it was chosen to add fluoride to water was that water was not protected by the food and drugs Acts in the same way as other products which we consume.

I have always felt that water was perhaps not the right medium because, after all, we consume only about 10 per cent. of the water that we use. But, to add fluoride to something like milk, of which we consume about 90 per cent. of the amount that we use, would not be permitted by law.

Otherwise, I think that the Government should exercise some caution before taking on board many of the appeals that are made today, for example, against the consumption of sodium nitrate. None of us has suffered any harm from eating salt meat, and most of my noble friends have eaten it. I can assure the noble Lord that, so far as I am concerned, there is no situation that whisky does not improve!

Lord Stoddart of Swindon

My Lords, I should like to support the amendment—I shall not go into the arguments for or against fluoridation—simply because it is so logical. Let us see what it says. It states that: At the end of the period of five years from the passing of this Act the provisions of this section shall expire unless their continuation in force has been approved by a resolution of each House of Parliament. How reasonable that is! We are asking Parliament—because it is after all Parliament—to give an indemnity to a group of private firms on a specific issue. Is it therefore unreasonable—I do not think that it is—that the taxpayer, through Parliament, should be asked every five years, or at the end of the period of five years, whether he wishes to continue that indemnity? I can hardly believe that any Member of this House or another place would consider that to be so unreasonable that he would wish to vote against it. I therefore hope that the Minister, when he replies, will be able to agree with me that the amendment is so eminently reasonable that even he will accept it.

Lord Hesketh

My Lords, the effect of the amendment would be to terminate any agreement made by the Secretary of State for Health to indemnify water undertakers against any costs or damages arising from claims that the addition of fluoride to water has caused injury or death to any person at the end of a period of five years from the coming into force of the Act unless it was renewed by an affirmative resolution of both Houses of Parliament.

Fluoridation benefits teeth throughout the years of their formation. The process takes from birth until children are about 14. The benefits of fluoridation are therefore long-term, and decisions on schemes should be taken in the knowledge of that fact.

The model contract that forms the basis of the agreement between health authorities and water undertakers regarding the fluoridation of water supplies recognises the long-term nature of the effect of fluoridation and recommends that the agreement should remain in force for at least 15 years. Water undertakers would find it impossible to accede to the request, should the period be reduced to five years. In the light of that consideration, we cannot accept the amendment.

Lord Monson

My Lords, once again I thank all noble Lords who have spoken to the amendment. My noble friend Lord Baldwin of Bewdley has once again produced some detailed and devastating evidence in support of my contention. I am also grateful to noble Lords on the Government Back-Benches who spoke in support. I am heartened by the support from the noble Lord, Lord Stoddart of Swindon. He knows the House of Commons in a way that I never can. He seems to think that the amendment would be welcomed by the other place.

The support that I have received for the amendment has been unanimous, with the exception of the contribution from the noble Lord, Lord Hesketh, who I did not think understood the amendment. I argue that the pace of advance in medical knowledge is such that it is only a matter of time, I suspect, before fluoridation is found to be as harmful as asbestos or tobacco, for example.

When considering what to do about the last amendment, I thought that it was better to——

Baroness Blatch

My Lords, would the noble Lord give way? I am grateful to him. I think that it is important to say that our silence does not necessarily mean assent.

Lord Monson

My Lords, I entirely accept that. It is for that reason that, in contrast to the last amendment, I believe that it might be useful to test the opinion of the House, at least in the verbal sense if not in a way that involves any pedestrian movement. Therefore I do not intend to withdraw this amendment.

On Question, amendment negatived.

11.30 p.m.

Clause 181 [General financial provisions]:

Lord Trafford moved Amendment No. 159ZE: Leave out Clause 181.

The noble Lord said: My Lords, with this amendment we move miles from the issue of fluoridation. Clause 181 is a technical clause which is often seen in legislation. As can be seen on the face of the Bill, it is headed "Financial provisions".

The real purpose of this amendment is to seek an assurance. Noble Lords may remember that at Committee stage I spoke on a proposal (which I think at the time was moved by the noble Lord, Lord Ross of Newport) for a water development fund. At that time the noble Lord spoke about the case for a perpetual annual subsidy to deal with the need to improve drinking water quality and to reduce the pollution of rivers and beaches. I understood that the preferable alternative was a restructuring of capital on the lines outlined by my noble friend Lord Caithness, who earlier had explained how the water authorities' national loans fund debt would be written off in the run up to privatisation and how new capital structures would be put in place which were appropriate for water and sewerage services plcs. The government amendments on land which we debated last week are also relevant in that connection.

My purpose in tabling this amendment reflects my worry whether this Bill in fact gives the Secretary of State sufficient flexibility in setting up appropriate capital structures for each of the 10 water authorities. It occurs to me that writing off the national loans fund debt might not be sufficient in every case, given the different combination of obligations, required investment programmes and debt for each authority.

It seems to me that before the Report stage of the Bill is completed the House should satisfy itself that everything is in place for a successful flotation of all the authorities. The purpose of this amendment is to seek such an assurance. I beg to move.

The Earl of Caithness

My Lords, my noble friend Lord Trafford asks for an assurance. Obviously I should like to read with care what he has said before I give that assurance, particularly at this hour of the night. However, let me confirm to him that there is already a great deal of flexibility in Chapter V of Part II of the Bill.

My noble friend asks me to look again at this point to make certain that what I said in Committee is permitted by the Bill. Let me say to him that I give that assurance to him unreservedly. We are always keen to make sure that a Bill works. If we can perhaps meet between now and another stage to analyse his concerns, I hope that that will satisfy him. If not, we can come back at a later stage.

Lord Trafford

My Lords, I am most obliged to my noble friend for that answer. I think that it goes a very long way to produce the assurance which was the purpose of this amendment. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 24 [Procedure relating to Byelaws]:

Baroness Blatch moved Amendment No. 159A: Page 338, line 22, after ("authorities") insert (", water undertakers or sewerage undertakers").

The noble Baroness said: My Lords, I accept that my amendment in Committee suggesting that by-laws regulating activities in controlled waters should extend to reservoirs was rejected. However, I am still slightly uneasy about the NRA having the power to prohibit and in particular regulate polluting activities in a water undertaker's reservoir without even giving notice to the water and sewerage undertakers. That is all that my amendment seeks to do. I beg to move.

Lord Hesketh

My Lords, when we debated Amendment No. 376ZA at Committee stage we touched on the rights of water and sewerage undertakers to be notified of proposed by-laws applying to their reservoirs and so on. I am happy to say that we support this amendment in spirit.

Unfortunately, we believe that the drafting is defective in that in some circumstances water undertakers would have to notify themselves. I undertake that we shall come forward with a suitable formulation at Third Reading.

Baroness Blatch

My Lords, I am most grateful for the Minister's reply. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 187 [General interpretation]:

Lord Hesketh moved Amendment No. 160: Page 182, line 17, leave out ("in relation to sewage, includes treatment") and insert—

1. ("(a) in relation to land or any interest or right in or over land, includes the creation of such an interest or right and a disposal effected by means of the surrender or other termination of any such interest or right; and
2. (b) in relation to sewage, includes treatment; and cognate expressions shall be construed accordingly.").

On Question, amendment agreed to.

Lord Hesketh moved Amendment No. 161: Page 183, line 42, at end insert— (" "protected land", in relation to a company holding an appointment under Chapter I of Part II of this Act, means any land which, or any interest or right in or over which—

1. (a) was transferred to that company in accordance with a scheme under Schedule 2 to this Act or, where that company is a statutory water company, is or was held by that company at any time during the financial year current on the transfer date;
2. (b) is or has at any time on or after the transfer date been held by that company for purposes connected with the carrying out of its functions as a water undertaker or sewerage undertaker (including any functions which for the purposes for which section 186 above has effect are taken to be such functions by virtue of subsection (6) or (7) of that section); or
3. (c) has been transferred to that company in accordance with a scheme under Schedule 5 to this Act from another company in relation to which that land was protected land when the other company held an appointment under that Chapter.").

[Amendments Nos. 161A to 161D, as amendments to Amendment No. 161, not moved.]

On Question, Amendment No. 161 agreed to.

[Amendments Nos. 161E and 161F not moved.]

Lord Addington moved Amendment No. 161G: Page 186, line 19, at end insert— ("(7A) For the purposes of this Act references to the payment of compensation shall be assumed to include the payment of interest on the amount of compensation due from the date of the injury or damage from which the claim arises at such a rate as may be from time to time prescribed by the Secretary of State.").

The noble Lord said: My Lords, the aim of this amendment is simple and straightforward. Effectively if there is to be compensation resulting from injury or damage payable by the water authorities, interest should be paid on the sum in question between the time at which the damage is caused and the time by which, for instance, the payment is settled. That would be relevant at a time of high inflation or high interest rates as the potential loss might be considerable. I beg to move.

The Earl of Caithness

My Lords, Part IV of the Bill includes various provisions under which the National Rivers Authority, water undertakers and sewerage undertakers may compulsorily acquire ownership of or rights over land. The owners of such land are compensated under the terms of the compensation code. In the case of compulsory purchases under Clause 150, and also the acquisition of interests in or rights over land under Clause 153, the provisions of the Compulsory Purchase Act 1965 are applied by Schedules 18 and 20 respectively. Among other things these provisions give the landowner the right both to an advance of compensation prior to the final amount being settled and to interest, on any compensation which has not been advanced, from the date on which the claim arises and the date on which the final payment of compensation is made.

The position is different where compensation is payable under paragraph 6 of Schedule 19 following the vesting of rights in the undertaker under Clause 151. These provisions re-enact provisions in the Public Health Act 1936 and follow that Act in not providing for interest.

Noble Lords will be aware that the Government issued a consultation paper on 7th March which reviewed various aspects of compensation and which proposed that there should be an extension of the entitlement to interest on compensation. In particular I refer your Lordships to paragraph 18. We are now considering the responses to that consultation paper. If, as I expect, it is decided to extend the payment of interest on compensation as proposed in the consultation paper, it would be our intention to bring forward legislation to meet this and other aspects of compensation at an early opportunity. However, I know that the noble Lord, Lord Addington, could not expect me to go any further tonight. But I hope that he will be reassured by what I have been able to say to him.

Lord Addington

My Lords, the Minister's response was helpful. In the light of it, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 162 had been withdrawn from the Marshalled List.]

Clause 188 [Amendments, transitional provisions, savings and repeals]:

The Earl of Caithness moved Amendment No. 163: Page 186, line 37, at end insert ("; and, without prejudice to any power conferred by any other provision of this Act, the Secretary of State and the Minister shall each have power by regulations to make such additional consequential amendments—

1. (a) of public general enactments not mentioned in that Schedule but passed before, or in the same Session as, this Act; and
2. (b) of subordinate legislation made before the passing of this Act,

as he considers necessary or expedient by reason of the coming into force of any provision of this Act.").

The noble Earl said: My Lords, the purpose of this amendment is to provide a little flexibility to allow statutes to be got absolutely right where in the Bill we may have missed any necessary consequential amendments. I beg to move.

On Question, amendment agreed to.

Schedule 25 [Minor and Consequential Amendments]:

The Earl of Arran moved Amendment No. 164: Page 338, line 41, leave out ("(2)").

On Question, amendment agreed to.

[Amendment No. 165 had been withdrawn from the Marshalled List.]

The Earl of Arran moved Amendment No. 165ZA: Page 338, leave out lines 43 to 49 and insert—

1. ("(a) in subsection (1)—
1. (i) for the words "any spring, well, borehole or adit, the water from" there shall be substituted the words "the water in any waterworks"; and
2. (ii) for the words "any such spring, well, borehole or adit" there shall be substituted the words "the water in any waterworks";
2. (b) in subsection (2), for the words from the beginning to "adit", in the second place where it occurs, there shall be substituted the words "Any person authorised for the purpose by any local authority or water undertaker within whose area any such waterworks are situated, or by any water undertaker which takes water from any such waterworks, shall, on producing some duly authenticated document showing his authority, have a right at all reasonable hours to enter any premises for the purpose of ascertaining whether there is or has been any contravention of this section in relation to those waterworks";
3. (c) after subsection (2) there shall be inserted the following subsection—
• "(2A) Nothing in subsection (2) of this section shall entitle any person authorised for the purposes of that subsection by a local authority to have access to any waterworks belonging to a water undertaker."; and
4. (d) after subsection (3) there shall be inserted the following subsection—
1. "(4) In this section "waterworks" includes—
2. (a) any spring, well, adit, borehole, service reservoir or tank; and
3. (b) any main or other pipe or conduit of a water undertaker.".").

On Question, amendment agreed to.

Baroness Blatch moved Amendment No. 165A: Page 351, line 37, at end insert— ("In section 29 of the Town and Country Planning Act 1971 (determination of applications) after subsection (4) there shall be inserted the following subsection— (4A)(a) Before granting planning permission for any development which is likely to give rise to a need for the provision of significant water or sewerage service a local planning authority shall consult the relevant water undertaker and the relevant sewerage undertaker. (b) A local planning authority shall liaise with the relevant water undertaker and the relevant sewerage undertaker and agree the categories of planning application falling within the duty to consult contained in the sub-paragraph (1) above. (c) Where under this subsection a local planning authority are required to consult a relevant water undertaker or a relevant sewerage undertaker before granting planning permission—

1. (i) they shall, unless an applicant has served a copy of an application for planning permission on the relevant water undertaker and relevant sewerage undertaker, give notice of the application to the relevant water undertaker and relevant sewerage undertaker; and
2. (ii) they shall not determine the application until at least 14 days after the date on which notice is given under paragraph (i), or if earlier, 14 days after the date of service of a copy of the application on the relevant water undertaker and relevant sewerage undertaker by the applicant.

(d) The local planning authority shall, in determining the application, take into account any representation relating to the provision of water or sewerage services received from the relevant water undertaker and relevant sewerage undertaker.".").

The noble Baroness said: My Lords, the purpose of this amendment is to place local planning authorities under a statutory duty to consult water and sewerage undertakers before granting planning permission for any development which is likely to give rise to a need for the provision of significant water or sewerage services. I appreciate that the issue has been debated both in Committee and at Report stage. But that discussion has concentrated entirely on the view of the NRA. I am not convinced that planning consultation arising from the split of water authorities into the NRA and water and sewerage undertakers is fully resolved.

I raised the same issue in Committee. My noble friend Lord Caithness replied: Local planning authorities should decide how best to publicise and seek views on individual planning applications and should consult water and sewerage undertakers where that seems necessary".—[Official Report, 23/5/89; col. 375.]

However on 6th June the noble Lord, Lord McIntosh of Haringey, moved Amendment No. 36 which provided that: Functions relating to consultation with regard to planning and environmental assessment matters which prior to the transfer date were carried out by a water undertaker shall, from that date, be transferred to the Authority and no water or sewerage undertaker shall undertake such functions from that date".

In responding to that amendment my noble friend Lord Arran stated that the Government intended to amend the general development order to provide for the NRA alone to be consulted in all cases where water authorities are consulted at the moment. The point is that the general development order, as presently drafted, provides only for consultation with water authorities in relation to functions which will transfer to the NRA. My amendment seeks additional categories of consultation in relation to development requiring significant water and sewerage services.

In summing up his Amendment No. 36, the noble Lord, Lord McIntosh, stated that he thought that what my noble friend Lord Arran had previously said left open the possibility that the plcs would also be consulted. He has now made it crystal clear that the functions, responsibilities and rights will be transferred only to the NRA and will not be retained in any way by the privatised plcs".—[Official Report, 6/6/89; cols. 827 and 829.]

My noble friend Lord Arran did not rebut what the noble Lord, Lord McIntosh, said on that occasion.

I am having some difficulty in reconciling what my noble friend Lord Arran and the noble Lord, Lord McIntosh, said on 6th June with what was said by my noble friend Lord Caithness in response to my own amendment on 23rd May. My noble friend said: Local planning authorities should … consult water and sewerage undertakers where that seems necessary".—[Official Report, 23/5/89; col. 375]

It seems only logical that water and sewerage undertakers should be consulted with respect to the availability of water and sewerage facilities. I understand the Opposition's concern that privatised water and sewerage undertakers may abuse the consultation system. However, the Government seem to have accepted that consultation is needed. If there are these concerns about possible abuse of the system surely the answer is to build safeguards into the mechanism so that the consultation process is not abused and consultation not denied. In responding to my earlier amendment in Committee the Government accepted that consultation is needed.

I have seen a copy of a letter from the Department of the Environment to water authorities dated 16th November 1988 containing policy letters on levels of service. One of the levels of service indicated is "replies to development control consultation". If there is to be no consultation why is the response time to it contained in this levels of service letter, which I imagine is to be used as a level of performance? The inclusion of that category in that letter suggests to me that the lack of consultee status for water and sewerage undertakers is merely an oversight.

In view of the apparent discrepancy between the response to my earlier amendment and the response to an amendment of the noble Lord, Lord McIntosh, I should be grateful if the Minister can clarify the position. I beg to move.

Lord McIntosh of Haringey

My Lords, the noble Baroness has referred at some length to points I made in earlier debates. I want to make it clear that I did not accuse water undertakings of abuses. Our concern about the planning procedures was twofold. It is right that where planning applications are specifically affected by water or sewerage functions there should be some opportunity for the water and sewerage undertakers to be consulted, as any other interested party might be. Our concern was with the existing statutory rights of water authorities. That should not be carried forward to private companies. The reason for that was not only the theoretical reason of their being private but that they are also likely to be developers. If they start to have statutory consultee rights—to use the inelegant word used by the noble Baroness—there could be a conflict of interest which may be dangerous.

The Earl of Caithness

My Lords, I can only apologise to my noble friend Lady Blatch if I have sown confusion in her mind. It was not intentional and I assure her that there was no discrepancy between what my noble friend Lord Arran said and what I said on previous occasions.

For the sake of clarification, I repeat that in responding to Amendment No. 36, tabled by the noble Lord, Lord McIntosh, my noble friend Lord Arran explained that in order to maintain the present statutory position (the point just picked up by the noble Lord, Lord McIntosh) we intend to amend Article 18 of the General Development Order to provide for the NRA to be consulted in all cases where water authorities are consulted at the moment.

In determining planning applications, local planning authorities are also required to have regard to the development plan for the area and to all other material considerations. In practice this often involves consultation with water authorities on an informal basis in particular where planning applications have a significant implication for water and sewerage services. I see no reason to think that these informal arrangements will not continue. The planning function is the responsibility of local planning authorities and the onus for deciding when a water and sewerage undertaker should be consulted must rest with them.

I believe that this is the most appropriate way of ensuring that water and sewerage undertakers are involved when necessary in the planning process. I am conscious of the considerable concern that has been expressed during debates on the Bill about any prospect of a formal role for water and sewerage undertakers in the planning process.

I hope that my noble friend is satisfied and no longer in doubt about the exact position which has been expressed.

Baroness Blatch

My Lords, I am grateful for that clarification. Perhaps the confusion is all mine—I am not sure. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

11.45 p.m.

Schedule 26 [Transitional Provisions and Savings]:

The Earl of Arran moved Amendment No. 165B: Page 370, line 24, leave out sub-paragraph (6).

The noble Earl said: My Lords, on behalf of my noble friend I should like also to speak to Amendment No. 165G. It was always the intention that it should be included in the grouping but it was omitted from the list.

These are technical amendments which make clear that criminal liabilities for offences committed before transfer date will remain with the water authorities. I beg to move.

On Question, amendment agreed to.

[Amendment No. 165BA not moved.]

Lord McIntosh of Haringey moved Amendment No. 165BB: Page 371, line 8, at end insert— ("6A where arrangements are made, varied or terminated under the provisions of this Schedule, the Local Government Agency Arrangements (Staff Transfer and Protection) Order 1976 shall have effect.")

The noble Lord said: My Lords, we return in a different form to an issue which we raised in Amendment No. 446B in Committee. The issue is contained in Schedule 26 which is concerned with transitional provisions with particular reference to sewerage undertakers.

We are concerned with the contrast between the protection given to the staff of the regional water authorities who are transferring to the new undertakings and the staff of the local authorities who have been engaged on an agency basis in sewerage work and whose jobs will end if the agency is not continued. Assurances have been given to the regional water authority staff that they will receive terms and conditions no less favourable than those they currently enjoy. In contrast, staff employed by local authorities who are offered transfer to the regional water authorities can expect only three months' protection of both salary and conditions. At the end of that period they will be offered new contracts. If they are as good as or better than the existing contracts that is all well and good and there need be no problem. However, if they are worse and unacceptable the staff are in effect receiving three months' notice which means a total of six months' protection.

It seems a matter of natural justice that the same protection for loss of employment and for loss of terms and conditions as favourable as those which have already been enjoyed should apply equally to local authority staff employed on an agency basis as to regional water authority staff being transferred to the new undertakings. This amendment is not intended to make them equal—we are not as ambitious as that. It is intended to provide some further protection in terms of the Local Government Agency Arrangements (Staff Transfers and Protection) Order 1976. I beg to move.

Lord Hesketh

My Lords, this amendment would impose the provisions of the Local Government Agency Arrangements (Staff Transfers and Protection) Order 1976 on any existing sewerage agency arrangements which were varied or terminated under paragraph 15 of Schedule 26. This order specifies, in some considerable detail, the terms on which staff would be transferred, if they are transferred on variation or termination of the arrangement.

We welcome a continuing role for local authorities as sewerage agents, and if they are providing a fully efficient and effective service I cannot see that they have any cause for concern, as I said earlier today. Even if undertakers do wish to terminate an arrangement they must give reasonable notice which cannot expire before 1st April 1992. In this way, we believe we have provided the conditions for a smooth transition to the new regime, without introducing any unnecessary rigidity. It is against this background that I would ask your Lordships to view this amendment.

Existing sewerage agency arrangements have been made by individual sewerage undertakers and local authorities within certain guidelines laid down by the Secretary of State. We understand that the vast majority if not all of current arrangements do provide that the 1976 order shall apply if the arrangement is varied or ended. For such arrangements, the provisions of sub-paragraph 2 of paragraph 15 ensure that the order, and all other aspects of the arrangements, shall continue to apply after the coming into effect of the Water Bill. So for most if not all arrangements this amendment is simply irrelevant.

It may be that a few arrangements do not incorporate the provisions of the 1976 order. I would remind your Lordships that such an omission would be the result of a deliberate decision by the two parties involved; in other words, the local authority and the water undertaker. I am sure that your Lordships will understand that in such circumstances we would not wish to impose the provisions of the 1976 order on them. That is why I must ask your Lordships to resist this amendment.

Lord McIntosh of Haringey

My Lords, I am glad to learn that in most cases the provisions of the 1976 order will be implemented and that, therefore, the object of this amendment will be achieved. However, I sometimes wonder whether the Government have really learned the lessons of the many changes which have taken place as a result of legislation, notably the abolition of one tier of local authority.

Experience has been that when an authority is to be abolished or, as in this case, an agency agreement is to be ended, even if it is to be two and a half years after the implementation of the Act, unless there is a firm assurance from the outset that the terms and conditions of service will be as good as they were in the past, your Lordships will find that what happens is this. The best staff leave and one ends up with an agency agreement which cannot be terminated before March 1992 and yet is difficult to fulfil because the best staff, seeing that they will not receive such good terms and conditions at the end of the day, naturally protect themselves and vote with their feet.

I believe that the Government should reflect on that, even if it is only in the minority of cases that the 1976 order is not honoured. However, on the basis that it is to be a minority of cases and that we should think again about what to do for that minority, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Caithness moved Amendment No. 165C: Page 372, line 3, leave out from ("is") to end of line 4 and insert ("due to a water authority immediately before that date or would have become due to such an authority on or after that date in respect of a period ending no later than with the end of the financial year current on that date; and such a charge shall, subject to the provisions of the scheme, be payable on or after that date to the person to whom the right to receive it is transferred in accordance with a scheme under Schedule 2 to this Act.").

The noble Earl said: My Lords, this is a technical amendment which is important to the funding of the National Rivers Authority. I beg to move.

On Question, amendment agreed to.

The Earl of Caithness moved Amendments Nos. 165Dto 165G: Page 376, line 20, after ("(2)") insert ("Subject to sub-paragraphs (2A) to (2C) below,"). Page 376, line 35, at end insert— ("(2A) If the Secretary of State determines that this sub-paragraph is to apply in relation to any application which is deemed by virtue of sub-paragraph (2)(a) above to have been made by a successor company to the Authority—

1. (a) that application shall be treated as having been transmitted to the Secretary of State in accordance with a direction under paragraph 4 of Schedule 12 to this Act; but
2. (b) the authority shall not be required, by virtue of sub-paragraph (2) of that paragraph, to inform that company that the application is to be so treated.

(2B) Where an application is deemed to have been so made by a successor company, then, whether or not it is treated under sub-paragraph (2A) above as having been transmitted to the Secretary of State, the following provisions shall apply in relation to the application and, except in so far as the Secretary of State otherwise directs, shall so apply instead of paragraph 1(3) to (6) or 4(3) of Schedule 12 to this Act, that is to say—

1. (a) the application shall not be considered by the Secretary of State or the Authority unless the company has complied with such directions (if any) as may be given by the Secretary of State with respect to the publicity to be given to the application;
2. (b) the Secretary of State or, as the case may be, the Authority shall be under a duty to consider only such representations and objections with respect to the application as have been made in writing to the Secretary of State or the Authority before the end of such period as he may determine and as are not withdrawn; and
3. (c) the Secretary of State shall have power to direct the Authority, pending compliance with any direction under paragraph (a) above or pending his or, as the case may be, its consideration of the application, representations and objections, to give such a temporary consent under Chapter I of Part III of this Act, or to make such temporary modifications of the conditions of any existing consent, as may be specified in the direction;

and it shall be the duty of the Authority to comply with any direction given to it by virtue of this sub-paragraph. (2C) The power of the Secretary of State to make a determination or give a direction under sub-paragraph (2A) or (2B) above shall be exercisable generally in relation to applications of any such description as he may consider appropriate (as well as in relation to a particular application) and, in the case of a direction to give a temporary consent or to make a temporary modification, shall include—

1. (a) power to require a temporary consent to be given either unconditionally or subject to such conditions falling within paragraph 2(3) of Schedule 12 to this Act as may be specified in the direction;
2. (b) power, where the direction relates to a description of applications, to require the temporary consent given in pursuance of the direction to be a general consent relating to cases of such a description as may be so specified; and
3. (c) power, where the direction is in respect of an application falling to be considered by the Authority, to require the consent or modification to be given or made so as to continue to have effect until the Authority's determination on the application becomes final—
1. (i) on the expiration, without the bringing of an appeal against the determination, of the prescribed period for the bringing of such an appeal; or
2. (ii) on the withdrawal or determination of any such appeal.".

Page 376, line 37, leave out ("such regulations") and insert ("regulations made under section 55 of that Act"). Page 390, line 31, at end insert—

• ("Saving for criminal liability of water authorities

Nothing in this Act or in any scheme under Schedule 2 to this Act shall have the effect, in relation to any criminal liability of a water authority in respect of an offence committed before the transfer date, of transferring that liability to the Authority or to the water authority's successor company.").

The noble Earl said: My Lords, Paragraphs 21 to 28 of Schedule 26 provide the transitional provisions in respect of control of pollution from the current arrangements based on water authority functions and Control of Pollution Act powers to the new arrangements involving the NRA and the new powers in Part II, Chapter I of this Bill. These amendments would provide more flexible arrangements for transfer, in particular of consent applications submitted by the water authorities to the Secretary of State from the Secretary of State to the NRA at the appropriate stage. I beg to move.

On Question, amendments agreed to.

Schedule 27 [Repeals]:

The Earl of Arran moved Amendments Nos. 166 to 171: Page 393, line 39, at end insert—

• ("3 & 4 Eliz. 2, C.13. The Rural Water Supplies and Sewerage Act 1955. Section 1(4)(a).").

Page 397, line 26, column 3, at end insert ("In Schedule 13, paragraph 3."). Page 398, line 45, column 3, leave out ("Section 34(1) and (3)."). Page 398, line 51, column 3, leave out ("Part I of Schedule 6."). Page 408, line 43, column 3, leave out ("(2)"). Page 408, line 46, column 3, leave out ("Part II of).

On Question, amendments agreed to.

Clause 189 [Local statutory provisions: consequential amendments etc.]:

Baroness David moved Amendment No. 171 A. Page 187, line 11, after ("provision") insert ("except in so far as this affects the Manchester Corporation Acts of 1879 and 1919 relating to Thirlmere and Haweswater").

The noble Baroness said: My Lords, I rise to deal with the last amendment which will be discussed in this Report stage. Clause 189 enables the Secretary of State to repeal or amend any local statutory provisions. That has caused a great deal of anxiety to the Friends of the Lake District. The noble Lord, Lord Sandford, is president of the Friends of the Lake District, and it is sad that he is ill, because he would have taken a great deal of interest in the Bill.

The Friends of the Lake District are concerned that the Manchester Corporation Acts 1879 and 1919 relating to Thirlmere and Haweswater could be endangered. Although over the past 55 years the friends have been critical of the activities of the water authorities, there have been only rare occasions when they or any of the other conservation organisations have had recourse to the two Acts.

The water authorities and Manchester Corporation have been law-abiding. For that reason the friends wish to see the provisions of the two Acts safeguarded in the future. It would be their insurance policy.

In January 1984 Mrs. Susan Johnson took the North-West Water Authority to court under the 1879 Act because the authority had planted the wrong kind of trees—spruce, cypress, larches and laurels—around Thirlmere, when the Act required that the new margin of Thirlmere should be planted with indigenous forest trees such as ash, birches and oaks. The Act requires that all reasonable regard shall be had to the preservation as well for the public as for the private owners of the beauty of the scenery. Mrs. Johnson won her case.

As a result, the authority is to fell 112 larch and cypress trees, so the Act has its uses. Earlier this month, representations were made to the National Park Authorities about restricting access to certain areas about Thirlmere under the Manchester Act.

In April a letter was written by the friends to the Secretary of State expressing the anxiety felt about the clause. In reply they were told that the Secretary of State had no intention of altering the provisions of the 1879 and 1919 Acts. He said that the clause existed to enable him to refer to the new water and sewerage companies under local legislation.

Those who mind about such issues would like to see provision in the Bill. The present Secretary of State may mean what he says and stick to it; but there is no confidence that future secretaries of state will take the same line. We want reassurance. I believe that it is worth preserving the provisions in the two Acts and preventing the Secretary of State having power to repeal or amend them.

Parliament included those provisions specifically to protect parts of the Lake District from coniferisation, and to ensure that the beauty of the Lake District was preserved. Surely such provision should not be repealed without being fully considered by Parliament and not repealed by way of order only from the Secretary of State. Planning controls exist today; but what about in 20, 30, 40 or 50 years' time? If planning controls are relaxed—and today we have heard examples of such controls being inefficient—the old Acts will still exist. They would be a last line of defence for the Lake District's landscape. I hope that the Government will look kindly on this simple amendment. I beg to move.

Lord Graham of Edmonton

My Lords, the Minister will remember that at about 4.30 in the morning when these matters were debated before the short Recess I had the opportunity of moving an amendment of similar local content and interest. My interest was the New River in Hertfordshire which is well known to the Minister. It was a matter which he said was of such local interest that it would not be proper to deal with it in a Bill of this nature. I may be presaging the remarks of the Minister who will reply on this subject. He nods his head, in which case it may be end of story.

As my noble friend Lady David has said, when local anxieties are brought before your Lordships' House we look at what they are. My interests are in Enfield and the New River and those of my noble friend Lady David are in the Lake District and in the two areas that she spoke about. I believe that it may be possible for the Minister to express hopes and opinions if he is unable to recommend statute action. Undoubtedly there will be a period of great uncertainty in the transitional period. The public authorities—namely, the water authorities—have been more accessible and subject to the will of local people than the future plcs may be.

I very much hope that in this instance the Minister can go a little further than he did when I raised the matter of the New River. I am not cavilling at what he said because it was a reasonable exercise in putting the matter on the record. Local people in Enfield were happy. I hope that he can understand that where there appear to be enshrined rights that may be under attack under the new aegis that is coming forward, it is right and proper that those rights are raised. Equally, it is right and proper that the Minister should try to assuage those worries.

Lord Hesketh

My Lords, it may be that Mrs. Johnson took rather an extreme view concerning the larch, which I have always thought to be a rather nice tree.

The purpose of this amendment is to secure that the power in Clause 189 for the Secretary of State by order to amend or repeal any local enactment shall not be available in respect of the Manchester Corporation Acts which concern Thirlmere and Haweswater. There are at least three reasons why we believe that this amendment is unnecessary.

The first is the sheer remoteness of the issue. It is virtually inconceivable that as a consequence of this Bill any possible need could arise to amend legislation protecting Thirlmere and Haweswater. I am happy to confirm that the Government have absolutely no such intention. Secondly, the Bill already provides in subsection (4) that the Secretary of State may not use this power in relation to so much of any local Act as concerns public access and amenity, and that is of course a significant part of the scope of the Manchester Acts.

Finally, there is one thing of which the House can be absolutely confident in this Bill. It is of the protection afforded to water authority land such as Thirlmere and Haweswater. They are protected by the Clause 8 conservation and amenity duties. They are protected by the national parks notification procedure in Clause 9. They will benefit from the code of practice in Clause 10. Finally their long-term protection can be secured through the controls in the new clause inserted by Amendment No. 140. So the noble Baroness, Lady David, may be reassured that not only have we no intention of amending or repealing the Manchester Acts, but what we are doing in relevant parts of the Bill will serve to reinforce existing protection of Thirlmere and Haweswater. If we were to start writing into legislation all the things that we had no intention of doing, the Bill would be a great deal longer than it already is. I hope that with the confident commitments I have given to the noble Baroness, she will feel able to resist pressing the amendment.

Baroness David

My Lords, I cannot say that I am not a little disappointed but I am not altogether surprised. I am grateful for the Minister's reassurance. I am sure that those who asked me to bring this matter forward will be interested to read what he said about the different parts of the Bill which should give them help and protection. I shall send copies of Hansard to them and hear what they have to say. However, I rather doubt whether they will wish to carry the matter further. I am grateful for those reassurances. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 192 [Short title, commencement and extent]:

The Earl of Caithness moved Amendment Nos. 171B to 174: Page 189, line 13, leave out ("and sections 31") and insert (", section 31 and sections 33"). Page 189, line 20, leave out ("and Schedules 22 and 23"). Page 190, line 24, leave out ("and Schedules 22 and 23"). Page 190, line 25, after ("amend") insert ("the Public Health (Scotland) Act 1897,").

The noble Earl said: My Lords, at the Committee stage I said that we had a good deal to do at Report stage. We now come to the close of the fourth day of Report, and I think your Lordships will agree with me that we have done a good deal. We have accepted amendments from all sides of the House, we have given further assurances and we have taken away a good deal for consideration before Third Reading. I appreciate that there is still a lot to do.

I should like to thank all noble Lords. I should like especially to thank the Clerks, the Officers and the Hansard Writers, who with their usual good humour have enabled us to get through these four days. I am extremely grateful to all of them.

The amendments are all consequential. I beg to move.

On Question, amendments agreed to.